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 .
Restriction/Election
Applicant's election with traverse of Group I, claims 1-6, in the reply filed on 11/18/2025 is acknowledged. The traversal is on the ground(s) that the method of Invention II utilizes the composition of Invention I. This is not found persuasive because the restriction is deemed proper because the treatment agent of Invention I may be used in a method other than the method of Invention II. Invention I and Invention II therefore have different use and effects.
The requirement is still deemed proper and is therefore made FINAL.
Claims 7-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claim 6 is 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.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “insects or their larvae” in claim 6 is used by the claim to mean one of the listed organisms, while the accepted meaning is organisms belonging to the phylum Arthropoda and class Insecta. Examiner notes that earthworms, sandworms, and water earthworms belong to the phylum Annelida. The term is indefinite because the specification does not clearly redefine the term.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 3-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ohta (US 4234607).
Regarding Claim 1, Ohta teaches a treatment agent for meat (Abstract). The agent comprises a nitrite and ascorbic acid (Claim 1). Note that the limitation of “a treatment agent of insects or their larvae” is intended use, and does not further limit the claim.
Regarding Claim 3, Ohta teaches the use of sodium nitrate (Column 6, Claim 3).
Regarding Claim 4, Ohta teaches the use of sodium and potassium nitrite (Column 2, Lines 59-60).
Regarding Claims 5-6, note that the limitation of “a treatment agent of insects or their larvae” is intended use, and does not further limit the claim. Since the limitations of Claim 1 have been met, the limitations of Claims 5 and 6 have therefore also been met.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Ohta (US 4234607).
Regarding Claim 2, Ohta teaches the use of a treatment agent comprising 100-1,000 ppm of nitrate (Column 3, Line 14), 200 ppm nitrite, and 600 ppm ascorbic acid on the basis of 1 kg of meat (Column 6, Claims 4 and 6). Ohta therefore teaches 11-90% nitrate, 1-50% nitrite, and 8-85% ascorbic acid, which overlap the claimed range(s). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I.
Note that the limitation of “a treatment agent of insects or their larvae” is intended use, and does not further limit the claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional references cited on the PTO-892 are directed to color stabilization in meat (CN 101779795) and earthworms as an alternative protein source (Garczynska et al.).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791