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 .
Status of Application
Claims 14-21, 24-33, 36 are pending.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 18, 2025, has been entered.
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:
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(s) absent any evidence to the contrary. Applicant is advised of the obligation under 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 14-21, 24-33, 36 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2015/0327578 (BURR) in view of United States Patent No. 4,600,585 (VITCENDA) and Kertz, Dairy Calf & Heifer, Calves Go Through A Transition At Weaning, Hoard’s Dairyman December 7, 2010, accessed at https://hoards.com/article-1814-calves-go-through-a-transition-at-weaning.html (KERTZ).
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At the outset, it is noted that the method utilizes the open-ended, transitional phrase “comprising”. However, while the first solid feed composition “consists” of fat prills or saponified fatty acids, the method allows for the addition of additional ingredients (e.g., third, fourth, etc…). It is also noted that the claim requires a “combination” but does not specify the form of the feed compositions (i.e., where the compositions are mixed or fed separately).
BURR teaches feeding cows a first solid composition in the form of fat pellet (i.e., a prill) containing at least 40% fat [0007] and a second solid composition in the form of variety of ingredients that include a sugar-containing component [0034] or grain meal [0045].
Both compositions are administered in solid form [0055]. The ingredients are prepared in liquid form but allowed to harden to result in a high fat feed block. The feed block is used as formed, or is divided further, e.g. by cutting [0055].
The total fat content of the overall composition can be 7 to 33% [0046]. 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 re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Additionally, it is taught that the fat content can be varied to balance the flavor, provide high energy content, and add nutrients [0042]. In this regard, it would have been obvious to vary the fat content to provide the desirable properties as taught by BURR.
BURR teaches the feeding the composition to cows (see Feeding Example 5) but silent as to feeding this composition during weaning.
VITCENDA teaches a composition suitable for calves (col. 1, lines 40-55).
The composition also contains a first solid ingredient in the form of a fat and a second solid composition (col. 2, lines 20-40). At col. 1, lines 15-25, it is explained that calves typically suffer from a shock that sets back growth when transitioning from liquid to solid foods. However, administration of the VITCENDA composition inhibits this shock (col. 1, lines 40-55).
Thus, it would have been obvious to administer the composition of BURR to calves, as VITCENA teaches that such solid fat compositions inhibit and even overcome the shock of transitioning from liquid to solid foods.
BURR and VITCENDA are silent as to feeding the composition during the weaning period.
However, KERTZ teaches cows need a transition period from three weeks before to three weeks after calving. Intake changes, ration changes, and rumen adaptation all are major factors in this situation. As long as calf starter intake remains below 1 pound per day during this period, there will be little significant rumen development (pg. 1, penultimate paragraph). During this time calf starter can be administered. Keeping calves on the same starter while introducing forage will minimize disruptions on intake and rumen function. Calves should stay in this transition group for two to four weeks (see pg. 3). As long as calf starter intake remains below 1 pound per day during this timeframe, there will be little significant rumen development (see pg. 2). Thus, the transition period is designed to inhibit weaning stress, limit weaning dip, and increase feed intake in general.
Thus, it would have been obvious to one skilled in the art to provide a transition period before, during and after weaning when the calf is continuing to receive liquid nutrients while also gradually increasing amounts of solid feed to support development of the rumen in anticipation of weaning.
Claim 15 recites the method reduces weaning stress of the bovine calf during and/or after the bovine calf’s weaning period.
Claim 16 recites the method reduces weaning dip in a bovine calf during the bovine calf’s weaning period.
Claim 17 recites the method increases solid feed intake of the bovine calf during the bovine calf’s weaning period.
Claim 18 recites the method stimulates maturation of a rumen of the bovine calf during the weaning period.
Claim 19 recites that the bovine calf has improved health in comparison to a bovine calf fed a conventional starter feed.
Claim 20 recites the method improves gut health and/or gastrointestinal function of the bovine calf.
As to claims 15-20, BURR teaches the feeding the composition to cows and calves (see Feeding Example 5) but silent as to the benefits of consuming the composition.
VITCENDA teaches a composition for calves (col. 1, lines 40-55).
The composition of VITCENDA also contains a first solid ingredient in the form of a fat and a second solid composition (col. 2, lines 20-40). At col. 1, lines 15-25, it is explained that calves typically suffer from a shock that sets back growth when transitioning from liquid to solid foods. However, administration of the claimed composition inhibits this shock (col. 1, lines 40-55). In Example 1, feeding of the composition resulted in weight gain of calves. Indeed, the weight gain of weaning calves as shown by VITCENDA indicates reduction of weaning stress, increase in feed intake (i.e., as opposed to weight loss), and increases the health of the calves. At col. 1. lines 60-69, VITCENDA theorizes that the consumption of feed help develop the rumen/gut.
Additionally, as the feeding of the composition of VITCENDA resulted in weight gain and overcome the shock of transitioning from liquid to solid foods, it is the Examiner’s position that the VITCENDA composition (along with BURR’s given the similarities) would also provide the results in claims 15-20.
BURR and VITCENDA are silent as to feeding the composition during the weaning period.
However, KERTZ teaches calves need a transition period from three weeks before to three weeks after calving (pg. 1, penultimate paragraph).
During this time calf starter can be administered. Intake changes, ration changes, and rumen adaptation all are major factors in this situation. Consider that the young calf is just developing its rumen function (i.e., stimulating maturation of the rumen). Keeping calves on the same starter while introducing forage will minimize disruptions on intake and rumen function. Calves should stay in this transition group for two to four weeks (see pg. 3). As long as calf starter intake remains below 1 pound per day during this timeframe, there will be little significant rumen development (see pg. 2). Thus, the transition period is designed to inhibit weaning stress, limit weaning dip, and increase feed intake in general.
It would have been obvious to one skilled in the art to administer the feed of the references during this period, as KERTZ teaches that small amounts support the development of the rumen and improve the overall health and weight of calf.
Claim 21 recites that the second solid feed composition has at most 5 wt.% fat.
BURR teaches limiting the amount of fat in the second composition can be in the form of a sugar-containing component [0034] where the sugar alone can be up to 95%. In this regard, it would have been obvious to limit the amount of fat.
Claim 24 recites that the one or more fermentable feed ingredients comprises fermentable carbohydrates.
BURR teaches that the composition can contain a sugar such as molasses [0033]-[0034]. The molasses can be any of the sugar-containing molasses such as those obtained as the byproducts of the processing of sugar beets, sugar cane, corn or wood. Examples of suitable molasses include blackstrap molasses, converted molasses, wood sugar molasses, hydrol syrup, citrus molasses and the like. Other suitable sugar-containing components include honey, sugarcane, corn syrup, sugar beet, fruit extracts, and the like. [0033]-[0034]. Given these are sugars or ingredients that contain fermentable sugars (i.e., molasses), it would have been obvious to provide a fermentable sugar.
Claim 25 recites that the second solid feed composition is in the form of grains, a meal, or a muesli.
BURR teaches that the composition can be a meal such as soybean meal [0037].
Claim 26 recites that the ratio of the first solid feed composition relative to the second solid feed composition is in the range of 30:70 to 2:98 on a weight basis.
As to claim 26, the fat pellet is in an amount of 5 to 50wt% of the composition [0042]. This overlaps the claimed range of 30:70 and 2:98 (i.e., or 30 to 2%).
Claim 27 recites that the bovine calf is fed the solid feed combination for at least about 1 week.
Claim 28 recites that the bovine calf is fed the solid feed combination for at least about 2 weeks.
Claim 29 recites that the bovine calf is fed the solid feed combination for at least about 3 weeks.
Claim 30 recites that the bovine calf is fed the solid feed combination for at least about 4 weeks.
Claim 31 recites that the bovine calf is fed the solid feed combination for at least about 5 weeks.
Claim 32 recites that the bovine calf is fed the solid feed combination for at least about 7 weeks.
Claim 33 recites that the bovine calf is fed the solid feed combination for at least about 10 weeks or more.
As to claims 27-33, BURR teaches that the composition is administered for at least 15 weeks [0111].
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As noted above, BURR teaches feeding cows a first solid composition in the form of fat pellet containing at least 40% fat [0007] and a second solid composition in the form of variety of ingredients that include a sugar-containing component [0034] or grain meal [0045]. The consumption of the food naturally reduces morbidity and mortality as the food serves as a source of sustenance.
Response to Arguments
Applicant's arguments filed 12/18/2025 have been fully considered but they are not persuasive.
The applicant argues that BURR does not teach feeding two compositions.
However, the claims only requires a “solid feed combination” and do not specify the form of the feed compositions (i.e., whether the compositions are mixed or fed separately). In this regard, applicants’ arguments are not commensurate in scope with the claims.
The applicant argues that BURR is specifically directed to cows and not calves, whereas VITCENDA is limited to calves. It is argued that one skilled in the art would not have been motivated to combine the two teachings. However, both references are directed to feeding cows. Burr is broadly directed to feeding ruminants and does not limit the age of the ruminant. Moreover, applicant does not address KERTZ. KERTZ teaches cows need a transition period from three weeks before to three weeks after calving. Intake changes, ration changes, and rumen adaptation all are major factors in this situation (pg. 1, penultimate paragraph). It would have been obvious to one skilled in the art to provide a transition period when the calf is continuing to receive liquid nutrients while also gradually increasing amounts of solid feed to support development of the rumen in anticipation of weaning.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791