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 .
The amendment filed September 15, 2026 is acknowledged. Claims 16-18, 23-26, and 28-33 are pending in the application. Claims 1-15, 19-22, and 27 have been cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 15, 2026 has been entered.
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.
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 16-18, 23-26, and 28-33 are rejected under 35 U.S.C. 103 as being unpatentable over Kramer et al. US 20040047894 (hereinafter “Kramer) in view of Luchini et al. US 20090105335 (hereinafter “Luchini”).
With respect to claim 16, Kramer relates to a method comprising the step of administering uncoated feed pellets comprising added fatty acids, such as calendic acid and CLAs, to animals (paragraphs [0006], [0007], [0017], [0018], [0022], [0028], [0029], [0034], and [0036]).
Regarding the recitation of in pelleted form, a mixture of at least one solid particulate feed component with at least one rumen-labile constituent which has been added to the mixture, wherein the at least one rumen-labile constituent is at least one conjugated linolenic acid (CLA), wherein the at least one CLA is a free fatty acid or esters thereof, and is not in a rumen-protected form in claim 16, Kramer teaches mixing the fatty acids with customary feed constituents such as cereals, cereal brans, cereal flours, seed meals, beans, peas, fishmeal, and the like, and the preparation is in the form of pellets. The fatty acids include CLAs and may be in free form or esterified (paragraphs [0004], [0022], [0028], [0029], [0034], and [0036]).
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 0.1% to 20% by weight, based on the total weight of the mixture to be pelleted in claim 16, Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
Regarding the recitation of administering to a lactating ruminant in claim 16, Kramer does not expressly disclose administering to a lactating ruminant.
Luchini teaches supplementing the diet of ruminants, such as dairy cows, with CLAs to enrich the milk with CLAs (paragraphs [0009] and [0010]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Luchini, to select dairy cows as the animals in the method of Kramer with the expectation of success. One of ordinary skill in the art would have been motivated to do so because Kramer and Luchini similarly teach administering CLAs to animals, Kramer teaches dairy products of ruminant animals contains CLAs and CLAs have beneficial effects (paragraphs [0004]-[0007]), Luchini teaches the milk is enriched with CLAs as a result (paragraph [0010]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Regarding the recitation of wherein the uncoated pelleted ruminant feed is prepared by a process comprising: a) mixing at least one solid particulate feed component with the at least one rumen-labile constituent; b) optionally conditioning the resulting mixture with steam; c) compressing the optionally conditioned mixture in a pelleting, extruding or expanding device with the action of pressure at temperatures of 60⁰C to 100⁰C to give pellets; and d) cooling and/or drying the resulting pellets in claim 16, Kramer teaches mixing conjugated linoleic acid (CLA) with customary feed constituents such as cereals, cereal brans, cereal flours, seed meals, beans, peas, fishmeal, silage, and the like, and pelleting the preparation to form pellets (paragraphs [0004], [0022], [0028], [0029], [0034], [0036], and [0059]).
However, Kramer does not expressly disclose c) compressing the optionally conditioned mixture in a pelleting, extruding, or expanding device with the action of pressure at temperatures of 60⁰C to 100⁰C to give pellets, and d) cooling and/or drying the resulting pellets.
Luchini teaches supplementing the diet of ruminants, such as dairy cows, with CLAs. Pellets may be formed by blending the CLA with the feed formulation components (grains, silage, meals, and the like), extruding the mixture in an extruder, and drying the pellets (paragraphs [0009], [0010], [0037], [0054], [0079], [0082], [0084], [0089]-[0091], [0093], [0094], and [0110]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Luchini, to prepare pellets with an extruder and dry the pellets in the method of Kramer with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Kramer and Luchini similarly teach forming pellets with CLAs and feed components, Kramer is not limited to any specific examples of compression devices used, utilizing extruders to prepare pellets and drying pellets were well known in the art before the effective filing date of the claimed invention as shown in Luchini, and said combination would amount to the use of a known steps for their intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the extruding temperatures in the method of Kramer as modified by Luchini through routine experimentation with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Luchini teaches the pellets are prepared in an extruder at elevated temperatures which is interpreted to include values above room temperature (paragraph [0110]), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
With respect to claim 17, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding the recitation of wherein the CLA is 10-trans, 12-cis-linoleic acid in claim 17, modified Kramer teaches this limitation since Kramer teaches the conjugated linoleic acid (CLA) may include trans-10, cis-12 CLA (paragraphs [0004] and [0028]).
With respect to claim 18, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding the recitation of wherein the CLA is present as a pure substance or as a natural or synthetic mixture of substances, comprising at least one of these CLAs in claim 18, modified Kramer teaches this limitation since Kramer teaches the CLAs may be prepared synthetically or obtained from natural sources (paragraphs [0004], [0005], [0027], [0028], and [0059]).
With respect to claim 23, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding the recitation of wherein the lactating ruminant is a cow, goat, or a sheep in claim 23, modified Kramer teaches this limitation since Kramer teaches the ruminants include cattle and sheep (paragraphs [0005], [0017], [0018], [0028], and [0029]).
With respect to claim 24, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 3 to 15% by weight, based on the total weight of the mixture to be pelleted in claim 24, modified Kramer teaches this limitation since Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 25, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 3 to 10% by weight, based on the total weight of the mixture to be pelleted in claim 25, modified Kramer teaches this limitation since Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 26, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 3 to 5% by weight, based on the total weight of the mixture to be pelleted in claim 26, modified Kramer teaches this limitation since Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 28, Kramer relates to a method comprising the step of administering uncoated feed pellets comprising added fatty acids, such as calendic acid and CLAs, to animals (paragraphs [0005], [0006], [0007], [0017], [0018], [0022], [0028], [0029], [0034], and [0036]).
Regarding the recitation of comprising, in pelleted form, a mixture of at least one solid particulate feed component with at least one rumen-labile constituent which has been added to the mixture, wherein the at least one rumen-labile constituent is at least one conjugated linolenic acid (CLA) selected from 10-trans, 12-cis-linoleic acid and wherein the at least one CLA is a free fatty acid or esters thereof, and is not in a rumen-protected form in claim 28, Kramer teaches mixing fatty acids including conjugated linoleic acid (CLA) such as trans-10, cis-12 CLA, with customary feed constituents such as cereals, cereal brans, cereal flours, seed meals, beans, peas, fishmeal, and the like, and the preparation is in the form of pellets. The fatty acids may be in free form or esterified (paragraphs [0004], [0022], [0028], [0029], [0034], and [0036]).
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 0.1 to 20% by weight, based on the total weight of the mixture to be pelleted in claim 28, Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
Regarding the recitation of administering to a lactating sheep or goat in claim 28, Kramer does not expressly disclose the animal, such as sheep or cattle, is lactating.
Luchini teaches supplementing the diet of ruminants, such as dairy cows, with CLAs to enrich the milk with CLAs (paragraphs [0009] and [0010]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Luchini, to select dairy ruminants in the method of Kramer with the expectation of success. One of ordinary skill in the art would have been motivated to do so because Kramer and Luchini similarly teach administering CLAs to animals, Kramer teaches dairy products of ruminant animals such as sheep and cattle contains CLAs and CLAs have beneficial effects (paragraphs [0004]-[0007]), Luchini teaches the milk is enriched with CLAs as a result (paragraph [0010]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Regarding the recitation of wherein the uncoated pelleted ruminant feed is prepared by a process comprising: a) mixing at least one solid particulate feed component with the at least one rumen-labile constituent; b) optionally conditioning the resulting mixture with steam; c) compressing the optionally conditioned mixture in a pelleting, extruding or expanding device with the action of pressure at temperatures of 60⁰C to 100⁰C to give pellets; and d) cooling and/or drying the resulting pellets in claim 28, Kramer teaches mixing conjugated linoleic acid (CLA) with customary feed constituents such as cereals, cereal brans, cereal flours, seed meals, beans, peas, fishmeal, silage, and the like, and pelleting the preparation to form pellets (paragraphs [0004], [0022], [0028], [0029], [0034], [0036], and [0059]).
However, Kramer does not expressly disclose c) compressing the optionally conditioned mixture in a pelleting, extruding, or expanding device with the action of pressure at temperatures of 60⁰C to 100⁰C to give pellets, and d) cooling and/or drying the resulting pellets.
Luchini teaches supplementing the diet of ruminants, such as dairy cows, with CLAs. Pellets may be formed by blending the CLA with the feed formulation components (grains, silage, meals, and the like), extruding the mixture in an extruder, and drying the pellets (paragraphs [0009], [0010], [0037], [0054], [0079], [0082], [0084], [0089]-[0091], [0093], [0094], and [0110]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Luchini, to prepare pellets with an extruder and dry the pellets in the method of Kramer with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Kramer and Luchini similarly teach forming pellets with CLAs and feed components, Kramer is not limited to any specific examples of compression devices used, utilizing extruders to prepare pellets and drying pellets were well known in the art before the effective filing date of the claimed invention as shown in Luchini, and said combination would amount to the use of a known steps for their intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the extruding temperatures in the method of Kramer as modified by Luchini through routine experimentation with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Luchini teaches the pellets are prepared in an extruder at elevated temperatures which is interpreted to include values above room temperature (paragraph [0110]), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
With respect to claim 29, modified Kramer is relied upon for the teaching of the method of claim 16 as addressed above.
Regarding wherein the at least one CLA is selected from the group consisting of cis/trans-9,11-linoleic acid, cis/trans-8,10-linoleic acid; cis/trans-11,13-linoleic acid; cis/trans-10,12-linoleic acid; cis/cis-9,11-linoleic acid; trans/trans-9,11-linoleic acid; cis/cis-8,10-linoleic acid; trans/trans-8,10-linoleic acid; cis/cis-11,13-linoleic acid; trans/trans-11,13-linoleic acid; cis/cis-10,12-linoleic acid; and trans/trans-10,12-linoleic acid; or is a mixture of at least two of the aforementioned compounds in claim 29, modified Kramer teaches this limitation since Kramer teaches the conjugated linoleic acid (CLA) may include cis/trans-9,11-linoleic acid, cis/trans-8,10-linoleic acid; cis/trans-10,12-linoleic acid; cis/cis-9,11-linoleic acid; trans/trans-9,11-linoleic acid; cis/cis-8,10-linoleic acid; trans/trans-8,10-linoleic acid; cis/cis-10,12-linoleic acid; or trans/trans-10,12-linoleic acid (paragraphs [0004] and [0028]).
With respect to claim 30, modified Kramer is relied upon for the teaching of the method of claim 29 as addressed above.
Regarding the recitation of wherein the at least one CLA is cis/trans-10, 12-linoleic acid in claim 30, modified Kramer teaches this limitation since Kramer teaches the conjugated linoleic acid (CLA) may include cis/trans-10, 12-linoleic acid (paragraphs [0004] and [0028]).
With respect to claim 31, modified Kramer is relied upon for the teaching of the method of claim 28 as addressed above.
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 1 to 15% by weight, based on the total weight of the mixture to be pelleted in claim 31, modified Kramer teaches this limitation since Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 32, modified Kramer is relied upon for the teaching of the method of claim 31 as addressed above.
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 2 to 10% by weight, based on the total weight of the mixture to be pelleted in claim 32, modified Kramer teaches this limitation since Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
With respect to claim 33, modified Kramer is relied upon for the teaching of the method of claim 32 as addressed above.
Regarding the recitation of wherein the amount of added rumen-labile constituent is in the range of from 3 to 5% by weight, based on the total weight of the mixture to be pelleted in claim 33, modified Kramer teaches this limitation since Kramer teaches the preparation comprises 0.1 to 90% by weight of active compounds which includes 30% or more of CLA (at least 0.03% of CLA in the preparation) and overlaps with the presently claimed range (paragraphs [0004], [0027], [0028], [0034], and [0045]). As set forth in MPEP 2144.05, in the case where the claimed range “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).
Response to Arguments
Applicant’s remarks filed September 15, 2026 have been fully considered.
Due to the amendments to the claims, the claim objections and the 35 USC 112 rejection in the previous Office Action have been withdrawn (P6-P7).
Applicant’s arguments have been fully considered, but they are unpersuasive.
Applicant argues Kramer does not disclose administration of CLA to ruminants and provides no motivation to combine with Luchini. Kramer’s subject matter is calendic acid, not CLA. Kramer expressly positions calendic acid as a substitute for CLA, thus teaching away from the use of CLA. A skilled artisan reading Kramer would therefore be directed toward plant- derived calendic acid as an alternative to CLA, not toward administering CLA itself. Kramer also provides no motivation or rationale why one of ordinary skill would look to the disclosures of Luchini to supply teachings regarding the administration of CLAs to ruminants. Kramer's only actual administration is to mice, not to ruminants. Paragraphs [0069]- [0070] detail the administration of calendic acid to mice. In this context, a skilled artisan would not think to look to the irrelevant disclosures of Luchini. Kramer and Lucini do not provide sufficient guidance for the skilled artisan to arrive at the subject matter of the instant claims. Even if a skilled artisan did look to Luchini to cure the deficiencies of Kramer-and applicant maintains that they would not-Luchini does not teach or suggest the use of free fatty acids or their esters as required by the instant claims. In fact, Luchini teaches awa from administering free or esterified, non-salted CLA in non-rumen protected form. Neither Kramer, nor Luchini, nor their combination teach or suggest the required pelleting procedure. Kramer does not teach or suggest that such pelleted feed should be prepared by compressing the conditioned mixture at 60-100⁰C, as required by the pending claims, or that such feed should be uncoated, or that such feed should be conditioned with steam. While pelleted food in a general sense may be contemplated by Kramer, the specific procedure required by the instant claims is not. Neither Kramer nor Luchini teach or suggest adding free or esterified CLA prior to pelleting, much less prior to pelleting at a specific temperature (P7-P14).
Examiner disagrees. 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, the motivation to combine Kramer and Luchini is found within the references themselves as well as in the knowledge generally available to one of ordinary skill in the art.
Kramer in view of Luchini teaches the claimed invention. As previously addressed, Kramer teaches mixing fatty acids, such as calendic acid and CLAs, with feed constituents and administering the uncoated feed pellets to animals (paragraphs [0004], [0006], [0007], [0017], [0018], [0022], [0028], [0029], [0034], and [0036]). Contrary to Applicant’s assertion, Kramer does not teach away from using CLAs since the reference expressly discloses the preparation comprises CLAs, and the fatty acids may be in free form or esterified (paragraphs [0028]-[0029]). Furthermore, "[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Kramer teaches administering the feed to mice in the example as pointed out by Applicant (paragraphs [0069]-[0070]). However, Kramer is not limited to the examples since the reference also teaches administration of the feed to animals (paragraphs [0006], [0017], [0018], [0022], [0028], [0029], [0034], and [0036]). “Applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967). While Kramer does not expressly disclose the animal is a lactating ruminant, Luchini is relied upon for this teaching (paragraphs [0009] and [0010]). One of ordinary skill in the art would have been motivated to select dairy cows as the animals in the method of Kramer based on the teachings of Luchini with the expectation of success because Kramer and Luchini similarly teach administering CLAs to animals, Kramer teaches dairy products of ruminant animals contains CLAs and CLAs have beneficial effects (paragraphs [0004]-[0007]), Luchini teaches the milk is enriched with CLAs as a result (paragraph [0010]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Even though Luchini does not disclose all the features of the presently claimed invention, Luchini is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Further, as stated in MPEP 2145 III., “[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]I is not necessarily that the inventions of the references be physically combinable to render obvious the invention under review.”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve the ability to combine their specific structures.”).
Kramer also teaches mixing the fatty acids, such as conjugated linoleic acid (CLA) in free form or esterified, with customary feed constituents such as cereals, cereal brans, cereal flours, seed meals, beans, peas, fishmeal, silage, and the like, and pelleting the preparation to form pellets (paragraphs [0004], [0022], [0028], [0029], [0034], [0036], and [0059]). Kramer does not expressly disclose compressing the optionally conditioned mixture in a pelleting, extruding, or expanding device with the action of pressure at temperatures of 60⁰C to 100⁰C to give pellets and cooling and/or drying the resulting pellets. However, Luchini is relied upon for these teachings since Luchini teaches supplementing the diet of ruminants, such as dairy cows, with CLAs. Pellets may be formed by blending the CLA with the feed formulation components (grains, silage, meals, and the like), extruding the mixture in an extruder, and drying the pellets (paragraphs [0009], [0010], [0037], [0054], [0079], [0082], [0084], [0089]-[0091], [0093], [0094], and [0110]). One of ordinary skill in the art would have been motivated to prepare pellets with an extruder and dry the pellets in the method of Kramer with the expectation of success because Kramer and Luchini similarly teach forming pellets with CLAs and feed components, Kramer is not limited to any specific examples of compression devices used, utilizing extruders to prepare pellets and drying pellets were well known in the art before the effective filing date of the claimed invention as shown in Luchini, and said combination would amount to the use of a known steps for their intended use in a known environment to accomplish entirely expected result. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Additionally, one of ordinary skill in the art would have been motivated to optimize the extruding temperatures in the method of Kramer as modified by Luchini through routine experimentation with the expectation of success because Luchini teaches the pellets are prepared in an extruder at elevated temperatures which is interpreted to include values above room temperature (paragraph [0110]), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
