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 .
Election/Restrictions
Newly submitted claim 161 is directed to an invention that is independent or distinct from the invention originally elected for the following reasons: Claim 161 is dependent upon nonelected claim 102.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 161 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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.
Claims 157-159 are 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.
Claim 157 recites the limitation “wherein the eggs are between about 0.06 g and about 0.08 g.” This limitation renders the scope of the claim indefinite as, “the eggs” are not positively recited as a required structure in any claims upon which claim 157 depends. Accordingly, it is unclear how the recitations of claim 157 are further limiting.
Claim 158 recites the limitation “wherein the diet is formulated to dissolve and/or disintegrate in a controlled manner when contacted with water.” This limitation renders the scope of the claim indefinite as, “the diet” is not positively recited as a required structure in any claims upon which claim 158 depends. Accordingly, it is unclear how the recitations of claim 158 are further limiting.
Claim 159 recites the limitation “wherein the hatch stimulant is cysteine or ascorbic acid or a salt or solvate thereof.” This limitation renders the scope of the claim indefinite as, “the hatch stimulant” is not positively recited as a required structure in any claims upon which claim 159 depends. Accordingly, it is unclear how the recitations of claim 159 are further limiting.
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.
Claims 56, 57, 59, 62, 65, 156-158, and 160 are rejected under 35 U.S.C. 103 as being unpatentable over Cao (CN 109041887 A).
Regarding claim 56, Cao discloses a receptacle (container 100; Fig. 6), comprising:
a receptacle base (tube body 102; Fig. 6) comprising:
a receptacle bottom wall (Fig. 6 shows tube body 102 has a bottom wall at coupling port 124),
a receptacle side wall extending from the receptacle bottom wall (Fig. 6 shows tube body 102 forms a side wall), and
an enclosure (containing part 106; Fig. 6),
wherein the receptacle side wall and/or the enclosure forms an egg section and a diet section within the receptacle base (consumables 138; Fig. 6; ¶ 0052, lines 3-5, “The target organism T includes, but is not limited to, fruit flies or other target insects. The organisms sealed in the culture container 100 may include adult and non-adult forms, such as eggs, larvae, and/or pupae”), and
wherein the egg section and the diet section are connected (Fig. 6 shows consumables 138 and target organism offspring T’ are connected to containing part 106);
a receptacle lid comprising a perforation and configured to engage the receptacle base (lid 104, hole 108; Fig. 6); and
a receptacle seal configured to form an airtight seal with the receptacle base and/or the receptacle lid, thereby sealing the egg section and the diet section from an outside environment (sealing membrane 140; Fig. 6),
Cao, however, fails to specifically disclose a plurality of perforations, and wherein one or more of the plurality of perforations on the receptacle lid are independently between about 5 mm and about 50 mm in at least one dimension, however, it would have been obvious to one having ordinary skill in the art at the earliest effective filing date of the invention to modify the device of Cao to include a plurality of perforations in order to facilitate the transfer of material. Additionally, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St, Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Furthermore, it would have been obvious to one having ordinary skill in the art at the earliest effective filing date of the invention to modify the device of Cao such that one or more of the plurality of perforations on the receptacle lid are independently between about 5 mm and about 50 mm in at least one dimension in order to further accommodate fluid to flow into the culture container. Additionally, there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
Regarding claim 57, Cao discloses the device of claim 56.
Cao discloses wherein the receptacle is configured to hold eggs of an aquatic insect in the egg section (Fig. 6 shows container is shaped to hold aquatic insect eggs).
Regarding claim 59, Cao discloses the device of claim 56.
Cao discloses which is configured to hold diet for an aquatic insect in the diet section (¶ 0052, lines 10 and 11, “Consumable substances 138 include, but are not limited to, nutrients, medicines, etc.”).
Regarding claim 62, Cao discloses the device of claim 56.
Cao discloses wherein the enclosure comprises a plurality of panels extending from the receptacle bottom wall (peripheral wall 112, recess 114; Fig. 6).
Regarding claim 65, Cao discloses the device of claim 56.
Cao discloses wherein the receptacle seal forms an airtight seal with the receptacle side wall, and the receptacle lid is inside the receptacle base (Fig. 6 shows lid 104 is partially connected within the tube body 102; ¶ 0052, lines 15-18, “Furthermore, the sealing film 140 may be attached to one of the two sealing receiving surfaces 120, 122 [e.g., the sealing receiving surface 120 shown] to prevent unwanted substances or contaminants from being introduced into the culture container 100 through the through-hole 108 of the cap 104”).
Regarding claim 156, Cao discloses the device of claim 56.
Cao discloses wherein the enclosure extends from the receptacle bottom wall (Fig. 6 shows containing part 106 extends from a bottom wall of tube 102).
Regarding claim 157, Cao discloses the device of claim 57.
Cao discloses wherein the eggs are between about 0.06 g and about 0.08 g (Fig. 6 shows receiving portion 106 is configured to hold eggs between about 0.06 g and about 0.08 g).
Regarding claim 158, Cao discloses the device of claim 59.
Cao discloses wherein the diet is formulated to dissolve and/or disintegrate in a controlled manner when contacted with water (¶ 0052, lines 10 and 11).
Regarding claim 160, Cao discloses the device of claim 56.
Cao discloses wherein the enclosure and the receptacle side wall form concentric circles (¶ 0040, line 13, “The shape of the tube 102 may include, but is not limited to, a cylindrical shape;” Figs. 6 and 7 show tube 102 and containing part 106 comprise cross sections that form concentric circles).
Claim 58 is rejected under 35 U.S.C. 103 as being unpatentable over Cao (CN 109041887 A) as applied to claim 57, in view of Ariv et al. (WO 9526633 A2), hereinafter Ariv.
Regarding claim 58, Cao discloses the device of claim 57, however, Cao fails to specifically disclose further comprising an adhesive surface on the receptacle side wall, on the receptacle bottom wall, on the enclosure, and/or in the egg section, configured to adhere to eggs of the aquatic insect.
Ariv is in the field of insect management and teaches further comprising an adhesive surface on the receptacle side wall, on the receptacle bottom wall, on the enclosure, and/or in the egg section, configured to adhere to eggs of the aquatic insect (page 6, lines 11-16, “Ammonium bicarbonate or organic substances capable of releasing ammonium may be used as an attractant for insects which are later destroyed, for example on sticky-sheets to which the attracted insects are glued. The substrate of the invention can also be dispersed at specific locations in order to induce insects to lay eggs only in those locations”).
Therefore, it would have been obvious to one of ordinary skill in the art of insect management before the effective filing date of the claimed invention to modify the device of Cao to include an adhesive surface on the receptacle side wall, on the receptacle bottom wall, on the enclosure, and/or in the egg section, configured to adhere to eggs of the aquatic insect, as taught by the adhesive of Ariv. The adhesive would ensure that eggs remain attached to the surface, which would give the device more flexibility over the placement of the eggs. The modification would have a reasonable expectation of success.
Claims 60, 61, and 159 are rejected under 35 U.S.C. 103 as being unpatentable over Cao (CN 109041887 A) as applied to claim 56, in view of Leo (US 10188086 B2).
Regarding claim 60, Cao discloses the device of claim 56, however, Cao fails to specifically disclose wherein the egg section and/or the diet section is configured to hold a hatch stimulant, optionally wherein the hatch stimulant is cysteine or ascorbic acid or a salt or solvate thereof.
Leo is in the field of insect management and teaches wherein the egg section and/or the diet section is configured to hold a hatch stimulant (Fig. 3 shows feed from feedstock at upper end of feeding module; ¶ 0031, “the flavoring is comprised of one or more from the group consisting of allspice berries, almond meal, anise seed, annato seed, arrowroot powder, basil, bay leaves, black pepper, buttermilk, caraway, cayenne, celery seed, cheese cultures, chervil, Chile powder, chives, cilantro, cinnamon, citric acid, cloves, coconut shredded, coriander, corn oil, corn starch, cream of tartar, cubeb berries, cumin, curry, dextrose, dill, enzymes, fennel, fenugreek, file powder, garlic powder, ginger, grapefruit peel, green peppercorns, honey, horseradish powder, juniper berries, kaffir lime, lavender, lemon grass powder, lemon peel, lime peel, long pepper, marjoram, molasses, mustard, natural smoke flavor, nigella seeds, nutmeg, onion powder, orange peel, oregano, paprika, parsley, poppy seed, powdered cheese, red pepper, rose petals, rosemary, saffron, sage, salt, savory, sesame seed, star anise, sugar, sugar maple, sumac, tamarind, tangerine peel, tarragon, thyme, tomatillo powder, tomato powder, torula yeast, turmeric, vanilla extract, wasabi powder, whey, white peppercorns, yeast extract, and yeast;” ¶ 0292, “it also has been my realization that the enhancers listed herein are those, when fed to insects, may then subsequently fed to humans as Energy-Insects™, which are a specialized kind of edible insect that contains a dose of the stimulant caffeine, vitamins, and other functional ingredients. It has also been my realization that insects truly enjoy eating my inventive enhanced feedstock blend and it increases their quality of life. Although there is no evidence and no way of truly telling that insects have the cognitive ability to enjoy eating my proprietary enhanced feedstock blend, I certainly give them the benefit of the doubt”).
Therefore, it would have been obvious to one of ordinary skill in the art of insect management before the effective filing date of the claimed invention to modify the device of Cao such that the egg section and/or the diet section is configured to hold a hatch stimulant, optionally wherein the hatch stimulant is cysteine or ascorbic acid or a salt or solvate thereof, as taught by the enhancer of Leo. The enhancer would act as a stimulant and add flavoring to the feedstock, increasing the appeal of the feed to the insects. The modification would have a reasonable expectation of success.
Regarding claim 61, Cao discloses the device of claim 56, however, Cao fails to specifically disclose wherein the egg section and the diet section are separated by the enclosure which is perforated and/or castellated.
Leo teaches wherein the egg section and the diet section are separated by the enclosure which is perforated and/or castellated (¶ 0366, “The feeding chamber [200] of is shown to have an interior [201] defined by at least one side wall [202]. Each side wall [202] of the embodiment of FIG. 3 is shown to have perforations as to be comprised of a mesh, or a screen, or the like. However, it is to be noted that any such wall, perforated or not perforated, screen or an impermeable surface shall suffice. It is also to be noted that the side wall [202] when made up of a screen-type material has opening that are lesser in size than the insects contained within the interior [201] of the feeding chamber [200];” ¶ 0404, “In the embodiment of FIG. 3, the egg-laying insects [225] present within the interior [201] of the feeding chamber [200] will deposit the eggs [259] into the breeding material [248] and the screen floor [258] will prevent them from eating or digging up the eggs [259]. More on the different states of operation is discussed below in FIGS. 5 through 10”).
Therefore, it would have been obvious to one of ordinary skill in the art of insect management before the effective filing date of the claimed invention to modify the device of Cao such that the egg section and the diet section are separated by the enclosure which is perforated and/or castellated, as taught by the perforated chamber configuration of Leo. The perforations would prevent the insects from eating or digging up the eggs, which would improve the overall function of the system. The modification would have a reasonable expectation of success.
Regarding claim 159, Cao in view of Leo discloses the device of claim 60.
Cao discloses wherein the hatch stimulant is cysteine or ascorbic acid or a salt or solvate thereof (Fig. 3 shows feed from feedstock at upper end of feeding module; ¶ 0031, ¶ 0292).
Claim 63 is rejected under 35 U.S.C. 103 as being unpatentable over Cao (CN 109041887 A) as applied to claim 56, in view of Matthews et al. (US 20030168018 A1), hereinafter Matthews.
Regarding claim 63, Cao discloses the device of claim 56.
Cao discloses wherein one or more of the plurality of perforations on the receptacle lid are configured to permit passage of water (Fig. 6; ¶ 0042, lines 1-3, “When the cap 104 is installed on the tube body 102 and closes the opening 103 of the tube body 102, the through hole 108 can be connected to the hollow interior of the tube body 102, allowing fluid to flow into the culture container 100 through the through hole 108”).
Cao, however, fails to specifically disclose wherein one or more of the plurality of perforations on the receptacle lid are configured to permit passage of a larva of an aquatic insect.
Matthews is in the field of insect management and teaches wherein one or more of the plurality of perforations on the receptacle lid are configured to permit passage of a larva of an aquatic insect (¶ 0018, lines 20-26, “the mobile hatchery/nursery is moved to a desired location, and the veliger larvae pumped into the waters over the site of the prospective clam bed to be repopulated by pressurizing tanks 1b, 1c with introduction of pressurized air through pressure intakes 7, which in turn causes water and larvae to be expelled up through lift tubes 8”)
Therefore, it would have been obvious to one of ordinary skill in the art of insect management before the effective filing date of the claimed invention to modify the device of Cao such that one or more of the plurality of perforations on the receptacle lid are configured to permit passage of a larva of an aquatic insect, as taught by the perforated chamber configuration of Matthews. The perforations would allow for the passage of larvae, which would improve the ability for the user to further manage the insects within the system. The modification would have a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 03/04/2026 have been fully considered but they are not persuasive.
Regarding the argument on page 11 that “Applicant respectfully submits that a skilled person would not be motivated to include a plurality of perforations in the receptacle lid in view of Cao. A skilled person would in fact be discouraged from including a plurality of perforations in the receptacle lid given the concerns of introducing contaminants,” the Examiner maintains that it would have been obvious to one having ordinary skill in the art at the earliest effective filing date of the invention to modify the device of Cao to include a plurality of perforations in order to facilitate the transfer of material, and that a mere duplication of the essential working parts of a device involves only routine skill in the art. St, Regis Paper Co. v. Bemis Co., 193 USPQ 8. The hole 108 of Cao is configured such that it addresses the problem of introducing undesirable substances and contaminants, as a sealing film 140 is provided. Fig. 6 shows the sealing film 140 extends along the entire width of the container. Therefore, the provision of additional holes in the same configuration as the original hole 108 and in the same location along the container would not lead to the introduction of undesirable substances and contaminants.
Regarding the argument on page 13 that “Ariv teaches that the substates can be used ‘in order to obtain large amounts of insect larvae which can be raised on manure or organic waste,’ ‘as an attractant in the extermination of insects or insect eggs,’ and the methods are for ‘creating insect larvae which do not develop to adult insects.’ (Ariv at Abstract). In contrast, Cao discloses ‘culture vessels and systems and methods for transferring cultured organisms between culture vessels.’ (Cao at Title). Cao discusses transferring fruit flies from one culture vessel to another in order to maintain stocks of the fruit flies (Cao at Background). Thus a skilled person in the art, reading Cao and Ariv, would have no motivation to modify Cao in view of Ariv by adding an adhesive, as suggested by the Office, as this would change the mode of operation of Cao,” the Examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Ariv and Cao are both in the field of insect management, with the motivation to modify the device of Cao to include the adhesive of Ariv existing in the Ariv reference itself, as Ariv teaches that the adhesive would ensure that eggs remain attached to the surface. Accordingly, this would give the device more flexibility over the placement of the eggs and have a reasonable expectation of success.
The remainder of Applicant’s arguments 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure.
Unger, US 20170042131 A1, discusses a system and method for breeding and harvesting insects.
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 SPENCER THOMAS CALLAWAY whose telephone number is (571)272-3512. The examiner can normally be reached 9am-5pm.
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/S.T.C./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642
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