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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02 March 2026 has been entered.
Status of the Application
Claims 1-10 and 13-22 are pending. Claims 8-10 and 13-20 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention. Claims 11-12 have been cancelled. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
Claim Objections
Claim 5 is objected to because of the following informalities: insert a comma between “magnesium” and “potassium” in line 4. Appropriate correction is required.
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 1-7, 21 and 22 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 claims 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.
Claims 1 and 21 recite: a chloroform extract of alfalfa comprising from about 10 wt% to about 20 wt % protein. In the Remarks filed 02 March 2026, p8, Applicant points to paragraph [00116] of the specification for support, however paragraph [00116] recites the quantity of supplementary protein sources for the animal feed composition, not the protein sources derived from alfalfa in the animal feed composition. Applicant also points to Figures 3A-3D for support of a range of 10-20 wt% protein in the alfalfa extract. Figures 3A-3D disclose a protein range from about 12-17 wt % protein in the alfalfa extracts. Table 1 of the specification, p21, discloses the alfalfa extract may be comprised of 15-20 wt% protein in early cuttings and 25-30 wt% protein in late cuttings. Therefore Table 1 of the specification provides support for a protein range of 15-30 wt% for claims 1 and 21, however there is not sufficient disclosure to support the instantly claimed range of 10-20 wt% protein and thus the new claim limitation adds new matter to the claim. The new matter should be deleted from claims 1 and 21.
Additionally it is noted that claim 22, which depends from claim 1, requires the 5th cutting of alfalfa, which, according to Applicant’s specification at paragraph [00073], is considered a late cutting of alfalfa. According to Table 1 of the specification (p21) extracts of late cuttings of alfalfa comprise 25-30 wt% protein, which falls outside the range of 10-20 wt% protein recited in claim 1. However, Figure 3D of the instant application shows an extract of a 5th cutting of alfalfa with a crude protein (CP) content of about 13 wt% which falls outside the range recited for late cuttings in Table 1 (p21) of the specification. Since the information provided in the specification is inconsistent, it is unclear whether there is sufficient disclosure to support claim 22 which requires an extract of a 5th cutting of alfalfa with 10-20 wt% protein as required by currently amended claim 1 and dependent claim 22.
Claims 2-7 and 22 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 1-7 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Kiel (US 2018/0206523 A1) in view of Wilkes (US 2010/0173061 A1) and Friesen (US 2019/0116833 A1) as evidenced by Soetan (Soetan and Oyewole, The need for adequate processing to reduce the anti-nutritional factors in plants used as human foods and animal feeds: A review, The African Journal of Food Science Research, Vol. 7(11), pp001-010, 2019).
Regarding claims 1 and 2, Kiel discloses isolating functional proteins and other high valuable products from plants such as alfalfa [0033-0034]. Kiel discloses the other higher value products can be obtained from the press cake and the chlorophyll concentrate [0034] and Figure 1. The press cake of Kiel is considered to meet the claim limitation of an extract of alfalfa.
Kiel further discloses the press cake of the plant material comprises high value products including proteins, triterpene saponins such as medicagenic acid and soyasapogenols (alfalfa saponins according to Applicant’s specification at paragraph [0076]) and immune enhancing phytoestrogens [0090]. Kiel discloses the press cake may comprise 13.4% protein, which falls within the claimed range of 10-20 wt% protein (Table 4, p13). Kiel discloses the press cake may be used as an animal feed [0092].
Kiel does not disclose the inclusion of fatty acids comprising palmitic acid, arachidic acid and alpha linolenic acid.
Wilkes, in the field of food compositions incorporating long chain fatty acids, discloses a long chain poly unsaturated fatty acid oil (LC-PUFA oil) for use in food products to improve the health of an end consumer. Wilkes also discloses the LC-PUFA oil provides a clean flavor, longer shelf stability and enhanced nutritional quality relative to other sources of Omega-3 oils [0011]. Wilkes discloses the LC-PUFA oils can form the basis for the diet of chickens for the nutritional benefit of improving the nutritional characteristics of chicken and/or chicken products [0020].
Wilkes discloses the LC-PUFA oil Variant -1 in Table 2b, “RBD Oil” (p5) which comprises palmitic acid (C16:0), alpha linolenic acid (C18:3n3) and arachidic acid (C20:0).
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 alfalfa protein and press cake of Kiel with the LC-PUFA oil of Wilkes comprising palmitic acid, alpha linolenic acid and arachidic acid in a diet for chickens because both are drawn to animal feeds. As stated in MPEP 2144.06, "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding the quantity of the palmitic acid, alpha linolenic acid and arachidic acid; Wilkes does not disclose the quantity to include in a feed supplement for the feed. However, it is known in the art that the quantity of palmitic acid, alpha linolenic acid and arachidic acid is a result effective variable. One of ordinary skill in the art would have varied the amounts of palmitic acid, alpha linolenic acid and arachidic acid in the feed supplement for the feed depending on the degree of nutritional supplementation, calorie content and palatability desired for the mixture.
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. As such, the quantity of the palmitic acid, alpha linolenic acid and arachidic acid recited in claim 1 is merely an obvious variant of the prior art.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Kiel does not disclose the quantity of saponins in the press cake.
Soetan, in the field of antinutritional factors in plants, discloses saponins are an antinutritional factor frequently found in animal feedstuffs (p3, Classification of the Anti-Nutritional Factors). Saponins are characterized by their bitter taste and foaming properties. Saponins from alfalfa have been shown to retard growth rate, primarily due to reduction in feed intake (p5, top of LH column).
Regarding the quantity of saponin in the alfalfa extract, as disclosed by Soetan it is known in the art that the quantity of saponins is a result effective variable, when the quantity of saponins is changed the feed intake of the animal 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. As such, the quantity of saponin recited in claim 1 is merely an obvious variant of the prior art.
Kiel does not disclose the additional ingredients in the animal feed.
Friesen, in the field of animal feed supplements, discloses a feed additive to supplement a normal animal feed [0007]. Friesen discloses the normal animal feed comprises corn, a carbohydrate source [0029].
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 press cake of Kiel with the corn of Friesen because Kiel discloses the press cake may be used as an animal feed and Kiel discloses a normal animal feed may comprise corn. As stated in MPEP 2144.06, "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). In the instant case both Kiel and Friesen discloses compositions for the purpose of animal feed.
Regarding the claim limitation “chloroform extract of alfalfa,” this is a product by process claim limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. MPEP 2113 I. Additionally, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. MPEP 2112.01 I. In the instant case, Kiel in view of Wilkes and Friesen discloses a combination of the claimed ingredients (e.g., fatty acid, protein, saponin, phytoestrogens and/or polysaccharide) in the composition, therefore the manner of obtaining the claimed ingredients (by chloroform extraction of alfalfa) is not considered to provide a patentable distinction and the combination of fatty acid, protein, saponin, phytoestrogens and/or polysaccharide disclosed by Kiel as modified by Wilkes and Friesen are either identical or substantially identical to those of the chloroform extract of alfalfa as recited in the claim.
Regarding the source of the palmitic acid, alpha linolenic acid and arachidic acid; Wilkes does not disclose the palmitic acid, alpha linolenic acid and arachidic are derived from alfalfa. However, absent a showing that the fatty acids derived from alfalfa are functionally different than claimed fatty acids from any other source, the palmitic acid, alpha linolenic acid and arachidic acid of Wilkes are considered to satisfy the claim limitation.
Regarding claims 3-4, Kiel further discloses the press cake of the plant material comprises high value products such as fibers including cellulose and lignin and the press cake may be used as an animal feed [0090] and [0092].
Regarding claim 5, Friesen further discloses the normal animal feed may comprise vitamins, including vitamin A and vitamin K, and minerals, including calcium, iron, copper, zinc, manganese, phosphorus and potassium [0031] and [0034].
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 press cake of Kiel with the vitamins and minerals of Friesen because Kiel discloses the press cake may be used as an animal feed and Kiel discloses a normal animal feed may comprise vitamins and minerals. As stated in MPEP 2144.06, "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). In the instant case both Kiel and Friesen discloses compositions for the purpose of animal feed.
Regarding claim 6, Friesen discloses the normal animal feed may comprise soy meal, canola meal, distiller’s dried grain with solubles, fish meal and/or poultry byproduct meal [0029].
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 press cake of Kiel with the soy meal, canola meal, distiller’s dried grain with solubles, fish meal and/or poultry byproduct meal of Friesen because Kiel discloses the press cake may be used as an animal feed and Kiel discloses a normal animal feed may comprise soy meal, canola meal, distiller’s dried grain with solubles, fish meal and/or poultry byproduct meal. As stated in MPEP 2144.06, "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). In the instant case both Kiel and Friesen discloses compositions for the purpose of animal feed.
Regarding claim 7, Kiel in view of Wilkes and Friesen does not disclose the quantity of the alfalfa extract or the carbohydrate in the feed composition.
However, it is known in the art that the quantity of carbohydrates and alfalfa extract (comprising protein, fat, saponins and phytoestrogens or polysaccharides) is a result effective variable, when the quantity of carbohydrate and alfalfa extract is changed then the nutritional profile/calorie content of the feed 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. As such, the quantity of carbohydrates and alfalfa extract recited in claim 7 is merely an obvious variant of the prior art.
Regarding claim 22, the claim language “wherein the alfalfa is 5th cutting alfalfa” is further modifying the claim limitation “a chloroform extract of alfalfa,” which is a product by process claim limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. MPEP 2113 I. Additionally, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. MPEP 2112.01 I. Kiel in view of Wilkes and Friesen discloses the combination of the claimed ingredients in the composition, therefore the manner of obtaining the claimed ingredients (by chloroform extraction of a 5th cutting of alfalfa) is not considered to provide a patentable distinction.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Kiel (US 2018/0206523 A1) in view of Wilkes (US 2010/0173061 A1) as evidenced by Soetan (Soetan and Oyewole, The need for adequate processing to reduce the anti-nutritional factors in plants used as human foods and animal feeds: A review, The African Journal of Food Science Research, Vol. 7(11), pp001-010, 2019)
Regarding claim 21, Kiel discloses isolating functional proteins and other high valuable products from plants such as alfalfa [0033-0034]. Kiel discloses the other higher value products can be obtained from the press cake and the chlorophyll concentrate [0034] and Figure 1. The press cake of Kiel is considered to meet the claim limitation of an extract of alfalfa.
Kiel further discloses the press cake of the plant material comprises high value products including proteins, triterpene saponins such as medicagenic acid and soyasapogenols (alfalfa saponins according to Applicant’s specification at paragraph [0076]) and immune enhancing phytoestrogens [0090]. Kiel discloses the press cake may comprise 13.4% protein, which falls within the claimed range of 10-20 wt% protein (Table 4, p13). Kiel discloses the press cake may be used as an animal feed [0092].
Kiel does not disclose the inclusion of fatty acids comprising palmitic acid, arachidic acid and alpha linolenic acid.
Wilkes, in the field of food compositions incorporating long chain fatty acids, discloses a long chain poly unsaturated fatty acid oil (LC-PUFA oil) for use in food products to improve the health of an end consumer. Wilkes also discloses the LC-PUFA oil provides a clean flavor, longer shelf stability and enhanced nutritional quality relative to other sources of Omega-3 oils [0011]. Wilkes discloses the LC-PUFA oils can form the basis for the diet of chickens for the nutritional benefit of improving the nutritional characteristics of chicken and/or chicken products [0020].
Wilkes discloses the LC-PUFA oil Variant -1 in Table 2b, “RBD Oil” (p5) which comprises palmitic acid (C16:0), alpha linolenic acid (C18:3n3) and arachidic acid (C20:0).
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 alfalfa protein and press cake of Kiel with the LC-PUFA oil of Wilkes comprising palmitic acid, alpha linolenic acid and arachidic acid in a diet for chickens because both are drawn to animal feeds. As stated in MPEP 2144.06, "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.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding the quantity of the palmitic acid, alpha linolenic acid and arachidic acid; Wilkes does not disclose the quantity to include in a feed supplement for the feed. However, it is known in the art that the quantity of palmitic acid, alpha linolenic acid and arachidic acid is a result effective variable. One of ordinary skill in the art would have varied the amounts of palmitic acid, alpha linolenic acid and arachidic acid in the feed supplement for the feed depending on the degree of nutritional supplementation, calorie content and palatability desired for the mixture.
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. As such, the quantity of the palmitic acid, alpha linolenic acid and arachidic acid recited in claim 21 is merely an obvious variant of the prior art.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Kiel does not disclose the quantity of saponins in the press cake.
Soetan, in the field of antinutritional factors in plants, discloses saponins are an antinutritional factor frequently found in animal feedstuffs (p3, Classification of the Anti-Nutritional Factors). Saponins are characterized by their bitter taste and foaming properties. Saponins from alfalfa have been shown to retard growth rate, primarily due to reduction in feed intake (p5, top of LH column).
Regarding the quantity of saponin in the alfalfa extract, as disclosed by Soetan it is known in the art that the quantity of saponins is a result effective variable, when the quantity of saponins is changed the feed intake of the animal 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. As such, the quantity of saponins recited in claim 21 is merely an obvious variant of the prior art.
Regarding the claim limitation “chloroform extract of alfalfa,” this is a product by process claim limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. MPEP 2113 I. Additionally, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. MPEP 2112.01 I. In the instant case, Kiel in view of Wilkes discloses a combination of the claimed ingredients (e.g., fatty acid, protein, saponin, phytoestrogens and/or polysaccharide) in the composition, therefore the manner of obtaining the claimed ingredients (by chloroform extraction of alfalfa) is not considered to provide a patentable distinction and the combination of fatty acid, protein, saponin, phytoestrogens and/or polysaccharide disclosed by Kiel as modified by Wilkes are either identical or substantially identical to those of the chloroform extract of alfalfa as recited in the claim.
Regarding the source of the palmitic acid, alpha linolenic acid and arachidic acid; Wilkes does not disclose the palmitic acid, alpha linolenic acid and arachidic are derived from alfalfa. However, absent a showing that the fatty acids derived from alfalfa are functionally different than claimed fatty acids from any other source, the palmitic acid, alpha linolenic acid and arachidic acid of Wilkes are considered to satisfy the claim limitation.
Regarding the claim limitation of “a bioactive composition”, animal feed is considered to have a biological effect on the consumer, e.g., they result in growth or altered health of the animal. Therefore, the combination of the animal feeds of Kiel and Wilkes is considered to meet the claim limitation of a bioactive composition.
Response to Arguments
Applicant's arguments filed 02 March 2026 have been fully considered. To the extent they apply to the above rejection they are not persuasive.
Applicant’s arguments with respect to claims 1-7 and 21-22 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
/C.L.G./Examiner, Art Unit 1793
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