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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 13 May 2025 has been entered.
Status of the Application
Claims 1, 3-4, 7-8, 10-14 and 20-28 are pending. Claims 2, 5-6, 9, and 15-19 have been cancelled. The previous 112 rejections have been withdrawn in view of applicant’s amendments to the claims. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 25 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 25, recites “wherein obtaining the sustainable carbon product further comprises: separating, using an adsorbent special membrane, the gas from the sustainable carbon product.” The specification indicates “adsorbers or special membranes can separate the hydrogen from this gas stream” [0035]. Therefore the specification provides support only for adsorbers or special membranes, not adsorbent special membranes. The specification also only provides support for separating the hydrogen from the gas stream by the use of the adsorbers or special membranes. There is no support in the specification for separating, using an adsorbent special membrane, the gas from the sustainable carbon product.
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 1, 3-4, 7-8, 10-14, 20-22 and 24-28 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 1, line 15 recites 4% or less of dry matter intake without indicating if the 4% is percent by mass, by volume or weight by volume. Since claims 3 and 4 recite quantities in percent by weight, for the purpose of examination, claim 1, line 15, will be interpreted as 4% by weight or less of dry matter intake.
Claim 25, line recites “adsorbent special membrane.” It is unclear what properties the adsorbent membrane must have in order for it to be considered “special.” Must the adsorbent membrane only be capable of separating gas from the sustainable carbon product? Or must it possess other properties which are not recited in order to be considered “special.” For the purpose of examination, the adsorbent special membrane will be interpreted as special when it is capable of separating gas from the sustainable carbon product.
Claim 26, lines 4-6 recite “adding the sustainable carbon product in to the milk of the animal feed, the sustainable carbon product comprising 3 to 6 g of milk intake of the heifer calves.” It is unclear what is meant by the phrase “the sustainable carbon product comprising 3 to 6 g of milk intake of the heifer calves.” The specification recites “In some embodiments, sustainable carbon product may be incorporated into milk to be fed to calves in the amount of about 1.5 grams to 3 grams per bottle of milk for calves weighing around 55 lbs. to 80 lbs. In some embodiments, the calves may be fed around 2 bottles of milk per day for the first 20-30 days after birth” [0045]. For the purpose of examination, claim 26 will be interpreted as: adding the sustainable carbon product in to the milk of the animal feed, providing the heifer calves the sustainable carbon product at a rate of 3g to 6g of sustainable carbon product per day.
Claim 28, line 11, recites 4% or less of dry matter intake without indicating if the 4% is percent by mass, by volume or weight by volume. Since claims 3 and 4 recite quantities in percent by weight, for the purpose of examination, claim 28, line 11, will be interpreted as 4% by weight or less of dry matter intake.
Claims 3-4, 7-8, 10-14, 20-22, 24 and 27 are rejected here because they depend from claim 1.
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.
Claims 1, 3, 7-8, 10, 20-21, 24, 26 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Joseph (2015. Feeding Biochar to Cows: An Innovative Solution for Improving Soil Fertility and Farm Productivity. Pedosphere, 25(5), 666–679) in view of Harttung (US 2012/0266823 A1) Jones (Bovine Viral Diarrhea, College of Veterinary Medicine, University of Georgia, Oct. 28, 2014, https://vet.uga.edu/bovine-viral-diarrhea/#:~:text=BVD%20infections%20may%20be%20acute,in%20severe%20cases%20even%20death) and De Meue (Managing infectious diarrhea in calves, 2019, https://sanluc.pl/en/blog/managing-infectious-diarrhea-calves) as evidenced by Fischer (How many pounds of feed does a cow eat in a day? 2019, https://dairy-cattle.extension.org/how-many-pounds-of-feed-does-a-cow-eat-in-a-day/) and Illinois Valley (Illinois Valley Community Biochar Kiln Project, The Backyard Biochar Retort Kiln https://www.biochar-international.org/wp-content/uploads/2018/04/backyard_biochar_kiln_instructions.pdf ) and Gerlach (Gerlach et al. The use of biochar in cattle farming, The Biochar Journal 2014, Arbaz,Switzerland. ISSN 2297-1114, www.biochar-journal.org/en/ct/9, Version of 01 August 2014).
Regarding claims 1 and 28, Joseph teaches biochar (carbon product) provided as a feed supplement to cows (page 667, RH column, last paragraph) where the biochar is produced from Jarrah wood (biomass feedstock, a hardwood) in a vertical retort (Joseph page 668, section Fresh and aged biochar, paragraph 1). A vertical retort is a pyrolysis system where the gasses evolved are used to heat the vessel further (Illinois Valley, page 1). Producing the biochar in a vertical retort meets the claim limitation of gasifying or pyrolyzing the biomass feedstock in the gasification or pyrolysis system to produce a gas and the carbon product. As evidenced by Gerlach, biochar typically has a surface area of approximately 300 m2/g, which falls within the claimed range of a surface area less than 1000 m2/g.
Joseph further teaches cows were fed a mixture of molasses with 0.33 kg per day of jarrah wood biochar (page 668, Materials and Methods, 1st paragraph), which meets the claim limitation of adding the sustainable carbon product into animal feed.
As evidenced by Fischer, cows will eat 50-55 pounds (23-25 kg) of dry matter (DM) per day (page 1). Joseph’s 0.33 kg of jarrah wood biochar per cow per day combined with Fischer’s 23-25 kg of DM per day results in the jarrah wood biochar comprising 1.3%-1.4% of the DM intake of the cow, which falls within the claimed range of 4% or less.
Joseph discloses the cows were fed the mixture of molasses and jarrah wood biochar on a daily basis in the winter (mid-April to mid-October in Australia) (p668, Method of feeding cows and dung beetle application). Joseph’s feeding on a daily basis from April to October meets the claim limitation of adding the sustainable carbon product into the animal feed for at least 21 days.
Joseph does not disclose the cows were heifer calves.
Harttung, also in the field of animal feed supplements, discloses an animal feed comprising solid carbonaceous matter included from about 0.1%-50% w/w of the animal feed composition [0027]. Harttung discloses the solid carbonaceous matter is formed by pyrolysis with raw material from wood [0032]. Harttung discloses the animal feed comprising solid carbonaceous matter may be fed to newly born livestock [0035]. Harttung discloses the animal feed with the solid carbonaceous matter may reduce the amount of bacteria producing methane in the one or more stomachs of the livestock [0028].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the newly born livestock of Harttung as the cows of Joseph since Harttung discloses it is appropriate to feed a solid carbonaceous matter feed supplement to newly born livestock to reduce the amount of bacteria producing methane in the livestock stomach(s).
Harttung does not disclose the newly born livestock is heifer calves. However, it would have been obvious to try the method of making and administering the feed supplement with heifer calves since this would consist of choosing from a finite group of possible solutions (heifers or non-heifers) with a reasonable expectation of success. MPEP 2143 I. E.
Joseph does not disclose a method step of identifying heifer calves having BVD-PI.
Jones, in the field of bovine viral diarrhea, discloses BDV-PI tested calves earn a higher sale price at livestock auctions (p1). Jones discloses BVD-PI calves shed large amounts of virus throughout their lifetime and continually infect other cattle with the virus (p2, What is BVD?). Jones discloses the BVD disease includes diarrhea in young cattle (p2, BVD the Disease).
De Meue, in the field of managing diarrhea in calves, discloses calf scours cause more financial losses to cow-calf producers than any other health problem in their herds (p1). De Meue discloses the use of powdered pyrolyzed charcoal can shorten the duration of the diarrheic episode. The charcoal absorbs and locks in the enterotoxins secreted by the pathogenic bacteria inhabiting the animal’s digestive system (p5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have identified the calves with BVD-PI and diarrhea as disclosed by Jones and De Meue and to have administered the biochar of Joseph to these same calves because De Meue discloses diarrhea in calves cause large financial losses to farmers and charcoal is known to shorten the duration of diarrheic episodes thereby minimizing financial losses and Jones discloses BVD=PI free calves earn a higher sale price at auction. It would have been obvious to one of ordinary skill in the art to identify those calves with BVD-PI in order to provide a treatment with financial benefits to the farmer.
Joseph in view of Harttung, Jones and De Meue as evidenced by Fischer, Illinois Valley and Gerlach discloses identifying the BVD-PI calves and adding the biochar to an animal feed and administering the feed to the calves. As the claim is currently written, the biochar need be administered to “the heifer calves” without specifying that the feed supplemented with biochar be fed to the heifer claves identified as having BVD-PI. Therefore the disclosure of Harttung, Jones and De Meue as evidenced by Fischer, Illinois Valley and Gerlach of feeding the biochar supplemented feed to heifer calves meets the current claim limitations.
Regarding the claim limitation “sustainable”, products made from plants are considered sustainable because the plant can either continue to grow while parts of it are harvested or a new plant can be grown. Therefore the jarrah wood biochar of Joseph is considered sustainable.
As to the claim limitations "for treating bovine viral diarrhea virus persistent infection in heifer calves” it is noted the claims are drawn to a method and this limitation does not provide any additional method steps. Additionally this limitation is deemed to be an intended use so far as the process is concerned. In process claims, a claimed intended use must result in a manipulative difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. MPEP 2111.02. Given that the biochar production and feed supplement of the prior art is identical to that of the presently claimed in terms of process, it meets the intended use of the claimed method.
Regarding claim 1 language “wherein adding the sustainable carbon product into the animal feed for the heifer calves reduces the incidence of scours by about 50% to about 75%”, this is merely the intended results of using the claimed method and does not further define the scope of the invention. Since the prior art discloses all of the method steps of the claimed method, the method of the prior art is considered to provide the intended results.
Regarding the claim limitation “wherein the sustainable carbon product comprises a precursor to activated carbon,” Joseph discloses no additional processing steps of the biochar beyond the biochar was produced in a vertical retort with a residence time of 12h at a maximum temperature of 700oC (p668, Fresh and aged biochars, para 1). Since Joseph discloses all of the claimed method steps for producing the biochar, the product of Joseph is also considered to be a precursor to activated carbon.
Regarding claims 3 and 8, Joseph further teaches a biochar with carbon content of 82%, containing hydrogen, nitrogen, sulfur and oxygen (Table III, page 670).
Regarding claim 7, Joseph discloses the biochar method of claim 1.
Joseph does not disclose the biochar comprises a powder having an average particle size of less than 40 microns.
Harttung, also in the field of animal feed supplements of solid carbonaceous matter, discloses an animal feed composition wherein said carbonaceous matter has a particle size of less than 0.5 mm (500 microns) [0031]. Harttung further discloses the grain size of the of the solid carbonaceous matter may be adjusted depending on which kind of livestock is fed and depending on whether the livestock being fed are newly born, half grown or full grown livestock [0035].
Additionally changes in size or proportion do not establish patentability in a claim absent a showing of unexpected results. MPEP 2144.04 IV. A.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the biochar of Joseph with the particle size of Harttung in order to provide an animal feed supplement that provides a biochar at a particle size appropriate for the type of livestock animal and its age.
Regarding claim 10, Joseph discloses the method of claim 1 as described above. Joseph further discloses the use of biochar as a strategy to sequester carbon (abstract). Since the method of Joseph sequesters carbon from the atmosphere it is considered carbon negative.
Regarding claim 20, Joseph teaches feeding cows a mixture of molasses and jarrah wood biochar (page 668, Methods of feeding cows and dung beetle application). Joseph does not teach that the mixture should be uniform; however, it would have been obvious to one of ordinary skill in the art create a uniform mixture to improve the palatability of the feed by avoiding unmixed pockets of carbonaceous matter.
Regarding claim 21, Since Joseph teaches feeding the cows an amount of biochar as claimed, the methane production is considered to be reduced to meet claim.
Additionally, Harttung discloses the animal feed with the solid carbonaceous matter may reduce the amount of bacteria producing methane in the one or more stomachs of the livestock [0028].
Regarding claim 24, Joseph discloses making the biochar with jarrah wood (p668, Fresh and aged biochars). Joseph does not recite any additional ingredients apart from the jarrah wood. Therefore the jarrah wood of Jospeh is considered to meet the claim limitation of having been processed to remove materials that have no calorific value.
Regarding claim 26, Joseph disclose the biochar fed to cattle.
Joseph does not disclose the animal feed for calves comprises milk and the sustainable carbon product is added to the milk of the animal feed, providing the heifer calves the sustainable carbon product at a rate of 3g to 6g of sustainable carbon product per day.
Harttung disclose the solid carbonaceous matter may be fed to newly born animals, [0035] and the solid carbonaceous matter may be fed as a liquid feed supplement for ruminants [0030].
Harttung does not disclose the liquid feed is milk, it would have been obvious to however one of ordinary skill in the art to select milk as the liquid feed of newly born ruminants as milk is the natural first feed of such animals.
As to the claimed quantity of sustainable carbon product in the liquid feed. Harttung discloses the solid carbonaceous matter can be included from 0.1% w/w up to 50% w/w of the animal feed composition [0027]. Harttung also discloses the carbonaceous matter is used as a greenhouse gas sink [0026]. Therefore, it is known in the art that the quantity of biochar is a result effective variable, change the amount of biochar in the diet and the degree of greenhouse gas sink changes. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, 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. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Joseph in view of Harttung, Jones and De Meue as applied to claim 1 above and further in view of Benedetti (Gasification Char as a Potential Substitute of Activated Carbon in Adsorption Applications. Energy Procedia, 2017, 105, 712–717).
Regarding claims 3 and 4, Joseph teaches the method of claim 1 as detailed above. Joseph further teaches the biochar fed to cows absorbed nutrients from the cow’s gut and from the dung (abstract).
Joseph does not disclose the carbon content of the biochar is at least 85%.
Benedetti, in the field of chars used for adsorption, discloses that the carbon content of char can be 85-90% (page 713, section 3.1, paragraph 1).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the biochar of Joseph with the carbon content of Benedetti for the purpose of adsorption of nutrients in the animal’s gut and dung.
Claims 11, 12, 14 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Joseph in view of Harttung, Jones and De Meue as applied to claim 1 above, and further in view of Belcher (US 2017/0196812 A1, BIOCHARS FOR USE WITH ANIMALS).
Regarding claim 11, Joseph in view of Harttung, Jones and De Meue discloses the method of making and administering a sustainable carbon product as disclosed in claim 1.
Joseph in view of Harttung does not disclose the addition of electrolytes to the sustainable carbon product.
Belcher, in the field of biochars for applications related to raising, care, maintenance, disease prevention, disease treatment and odor control of animals teaches a biochar that can be integrated with animal feed [0374, line 17]. Belcher discloses the biochars may be used in a variety of animal applications including the feeding of dairy cattle (heifers) [0012].
Belcher teaches that beneficial macro- and micro-nutrients (electrolytes) such as, calcium, magnesium, sulfur, boron, zinc, iron, manganese, molybdenum, copper and chloride may also be infused into the biochar [0219] and that additive infused biochar may be produced for consumption by animals in order to enhance the performance of the substance in the digestive tract or to ease or facilitate the ingestion of the biochar [0227].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the methods of administering a biochar of Joseph with the electrolyte infused biochar of Belcher in order to produce a supplement for consumption by animals that enhances the performance of the substance in the digestive tract or eases or facilitates the ingestion of the biochar.
Regarding claim 12, Joseph in view of Harttung, Jones and De Meue does not disclose the pyrolyzing comprises exposing the biomass feedstock to a temperature above 700oC substantially in absence of oxygen.
Belcher discloses the biochar is created by the pyrolysis of biomass, which generally involves heating and/or burning of organic matter, in a reduced oxygen environment, at a predetermined rate [0082] while subjecting the biomass to either a uniform or varying pyrolysis temperature (e.g., 300oC to 550oC to 750oC or more) [0096]. Belcher discloses the biochars may be used in a variety of animal applications including the feeding of dairy cattle (heifers) [0012].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the pyrolysis of Joseph with the pyrolysis methods of Belcher since both are known to produce biochar that is usable in an animal feed supplement.
Regarding claim 14, Joseph in view of Harttung does not disclose adding one or more of probiotics, xanthan gum, potassium sorbate and water to the sustainable carbon product prior to combining with animal feed.
Belcher teaches that biochars may be used in a variety of animal applications including feeding of livestock including dairy cattle and the biochars may be infused with beneficial additives such as probiotics [0012]. Belcher discloses delivering these beneficial substances to animals with biochar increase growth rates of the animals and increases overall health of the same animals [0013].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the biochar of Joseph with the probiotics of Belcher in order to produces a carbon supplement that increase growth rates of the animals and increases overall health of the same animals.
Regarding claim 27, Joseph does not disclose the biochar is complexed with a wetting for dispersing agent.
Belcher discloses the biochar may be produced as a biochar solution where the biochar has been added or suspended in a liquid alone or with other additives and the biochar is dispersed in the biochar solution with water and adding xanthan gum and/or other additives to keep the biochar in suspension, in solution (dispersing agents) [0377].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the biochar of Joseph with the solution and dispersing agent of Belcher because Belcher discloses biochar in solution is appropriate for application for animals [0376].
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Joseph in view of Harttung, Jones and De Meue as applied to claim 1 above, and further in view of Eddy (US 2016/0030922 A1).
Regarding claim 13, Joseph in view of Harttung, Jones and De Meue discloses the method of making and administering the sustainable carbon product of claim 1.
Joseph does not disclose the addition of bentonite to the sustainable carbon product prior to mixing with animal feed.
Eddy, in the field of biochar and methods of producing biochar, discloses a method for producing biochar particles which use different additives as binders for the biochar pellets where the additive may be bentonite clay [0009]. Eddy further discloses the charcoal pellets made with bentonite can be used as an animal feed supplement [0035]. Eddy discloses bentonite is the preferred binder because it is cheap and widely available in the USA and Canada and it is a completely natural product [0032-0033].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the methods of Joseph with the biochar combined with bentonite of Eddy in order to form an animal feed supplement comprising biochar that comprises a cheap, widely available, natural binder.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Joseph in view of Harttung, Jones and De Meue as applied to claim 1 above, and further in view of Eddy (US 2016/0030922 A1) and European Food Safety Authority (EFSA) (Scientific Opinion on the safety and efficacy of bentonite (dioctahedral montmorillonite) as feed additive for all species. EFSA Journal 2011; 9(2):2007).
Regarding claim 22, Joseph in view of Harttung, Jones and De Meue does not disclose the sustainable carbon product is combined with bentonite at about 75% bentonite and about 25% sustainable carbon product to form a gel.
Eddy, in the field of biochar and methods of producing biochar, discloses a method for producing biochar particles which use different additives as binders for the biochar pellets where the additive may be bentonite clay [0009]. Eddy further discloses the charcoal pellets made with bentonite can be used as an animal feed supplement [0035]. Eddy discloses bentonite is the preferred binder because it is cheap and widely available in the USA and Canada and it is a completely natural product [0032-0033]. Eddy further discloses a pre-mixing step where the charcoal and the bentonite are pre-mixed before being loaded into a rotating pelletizer drum [0046]. Eddy further discloses the bentonite and charcoal are included in a ratio of 2:1 (about 66% bentonite and 33% charcoal) [0030].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the methods of Joseph with the biochar combined with bentonite of Eddy in order to form an animal feed supplement comprising biochar that comprises a cheap, widely available, natural binder.
Regarding the quantity of bentonite to zeolite of claim 22, Eddy discloses a quantity of about 66% bentonite and about 33% charcoal, which lies outside the claimed range of about 75% bentonite and about 33% sustainable carbon product. However, it is known in the art that the quantity of bentonite is a result effective variable. As disclosed by EFSA, when bentonite is added to the diet of dairy cows at (0.03% and 0.08% w/w of the dry matter) it reduces the AfM1 content (Aflatoxin M1) of the milk. The bentonite supplement reduces the AfM1 from 0.120 µg/kg in the control group down to 0.083 µg/kg AfM1 in the 0.03% bentonite treatment group and down to 0.072 µg/kg AfM1 in the 0.08% bentonite treatment group (p15, Section 4.2.2.2 Dairy Cows). It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, 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. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
As to the claim language “in the form of a gel”, Eddy does not disclose if the combination of bentonite and charcoal is in the form of a gel. However, since the premix of Eddy comprises only the bentonite and charcoal as recited in the instant claim, it is considered to be in the form of a gel.
Claims 23 is rejected under 35 U.S.C. 103 as being unpatentable over Joseph (2015. Feeding Biochar to Cows: An Innovative Solution for Improving Soil Fertility and Farm Productivity. Pedosphere, 25(5), 666–679) in view of Harttung (US 2012/0266823 A1) and De Meue (Managing infectious diarrhea in calves, 2019, https://sanluc.pl/en/blog/managing-infectious-diarrhea-calves) as evidenced by Illinois Valley (Illinois Valley Community Biochar Kiln Project, The Backyard Biochar Retort Kiln https://www.biochar-international.org/wp-content/uploads/2018/04/backyard_biochar_kiln_instructions.pdf ).
Regarding claim 23, Joseph teaches biochar (carbon product) provided as a feed supplement to cows (page 667, RH column, last paragraph) where the biochar is produced from Jarrah wood (biomass feedstock) in a vertical retort (Joseph page 668, section Fresh and aged biochar, paragraph 1). A vertical retort is a pyrolysis system where the gasses evolved are used to heat the vessel further (Illinois Valley, page 1).Producing the biochar in a vertical retort meets the claim limitation of gasifying or pyrolyzing the biomass feedstock in the gasification or pyrolysis system to produce a gas and the carbon product.
Joseph further teaches cows were fed a mixture of molasses with 0.33 kg per day of jarrah wood biochar (page 668, Materials and Methods, 1st paragraph).
Joseph discloses the cows were fed the mixture of molasses and jarrah wood biochar on a daily basis in the winter (mid-April to mid-October in Australia) (p668, Method of feeding cows and dung beetle application). Joseph’s feeding on a daily basis from April to October meets the claim limitation of adding the sustainable carbon product into the animal feed for at least 21 days.
Joseph does not disclose the cows were heifer calves.
Harttung, also in the field of animal feed supplements, discloses an animal feed comprising solid carbonaceous matter included from about 0.1%-50% w/w of the animal feed composition [0027]. Harttung discloses the solid carbonaceous matter is formed by pyrolysis with raw material from wood [0032]. Harttung discloses the animal feed comprising solid carbonaceous matter may be fed to newly born livestock [0035]. Harttung discloses the animal feed with the solid carbonaceous matter may reduce the amount of bacteria producing methane in the one or more stomachs of the livestock [0028].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the newly born livestock of Harttung as the cows of Joseph since Harttung discloses it is appropriate to feed a solid carbonaceous matter feed supplement to newly born livestock to reduce the amount of bacteria producing methane in the livestock stomach(s).
Harttung does not disclose the newly born livestock is heifer calves. However, it would have been obvious to try the method of making and administering the feed supplement with heifer calves since this would consist of choosing from a finite group of possible solutions (heifers or non-heifers) with a reasonable expectation of success. MPEP 2143 I. E.
Joseph does not disclose adding the biochar to a milk or milk replacer for the heifer.
De Meue, in the field of managing diarrhea in calves, discloses calf scours cause more financial losses to cow-calf producers than any other health problem in their herds (p1). De Meue discloses the use of powdered pyrolyzed charcoal can shorten the duration of the diarrheic episode. The charcoal absorbs and locks in the enterotoxins secreted by the pathogenic bacteria inhabiting the animal’s digestive system (p5). De Meue also discloses that during treatment for scours calves can still digest and get benefit from milk and you can feed them milk or milk replacer even if they have scours. Calves need enough energy to maintain their weight as well as their immune system, especially when they are sick (p3, Treatment).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the biochar of Joseph with the milk and milk replacer of De Meue since De Meue discloses it is advantageous in the treatment of scours to provide both the pyrolyzed charcoal and the milk or milk replacer for claves. It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. MPEP 2144.06.
Regarding the claim limitation “sustainable”, products made from plants are considered sustainable because the plant can either continue to grow while parts of it are harvested or a new plant can be grown. Therefore the jarrah wood biochar of Joseph is considered sustainable.
As to the claim language "for treating bovine viral diarrhea virus persistent infection and or scours in heifer calves” it is noted the claims are drawn to a method and this claim language does not provide any additional method steps. Additionally this language is deemed to be an intended use so far as the process is concerned. In process claims, a claimed intended use must result in a manipulative difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. MPEP 2111.02. Given that the biochar production and feed supplement of the prior art is identical to that of the presently claimed in terms of process, it meets the intended use of the claimed method.
Regarding claim 23 language “wherein adding the sustainable carbon product into the milk or milk replacer for the heifer calves reduces the incidence of scours by about 50% to about 75%”, this is merely the intended results of using the claimed method and does not further define the scope of the invention. Since the prior art discloses all of the method steps of the claimed method, the method of the prior art is considered to provide the intended results.
Regarding the claim limitation “wherein the sustainable carbon product comprises a precursor to activated carbon,” Joseph discloses no additional processing steps of the biochar beyond the biochar was produced in a vertical retort with a residence time of 12h at a maximum temperature of 700oC (p668, Fresh and aged biochars, para 1). Since Joseph discloses all of the claimed method steps for producing the biochar, the product of Joseph is also considered to be a precursor to activated carbon.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Joseph in view of Harttung, Jones and De Meue as applied to claim 1 above, and further in view of Oreggioni (Oreggioni et al. CO2 capture from syngas by an adsorption process at a biomass gasification CHP plant: Its comparison with amine-based CO2 capture, International Journal of Greenhouse Gas Control, Volume 35, 2015, Pages 71-81, ISSN 1750-5836, https://doi.org/10.1016/j.ijggc.2015.01.008.)
Regarding claim 25, Joseph does not disclose separating, using an adsorbent membrane, the gas from the sustainable carbon product.
Oreggioni, in the field of biomass gasification, discloses a capture process applied to the syngas generated at a biomass gasification plant (Introduction, p72, LH column). Oreggioni discloses it is advantageous to capture the CO2 emissions to decrease the amount of CO2 contributing to harmful climate change (p71, Introduction, LH column). Oreggioni discloses an adsorption capture process to selectively adsorb the CO2 where the adsorbent is zeolite 13x in columns (p74, 3. Case 1: Adsorption process for carbon capture and 3.1 Adsorbent).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the biochar of Joseph with the CO2 capture of Oreggioni because Oreggioni discloses it is advantageous, for reasons of decreasing climate change, to capture the CO2 produced by the gasification of biomass.
Response to Arguments
Applicant's arguments filed 13 May 2025 have been fully considered. To the extent they apply to the above rejections they are not persuasive.
Applicant argues, with respect to claim 1, Joseph does not disclose the newly recited claim amendment regarding the bulk density or surface area of the sustainable carbon product. Remarks pp10-11.
This argument is not persuasive. Gerlach is relied upon to disclose the typical surface area of biochar. Biochar typically has a surface area of approximately 300 m2/g, which falls within the claimed range of a surface area less than 1000 m2/g.
Applicant argues Joseph discloses that "[a]ctivated carbon (C), and more recently biochar, have been used as a supplement in animal feed," thereby acknowledging that the biochar (e.g., jarrah wood biochar) introduced and applied within the experimental methods and results of Joseph is a functional equivalent to activated carbon, which naturally diverges from being "a precursor to activated carbon," as recited in claim 1. Remarks pp12-14.
This argument is not persuasive. Reciting the two components in a list does not constitute a disclosure that they are functional equivalents. Both vitamin C and probiotics are also used as supplements in animal feed and they are also not functional equivalents.
Additionally it is noted the claim language is: wherein the sustainable carbon product comprises a precursor to activated carbon. Therefore the sustainable carbon product of the claims could comprise both activated carbon and a precursor to activated carbon in varying amounts from 0-100% by weight of the sustainable carbon product.
Applicant argues one would not combine the method of feeding of biochar of Joseph for adult cattle with the methods of feeding biochar to calves disclosed by Harttung. Remarks pp14-15.
This argument is not persuasive. Both Joseph and Harttung disclose feeding biochar to cows for advantageous reasons such as: Joseph discloses the addition of biochar to the cows’ diet resulted in improved soil properties and increasing (financial) returns to farmers (Abstract) and Harttung discloses the animal feed with the solid carbonaceous matter may reduce the amount of bacteria producing methane in the one or more stomachs of the livestock [0028]. While Joseph does not disclose the heifer calves of the instant claims, Harttung does disclose feeding the carbonaceous matter to calves for the advantageous reasons recited above. Therefore, it would have been obvious to try feeding the biochar of Joseph to the calves of Harttung for the advantages recited by Joseph (improved soil properties and increasing (financial) returns to farmers).
Conclusion
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/C.L.G./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793