DETAILED ACTION
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 June 18, 2026 has been entered. 1-5, 8, 11, 12, 23-30, 34-40 and 44-51 are pending.
The previous rejection of claims 1-5, 8, 11, 12, 23-30, 34-40 and 44-51 have been withdrawn in light of Applicant’s remarks filed June 18, 2026.
This action is non-final.
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.
Claims 3, 35-40, 44 and 47 are 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(s) 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 3 recites “ A livestock feed composition from distiller’s grain produced in a biofuel facility that ferments mycotoxin contaminated feedstock with a yeast ethanolgen to produce biofuel and treats beer in the biofuel facility with a bacteria engineered to express a mycotoxin mitigating enzyme” renders the claim indefinite. While there is support to claim distiller’s grain produced in a biofuel facility that ferments mycotoxin contaminated feedstock with a yeast enthanolgen to product biofuel, there is not support to claim that beer is treated in a biofuel facility. Beer is not produced in a biofuel facility.
Claims 35-40, 44 and 47 are rejected because they are dependent from a rejected base claim.
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 1, 2, 4, 23, 25, 34, 48-51 are rejected under 35 U.S.C. 103 as being unpatentable over Garnham et al. (WO 2020/047656 A1 – IDS filed November 29, 2022) as evidenced by Milos (US 2016/0106122).
Regarding claims 1, 2, 4, 25, 48 and 50, Garnham et al. disclose a livestock feed composition obtained from distiller’s grains treated with a bacteria engineered to express a fumonisin (i.e., mycotoxin) mitigating enzyme (i.e., recombinant microbial host cell expressing a heterologous polypeptide having fumonisin amine oxidase activity – p. 3/L9-34, p. 6/L1-24 , p. 37/L34-p.39/L5). Garnham et al. disclose the recombinant microbial host can be a bacterial host cell (p. 4/L8-13). Garnham et al. disclose the enzyme detoxifies the fumonisin mycotoxin in the distiller’s grain (p. 38/L17-26).
Garnham et al. does not disclose the distiller’s grain are produced in a biofuel facility that ferments ground grain feedstock with a yeast enthanologen. However, as evidenced by Milos, distiller’s grains are known to be fermentation by-products derived from biofuel production process ([0018]). To produce the by-products, the particle size of grain is reduced by milling, the milled grain is saccharified, the saccharified material is fermented using yeast (e.g., Saccharomyces cerevisiae or baker’s yeast) to convert low molecular sugars into ethanol, and the ethanol and obtain distiller’s grain or stillage ([0003]-[0004], [0030]-[0031],[0036], [0038]).
Here, the livestock feed would comprise residual of (a) the ground grain feedstock; (b) yeast (i.e., yeast ethanolgen), including amino acids, used to ferment the ground grain feedstock; and (c) bacteria, including amino acids, engineered to express a mycotoxin mitigating enzyme.
Regarding claims 23 and 34, Garnham et al. disclose all of the claim limitations as set forth above. Garnham et al. disclose the bacteria is E. coli (p. 4/L9-13).
Regarding claim 49, Garnham et al. disclose all of the claim limitations as set forth above. While Garnham et al. disclose treating distiller’s grain with a bacteria engineered to express a fumonisin (i.e., mycotoxin) mitigating enzyme and the distiller’s grain would necessarily be fermented with a yeast, it would have been obvious to one of ordinary skill in the art to have fermented the ground grain and treated with a bacteria engineered to express a fumonisin mitigating enzyme in one step (i.e., co-cultured) to create a more efficient process.
Regarding claim 51, Garnham et al. disclose all of the claim limitations as set forth above. Garnham et al. disclose wherein the bacteria is added as a lysate (p. 33/L18-p. 34/L7).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
