DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 62,64,65,67-69 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Bolckmans et al. (WO 2006057552 A1).
For claim 62, Bolckmans et al. disclose a mite composition comprising a mixture of:
- a population of individuals of a predatory mite species from Amblyseius swirskii (as discussed throughout, for example, page 1, line 10);
- a food source (page 7, lines 19-20; page 8, lines 25-32; page 11, lines 10-17) for the predatory mite individuals; and
- a carrier (page 7, lines 10-18) for the individuals of the predatory mite species comprising stacked carrier-elements comprising husks from an Oryza species (page 7, line 17, rice husks or bran are stacked carrier elements), and wherein the carrier elements comprise shelters for the mite individuals (page 11, lines 10-30, 3-D culture; page 12, lines 24-27, container).
For claim 64, Bolckmans et al. disclose a method for rearing a population of a predatory mite species comprising: (i) providing the mite composition of claim 62 (as explained in the above); and (ii) allowing individuals of the predatory mite population to feed on the food source (page 7, lines 19-20; page 8, lines 25-32; page 11, lines 10-17).
For claim 65, Bolckmans et al. disclose the method of claim 64, wherein the food source for the predatory mite individuals is an Astigmatid rearing prey selected from: i) Carpoglyphidae; ii) Pyroglyphidae; iii) Glycyphagidae; and iv) Suidasiidae (page 7, lines 26-32, page 9 of Bolckmans).
For claim 67, Bolckmans et al. disclose the method for biological pest control in a crop (Bolckmans teach for crop, for example, page 7, lines 4-9), the method comprising, providing to said crop the mite composition of claim 62 (as explained in the above).
For claim 68, Bolckmans et al. disclose a rearing device for rearing a predatory mite species, said device comprising a container (page 11, lines 10-30, 3-D culture; page 12, lines 24-27, container of Bolckmans et al.) holding the composition of claim 62 (as explained in the above).
For claim 69, Bolckmans et al. disclose use for crop protection of the mite composition of claim 62 (as explained in the above).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1,7-10,30,34,35,40,54-56 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Bolckmans et al. (WO 2006057552 A1) in view of Best Practice in Disease (NPL as cited in the parent case 17/068377).
For claims 1,35 & 55, Bolckmans et al. teach a mite composition comprising a mixture of:
a population of individuals of a predatory mite species selected from a group consisting of Amblyseius swirskii (as discussed throughout, for example, page 1, line 10) and Amblydromalus limonicus;
a food source (page 7, lines 19-20; page 8, lines 25-32; page 11, lines 10-17) for the predatory mite individuals; and
a carrier (page 7, lines 10-18) for the individuals of the predatory mite species comprising stacked carrier elements (rice husks or bran are stacked carrier elements) comprising husks from a Poaceae species selected from rice husks (page 7, line 17); and
wherein the carrier elements comprise shelters (page 11, lines 10-30, 3-D culture; page 12, lines 24-27, container) for the mite individuals.
However, Bolckmans et al. are silent about the stacked carrier elements comprising millet husks.
Best Practice in Disease teaches in the same field of endeavor of mite composition and control, the article uses millet husks for carrier elements. It would have been obvious to one having ordinary skill in the art at the time the invention was made to use millet husks as taught by Best Practice in Disease in place of the buckwheat husks in Bolckmans et al., depending on the mite species and the user’s preference to have the mites emigrate faster or slower based on Best Practice in Disease result of using millet husks.
For claim 7, Bolckmans et al. as modified by Best Practice in Disease teach a method for rearing a population of a predatory mite species comprising: (i) providing the mite composition of claim 1 (as explained in the above); and (ii) allowing individuals of the predatory mite population to feed on the food source (as taught in Bolckmans).
For claim 8, Bolckmans et al. as modified by Best Practice in Disease teach a method for biological pest control in a crop (Bolckmans teach for crop, for example, page 7, lines 4-9), the method comprising, providing to said crop the mite composition of claim 1 (as explained in the above).
For claim 9, Bolckmans et al. as modified by Best Practice in Disease teach a rearing device for rearing a predatory mite species, said device comprising a container (page 11, lines 10-30, 3-D culture; page 12, lines 24-27, container of Bolckmans et al.) holding the composition of claim 1 (as explained in the above).
For claim 10, Bolckmans et al. as modified by Best Practice in Disease teach use for crop protection of the mite composition of claim 1 (as explained in the above).
For claim 30, Bolckmans et al. as modified by Best Practice in Disease teach the method of claim 7, and further teach wherein the food source for the predatory mite individuals is an Astigmatid rearing prey selected from: i) Carpoglyphidae; ii) Pyroglyphidae; iii) Glycyphagidae; and iv) Suidasiidae (page 7, lines 26-32, page 9 of Bolckmans).
For claim 34, Bolckmans et al. as modified by Best Practice in Disease teach the method of claim 7, and further teach wherein the predatory mite species is Phytoseiidae but not specifically Amblydromalus limonicus. It would have been obvious to one having ordinary skill in the art at the time the invention was made to select Amblydromalus limonicus as the preferred species of Phytoseiidae in the method of Bolckmans et al. as modified by Best Practice in Disease, depending on the user’s preference and the mites that the user wishes for the predatory mites to feed on for pest control.
For claims 40 & 56, Bolckmans et al. as modified by Best Practice in Disease teach the composition of claims 1 & 7, but are silent about wherein the millet species is selected from the group consisting of Pennisetum glaucum, Setaria italica, Proso millet, common millet, broom corn millet, Panicum miliaceum, Eleusine coracana, Echinochloa frumentacea, Echinochloa esculenta, Paspalum scrobiculatum, Panicum sumatrense, Brachiaria deflexa, Urochloa deflexa, Urochloa ramose, Brachiaria ramose, Panicum ramosum, Eragrostis tef, Digitaria exilis, Sorghum spp., and Coix lacrima-jobi. It would have been obvious to one having ordinary skill in the art at the time the invention was made to substitute the rice husk or bran of Bolckmans et al. as modified by Best Practice in Disease with millet selected from the group consisting of Pennisetum glaucum, Setaria italica, Proso millet, common millet, broom corn millet, Panicum miliaceum, Eleusine coracana, Echinochloa frumentacea, Echinochloa esculenta, Paspalum scrobiculatum, Panicum sumatrense, Brachiaria deflexa, Urochloa deflexa, Urochloa ramose, Brachiaria ramose, Panicum ramosum, Eragrostis tef, Digitaria exilis, Sorghum spp., and Coix lacrima-jobi, since a simple substitution of one known equivalent element for another would obtain predictable results (both are functional equivalent of Poaceae species, thus, would depend on the user’s preference to select a known and equivalent material to use in place of rice or the like). KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1739, 1740, 82 USPQ2d 1385, 1395, 1396 (2007).
For claim 54, Bolckmans et al. as modified by Best Practice in Disease teach the mite composition of claim 1, and further teach wherein the predatory mite species is Phytoseiidae but not specifically Amblydromalus limonicus. It would have been obvious to one having ordinary skill in the art at the time the invention was made to select Amblydromalus limonicus as the preferred species of Phytoseiidae in the mite composition of Bolckmans et al. as modified by Best Practice in Disease, depending on the user’s preference and the mites that the user wishes for the predatory mites to feed on for pest control.
Claims 63,66 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Bolckmans et al. (as above) in view of Buckwheat (NPL article from https://www.hort.purdue.edu/newcrop/Crops/Buckwheat.html).
For claim 63, Bolckmans et al. teach the mite composition of claim 62, but are silent about wherein the husks from the Oryza species have an average longest axis of 3.0 mm to 9.0 mm.
Buckwheat teaches that seeds of buckwheat vary in size from about 4 mm long to about 6 mm long, which is in the range as claimed by applicant. Noting that the husk covers the seed, thus, the husk would have the same length or long dimension. Since Bolckmans et al. stated on page 7, lines 15-18, that the carrier can be buckwheat husks and rice husks, this would indicate that they are considered to be equivalent materials used for the carrier. Thus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have the rice husk of Bolckmans et al. in the size range (4-6mm which is within 3mm-9mm) as taught by Buckwheat, since the size range is conventional and well-known for a seed that is cover by the husk.
For claim 66, Bolckmans et al. teach the method of claim 64, but are silent about wherein the husks from the Oryza species have an average longest axis of 3.0 mm to 9.0 mm.
Buckwheat teaches that seeds of buckwheat vary in size from about 4 mm long to about 6 mm long, which is in the range as claimed by applicant. Noting that the husk covers the seed, thus, the husk would have the same length or long dimension. Since Bolckmans et al. stated on page 7, lines 15-18, that the carrier can be buckwheat husks and rice husks, this would indicate that they are considered to be equivalent materials used for the carrier. Thus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to incorporate in the method of Bolckmans et al., the rice husk of in the size range (4-6mm which is within 3mm-9mm) as taught by Buckwheat, since the size range is conventional and well-known for a seed that is cover by the husk.
Response to Arguments
Applicant’s arguments with respect to claims 1,7-10,30,34,35,40,54-56,62-69 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. However, certain pertinent arguments against Bolckmans et al. will be addressed herein, since Bolckmans et al. are still employed in the rejection above.
In the Examples section, Bolckmans describes only Buckwheat husks.
Thus, at best, for mass-rearing of a predatory mite species, Bolckmans describes compositions comprising buckwheat husks (Example 2 of Bolckmans) and lists certain alternatives that could be used as the carrier elements. Bolckmans would not have motivated a skilled artisan to specifically select as carrier elements millet husks as instantly claimed for rearing a predatory mite species from A. swirskii or A. limonicus.
The examiner respectfully disagrees because Bolckmans et al. clearly listed various materials that can be used for the carrier element as stated on page 7, lines 15-18; thus, any one of these materials listed can be used and not limited to buckwheat husks only. Just because Bolckmans et al. demonstrate in one example using buckwheat husks does not mean that their invention is limited to buckwheat husks only. One skill in the art would be obvious to select any one of the carrier materials listed in Bolckmans et al. for use as desired.
In addition, applicant’s example uses millet husks but is applicant limited to millet husks only because applicant stated otherwise in his specification that other material “such as chaff from wheat, oryza species, rye, oats or millet”? From applicant’s own invention, it does not appear that the invention is about millet husks and nothing else.
Furthermore, Best Practice in Disease teaches in the same field of endeavor of mite composition and control, the article uses millet husks for carrier elements. Since Bolckmans et al. stated that any suitable carriers of plant materials can be used such as “…(wheat) bran, buckwheat husks, rice husks, saw dust, corn cob grits etcetera”, it would have been obvious to one having ordinary skill in the art at the time the invention was made to use millet husks as taught by Best Practice in Disease in place of the buckwheat husks in Bolckmans et al., depending on the mite species and the user’s preference to have the mites emigrate faster or slower based on Best Practice in Disease result of using millet husks.
For example, the instant specification shows that mites from A. swirskii as well as A. limonicus surprisingly and unexpectedly prefer millet husks (chaff) compared to certain other carrier materials disclosed in Bolckmans. For instance, Example I and FIGS. 5a and Sb of the instant specification show that for oviposition A. swirskii as well as A. limonicus exhibit surprising and unexpected preference towards millet husks over vermiculite as well as bran. This is evidenced by the high number/percentages of "females per substrate" and "eggs per substrate" for A. swirskii as well as A. limonicus in millet husks compared vermiculite and bran. Example I shows that even though the carrier material was separated from the food source, the majority of female mites were found in millet husks.
As responded in the previous Office action, the surprising and unexpected result as argued by applicant is not persuasive because applicant has not provided a direct comparison with the closes art Bolckmans et al. as required under MPEP 716.02(a)-(g). What applicant provided are merely test and data results from applicant’s own invention based on applicant’s experimentation. There is absolutely no showing of statement that “the prior art invention did not perform well” without a showing of the actual results of the test performed on the prior art AND on the claimed invention is insufficient. There is no testing and data results to show that Bolckmans et al. invention in combination with Best Practice in Disease (millet husks teaching) did not perform well. Perhaps because Bolckmans et al. and the current invention teach the same invention; thus, it would be impossible to show the same inventions being unexpected. In addition, the results as provided by applicant are not due to the claimed features because, for example, applicant discusses about “females per substrate” and “eggs per substrate” are higher for A. swirskii in millet husks but neither female or eggs are being claimed. Regardless, there is definitely no direct comparison to the closest prior art of Bolckmans et al. within the scope of the claims, and especially there is absolutely no presentation of actual steps carried out, the materials employed, and the results between the current invention and Bolckmans et al. In addition, there is no presentation of a statement that “the prior art invention did not perform well” without a showing of the actual results of the test performed on the prior art.
As for the declarations of Radbout Timmer, the examiner still holds the same opinion as previous stated in the previous Office action because the declarations lack proper evidence as required for unexpected results. See the examiner’s response to the declaration in the previous Office action.
In this regard, Bolckmans may disclose a mite composition comprising A. swirskii. However, Bolckmans does not describe a mite composition comprising A. swirskii in combination with rice husks.
The examiner is unclear how applicant states that Bolckmans does not teach A. swirskii with rice husks when it is clearly written in Bolckmans that he teaches A. swirskii with rice husks? Even applicant is quoting that Bolckmans teaches rice husks with A. swirskii but then yet say that Bolckmans only give examples of buckwheat husks so that means Bolckmans does not teach rice husks with A.swirskii. As stated in the above, just because Bolckmans provides only one example with buckwheat husks does not mean that he limited to only buckwheat husks. Regardless, Bolckmans teaches A. swirskii with rice husks, thus, applicant’s argument is non-persuasive.
In addition, the figures presented in the arguments and the declaration are merely test results of applicant’s experimentation but there is no comparison with Bolckmans as stated in the above for unexpected result.
Conclusion
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 SON T NGUYEN whose telephone number is (571)272-6889. The examiner can normally be reached 9:00 to 4:00.
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/Son T Nguyen/ Primary Examiner, Art Unit 3643