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 .
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 (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 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.
Claims 1,5,7-9,14-22 are rejected under 35 U.S.C. 103 as being unpatentable over Walker et al. (WO 2010079353 A1) in view of Bolckmans et al. (WO 2013103295 A1).
For claim 1, Walker et al. teach a system for releasing mites selected from poultry red mites Hypoaspis, such as Hypoaspis aculeifer, Cheyletus eruditus or any other predatory species of poultry red mites from the order Parasitiformes, Androlealaps casalis, Macrocheles robustulus, Dermanyssus gallinae, Ornithonyssus sylviarum or any other similar pest of poultry, the system comprising a mite compartment (page 3, the breeding chamber inside the tube) holding a mite rearing composition comprising:
a breeding population of the mites from the predatory mite species (for example, page 6, “Preferably, the mite is selected from the order Acariformes, such as Tyrophagus putrescentiae, Acarus siro, Acarus ferris, Carpoglyphus lactis, Suidasia nesbitti, or any other suitable, easily cultured mites”),
a food source (for example, page 8, “The food for the factitious host may be selected from cereal bran, flour, yeasts, a sugar and other suitable food components”) for the mites from the predatory mite species, and
a rearing carrier comprising carrier particles that form a porous medium and provide a carrier surface for the mites from the predatory mite species (translation states: “The carrier material may be selected from flour, yeast, a sugar, cereal bran, sawdust, vermiculite or any other suitable material.”),
wherein said mite compartment is enclosed by a gas barrier material (for example, page 6, “from a plastic or polymer, such as polyethylene, polypropylene or polystyrene, ceramic, wood, metal or any other suitable material”) having a water vapor transmission rate (implied because it is a property of the gas material);
said mite compartment having a volume of x mm3 (implied for a compartment has a volume); and
wherein the system further comprises a number of connections (for example, page 3, “Preferably, the path is a connective means which when in use allows the predatory mites to access the refuge structure and to feed on the prey. The or each path may include an aperture or a physical pathway, such as a tube or connective rod, connecting the breeding chamber to the refuge structure.”) that connect the mite compartment with a space outside the mite compartment, said number of connections each having an area y (implied for a connection has a volume).
However, Walker et al. are silent about the selection of the beneficial mites being from a Phytoseiid predatory mite species selected from the genera Amblyseius, Amblydromalus, Neoseiulus, and Transeius; the gas barrier material having a water vapor transmission rate of < 5 g/m2 per 24 hours; the mite compartment having a volume of x mm3, wherein x is between 6*103 and 35*103 mm3; and the number of connections each having an area y, wherein y is between 0.1 and 4.0 mm2, wherein a total sum of the areas of the number of connections is Ʃy and wherein 5*103 mm < x/ Ʃy < 70*103 mm.
Bolckmans et al. teach in the same field of endeavor of a system for releasing beneficial mites as Walker et al. and the mites are selected from a Phytoseiid predatory mite species (in various excerpts, for example, pages 2-3). Note that para. 0040,0074 of applicant’s pgpub US 20240032516 A1 stated that applicant’s system can be used with a variety of mite species. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select mites from a Phytoseiid predatory mite species selected from the genera Amblyseius, Amblydromalus, Neoseiulus, and Transeius as taught by Bolckmans et al. as the preferred mite species in the system of Walker et al. depending on the user’s preference for the desired mite species that he/she wishes to breed and release.
In addition, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the gas barrier material of Walker et al. as modified by Bolckmans et al. with a water vapor transmission rate of < 5 g/m2 per 24 hours, depending on how much water/vapour transmission the user wishes the material to release, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the mite compartment of Walker et al. as modified by Bolckmans et al. with a volume of x mm3, wherein x is between 6*103 and 35*103 mm3, depending on how many mites the user wishes to house therein, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Lastly, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the number of connections of Walker et al. as modified by Bolckmans et al. with each having an area y, wherein y is between 0.1 and 4.0 mm2, wherein a total sum of the areas of the number of connections is Ʃy and wherein 5*103 mm < x/ Ʃy < 70*103 mm, depending on how many paths the user wishes to have for the mites to move about, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 5, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, but are silent about wherein the food source for the Phytoseiid predatory mite species comprises a prey mite species selected from the suborder Astigmata. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select a prey mite species selected from the suborder Astigmata for the food source in the system of Walker et al. as modified by Bolckmans et al., depending on the beneficial mites being reared in the system and its preference to certain food type. Note that Walker et al. listed on page 8, a variety of food source for the beneficial mites to consume and some of these food sources being mite species such as Carpoglyphus, which is also on the list in para. 0041 of applicant’s pgpub. Thus, one skill in the art can select Astigmata, Carpoglyphus, etc. as desired based on the preference of the beneficial mites.
For claim 7, Walker et al. as modified by Bolckmans et al. teach a method for controlling a pest susceptible of being preyed by a Phytoseiid predatory mite species comprising providing a system according to claim 1 (as explained in the above) to a target area where the pest is to be controlled (in poultry area as stated in Walker et al.; also, Bolckmans et al. teach in crop growing area).
For claim 8, Walker et al. as modified by Bolckmans et al. teach a method for producing an agricultural product from non-human organisms prone to infestation by a pest susceptible of being preyed by a Phytoseiid predatory mite species (poultry as taught by Walker et al. is an agricultural product, and as combined with Bolckmans et al., Bolckmans et al. teach Phytoseiid predatory mite species), said method comprising: providing the number of non-human organisms (the mites as taught in Walker et al.) in a target area (poultry house or area as stated in Walker et al.); providing in or in the proximity of the target area a number of systems according to claim 1 (as explained in the above); and providing to the number of non-human organisms suitable nutrients and environmental conditions to produce the agricultural product (poultry area as stated in Walker et al.).
For claim 9, Walker et al. as modified by Bolckmans et al. teach the method according to claim 8, but are silent about wherein the number of non-human organisms are from a crop species. In addition to the above, Bolckmans et al. teach similar system to Walker et al. that is applied to a crop species (title of Bolckmans’ invention, pages 1, 2, etc.). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to apply the method of Walker et al. as modified by Bolckmans et al. to a crop species as further taught by Bolckmans et al., depending on the user’s preference on where to implement the system to control the pests, be it in a poultry house or a crop area.
For claim 14, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, and further teach the system according to claim 1, and further teach wherein the Phytoseiid predatory mite species is selected from: Amblyseius andersoni, Amblyseius aerialis, Amblyseius swirskii (as discussed in Bolckmans, for example, page 3), Amblyseius herbicolus, Amblyseius largoensis, Neoseiulus barkeri, Neoseiulus californicus, Neoseiulus cucumeris, Neoseiulus longispinosus, Neoseiulus womersleyi, Neoseiulus idaeus, Neoseiulus anonymus, Neoseiulus paspalivorus, Neoseiulus reductus, Neoseiulus fallacis, Neoseiulus baraki, Amblydromalus limonicus, and Transeius montdorensis.
For claim 15, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, and further teach wherein the Phytoseiid predatory mite species is selected from: Amblyseius andersoni, Amblyseius aerialis, Amblyseius swirskii (as discussed in Bolckmans, for example, page 3), Amblyseius herbicolus, and Amblyseius largoensis.
For claim 16, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, and further teach wherein the Phytoseiid predatory mite species is Amblyseius swirskii (as discussed in Bolckmans, for example, page 3).
For claim 17, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, wherein the food source for the Phytoseiid predatory mite species comprises a prey mite species selected from: i) Carpoglyphidae (page 6 of Walker et al.); ii) Pyroglyphidae (page 6 of Walker et al.); iii) Glycyphagidae; iv) Acaridae (page 6 of Walker et al.); and v) Suidasiidae.
For claim 18, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, but is silent about wherein x is between 9*103 to 35*103 mm3. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the mite compartment of Walker et al. as modified by Bolckmans et al. with a volume of x mm3, wherein x is between 9*103 to 35*103 mm3, depending on how many mites the user wishes to house therein, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 19, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, and further teach wherein the Phytoseiid predatory mite species is Amblydromalus limonicus (page 3 of Bolckmans).
For claim 20, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, and further teach wherein the Phytoseiid predatory mite species is Neoseiulus californicus (page 3 of Bolckmans).
For claim 21, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, and further teach wherein the Phytoseiid predatory mite species is Transeius montdorenis (page 3 of Bolckmans; also known as Typhlodromips montdorensis).
For claim 22, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, but are silent about wherein the volume of the carrier material in the mite compartment is 60-95% of the volume x of the mite compartment. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the volume of the carrier material in the mite compartment of Walker et al. as modified by Bolckmans et al. be 60-95% of the volume x of the mite compartment, depending on how many mites are in the compartment so as to provide the right amount of carrier material for the mites to thrive, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claims 2,12,23-26 are rejected under 35 U.S.C. 103 as being unpatentable over Walker et al. as modified by Bolckmans et al. as applied to claim 1 above, and further in view of O’Connell (US 20160330969 A1).
For claim 2, Walker et al. as modified by Bolckmans et al. teach wherein selected gas barrier material comprises a polymer but is silent about a polymer-metal laminate.
O’Connell teaches a gas barrier material comprises a polymer-metal laminate (para. 0034,0035,0063), preferably a polymer-metal laminate film, such as a laminate film comprising a metalized polymer film. It would have been obvious to one having ordinary skill in the art at the time the invention was made to select a polymer-metal laminate as taught by O’Connell as the preferred polymer for the gas barrier material of Walker et al. as modified by Bolckmans et al., depending on the user’s preference for good water vapor transmission with strength and durability, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious choice. In re Leshin, 125 USPQ 416.
For claim 12, Walker et al. as modified by Bolckmans et al. teach the system according to claim 1, but are silent about wherein the gas barrier material is selected from a polymer-metal laminate film or a metalized polymer film.
O’Connell teaches a gas barrier material comprises a polymer-metal laminate (para. 0034,0035,0063), preferably a polymer-metal laminate film, such as a laminate film comprising a metalized polymer film. It would have been obvious to one having ordinary skill in the art at the time the invention was made to select a polymer-metal laminate as taught by O’Connell as the preferred polymer for the gas barrier material of Walker et al. as modified by Bolckmans et al., depending on the user’s preference for good water vapor transmission with strength and durability, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious choice. In re Leshin, 125 USPQ 416.
For claim 23, Walker et al. as modified by Bolckmans et al. and O’Connell teach the system according to claim 12, and further teach wherein the Phytoseiid predatory mite species is Amblyseius swirskii (as relied on with Bolckmans et al., page 3, line 2) but are silent about the volume of the carrier material in the mite compartment is 60-95% of the volume x of the mite compartment. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the volume of the carrier material in the mite compartment of Walker et al. as modified by Bolckmans et al. and O’Connell be 60-95% of the volume x of the mite compartment, depending on how many mites are in the compartment so as to provide the right amount of carrier material for the mites to thrive, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 24, Walker et al. as modified by Bolckmans et al. and O’Connell teach the system according to claim 12, and further teach wherein the Phytoseiid predatory mite species is Amblydromalus limonicus (as relied on with Bolckmans et al., page 3, line 10) but are silent about the volume of the carrier material in the mite compartment is 60-95% of the volume x of the mite compartment. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the volume of the carrier material in the mite compartment of Walker et al. as modified by Bolckmans et al. and O’Connell be 60-95% of the volume x of the mite compartment, depending on how many mites are in the compartment so as to provide the right amount of carrier material for the mites to thrive, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 25, Walker et al. as modified by Bolckmans et al. and O’Connell teach the system according to claim 12, and further teach wherein the Phytoseiid predatory mite species is Neoseiulus californicus (as relied on with Bolckmans et al., page 4, line 25) but are silent about the volume of the carrier material in the mite compartment is 60-95% of the volume x of the mite compartment. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the volume of the carrier material in the mite compartment of Walker et al. as modified by Bolckmans et al. and O’Connell be 60-95% of the volume x of the mite compartment, depending on how many mites are in the compartment so as to provide the right amount of carrier material for the mites to thrive, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
For claim 26, Walker et al. as modified by Bolckmans et al. and O’Connell teach the system according to claim 12, and further teach wherein the Phytoseiid predatory mite species is Transeius montdorenis (as relied on with Bolckmans et al., page 4, line 26; noting that page 5 of applicant’s specification stated that Transeius montdorenis alternatively known as Typhlodromips montdorensis, which Typhlodromips montdorensis is what Bolckmans et al. teach) but are silent about the volume of the carrier material in the mite compartment is 60-95% of the volume x of the mite compartment. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have the volume of the carrier material in the mite compartment of Walker et al. as modified by Bolckmans et al. and O’Connell be 60-95% of the volume x of the mite compartment, depending on how many mites are in the compartment so as to provide the right amount of carrier material for the mites to thrive, since it has been held that where routine testing and general experimental conditions are present, discovering the optimum or workable ranges until the desired effect is achieved involves only routine skill in the art. In re Aller, 105 USPQ 233.
Response to Arguments
Applicant's arguments filed 2/23/2026 have been fully considered but they are not persuasive. Applicant argued the following:
The Office asserts that a skilled artisan would have optimized the "water vapor transmission rate" depending on "how much water/vapor transmission the user wishes the material to release." (Page 7, paragraph continuing from page 6.) At best, the Office presents circular reasoning, i.e., optimize water vapor transmission rate depending upon the desired water vapor transmission rate. This reasoning does not establish "water vapor transmission rate" as a result effective variable because the Office does not identify which result, if any, in the mite rearing process would be affected by varying the water vapor transmission rate.
As stated in the previous Office action, under some circumstances, however, changes such as these may impart patentability to a process if the particular ranges claimed produce a new and unexpected result which is different in kind and not merely in degree from the results of the prior art. In re Dreyfus, 22 CCPA (Patents) 830, 73 F.2d 931, 24 USPQ 52; In re Waite et al., 35 CCPA (Patents) 1117, 168 F.2d 104, 77 USPQ 586. Such ranges are termed "critical" ranges, and the applicant has the burden of proving such criticality. In re Swenson et al., 30 CCPA (Patents) 809, 132 F.2d 1020, 56 USPQ 372; In re Scherl, 33 CCPA (Patents) 1193, 156 F.2d 72, 70 USPQ 204. However, even though applicant's modification results in great improvement and utility over the prior art, it may still not be patentable if the modification was within the capabilities of one skilled in the art. In re Sola, 22 CCPA (Patents) 1313, 77 F.2d 627, 25 USPQ 433; In re Normann et al., 32 CCPA (Patents) 1248, 150 F.2d 627, 66 USPQ 308; In re Irmscher, 32 CCPA (Patents) 1259, 150 F.2d 705, 66 USPQ 314. More particularly, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Swain et al., 33 CCPA (Patents) 1250, 156 F.2d 239, 70 USPQ 412; Minnesota Mining and Mfg. Co. v. Coe, 69 App. D.C. 217, 99 F.2d 986, 38 USPQ 213; Allen et al. v. Coe, 77 App. D.C. 324, 135 F.2d 11, 57 USPQ 136.
Applicant failed to show the ranges recited in the claims to be "Critical" because, while there are examples with results in the specification, these are merely based on general experimentation data from applicant’s own invention to show the result and not a critical value against the prior art of record. In another word, the applicant has not made a persuasive showing that the results of experiments are different in kind from the results one would have expected from optimizing the vapor transmission rate, the volume of the mite compartment, and the area of the connections. In fact, the specification itself describes various numerical values and ranges for these parameters and appears to be “preferable” based on one skill in the art depending on how much water vapor transmission, volume of the compartment, and area of the connection he/she wishes to have for the species in study and breeding. These parameters range as claimed by applicant are notoriously well-known parameters for consideration because the user would not want to have too much water vapor transmission so as to potentially kill off the species of study/breeding. Likewise, water vapor transmission, volume, and area are known parameters because if the user do no considered these parameters, the mites can be living in crowded condition or too big compartment which would be wasteful in material and cost. These are merely general experimental consideration that are not unexpected result. As a matter of fact, applicant’s specification clearly stated that it would depend on the species and parameters for these species to breed and survive. For example, in para. 0055 of applicant’s pgpub, applicant stated that one skill in the art would know to find the applicable water vapor transmission for the gas barrier material based on the species of mites, and that there is no fixed or critical value. Likewise, same for the volume per para. 0053,0063,0066-0069, etc. Applicant even listed a wide range of volume with no criticality or unexpected result that is different from the prior art.
The applicant bears the burden of proving that allegedly unexpected results are, in fact, unexpected See Tn re Geisler, 116 E 3d 1465, 1470 (Fed Cir 1997). In order to meet this burden, the Appellant must assert, either in the specification or in a declaration under 37 C.F.R. § 1.132, that the results are unexpected; and then back up that assertion with evidence. See id. at 14 71. Applicant submitted various declaration/affidavit under rule 37 C.F.R. 1.132 to demonstrate unexpected result in the claimed ranges. The declaration of Mr. Beveridge and the declaration of Ms. Schaijk, under 37 CFR 1.132 filed 6/11/2025 is insufficient to overcome the rejection of claims 1,2,5,7-9,14-21 because they failed to demonstrate unexpected results per MPEP 716.02 for the extremely wide ranges as claimed. For example, showing must be commensurate in scope with the invention as claimed with test data and analysis that are in direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. None of the declarations provide a comparison with the closest prior art of Walker et al. as modified by Bolckmans et al. Noting that Bolckmans et al. were only relied on for the mite species, which are not technically claimed due to the functional recitation as stated in the above 112 rejection. There are no test data and analysis against Walker et al. to show that Walker’s system is not superior over applicant’s system. In addition, there is no 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. Furthermore, there is no results based on the claimed features, not to unclaimed features. It appears that the declarations discuss more than what is being claimed.
As to the size of each of the one or more connections and the total sum of the area of all connections, the Office asserts that a skilled artisan would have optimized these parameters depending on "how many paths the user wishes to have for the mites to move about." (Last paragraph on page 7 of the Office Action.) Again, the Office presents circular reasoning, i.e., optimize the size and number of paths depending upon how many paths the user wishes to have. This reasoning does not establish "the size of each of the one or more connections and the total sum of the area of all connections" as a result effective variable because the Office does not identify which result, if any, in the mite rearing process would be affected by this combination of parameters.
Similar to the above comments, applicant failed to show the ranges recited in the claims to be "Critical" because, while there are examples with results in the specification, these are merely based on general experimentation data from applicant’s own invention to show the result and not a critical value against the prior art of record. In fact, the specification itself describes various numerical values and ranges for these parameters and appears to be “preferable” based on one skill in the art depending on the number of connections the user wishes to have, see page 15. Since Walker et al. teaches a number of connections on page 3, one ordinary skill in the art would have a mathematical formulation as applicant did to derive at a calculation to determine how many connections based on the area of the compartment in Walker et al. because depending on how many paths the user wishes to have for the mites to navigate relative to the compartment volume. That is nothing new in the art and applicant has not provided any criticality or unexpected result from that of the prior art as stated in the above comments.
Moreover, as to the size of the mite compartment, the Office reasons that a skilled artisan would optimize the size based on how many mites the user wishes to house therein. However, the Office does not identify any reason that a skilled artisan would have optimized the ratio of the size of the compartment with the total sum of the areas of the number of connections. The Office does not establish "ratio of the size of the compartment with the total sum of the areas of the number of connections" as a result effective variable because the Office does not identify which result, if any, in the mite rearing process would be affected by this combination of parameters.
Similar to the above comments, applicant failed to show the ranges recited in the claims to be "Critical" because, while there are examples with results in the specification, these are merely based on general experimentation data from applicant’s own invention to show the result and not a critical value against the prior art of record. Please see the above comments.
As explained in the instant specification, for example, from page 1, line 21 to page 2, line 16, before the present invention was made, the general conviction in the art was that gas permeable materials and/or relatively large ventilation openings must be used in systems intended for prolonged storage and/or release of beneficial mites. This general conviction in the art is reflected in the relevant art, for example, in GB2393890 (hereinafter, "Irvine," for example, from page 4, line 30 to page 5, line 2). Irvine is also discussed in the instant specification, for example, at page 1, lines 21-31. Irvine was also previously submitted in an Information Disclosure Statement and, thus, is of record.
While applicant discuss GB2393890 in the specification and in this remark, GB2393890 was not used in the rejection; thus, applicant’s argument is not relevant to the rejection at hand.
Grid lacquer paper or medical paper is a film material more frequently used for enclosing mites because of its gas permeable properties, as is reflected by Bunting et al. (GB2168680; hereinafter, "Bunting"). Bunting relates to a method of using an envelope for distributing mites and, more generally, arthropods. (Abstract.) The gas permeability of the material of the envelope is essential, as shown in Bunting, for example, from page 1, lines 104-126, reproduced below:
Again, while applicant discuss Bunting et al. in the specification and in this remark, Bunting et al. were not used in the rejection; thus, applicant’s argument is not relevant to the rejection at hand. Thus, the relevant art generally accepted that a relatively high level of gas exchange between a compartment and its exterior is required when enclosing mites (or arthropods more generally) for prolonged periods of time. Such understanding is also reflected in Bolckmans and by Vazquez et al. (US Patent No. 8,312,841; hereinafter, "Vazquez").
Again, while applicant discuss Vazquez in the specification and in this remarks, Vazquez not used in the rejection; thus, applicant’s argument is not relevant to the rejection at hand. As for Bolckmans, as stated in the above, applicant failed to show the ranges recited in the claims to be "Critical" because, while there are examples with results in the specification, these are merely based on general experimentation data from applicant’s own invention to show the result and not a critical value against the prior art of record. In fact, the specification itself describes various numerical values and ranges for these parameters. See the above comments.
Bolckmans teaches that if a barrier material is used (such as a bucket), sufficient ventilation should be provided to ensure exchange of metabolic gasses (CO2 and 02) and heat (e.g., Bolckmans, page 16, lines 1-7) such that the CO2 level should be maintained below 700 ppm (e.g., Bolckmans, page 16, lines 19-21). Thus, Bolckmans teaches that a high level of gas exchange between the mite compartment with the exterior space is required. Also, when discussing the required features of a carrier material used in mite rearing, Bolckmans points out the relevance of gas exchange of metabolic gasses (e.g., Bolckmans page 7, lines 4-9).
Bolckmans et al. were not relied on for the barrier material or anything relating to gas exchange. The rejection above clearly stated that Bolckmans were relied on for teaching in the same field of endeavor of a system for releasing beneficial mites as Walker et al. and the mites are selected from a Phytoseiid predatory mite species (in various excerpts, for example, pages 2-3). Note that para. 0040,0074 of applicant’s pgpub US 20240032516 A1 stated that applicant’s system can be used with a variety of mite species. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select mites from a Phytoseiid predatory mite species selected from the genera Amblyseius, Amblydromalus, Neoseiulus, and Transeius as taught by Bolckmans et al. as the preferred mite species in the system of Walker et al. depending on the user’s preference for the desired mite species that he/she wishes to breed and release.
Walker et al. clearly teach a gas barrier material (for example, page 6, “from a plastic or polymer, such as polyethylene, polypropylene or polystyrene, ceramic, wood, metal or any other suitable material”) having a water vapor transmission rate (implied because it is a property of the gas material). Thus, Bolckmans were not needed modify Walker et al.
The instant specification, for instance, in the Example presented on pages 26-29, shows that surprisingly and unexpectedly prolonged mite release for the Phytoseiid predatory mites of the species Amblyseius swirskii is achieved and further improved in the claimed systems. Particularly, Figures 3A- 3B show that the mean number of predatory mites produced per gram is higher in the mite releasing systems enclosed in foil (gas impermeable material as instantly claimed) compared to the mite releasing systems enclosed in paper (gas permeable material). Similarly, Figures 5A and 5B show the number of predatory and prey mites that actively dispersed out the mite releasing systems. The number of predatory as well as the number of prey mites were surprisingly and unexpectedly higher in the mite releasing systems enclosed in foil (gas impermeable material as instantly claimed) compared to the mite releasing systems enclosed in paper (gas permeable material).
While applicant shows testing results and data, these are for applicant’s own experiment for his invention. Unexpected results need to be compared against with the prior art of rejection. Most, if not all, inventions involve in some sort of experimentation on their own invention to show result and such. That is not unexpected result because unexpected result per MPEP 716.02 specifically stated that: showing must be commensurate in scope with the invention as claimed with test data and analysis that are in direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. Applicant’s specification, comments, and the declarations provide NO factual data for a comparison with the closest prior art of Walker et al. as modified by Bolckmans et al. Noting that Bolckmans et al. were only relied on for the mite species. There are no test data and analysis against Walker et al. to show that Walker’s system is not superior over applicant’s system. In addition, there is no 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. Furthermore, there is no results based on the claimed features, not to unclaimed features. It appears that the declarations discuss more than what is being claimed. Thus, what are shown in applicant’s specification and drawings are applicant’s own invention data and result and not proof that applicant’s claimed invention is better in comparison to that of at least Walker et al. Furthermore, it appears that applicant’s specification lists a plethora of paraments and also stated that it would depend on a lot of other factors such as the number of mites, how big the user wishes the compartment to be, how many paths are needed to accommodate the size of the mites therein, etc. None of these parameters are “unexpected or critical”, for they appear to be general experimentation and routine testing.
Moreover, the Declarations under 37 C.F.R. § 1.132 by Mr. Beveridge and Ms. Van Schaijk, submitted on July 11, 2025 (collectively, "Declarations"), further confirm that other Phytoseiid predatory mites, in particular, Neoseiulus californicus, Transeius montdorenis, and Amblydromalus limonicus, surprisingly and unexpectedly can be maintained for prolonged period in the mite releasing systems enclosed in foil (gas impermeable material as instantly claimed) and that the numbers of predatory mites released are higher compared to the mite releasing systems enclosed in paper (gas permeable material).
The examiner has already addressed the declaration in the previous Office action. As stated in the previous Office action: The applicant bears the burden of proving that allegedly unexpected results are, in fact, unexpected See Tn re Geisler, 116 E 3d 1465, 1470 (Fed Cir 1997). In order to meet this burden, the Appellant must assert, either in the specification or in a declaration under 37 C.F.R. § 1.132, that the results are unexpected; and then back up that assertion with evidence. See id. at 14 71. Applicant submitted various declaration/affidavit under rule 37 C.F.R. 1.132 to demonstrate unexpected result in the claimed ranges. The declaration of Mr. Beveridge and the declaration of Ms. Schaijk, under 37 CFR 1.132 filed 6/11/2025 is insufficient to overcome the rejection of claims 1,2,5,7-9,14-21 because they failed to demonstrate unexpected results per MPEP 716.02 for the extremely wide ranges as claimed. For example, showing must be commensurate in scope with the invention as claimed with test data and analysis that are in direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. None of the declarations provide a comparison with the closest prior art of Walker et al. as modified by Bolckmans et al. Noting that Bolckmans et al. were only relied on for the mite species, which are not technically claimed due to the functional recitation as stated in the above 112 rejection. There are no test data and analysis against Walker et al. to show that Walker’s system is not superior over applicant’s system. In addition, there is no 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. Furthermore, there is no results based on the claimed features, not to unclaimed features. It appears that the declarations discuss more than what is being claimed.
However, Walker does not describe the parameters now mentioned in the claims. Therefore, it is impossible to compare the results of Walker with the results obtained with the claimed ranges. To the extent that the relevant art provides any teachings related to the instantly claimed features, as discussed above, the prior art teaches using material with high level of gas exchange between a compartment and its exterior is required when enclosing mites. (Also, see discussion of Bolckmans, Irvine, Bunting, and Vanquez above.).
As stated in the MPEP 716.02, Unexpected results:
Showing must be commensurate in scope with the invention as claimed
-Need Test Data and analysis: direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims.
Actual steps carried out, the materials employed, and the results
Nothing concerning the work relied upon should be left to conjecture.
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.
Results must be due to the claimed features, not to unclaimed features.
Thus, these are the steps applicant should take to prove that applicant’s invention performed better than the closest prior art, Walker et al. The fact that Walker et al. teach a gas barrier material, a volume, connections, etc. all of these have to have some sort of range or value or property. For example, a gas barrier material obviously relates to transmission of gas through the material, thus, it would involve in some sort of gas transmission rate. Likewise, a volume is taught in Walker et al., thus, it would involve in some sort of volume range. Likewise, connections or paths are taught in Walker et al., thus, it would involve in some sort of numerical value for how many connections or paths needed. Just because Walker et al. did not disclose a numerical range or value for these parameters do not mean that there are none because these parameters all have some sort of numerical value or range. Per MPEP 716.02, it is not impossible to compare the results of Walker to that with applicant because it is clearly stated that applicant need to do a direct comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. For example, the claim calls for “a gas barrier material having a water vapor transmission rate of < 5 g/m2 per 24 hours”, applicant would test this range with applicant’s invention of gas barrier material versus Walker’s gas barrier material, and if applicant’s gas barrier material performs better than Walker’s gas barrier material, or Walker’s did not perform well, then applicant has shown a part of the unexpected result requirement as listed above (noting that the unexpected result involved in commensurate in scope with the claims; the examiner merely is giving applicant one example of how to provide sufficient evident). Applicant do not need to have Walker stating a parameter value as argued because that is not how unexpected result per MPEP 716.02 requires. Applicant repeatedly refers to Bolckmans, Irvine, Bunting, and Vasquez for providing unexpected result but these references, with the exception of Bolckmans, were not used in the rejection so referring to these references for unexpected result are not relevant. As stated in the rejection, Bolckmans were relied on for the mite species so the unexpected result is not relevant.
To the extent this rejection might be applied to any one of the new claims 22 to 26, Applicant notes that this claim specifies that the volume of the carrier material in the mite compartment is 60- 95% of the volume of the mite compartment. Thus according to this claim, the volume occupied by the rearing composition wherein the Phytoseiid mites reside is 60-95% of the volume of the mite compartment. This is significantly different from the system of Walker. According to Walker, when a carrier material is used, it is used in a breeding sachet. (Page 6, 4th paragraph and claims 19 and 20.) No other embodiments using a carrier material are disclosed in Walker. The use of breeding sachets (reference signs 27A, 27B) in the system of Walker is discussed on page 10, fifth paragraph with reference to Figure 3 and on page 10, last paragraph with references to Figure 4A. No other specific details are provided by Walker in connection to the breeding sachets.
The claimed limitation did not call for a mite compartment so it does matter if Walker teaches a sachet or any other device as long as the device has a compartment for mites. A sachet has a volume and depending on the amount of carrier material the user wishes to place in the sachet or compartment, it can be in the range as claimed by applicant. Again, applicant is merely listing numerous ranges but there are no unexpected result or criticality in comparison with the main reference of Walker. Walker also teaches a carrier material placed inside the breeding chamber of the sachet, and this carrier material has to occupy some sort of volume therein. Thus, even though Walker may not specifically state 60-95%, clearly, the carrier material has to occupy some sort of volume, which would depend on how many mites are in the compartment so as to provide the right amount of carrier material for the mites to thrive.
O'Connell is solely cited for disclosing certain features of dependent claim 2 and 12 and, therefore, O'Connell does not remedy the defects in the teachings of Bolckmans and Walker. For at least these reasons, claims 2 and 12, which depend from claim 1, are also not obvious over Bolckmans and Walker in view of O'Connell.
Since applicant did not provide detailed argument against O’Connell, there is no response from the examiner at this time.
Furthermore, it is noted that O'Connell is aimed at providing a package not permeable for chlorine ions as described in paragraphs [0023], [0031] and [0034] of O'Connell. Thus, the package of O'Connell is closed and does not have any opening. The present invention as well as the devices of the cited references require that the compartment containing the mites have at least one opening in them. Therefore, a skilled person would not have considered incorporating the teachings of O'Connell in the context of the cited references as they relate to different purposes. The closed surrounding of O'Connell is designed to preserve sterility in view of its disinfecting function and impermeability to chlorine-ions. Such features are described in paragraphs [0023]-[0026] of O'Connell. Therefore, modifying Bolckmans and/or Walker with O'Connell to remove the openings in the barrier would destroy the purpose of these references. Consequently, the combination of Bolckmans, Walker, and O'Connell can only be made with hindsight and after gleaning knowledge of the claimed invention.
O’Connell was not relied on for a package that is closed or not. As stated, O’Connell was relied on for a polymer-metal laminate. Thus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to select a polymer-metal laminate as taught by O’Connell as the preferred polymer for the gas barrier material of Walker et al. as modified by Bolckmans et al., depending on the user’s preference for good water vapor transmission with strength and durability, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious choice. In re Leshin, 125 USPQ 416.
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.
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/Son T Nguyen/Primary Examiner, Art Unit 3643
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