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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/25/2026 has been entered.
Response to Arguments
Applicant’s arguments, see “Applicant Arguments/Remarks”, filed 01/25/2026, stating that the increased milk yield of 8-11% is an unexpected result as only 6.5% has been previously reported, is unpersuasive. Applicant cited on their IDS 08/22/2019 the NPL document to Bilodeau, which states in the Abstract that using blue light therapy can show an increase in milk production from 5-11%. Therefore, the similar system of Gretz (using a circadian, i.e. 16:8 light/dark ratio as well) is reasonably expected to cause a similar increase in milk production, even though Gretz does not provide the expected value. Secondary reference Alferink also teaches the usage of a 16:8 system, further stating this system gives the best results (Para. 0003). MPEP 716.02(c)(II) states that "Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof." In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967).” In this case, the claimed increased milk yield of 8-11% is expected based on the prior art teachings of increased milk production of 5-11%, which overlaps with the claimed range.
For these reasons, the rejections below are maintained.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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:
i. Determining the scope and contents of the prior art.
ii. Ascertaining the differences between the prior art and the claims at issue.
iii. Resolving the level of ordinary skill in the pertinent art.
iv. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-4, 7, 10, 12-15, 17, 29, 78-90, and 95-98 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application 20150375008 awarded to Gretz et al, hereinafter Gretz, in view of U.S. Patent Application 20140107737 awarded to Murphy et al, hereinafter Murphy, further in view of U.S. Patent Application 20150146420 awarded to Alferink, hereinafter Alferink.
Regarding Claims 1 and 84, Gretz teaches a light-based method of increasing milk yield (merely an inherent method effect, where a reference discloses the terms of the recited method steps, and such steps necessarily result in the desired and recited effect, that the reference does not describe the recited effect in haec verba is of no significance as the reference meets the claim under the doctrine of inherency. Ex Parte Novitski, 26 USPQ2d 1389, 1390-91 (BdPatApp & Inter 1993)) from a cow (Para. 0011), including causing a substantial suppression of melatonin production (Para. 0011), the method comprising the step of shining blue light from an artificial blue light source into just one eye of the cow (abstract), causing a substantial suppression of melatonin production in the multiparous cow, sufficient to induce physiological change, wherein the physiological change includes increasing the milk yield from the multiparous cow, wherein the increased milk yield is from 8-11% (inherent method effect). Gretz does not teach wherein the cow is a multiparous cow, wherein the method includes the step of keeping the multiparous cow outdoors whilst the blue light from the artificial blue light source is shone into the just one eye of the multiparous cow, or wherein the step involves milking the cow.
However, in the art of blue light therapy for melatonin suppression in one eye of an animal (abstract), Murphy teaches the step of keeping an animal outside for a combined natural light/blue light treatment into one eye of the animal (Para. 0026) for the purposes of cheapen housing needs for the intended animal (Para. 0045).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the method of Gretz by Murphy, i.e. by keeping the cows outside during their blue light treatment, for the motivation set forth above in Murphy (Para. 0045).
Further, Alferink teaches the usage of blue-light therapy to regulate melatonin, which in turn affects milk production in dairy cows (Para. 0003, “When the melatonin level decreases, another hormone, IGF-I, increases in the animal's blood. The function of the IGF-I hormone is to stimulate animal's activity and, hence, its milk production. Therefore, more light means an increase of milk production”) by using a 16:8 light/dark lighting scheme (Para. 0003). The Examiner notes that for dairy cows to produce milk/be milked, they will have needed to experienced pregnancy/have a calf, and to continue to produce over time they need further pregnancies (see https://www.dairy.com.au/dairy-matters/you-ask-we-answer/is-it-true-that-cows-can-only-produce-milk-if-they-have-been-pregnant).
It would have been obvious to one of ordinary skill in the art one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gretz by Alferink, i.e. performing the method on a multiparous dairy cow that is being milked, for the predictable purpose of combining prior art elements according to known methods to yield predictable results, and while neither Gretz nor Alferink explicitly state the cow is multiparous, the realities of dairy farming inherently mean that Alferink’s light therapy would have been performed on multiparous cows.
Regarding Claim 2, Gretz modified by Murphy and Alferink makes obvious the method of Claim 1, in which the physiological change is a non-therapeutic physiological change (inherent method effect, see rejection to Claims 1 and 84 above. As the physiological changes are tied in the independent claims to the suppression of melatonin and usage of the aforementioned blue light therapy, the limitations listed here are inherent method effects).
Regarding Claim 3, Gretz modified by Murphy and Alferink makes obvious the method of Claim 1. Gretz further teaches the method comprising directing blue light into the multiparous cow’s eye for at least one selected period of time (Para. 0052).
Regarding Claims 4 and 85, Gretz modified by Murphy and Alferink makes obvious the method of Claims 1 and 84. Gretz does not teach the method including the step of providing to the multiparous cow a combined total of natural and blue light from the artificial blue light source for at least approximately 16 hours during each 24 hour period.
However, Murphy teaches performing the method above for at least 16 hours during the 24 hour period (Para. 0045).
It would have been obvious to one of ordinary skill in the art to further modify Gretz modified by Murphy and Alferink, i.e. performing the method for 16 hours in a 24 hour period, for the predictable purpose of using a known technique to improve similar devices (methods, or products) in the same way.
Regarding Claims 7, 78-79, and 86, Gretz modified by Murphy and Alferink makes obvious the method of Claim 1, in which the blue light has a peak wavelength from 450-495 nm (Para. 0014). Gretz does not teach wherein the wavelength range of 440-490 nm, 459 to 484 nm, or 465 nm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, i.e. to operate in the range of 440-490 nm, since it has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ (Please see MPEP 2144.05).
Regarding Claims 10 and 12, Gretz modified by Murphy and Alferink makes obvious the method according to Claim 1. Gretz does not teach wherein the artificial light source includes a white light source.
However, Murphy teaches the usage a white light source in a blue light system (Para. 0050).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gretz modified by Murphy and Alferink further by Murphy, i.e. by using a white light in the blue light system, for the predictable purpose of simply substituting one method of producing blue light for another.
Regarding Claim 13, Gretz modified by Murphy and Alferink makes obvious the method of Claim 1. Gretz further teaches in which the artificial blue light source comprises at least one blue LED (Para. 0014).
Regarding Claim 14, Gretz modified by Murphy and Alferink makes obvious the method of Claim 1. Gretz does not teach in which the artificial blue light source includes a white light LED and no blue filter.
However, Murphy teaches the usage of a white light LED and a blue reflective surface instead of a blue filter in a blue light system (Para. 0050).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gretz modified by Murphy and Alferink further by Murphy, i.e. by using a white light with a blue reflective surface in the blue light system, for the predictable purpose of simply substituting one method of producing blue light for another.
Regarding Claim 15, Gretz modified by Murphy and Alferink makes obvious the method of Claim 1. Gretz further teaches in which all the light incident on the just one eye of the multiparous cow is blue (abstract, Para. 0014).
Regarding Claims 17 and 87, Gretz modified by Murphy and Alferink makes obvious the methods of Claims 1 and 84. Gretz further teaches in which the artificial light source provides a blue light intensity of from 10 to 400 lux at the single one eye of the multiparous cow (Para. 0019, ‘at least 250 lux’).
Regarding Claims 29 and 96, Gretz modified by Murphy and Alferink makes obvious the methods of Claims 1 and 84, wherein the physiological change includes an increased rise in circulating gonadotropins; or wherein the physiological change includes increased frequency of estrus behavior, or improved mammary development; or wherein the physiological change includes improved feed efficiency, or greater body growth and total weight gain, or increased heart girth, or increased average daily gain; or wherein the physiological change includes increased carcass protein content, or reduction in carcass subcutaneous fat; or wherein the physiological change includes faster return to reproductive competence post-partum, or increased conception rates and reduced artificial inseminations per animal, or reduction in calving interval, or increases in 60-day non-return rate, or reduced risk of twin pregnancies (inherent method effect, see rejection to Claims 1 and 84 above. As the physiological changes are tied in the independent claims to the suppression of melatonin and usage of the aforementioned blue light therapy, the limitations listed here are inherent method effects).
Regarding Claims 80-81 and 88-89, Gretz modified by Murphy and Alferink make obvious the methods of Claims 1 and 84. Gretz further teaches in which the artificial light source provides a blue light intensity of from 100 to 300 lux, or 200-250 lux, at the single one eye of the multiparous cow (Para. 0019, ‘at least 250 lux’).
Regarding Claims 82 and 95, Gretz modified by Murphy and Alferink makes obvious the methods of Claims 1 and 84, wherein the increased milk yield is from 1 to 9% (inherent method effect), the method including the step of milking the multiparous cow to collect milk including the increased milk yield from 1% to 9% (see rejection to Claims 1 and 84 above).
Regarding Claims 83 and 90, Gretz modified by Murphy and Alferink makes obvious the methods of Claims 1 and 84. Gretz further teaches in which the artificial light source produces only blue light (abstract, Para. 0011).
Regarding Claims 97 and 98, Gretz modified by Murphy and Alferink makes obvious the methods of Claims 1 and 84. Gretz further teaches wherein the method includes using a headpiece fittable to the multiparous cow’s head, the head piece including the artificial blue light source (Para. 0020, “The diffuser may comprise or be a rigid or, preferably, a flexible and/or adjustable structure. Preferably, the diffuser is mounted above or below the eyes of a subject”, Para. 0011, “Preferably, the subject is a mammal, more preferably a companion animal like, e.g., a dog, a cat, a hamster, a guinea pig, a rabbit, a hare, a horse, a cow, or a pig”), the headpiece shining blue light from the artificial blue light source into the just one eye of the multiparous cow (abstract), causing the substantial suppression of melatonin production in the multiparous cow, sufficient to induce the physiological change (see the rejections to Claims 1 and 84).
Conclusion
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/JLM/
Examiner, Art Unit 3792
/UNSU JUNG/Supervisory Patent Examiner, Art Unit 3792