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 .
This office action is in regard to the application filed on April 22, 2021 and in response to a Request for Continued Examination filed on February 11, 2026.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 11, 2026 has been entered.
Status of Application
The amendment filed February 11, 2026 has been entered. The Examiner notes that the submitted claim set has not made any amendments from the claim set filed on May 13, 2025, which was entered as set forth in the Advisory Action dated May 30, 2025. In the same Advisory Action, the previous 112(b) rejection of claim 15 was withdrawn as Applicant’s amendment had overcome the rejection.
Claims 1, 2, and 4-21 are currently pending in the application; claims 10-14 are withdrawn; claim 3 is canceled. Claims 1, 2, 4-9, and 15-21 are hereby examined on the merits.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 4-9, and 15-21 are rejected under 35 U.S.C. 103 as being unpatentable over Duval et al. (CA 3053865; listed in IDS dated April 22, 2021) in view of Brunner et al. (WO 2018/149755; listed in IDS dated April 22, 2021) and Pablos Pérez (US PG Pub 2014/0037698; cited on PTO-892 dated June 6, 2024), herein after referred to as Duval, Brunner, and Pablos Pérez, respectively.
Regarding claims 1 and 2, Duval discloses an animal feed composition (claim 1) comprising:
an organic molecule that is 3-nitrooxypropanol (i.e., an ω-nitrooxyC3-10alkane-1-ol) (claim 15), and
a salt of lauric acid (i.e., a monocarboxylic acid) (p. 9 lines 10-23; claim 15), wherein the mol ratio of the organic molecule to the salt (i.e., mole-equivalents of carboxylate groups based on the amount of the ω-nitrooxyC3-10alkane-1-ol) is 0.00001 to 1 present in the feed composition (p. 11 lines 23-30).
The mole-equivalent range taught by Duval overlaps with the claimed range of at least 0.5 mole-equivalents. Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Duval does not teach that the feed composition is an aqueous composition, but does teach that the composition is a feed additive that can be a mineral/vitamin premix that is incorporated into an animal’s diet through the animal’s feed or water (p. 12 lines 1-33). Duval also does not teach that the composition comprises either 50 wt.% water or 5 wt.% ω-nitrooxyC3-10alkane-1-ol, both based on the total weight of the aqueous composition.
Brunner, in the same field of invention, teaches a powdered feed additive composition (e.g., a premix) containing 3-nitrooxypropanol that is dispersible in water to create an aqueous feed composition (p. 1 line 25 to p. 2 line 4). Brunner also teaches that the aqueous composition comprises at least 50 wt.% water (p. 7 lines 16-18) and 2-20 wt.% of a compound of formula (I) (i.e., 3-nitrooxypropanol) based on the total weight of the powder formulation (claim 3). Thus, if the aqueous composition comprises 50 wt.% water and 50 wt.% powder formulation, the amount of 3-nitrooxypropanol in the aqueous composition is 1-10 wt.%, which overlaps with the claimed range of at least 5 wt.%. Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Brunner offers the motivation that compositions containing 3-nitrooxypropanol are preferably delivered in an aqueous composition since the compound is rather volatile (p. 1 lines 20-23). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have incorporated the mineral/vitamin premix feed composition of Duval into water at the amounts of Brunner, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of mitigating the volatility of 3-nitrooxypropanol.
Duval in view of Brunner do not teach that the salt of a mono-, di- and/or tricarboxylic acid is selected from the group consisting of alkali or alkaline earth metal salts of acetic acid butyric acid, citric acid, and phosphoric acid. Duval does teach a sodium, potassium, lithium, magnesium, calcium, barium, or strontium (i.e., alkali and alkaline earth metals) salt of lauric acid (i.e., a monocarboxylic acid) (p. 9 lines 15-23).
Pablos Pérez, in the same field of invention, teaches animal food additives comprising a salt of an organic acid (claim 1), wherein the organic acid is butyric acid, citric acid, or acetic acid (claim 2) and the salt is sodium, potassium (i.e., alkali metals), or calcium (i.e., alkaline earth metal) (claim 3).
Pablos Pérez offers the motivation that the organic acid salt as an animal feed additive stimulates animal growth, modulates the immune response, and acts as bactericides [0001]. Pablos Pérez also establishes that the organic acid used in the animal feed additive is a carboxylic acid that is a short-chain, volatile fatty acid suitable as an animal feed additive selected from the group consisting of butyric acid, lauric acid, citric acid, acetic acid, and others [0014]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have substituted the lauric acid salt of Duval with the butyric acid salt of Pablos Pérez, thereby arriving at the claimed invention. One would have been motivated to make this modification since both lauric acid salt and butyric acid salt are known organic acid salts suitable to be used in animal feed compositions.
Duval in view of Brunner and Pablos Pérez, herein after referred to as modified Duval, do not teach that the amount of at least 0.5 mole-equivalents of carboxylate and/or phosphate groups is sufficient to decrease the decomposition energy and/or the heat (energy) production rate of the ω-nitrooxyC3-10alkane-1-ol. However, the teaching of modified Duval and the instantly claimed composition comprise substantially identical methods and compositions – an aqueous solution wherein a carboxylic acid salt of acetic, butyric, citric, or phosphoric acid is added to an aqueous composition comprising 3-nitrooxypropanol (i.e., ω-nitrooxyC3-10alkane-1-ol). 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01.I.
Since both the prior art and claimed product are substantially identical in composition, the composition of modified Duval must decrease the composition energy and/or the heat (energy) production rate of an ω-nitrooxyC3-10alkane-1-ol. Therefore, the product of modified Duval renders obvious the instant claim limitation.
Regarding claims 4 and 5, modified Duval teaches that the amount of 3-nitrooxypropanol (i.e., ω-nitrooxyC3-10alkane-1-ol) in the aqueous composition, based on the total weight of the aqueous composition, ranges from 1-10 wt.% as set forth above with regard to claim 1. This range overlaps with both the ranges of at least 7.5 wt.% of instant claim 4 and 5-20 wt.% of instant claim 5. Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Regarding claim 6, modified Duval teaches that the salt of the monocarboxylic acid is present in a total amount such that the mol ratio (i.e., mole equivalents) present in the aqueous composition of carboxylate groups based on the amount of the ω-nitrooxyC3-10alkane-1-ol ranges from 0.00001 to 1 as set forth above with regard to claim 1. This range overlaps with the instantly claimed range of at least 0.75 mole-equivalents. Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Regarding claim 7, modified Duval teaches that the amount of water present in the aqueous composition is at least 50 wt.% (i.e., 50-100 wt.%) based on the total weight of the aqueous composition as set forth above with regard to claim 1. This range overlaps with the instantly claimed range of at least 60 wt.% (i.e., 60-100 wt.%). Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Regarding claim 8, modified Duval teaches that the aqueous composition consists essentially of 3-nitrooxypropanol (i.e., ω-nitrooxyC3-10alkane-1-ol), lauric acid or a salt thereof (i.e., a salt of a monocarboxylic acid) (Duval: claim 15 and p. 9 lines 10-23), and water (Brunner: p. 7 lines 6-18).
Regarding claim 9, modified Duval teaches that the aqueous composition according to claim 1 is a drinking water suitable to be fed to ruminants (Brunner: p. 7 lines 16-17).
Regarding claims 15 and 16, modified Duval teaches adding a salt of monocarboxylic acid to an aqueous composition containing 3-nitrooxypropanol (i.e., ω-nitrooxyC3-10alkane-1-ol) (Brunner: p. 3 lines 23-24 and p. 7 lines 6-18; Duval: claim 15 and p. 9 lines 10-23).
Modified Duval teaches that the mol ratio of the organic molecule (i.e., 3-nitrooxypropanol) to the salt (i.e., mole-equivalents of carboxylate groups based on the amount of the ω-nitrooxyC3-10alkane-1-ol) is 0.00001 to 1 present in the feed composition (Duval: p. 11 lines 23-30).
The mole-equivalent range taught by Duval overlaps with the claimed range of at least 0.5 mole-equivalents. Where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP 2144.05.I.
Modified Duval also teaches a salt of an organic acid (Pablos Pérez: claim 1), wherein the organic acid is butyric acid, citric acid, or acetic acid (Pablos Pérez: claim 2) and the salt is sodium, potassium (i.e., alkali metals), or calcium (i.e., alkaline earth metal) (Pablos Pérez: claim 3).
Modified Duval does not teach that the process of adding a sufficient amount of a mono-, di-, or tricarboxylic acid salt to an aqueous composition comprising an ω-nitrooxyC3-10alkane-1-ol is a method to decrease the decomposition energy and/or the heat (energy) production rate of an ω-nitrooxyC3-10alkane-1-ol in water. However, the teaching of modified Duval and the instantly claimed method comprise substantially identical methods and compositions – an aqueous solution wherein a carboxylic acid salt is added to an aqueous composition comprising 3-nitrooxypropanol (i.e., ω-nitrooxyC3-10alkane-1-ol). 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01.I.
Since both the prior art and claimed product are produced by an identical process, the method of modified Duval must decrease the composition energy and/or the heat (energy) production rate of an ω-nitrooxyC3-10alkane-1-ol. Therefore, the method and product of modified Duval renders obvious the instant claim limitation.
Response to Arguments
Applicant's arguments filed February 11, 2026 have been fully considered but they are not persuasive.
Applicant argues that there is no motivation to replace the lauric acid salt of Duval with the organic acid salt of Pablos Pérez because Pablos Pérez teaches that the benefits of the organic acid salts only occur when the organic acid salts are combined with an active ingredient of plant origin in the composition. Thus, there would be no motivation to substitute one for other without also having an active ingredient (Remarks, p. 6-7).
This argument is not persuasive. While Pablos Pérez teaches that the combination of organic acid salt and an active ingredient of plant origin is beneficial, Duval also teaches that the feed composition/additive also comprises an active substance such as diallyl disulfide or garlic oil (Duval: p. 14 lines 25-29), which are active ingredients of plant origin. Therefore, where Duval already teaches that an active ingredient of plant origin is included in the animal composition/feed, one of ordinary skill in the art would have expected that substituting the organic acid salts of Pablos Pérez into the composition of Duval would achieve the same benefits as those taught by Pablos Pérez.
Applicant argues that modifying Duval with Pablos Pérez would change the principle operation of Duval because Duval teaches that lauric acid specifically in combination with 3-NOP provides a synergistic effect on methane reduction, and substituting the lauric acid for an organic acid salt of Pablos Pérez would not achieve these same benefits of methane reduction (Remarks, p. 8-9).
This argument is not persuasive. The examples with lauric acid as taught by Duval are only one preferred embodiment of their invention, Duval teaches a variety of fatty acid salts for use in the invention, it is not merely limited to those of lauric acid; a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See MPEP 2123.
In the absence of any further arguments with regard to the rejections of the additional dependent claims, the rejections of these dependent claims are maintained.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791