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 .
This Office Action is in response to Applicant’s amendment filed April 8, 2026. Claims 1-2, 5-9 and 11-17 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 Claims 16-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.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, 5, 11, and 15 have been amended. Claims 1-2, 5-9, and 11-15 will presently be examined to the extent they read on the elected subject matter of record.
Status of the Claims
The rejection of claims 5 and 15 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or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention is withdrawn due to Applicant’s amendment to the claims.
The rejection of claims 1-2, 5-7, and 12-14 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) is maintained.
The rejection of claims 8, 9, and 11 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 claims 1-2, 5-7, and 12-14 above, and further in view of Bradley et al. (WO 95/10597) is maintained.
The rejection of claim 15 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 claims 1-2, 5-7, and 12-14 above, and further in view of Nu-Lure® Insect Bait Specimen Label (2011, Miller, Nu-Lure) is maintained.
Rejections not reiterated from the previous Office Action are hereby withdrawn. The following rejections are reiterated. They constitute the complete set of rejections presently being applied to the instant application.
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 1-2, 5-7, 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, the location comprising at least a portion of an animal enclosure comprising a chicken house having a centerline and a water delivery system, and at least a portion of the composition delivery system’s emitters being provided adjacent to the water 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 1, 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 1, 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 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 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 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, the location comprising at least a portion of an animal enclosure comprising a chicken house having a centerline and a water delivery system, and at least a portion of the composition delivery system’s emitters being provided adjacent to the water 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, the location comprising at least a portion of an animal enclosure comprising a chicken house having a centerline and a water delivery system, and at least a portion of the composition delivery system’s emitters being provided adjacent to the water 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.
Response to Arguments
Applicant's arguments filed April 8, 2026 have been fully considered but they are not persuasive. Applicant argues that Mitchell does not explain why the chickens will be near the upstanding wall, and perhaps assumes a uniform distribution of hens in the chicken house. Applicant argues that in the presently claimed invention, the delivery system is provided adjacent to the water delivery system which provides the hydration necessary for the birds, and which every bird in the henhouse must access during the day to survive, grow, and thrive. Applicant argues that there is nothing in either of the cited references or their combination which would teach, suggest, or disclose this arrangement to a person of ordinary skill in the chicken farming art. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., chickens will be near the upstanding wall, and perhaps assumes a uniform distribution of hens in the chicken house) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
The instant claims are directed to a process for controlling darkling beetles, 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, the location comprising at least a portion of an animal enclosure comprising a chicken house having a centerline and a water delivery system, and at least a portion of the composition delivery system’s emitters being provided adjacent to the water delivery. There are no claim limitations directed to chickens being near the upstanding wall, and assumes a uniform distribution of hens in the chicken house. However, Mitchell does teach that when a bird’s environment is good it promotes a good feed and water consumption and leads to a higher average in weight with good performance (page 1, paragraph 7). 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. Based on this teaching, it would have been obvious to one of ordinary skill in the art that the system taught by Mitchell is adjacent to drinker lines and feeder lines because these are the environments where darkling beetles are likely to live.
Applicant argues that neither Bradley nor Nu-Lure provide any disclosure to supplement what is missing in the combination of Mitchell and EPA to render the presently disclosed invention obvious, either alone or any combination of cited art. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Bradley et al. teach was added to provide the entomopathogenic formulations at the concentrations currently claimed. Bradley et al. teach entomopathogenic formulations that include conidia of an entomopathogenic fungus and a carrier. Carriers include emulsions. 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. 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.
Nu-Lure was added to provide a motivation to add a nutrient as an attractant to the system taught by Mitchell. 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.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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
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