DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-17 are pending in the application.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-15 in the reply filed on August 20, 2025 is acknowledged.
Claims 16-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on August 20, 2025.
Claims 1-17 are pending in the application. Claims 16-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention. Claims 1-15 will presently be examined to the extent they read on the elected subject matter of record.
Priority
This application claims benefit to U.S. Provisional Application No. 63/289,950 filed December 15, 2021.
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 112 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed applications, U.S. Provisional Application No. 63/289,950 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, fails to provide by first paragraph for one or more claims of this application. The claims are not entitled to priority of the parent applications because they do not have support for “a providing a fluid composition including an entomopathogenic fungus”; “a metering pump”, as claimed in independent claim 1; “a timing device” to control the time at which the composition is delivered to the location, as claimed in claim 2; Metarhizium anisopliae/brunneum, as claimed in claim 6; and “Beauveria bassiana fungus GHA, NFH20, and L90”, as claimed in claim 7. The effective filing date of the claims of the instant application is December 14, 2022.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5 and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term "sufficient" in claim 5 is a relative term which renders the claim indefinite. The term "sufficient" is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The term “sufficient” in claim 5 renders the quantity to control the darkling beetles indefinite. One of ordinary skill in the art could not ascertain and interpret the metes and bounds of the patent protection desired as to what limits “sufficient” sets in determining the quantity to control the darkling beetles, for example, “sufficient” could be in range of 106 to 108 spores per ml, in one case and 1010 to 1015, in another. Claim 12 is dependent from claim 5 and is also therefore rejected.
Claim 15 recites the limitation "the attractant" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 15 is dependent from claim 1. Claim 1 is directed to a process for controlling darkling beetles in a location comprising a) providing a fluid composition including an entomopathogenic fungus, b) providing a composition delivery system for the composition, and c) delivering the fluid composition to the location through the composition delivery system. The use of the preposition “the” before “attractant” indicates that the attractant was referenced in the claim from which claim 15 depends. Claim 1 does not recite “an attractant”. As such, there is insufficient antecedent basis for “the attractant” in claim 15.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-7, 10, and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Mitchell (US 2015/0164062) in view of balEnce™ ES-Beetle EPA Registration (2011, U.S. Environmental Protection Agency).
Applicant’s Invention
Applicant claims a process for controlling darkling beetles in a location, the process comprising: a) providing a fluid composition including an entomopathogenic fungus, b) providing a composition delivery system for the composition, the composition delivery system including a metering pump, a plurality of emitters for delivering the composition to the location, tubing connecting the metering pump to the emitters; and c) delivering the fluid composition to the location through the composition delivery system.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
Regarding claim 1, Mitchell teaches the chemical delivery system 10 includes an outer shell 20, a wall line 30, and a mounting bracket 50. The wall line 30 may be a drip line or tube that is constructed of either rigid or flexible or flat material and may be enlarged by water pressure. The wall line will also be referred to as a drip line and will use the same reference numeral. The drip line 30 may be a hard pipe with drilled hose ranging from 1/16'' to 3'' in diameter, a soaker hose, a drip tape, with emitters, low or high pressure, PVC lines, CPVC lines, roll plastic lines or flex pipe. In other words, the drip line 30 may be a tubular water line that defines a plurality of spaced apart holes 32 through which water flowing through the water line is able to exit the tubular water line. The spaced apart holes 32 are configured to allow a slow and steady release of water flowing through the drip line 30 (page 2, paragraph 27).
Regarding claim 1, Mitchell teaches once the water arrives at the injector 42 (such as centrifugal pumps, positive displacement pumps, pressure differential pump, or Venturi injectors, rotary pumps, injectors, downstream or upstream, dosage pumps, combination method pumps, electric or computer controlled or low or high voltage), the water is injected with a predetermined amount of a chemical. Once the desired dilution is met the diluted chemical exits the injector 42 and continues through another safety shut off valve 44 (page 2, paragraph 30).
Regarding claim 2, Mitchell teaches the water supply pressure may range from 0.05 PSI to 120 PSI. Once the water supply is connected to the inflow side of control board 36, it will first go through the electric, manual, gate valve or ball valve shut off valve 37 which is a plastic or metal shut off valve. The shut off valve 37 is controlled by low or high voltage. It may be operated by a timer 38 whether by manual, digital, computer control, or manual timer low or high voltage (page 2, paragraph 29).
Regarding claims 3 and 4, Mitchell teaches a chemical delivery system for controlling virus-carrying beetles in a poultry house includes a water line in communication with a water source and chemical injector. The system includes an outer shell and bracket configured to mount the water line to a poultry house wall, the water line having a plurality of spaced apart holes such that the water line, when the water and chemical are actuated, delivers a continuous stream of chemical onto the wall and litter bed so as to neutralize the beetles from spreading virus to poultry (page 1, paragraph 11).
Regarding claim 5, Mitchell teaches a chemical delivery system, as aforesaid, that continuously applies a chemical adjacent the walls, drinker lines, and feeder lines as these are the most common environments for darkling beetles (page 1, paragraph 13).
Regarding claim 10, Mitchell teaches poultry houses are getting larger as construction techniques evolve to allow for longer and wider houses. Therefore, in some embodiments of the system, it may require more than one control board 36 or a modified control board with a multi stage timer 38 which can control the main inflow electric cut off valve and an added 3-way electric valve. In the case of the poultry house being so large that the wall line becomes too long to operate correctly (when the number of emitters gets too great such that water pressure and volume is decreased or lost) the wall line may be split into halves at the control board. This split will take place at the 3-way valve and will be timed so that only one half will run at any time (page 3, paragraph 36). It would have been obvious to one of ordinary skill in the art that this is the centerline.
Regarding claims 12 and 13, Mitchell teaches in use, the outer shell 20 and drip line 30 may be mounted to a wall 8 adjacent a perimeter of a poultry house litter bed 9. In one embodiment, the mounting bracket 50 may be configured for height adjustment relative to the poultry house foundation. It is understood that darkling beetles are naturally drawn to walls which they climb in order to lay eggs, such as in areas having insulation or just in wall areas where they are protected. When actuated, water and a beetle-control chemical drip or trickle from the wall line 30 at a predetermined or manually regulated rate or pressure. The chemical solution is guided by the outer shell 20 to run down the wall 8 to which the outer shell is mounted or directly onto the perimeter of the litter bed 9. In this manner, beetles on the move up the wall 8 or that are drawn to the moist environment below the apparatus will come into contact with the chemical and be neutralized and eliminated (page 3, paragraph 39).
Regarding claim 14, Mitchell teaches it is understood that additional additive may be added to the chemical that lure beetles even more effectively (page 3, paragraph 39).
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Mitchell does not specifically disclose the chemical is an entomopathogenic fungus, as claimed in claim 1 or selected from the group consisting of Beauveria bassiana, as claimed in claims 6 and 7. It is for this reason the balEnce™ ES-Beetle EPA Registration is added as a secondary reference.
Regarding claims 1, 6, and 7, balEnce™ ES-Beetle EPA Registration teaches the active ingredient in balEnce™ ES-Beetle EPA is Beauveria bassiana Strain HF23 at 1.1 x 1010 cfu/ml (page 1, Active ingredient). balEnce™ ES-Beetle is a biological insecticide for controlling Darkling Beetles in livestock and poultry production facilities (page 1).
balEnce™ ES-Beetle EPA Registration teaches each bottle contains 15 fl. Oz. of balEnce™ ES-Beetle, which treats 30,000 to 50,000 square feet of floor area. Apply balance at a rate of 1.5 to 2 fl. Oz. per 5,000 square feet of floor area. Although balEnce™ ES-Beetle can be applied with conventional equipment of the user’s choice, there must not be any filter or screen smaller than 50 microns, which would prevent the active ingredient from passing. Add the contents of the bottle to sufficient water in a mix tank to ensure even coverage over the treated area (page 2-3, Application Instructions). balEnce™ ES-Beetle EPA Registration teaches applying the spray to walls, floors, posts, where the greatest numbers of pests are located. Re-treat between flocks or in area where darkling beetles accumulate. There is no restriction on the total maximum amount of balEnce™ ES-Beetle that may be applied in a year (page 3, Application Instructions).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Mitchell and balEnce™ ES-Beetle EPA Registration and use an entomopathogenic fungus as the chemical to control darkling beetles. Mitchell teaches a chemical delivery system for controlling virus-carrying beetles in a poultry house that includes a water line in communication with a water source and chemical injector. The system includes an outer shell and bracket configured to mount the water line to a poultry house wall, the water line having a plurality of spaced apart holes such that the water line, when the water and chemical are actuated, delivers a continuous stream of chemical onto the wall and litter bed so as to neutralize the beetles from spreading virus to poultry. One of ordinary skill in the art would have been motivated to use any insecticide that is effective in treating darkling beetles. Since balEnce™ ES-Beetle is a biological insecticide for controlling Darkling Beetles in poultry production facilities, one of ordinary skill in the art would have been motivated to use it in the process taught by Mitchell with a reasonable expectation of success.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claims 8, 9, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Mitchell (US 2015/0164062) in view of balEnce™ ES-Beetle EPA Registration (2011, U.S. Environmental Protection Agency) as applied to claim 1-7, 10, and 12-14 above, and further in view of Bradley et al. (WO 95/10597).
Applicant’s Invention
Applicant claims a process for controlling darkling beetles in a location, the process comprising: a) providing a fluid composition including an entomopathogenic fungus, b) providing a composition delivery system for the composition, the composition delivery system including a metering pump, a plurality of emitters for delivering the composition to the location, tubing connecting the metering pump to the emitters; and c) delivering the fluid composition to the location through the composition delivery system. Applicant claims the concentration of the entomopathogenic fungus is from 106 to 108 spores per ml.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Mitchell and the balEnce™ ES-Beetle EPA Registration with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Mitchell and the balEnce™ ES-Beetle EPA Registration do not specifically disclose the concentration of the entomopathogenic fungus is from 106 to 108 spores per ml, as claimed in claims 8 and 11 or the composition is prepared as an emulsified concentrate. It is for this reason Bradley et al. is added as a secondary reference.
Bradley et al. teach entomopathogenic formulations that include conidia of an entomopathogenic fungus and a carrier. Carriers include emulsions (Abstract). Bradley et al. teach preparation of Beauveria bassiana Conidia. Bradley et al. teach the typical broth cultures contain in excess of 1x108 blastospores per ml (page 11, Example 1, paragraph 2). Bradley et al. teach conidia suspension was homogenized for two minutes (page 12, paragraph 3).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Mitchell, the balEnce™ ES-Beetle EPA Registration, and Bradley et al. and use a concentration of the Beauveria bassiana species of 106 to 108 spores per ml and in the form of an emulsion. Mitchell teaches a chemical delivery system for controlling virus-carrying beetles in a poultry house that includes a water line in communication with a water source and chemical injector. The system includes an outer shell and bracket configured to mount the water line to a poultry house wall, the water line having a plurality of spaced apart holes such that the water line, when the water and chemical are actuated, delivers a continuous stream of chemical onto the wall and litter bed so as to neutralize the beetles from spreading virus to poultry. The balEnce™ ES-Beetle EPA Registration teaches the active ingredient in balEnce™ ES-Beetle EPA is Beauveria bassiana Strain HF23 at 1.1 x 1010 cfu/ml (page 1, Active ingredient). Bradley et al. teach that typical broth cultures of Beauveria bassiana conidia contain in excess of 1x108 blastospores per ml. Based on the teachings of Bradley et al. one of ordinary skill in the art would have been motivated to use concentrations known in the prior art in the insecticide formulations taught by Mitchell, as modified by the balEnce™ ES-Beetle EPA Registration, to formulate an effective insecticide. In addition, one of ordinary skill in the art would have been motivated to use known formulations, such as emulsions, as a person with ordinary skill has good reason to pursue known options within his or technical grasp. Note: MPEP 2141 [R-6] KSR International CO. v. Teleflex lnc. 82 USPQ 2d 1385 (Supreme Court 2007). In addition, the adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Mitchell (US 2015/0164062) in view of balEnce™ ES-Beetle EPA Registration (2011, U.S. Environmental Protection Agency) as applied to claim 1-7, 10, and 12-14 above, and further in view of Nu-Lure® Insect Bait Specimen Label (2011, Miller, Nu-Lure).
Applicant’s Invention
Applicant claims a process for controlling darkling beetles in a location, the process comprising: a) providing a fluid composition including an entomopathogenic fungus, b) providing a composition delivery system for the composition, the composition delivery system including a metering pump, a plurality of emitters for delivering the composition to the location, tubing connecting the metering pump to the emitters; and c) delivering the fluid composition to the location through the composition delivery system. Applicant claims the attractant comprises a nutrient.
Determination of the scope of the content of the prior art
(MPEP 2141.01)
The teachings of Mitchell and the balEnce™ ES-Beetle EPA Registration with respect to the 35 U.S.C. 103 rejection is hereby incorporated and are therefore applied in the instant rejection as discussed above.
Ascertainment of the difference between the prior art and the claims
(MPEP 2141.02)
Mitchell and the balEnce™ ES-Beetle EPA Registration do not specifically disclose the attractant comprises a nutrient, as claimed in claim 15. It is for this reason Nu-Lure® Insect Bait Specimen Label is added as a secondary reference.
Nu-Lure Insect Bait teaches the active ingredient is corn gluten meal hydrolyzed (page 1, Active Ingredient). Nu-Lure is a proteinaceous liquid, derived from corn and designed for use as an attractant and bait in insecticide sprays. Nu-Lure teaches it is rich in free amino acids and polypeptides which encourages certain insects, especially females, to feed upon the spray residue (page 1, General Information, paragraph 1).
Finding a prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to combine the teachings of Mitchell, the balEnce™ ES-Beetle EPA Registration, and the Nu-Lure Insect Bait Specimen Label and use an attractant that comprises a nutrient. Mitchell teaches a chemical delivery system for controlling virus-carrying beetles in a poultry house that includes a water line in communication with a water source and chemical injector. The system includes an outer shell and bracket configured to mount the water line to a poultry house wall, the water line having a plurality of spaced apart holes such that the water line, when the water and chemical are actuated, delivers a continuous stream of chemical onto the wall and litter bed so as to neutralize the beetles from spreading virus to poultry. Since Mitchell teaches that additional additives may be added to the chemical that lure beetles even more effectively, it would have been obvious to one of ordinary skill in the art to add one that comprises a nutrient such as Nu-Lure Insect Bait. Nu-Lure Insect Bait is used as an attractant and bait for insecticide sprays and increases the efficiency of the sprays when applied. As such, one of ordinary skill in the art would have found it obvious to use a bait/attractant that encourages insects, especially the females, to feed upon the spray residue, with a reasonable expectation of success.
Therefore, the claimed invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andriae M Holt whose telephone number is (571)272-9328. The examiner can normally be reached Monday-Friday, 8:00 am-4:30 pm EST.
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/ANDRIAE M HOLT/Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614