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 .
Response to Arguments
Applicant's arguments filed 1/20/2026 have been fully considered but they are not persuasive.
With regard to the argument that “How fails to disclose the claimed limitations of "each of the plurality of repeating patterns comprises a circle, a wavy shape, an irregular shape or a combination thereof,"” The conclusionary statements of How suggest that other high contrast patterns are highly applicable to the experimentation set forth within the reference, see lines 18-25 of 4. Discussion and page 7; lines 16-23, which even give the example of irregular circular pattern elements which would render such a claim limitation obvious.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 14 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 14 recites the limitation of "each of the plurality of periodic patterns comprises a circle, a wavy shape, an irregular shape or a combination thereof" which is a limitation that was previously recited within claim 11 from which 14 depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-6 & 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over by the NPL titled, “Zebra stripes, tabanid biting flies and the aperture effect” from How, et al., provided on the PTO-892 mailed on 5/19/2025, herein referred to as How.
Re claim 1, How discloses method of preventing insects, comprising:
providing an insect prevention item (fig. 2-6 and Methods, the striped and checkered horse rugs), wherein a plurality of repeating patterns (fig. 2-6 and Methods, the darker fabric) and a plurality of spacer patterns (fig. 2-6 and Methods, the lighter fabric) are represented on a surface of the insect prevention item (fig. 2-6 and Methods, the pattern is located on the horse rugs for the experiment), each of the plurality of repeating patterns is spaced apart by each of the plurality of spacer patterns (again see fig. 2-6), each of the plurality of repeating patterns comprises an upper edge of a repeating pattern (fig. 2-6, the top of the patterns dark portions), and each of the plurality of spacer patterns comprises a lower edge of a spacer pattern (fig. 2-6, the bottom of the patterns light portions), the upper edge of the repeating pattern and the lower edge of the spacer pattern are opposite and isolated from each other (Methods, formed of separate fabrics), and wherein a viewing angle of one of the plurality of repeating patterns and one of the plurality of spacer patterns neighboring to the one of plurality of the repeating patterns is visualized on a plurality of ommatidia of a flying insect as less than twice an inter-ommatidial angle of the flying insect (fig. 3-6 and Discussion, specifically page 7, the conclusions of the experiment show the value of aliasing occurs when the interommatidial angle falls near half of the angular period which is why the flies initiated the fast turns approaching the pattern); and
disposing the insect prevention item on an outer site of a target item (fig. 2, the horse being the target of the flies).
How further discloses a teaching of the plurality of repeating patterns comprising a circle/an irregular shape (4. Discussion; lines 18-25 and page 7; lines 16-23, wherein the pattern is formed of irregular contrasting circles).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose forming the insect prevention item with the plurality of repeating patterns comprises a circle/an irregular shape however, How discloses motivation to form such a rug for further experimentation. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the pattern by utilizing a simple substitution of the known stripes as taught by the body of the experiment for the irregular contrasting circular pattern from the Discussion in order to obtain the predictable result of further experimentation of tabanid fly behavior to create an effective product. See MPEP 2143 I. (B).
Re claim 2, How discloses the invention of claim 1, How further discloses wherein the flying insect comprises flies (Introduction, tabanids are the insect of interest within the experimentation).
Re claim 3, the modification of How discloses the invention of claim 1, How further discloses wherein the inter-ommatidial angle is an angle between a first central axis of a first ommatidia and a second central axis of a second ommatidia adjacent to the first ommatidia while the first central axis and the second central axis extend toward an intersection point (best visualized in fig. 3, as the flies approach the pattern), and the first central axis and the second central axis intersect with the insect prevention item respectively while extending in a direction of the insect prevention item (fig. 3-6 and Discussion, this angle occurs approximately 1m away from the pattern).
Re claim 4, How discloses the invention of claim 3, How further discloses wherein the viewing angle is an angle between the upper edge of the repeating pattern and the lower edge of the spacer pattern while the upper edge of the repeating pattern and the lower edge of the spacer pattern extend toward the intersection point (best visualized in fig. 3, the flies approach the pattern from a side).
Re claim 5, How discloses the invention of claim 1, How further discloses wherein when the flying insect is within 60 cm of the insect prevention item, the viewing angle of the one of the plurality of repeating patterns and the one of the plurality of spacer patterns neighboring to the one of plurality of the repeating patterns is visualized on the plurality of ommatidia of the flying insect as less than twice of the inter-ommatidial angle of each of the plurality of ommatidia of the flying insect (fig. 3-6 and Discussion, specifically page 7, at 1m, or approximately 70cm the flies make sharp turns, after flies pass the 1m mark the interommatidial angle is typically less than twice the ommatidia causing the aliasing effect and sharp turns as they approach the pattern decreasing the likely hood of landing thereon).
Re claim 6, How discloses the invention of claim 1, How further discloses wherein the insect prevention item comprises clothing (fig. 2 and Methods, the rug on the horse).
Re claim 8, How discloses the invention of claim 1, How further discloses wherein each of the plurality of spacer patterns comprises a wavy/irregular shape (4. Discussion; lines 18-25 and page 7; lines 16-23, to form the contrast about the irregular circular pattern).
Re claim 9, How discloses the invention of claim 1, How further discloses wherein the plurality of repeating patterns are a first repeating pattern (fig. 2-6, the top dark section), a second repeating pattern (fig. 2-6, the second dark section from the top) and a third repeating pattern in sequence (fig. 2-6, the third dark section from the top), wherein the first repeating pattern, the second repeating pattern and the third repeating pattern have the same shape, size and color (fig. 2-6 and Methods, they are all the same shape and the dark fabric on each rug), wherein the plurality of spacer patterns are a first spacer pattern (fig. 2-6, the top light section) and a second spacer pattern (fig. 2-6, the second light section from the top), the first repeating pattern is spaced apart from the second repeating pattern by the first spacer pattern (fig. 2-6), and the second repeating pattern is spaced apart from the third repeating pattern by the second spacer pattern (fig. 2-6), and the first spacer pattern and the second spacer pattern have different patterns (fig. 2-6, the checkered print have different square patterns from row to row).
Re claim 10, How discloses the invention of claim 1, How further discloses wherein disposing the insect prevention item on the outer site of the target item comprises disposing the insect prevention item between the target item and the flying insect (fig. 2-6, the pattern is between the fly and horse).
Claim 11-17 are rejectedunder 35 U.S.C. 103 as obvious over How in view of the NPL from Blaho et al., titled “Spottier Targets Are Less Attractive to Tabanid Flies: On the Tabanid-Repellency of Spotty Fur Patterns,” https://pmc.ncbi.nlm.nih.gov/articles/PMC3410892/; herein Bla.
Re claim 11, How discloses a method of preventing insects from staying in an area, comprising:
providing an insect prevention item (fig. 2-6 and Methods, the striped and checkered horse rugs), wherein a plurality of patterns side by side are represented on a surface of the insect prevention item (fig. 2-6 and Methods, the stripes and checkered patterns), each of the plurality of periodic patterns comprises a first unit cut line (along a first period of dark fabric) and a second unit cut line (along a first period of light fabric) opposite to the first unit cut line (the pattern sections oppose each other along an axis), wherein the first unit cut line and the second unit cut line are opposite and isolated from each other (wherein the unit cut line is anywhere but, the direct boarder of the two fabrics), and wherein a viewing angle of one of the plurality of patterns are visualized on a plurality of ommatidia of the flying insect as less than twice of an inter-ommatidial angle of each of the plurality of ommatidia of the flying insect (fig. 3-6 and Discussion, specifically page 7, the conclusions of the experiment show the value of aliasing occurs when the interommatidial angle falls near half of the angular period which is why the flies initiated the fast turns approaching the pattern); and
disposing the insect prevention item on an outer site of a target item (fig. 2, the horse being the target of the flies).
How further discloses a teaching of the plurality of repeating patterns comprising a circle/an irregular shape (4. Discussion; lines 18-25 and page 7; lines 16-23, wherein the pattern is formed of irregular contrasting circles).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose forming the insect prevention item with the plurality of repeating patterns comprising a circle, a wavy shape, an irregular shape or a combination thereof however, How discloses motivation to form such a rug for further experimentation. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the pattern by utilizing a simple substitution of the known stripes as taught by the body of the experiment for the irregular contrasting circular pattern from the Discussion in order to obtain the predictable result of further experimentation of tabanid fly behavior to create an effective product. See MPEP 2143 I. (B).
How fails to disclose a periodic pattern. However, Bla discloses a periodic pattern that further comprises a circle/wavy/irregular shape or a combination thereof (fig. 1, H16, the dark pattern being the repeating pattern).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose a periodic pattern however, Bla discloses such structure. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the design of the pattern by utilizing a simple substitution of the known pattern taught by the prior art for the periodic pattern shown by Bla in order to obtain the predictable result of creating a high contrast surface for repelling tabanids. See MPEP 2143 I. (B).
Re claim 12, the combination of How and Bla discloses the invention of claim 11, How further discloses wherein the inter-ommatidial angle is an angle between a first central axis of a first ommatidia and a second central axis of a second ommatidia adjacent to the first ommatidia while the first central axis and the second central axis extend toward an intersection point (best visualized in fig. 3, as the flies approach the pattern), and the first central axis and the second central axis intersect with the insect prevention item respectively while extending in a direction of the insect prevention item (fig. 3-6 and Discussion, this angle occurs approximately 1m away from the pattern).
Re claim 13, the combination of How and Bla discloses the invention of claim 12, the modification of How further discloses wherein the viewing angle is an angle between the first unit cut line and the second unit cut line while the first unit cut line and the second unit cut line extend toward the intersection point (best visualized in fig. 3, the flies approach the pattern from a side).
Re claim 14, the combination of How and Bla discloses the invention of claim 11, Bla as applied to How further discloses wherein each of the plurality of periodic patterns comprises combination of a circle/wavy/irregular shape or a combination thereof (again see fig. 1, H16).
Re claim 15, the combination of How and Bla discloses the invention of claim 11, Bla as applied to How further discloses wherein the repeating pattern and the spacer pattern have different shapes, figures, sizes, and colors (again see fig. 1, H16).
Re claim 16, the combination of How and Bla discloses the invention of claim 15, Bla as applied to How further discloses wherein the repeating patterns of the plurality of periodic patterns neighboring to each other are spaced apart by the spacer pattern (again see fig. 1, H16).
Re claim 17, the modification of How discloses the invention of claim 11, the modification of How further discloses wherein when the flying insect is within 60 cm of the insect prevention item, the viewing angle of the one of the plurality of periodic patterns is visualized on the plurality of ommatidia of the flying insect as less than twice of the inter-ommatidial angle of each of the plurality of ommatidia of the flying insect (fig. 3-6 and Discussion, specifically page 7, at 1m, or approximately 70cm the flies make sharp turns, after flies pass the 1m mark the interommatidial angle is typically less than twice the ommatidia causing the aliasing effect and sharp turns as they approach the pattern decreasing the likely hood of landing thereon).
Or in the alternative, if applicant is of the opinion How does not disclose enough structure to the irregular contrasting circle pattern.
Claim 8 is rejected, in the alternative, under 35 U.S.C. 103 as obvious over How as applied to claim 1 above, in view of Bla.
Alt claim 8, How discloses the invention of claim 1, How further discloses the experimentation of Bla as an additional method of hindering tabanids from landing on hosts.
How fails to disclose the shape of the spacer pattern. However, Bla discloses wherein each of the plurality of spacer patterns comprises a circle, a wavy shape, an irregular shape or a combination thereof (fig. 1, the lighter areas that allow the experimenters to imitate the cattle spots).
The only distinction between the prior art and the claimed invention is that the prior art fails to disclose the shape of the spacer pattern however, Bla discloses the shape discussed. Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the pattern by utilizing a simple substitution of the known stripes as taught by the body of the experiment for the irregular contrasting circular pattern from the Discussion in order to obtain the predictable result of further experimentation of tabanid fly behavior to create an effective product. See MPEP 2143 I. (B).
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 NICOLE P MACCRATE whose telephone number is (571)272-5215. The examiner can normally be reached M-Th: 9am-5pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua J Michener can be reached at 571-272-1467. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE PAIGE MACCRATE/Examiner, Art Unit 3642 /JOSHUA J MICHENER/Supervisory Patent Examiner, Art Unit 3642
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