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 .
DETAILED ACTION
Currently, Claims 1-17 are pending. Claims 1, 4, 8-15, and 17 are examined on the merits. Claims 2-3, 5-7 and 16 are withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Election/Restrictions
Applicant’s election of Group I (Claims 1-15 and 17), Claim 4, Claim 8, mechanized bucket with a scoop, ants in the reply filed on March 24, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 2-3, 5-7 and 16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group and species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on March 24, 2025.
Response to Amendment
Claim Rejections - 35 USC §103
Claims 1, 4, 8-11, 13-15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 2016/0324152 A1), Texas A&M (2018, https://entomology.tamu.edu/2018/11/01/incredible-edible-insect-event-in-san-antonio-a-tasteful-experience/ ), as evidenced by AntPest (https://ant-pests.extension.org/life-in-a-fire-ant-family-brood-eggs-larvae-and-pupae/), and CenterforInvasiveSpeciesResearch (https://cisr.ucr.edu/entomophagy-eating-insects) further in view of Dowell et al. (2001, APPLIED SPECTROSCOPY REVIEWS, 36(4), 399-416). This is not a new rejection.
Chen teaches soil was collected from a fire ant mound, then sieved through to remove debris and large particles [0049]. The limitation of “collecting surface ant mounds when eggs, larvae and pupae are present” is taught because the act of collecting ant mounts will inherently lead to eggs, larvae and pupae being collected. In an ant colony, the members of the different stages of ants are all present for the survival of the colony (see AnyPests). Colonies were separated from soil using water dripping method [0046]. The act of collecting colonies would lead to concentrating protein because the ant is made of proteins and the act of separating them from soil and debris would lead to protein concentration. Unwanted debris and ants would float on the surface because ants and debris floats with the same method. A food safe method to kill adult ants is taught because water is safe on food and can kill ants by drowning them. Ambient temperature would be at least 70 degree Fahrenheit.
However, Chen does not teach the optical color sorter, edible uses of fire ant pupae, larvae, and eggs.
Texas A&M teaches fire ants are edible (page 1, paragraph 6).
CenterForInvasiveSpeciesResearch teaches entomophagy, eating insects, eggs, larvae, pupae and adults has been done for thousands of years (page 2, paragraph 1).
Dowell et al. teaches a method of sorting based on optical methods to rapidly detect and physically remove insect larvae or pupae (Abstract).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to use an optical color sorter to remove materials because an optical method rapidly detects and physically removes insect larvae or pupae (see Dowell et al., Abstract). One would have been motivated to make a system based on optical selection of shapes, colors, and optical reflection, for the expected benefit of selectively and rapidly remove desired from undesired items. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to separate out the adult from the eggs, larvae and pupae because Texas A&M teaches fire ants are edible (page 1, paragraph 6). CenterForInvasiveSpeciesResearch teaches entomophagy, eating insects, eggs, larvae, pupae and adults has been done for thousands of years (page 2, paragraph 1). One would have been motivated to isolate edible insect stages for the expected benefit of producing different edible insect forms. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Claim(s) 1, 4, 8-15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 2016/0324152 A1), Texas A&M (2018, https://entomology.tamu.edu/2018/11/01/incredible-edible-insect-event-in-san-antonio-a-tasteful-experience/ ), as evidenced by AntPest (https://ant-pests.extension.org/life-in-a-fire-ant-family-brood-eggs-larvae-and-pupae/), and CenterforInvasiveSpeciesResearch (https://cisr.ucr.edu/entomophagy-eating-insects) further in view of Dowell et al. (2001, APPLIED SPECTROSCOPY REVIEWS, 36(4), 399-416) as applied to claims 1, 4, 8-11, 13-15, and 17 above, and further in view of Sands (WO 2018006137 A1).
The teachings of Chen, Texas A&M, AntPest, and CenterforInvasiveSpeciesResearch, and Dowell et al. are set forth above and applied as before.
The combination of Chen, Texas A&M, AntPest, and CenterforInvasiveSpeciesResearch, and Dowell et al. do not specifically teach the a mechanized bucket with a scoop.
Sands teaches dryer solid or semi-solid mixtures, even if relatively loose and flowable generally cannot be pumped. In such cases, the mixture will need to be moved either in discrete lots by receptacles, (for instance, manually operated shovels, buckets, etc or mechanised scoops, buckets and tip trucks etc.) or by continuous means such as a conveyor belt systems [0008].
It would have been obvious to one of ordinary skill in the art at the time the invention was made to use mechanized bucket with a scoop because Sands teaches mechanized scoops can move dryer solids [0008]. One would have been motivated to make mechanized bucket with a scoop for the expected benefit of harvesting of ants from ant hills as taught by Chen et al. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Response to Arguments
Applicant argues that Chen uses other ingredients to kill the ants.
In response to Applicant’s argument, Chen is used to teach water drip method collect and washing the ants from the debris from the ant mound. Chen uses water to separate ants from debris.
Applicant argues that the ants cannot be killed by drowning.
In response to Applicant’s argument, ants can drown because ants breathe air.
Applicant argues that fire ants are not edible.
In response to Applicant’s argument, Texas A&M teaches fire ants are edible (page 1, paragraph 6). As long as a reference teaches a fact, it can be used for a reference.
Applicant argues that Dowell does not teach the same use for optical sorting.
In response to Applicant’s argument, Dowell et al. teaches a method of sorting based on optical methods to rapidly detect and physically remove insect larvae or pupae (Abstract). One of ordinary skilled in the art would know that sorting by optical mechanism can be achieved for sorting out insect larvae and pupae. An expectation of success can be achieved by setting optic sorter to different sizes for separating different structures.
Applicant argues that there is a long felt need for the method of controlling fire ant.
In response to Applicant’s argument, establishing long-felt need requires objective evidence that an art recognized problem existed in the art for a long period of time without solution. The relevance of long-felt need and the failure of others to the issue of obviousness depends on several factors. First, the need must have been a persistent one that was recognized by those of ordinary skill in the art. In re Gershon, 372 F.2d 535, 539, 152 USPQ 602, 605 (CCPA 1967) ("Since the alleged problem in this case was first recognized by appellants, and others apparently have not yet become aware of its existence, it goes without saying that there could not possibly be any evidence of either a long felt need in the . . . art for a solution to a problem of dubious existence or failure of others skilled in the art who unsuccessfully attempted to solve a problem of which they were not aware."); Orthopedic Equipment Co., Inc. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir. 1983) (Although the claimed invention achieved the desirable result of reducing inventories, there was no evidence of any prior unsuccessful attempts to do so.).
Second, the long-felt need must not have been satisfied by another before the invention by the inventor. Newell Companies v. Kenney Mfg. Co., 864 F.2d 757, 768, 9 USPQ2d 1417, 1426 (Fed. Cir. 1988) (Although at one time there was a long-felt need for a "do-it-yourself" window shade material which was adjustable without the use of tools, a prior art product fulfilled the need by using a scored plastic material which could be torn. "[O]nce another supplied the key element, there was no long-felt need or, indeed, a problem to be solved".)
Third, the invention must in fact satisfy the long-felt need. In re Cavanagh, 436 F.2d 491, 168 USPQ 466 (CCPA 1971).
See Ex parte Thompson, Appeal 2011-011620 (March 21, 2014) (informative) for the board’s analysis of the above-mentioned three factors in reversing an obviousness rejection due to evidence of long felt need.
II. LONG-FELT NEED IS MEASURED FROM THE DATE A PROBLEM IS IDENTIFIED AND EFFORTS ARE MADE TO SOLVE IT
Long-felt need is analyzed as of the date the problem is identified and articulated, and there is evidence of efforts to solve that problem, not as of the date of the most pertinent prior art references. Texas Instruments Inc. v. Int’l Trade Comm’n, 988 F.2d 1165, 1179, 26 USPQ2d 1018, 1029 (Fed. Cir. 1993).
III. OTHER FACTORS CONTRIBUTING TO THE PRESENCE OF A LONG-FELT NEED MUST BE CONSIDERED
The failure to solve a long-felt need may be due to factors such as lack of interest or lack of appreciation of an invention’s potential or marketability rather than want of technical know-how. Scully Signal Co. v. Electronics Corp. of America, 570 F.2d 355, 196 USPQ 657 (1st. Cir. 1977).
See also Environmental Designs, Ltd. v. Union Oil Co. of Cal., 713 F.2d 693, 698, 218 USPQ 865, 869 (Fed. Cir. 1983) (presence of legislative regulations for controlling sulfur dioxide emissions did not militate against existence of long-felt need to reduce the sulfur content in the air); In re Tiffin, 443 F.2d 394, 170 USPQ 88 (CCPA 1971) (fact that affidavit supporting contention of fulfillment of a long-felt need was sworn by a licensee adds to the weight to be accorded the affidavit, as long as there is a bona fide licensing agreement entered into at arm’s length).
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Conclusion
THIS ACTION IS MADE FINAL. 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 CATHERYNE CHEN whose telephone number is (571)272-9947. The examiner can normally be reached Monday-Friday 9-5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand U Desai can be reached at 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655