Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined pursuant to the first inventor to file provisions of the AIA .
DETAILED ACTION
Status of the Claims
Applicants filed claims 1 – 31 with the instant application on 6 November 2024. In a Preliminary Amendment filed 11 June 2025, Applicants canceled claims 1 – 31 and added new claims 32 – 42. Consequently, claims 32 – 42 are available for substantive consideration.
Information Disclosure Statement
The Examiner has considered the Information Disclosure Statement (IDS) filed 11 June 2025, which is now of record in the file.
Priority
The Examiner acknowledges receipt of papers as submitted in application S/N 15/123,203, submitted pursuant to 35 U.S.C. §§ 119(a)-(d), which papers are now of record in the file.
Objection to the Abstract
The Abstract is objected to for its use of the term, “said.” Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Rejections Pursuant to 35 U.S.C. § 103
The following is a quotation of 35 U.S.C. § 103 that 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the Examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention absent any evidence to the contrary. Applicants are advised of the obligation pursuant to 37 CFR § 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the Examiner to consider the applicability of 35 U.S.C. § 102(b)(2)(C) for any potential 35 U.S.C. § 102(a)(2) prior art against the later invention.
Claims 32 – 42 are rejected pursuant to 35 U.S.C. § 103, as being obvious over CN 101297652 A to Cao, Y., et al., published 5 November 2005, identified on the IDS filed 11 June 2025, cite no. 1 (FOR) (“Cao CN ‘652”), in view of US 2004/0062783 A1 to De Sloovere, et al., claiming priority to 27 September 2002, identified on the Information Disclosure Statement (IDS) filed 11 June 2025, cite no. 1 (USPATAPP) (“De Sloovere ‘783”), as evidenced by Joyce, G., et al., “Advances in structure measurements of carbon black,” Rubber World, ISSN 0035-9572 (2009) (“Joyce (2009)”).
The Invention As Claimed
Applicants claim a method of controlling insects in stored food, the method comprising the step of applying to the stored food an effective amount of synthetic amorphous silica at 50 - 200 mg/kg of the stored food, wherein the synthetic amorphous silica is uncoated, wherein the synthetic amorphous silica has an average particle size of 50 - 200 nm, an effective surface area of 185 - 280 m2/g, and is at least 98% silica by weight, wherein the synthetic amorphous silica meets a food grade certification, wherein the synthetic amorphous silica comprises a dust or powder, wherein the synthetic amorphous silica comprises at least 99% silica, by weight, wherein the synthetic amorphous silica has an oil absorption value of 290 - 320 mL/100 g, wherein the insect is a beetle, wherein the stored food is grain, wherein the synthetic amorphous silica has an average particle size of 100 - 150 nm, wherein the effective amount is 150 - 200 mg/kg of the stored food, or 150 mg/kg, or 200 mg/kg.
The Teachings of the Cited Art
Cao CN ‘652 discloses use of silicon dioxide in preparation of pesticides, in particular a silica food anti-tackiness agent harmful to insects, which use belongs to the technical field of pest control (see Abstract), wherein the silicon dioxide is a white, powdery, amorphous silicon dioxide dust for the protection of grain (see p. 1, last para. – p. 2, 1st para.), wherein the silica particles have a particle size between 10 and 30 µm, or between 50 nm and 10 µm (see p. 2), wherein the physico-chemical parameters of the silicon dioxide are as follows: BET surface area of 100 - 600m2/g; particle size of 50 nm - 10 mm; a dibutyl phthalate absorption [oil absorption number, as evidenced by Joyce (2009) (see p. 1), of 200 – 600 mL/100 g, and a silicon dioxide content of 95% wgt, or more (see p. 2, last para.), wherein the silicon dioxide is food grade (id.), wherein the silica is applied to grain at rates of from 50 mg/kg – 400 mg/kg (see p. 3, 3rd para.), and wherein, in an exemplified embodiment, the silicon dioxide is applied to raw grain stored in a warehouse as a pest control means (see page 6, sect. 2). The reference does not expressly disclose that the silica-based compositions are capable of protecting stored grain from insects in stored food/grain for a period of from 28 – 180 days, wherein the insect is a beetle. The teachings of De Sloovere ‘783 remedy these deficiencies.
De Sloovere ‘783 discloses a composition for combating insects, mites, ticks, and parasites, said composition comprising siliceous particles, with an average particle size between 10 and 40 nm, (see Abstract), wherein synthetic amorphous silicon dioxide, precipitated silica, fumed silica, and pyrogenic synthetic amorphous silica are preferred as nanoparticles (see ¶[0017]), wherein the compositions show activity against members of the order Coleoptera (beetles and weevils, such as the Colorado potato beetle, spotted and striped cucumber beetle, Japanese beetle, and boll weevil) (see ¶[0036]), wherein the composition is in the form of a powder (see ¶[0112]), and wherein the disclosed compositions can be used in many possible applications, such as food (see ¶¶[0115] - [0118]).
Application of the Cited Art to the Claims
It would have been prima facie obvious before the filing date of the claimed invention to use a composition for combating insects, such as beetles (Coleoptera), according to the teachings of De Sloovere ‘783, wherein the composition comprises silicon dioxide particles in the form of white, powdery, amorphous silicon dioxide dust for the protection of grain (see p. 1, last para. – p. 2, 1st para.), wherein the silica particles have a particle size between 10 and 30 µm, or between 50 nm and 10 µm (see p. 2), wherein the physico-chemical parameters of the silicon dioxide are as follows: BET surface area of 100 – 600 m2/g; particle size of 50 nm - 10 mm; a dibutyl phthalate absorption [oil absorption] number, as evidenced by Joyce (see p. 1) of 200 – 600 mL/100 g, and a silicon dioxide content of 95% wgt, or more (see p. 2, last para.), wherein the silicon dioxide is food grade (id.), wherein the silica is applied to grain at rates of from 50 mg/kg – 400 mg/kg (see p. 3, 3rd para.), and wherein, in an exemplified embodiment, the silicon dioxide is applied to raw grain stored in a warehouse as a pest control means, as taught by Cao CN ‘652. One of ordinary skill in the art would be motivated to do so, with a reasonable expectation of success in so doing by the teachings of De Sloovere ‘783 to the effect that compositions comprising amorphous silica particles effective in protecting stored grain against beetles (see ¶[0036]).
With respect to claim 32, which claim recites a limitation directed to the silica compositions of the invention being effective in controlling insects for 28 – 180 day, the Examiner notes that the cited references do not expressly disclose periods of effectiveness for controlling insects in grain. However, it is the Examiner’s position that a method according to the teachings of the cited references, using the same application rates of food grade silica, wherein the silica powder/dust has the same particles sizes, the same oil absorption capacity, and the same surface area, would necessarily provide protection against insects such as beetles for at least 28 days.
With respect to claims 32, 36, and 39, which claims recite limitations in the form of quantitative ranges directed to the average particle sizes of the silica (claims 32 and 39), the BET surface area of the silica (claim 32), the oil adsorption value of the silica (claim 36), and the mass rate of application of the silica to grain (claims 32, 40 - 42), the Examiner notes that the cited references do not disclose quantitative ranges that are exactly congruent with the claimed ranges. However, it is the Examiner’s position that the cited art teaches quantitative ranges that significantly overlap with the claimed ranges and, as such, would render the claimed invention obvious. See MPEP § 2144.05. “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).”
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by claims 32 – 42 would have been obvious within the meaning of 35 USC § 103.
NO CLAIM IS ALLOWED.
CONCLUSION
5. Any inquiry concerning this communication or any other communications from the examiner should be directed to Daniel F. Coughlin whose telephone number is (571)270-3748. The examiner can normally be reached on M-F 8:30 am - 5:30 pm.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, David J Blanchard, can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/DANIEL F COUGHLIN/
Examiner, Art Unit 1619
/DAVID J BLANCHARD/ Supervisory Patent Examiner, Art Unit 1619
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