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 .
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-12) in the reply filed on 07/10/2025 is acknowledged.
Claims 13-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07/10/2025.
Claim Status
Claims 1-16 are pending.
Claims 17-23 are canceled.
Claims 1-12 are examined on the merit.
Claims 13-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or liking claim.
Claims 1-12 are rejected.
Priority
The instant application claims the benefit of foreign priority to AU2018904616, filed 12/05/2018. As detailed on the Application Data Sheet, this application claims priority to as early as 12/05/2018. At this point in examination, all claims have been interpreted as being accorded this priority date. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 06/04/2021 and 10/29/2021 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the list of cited references was considered in full by the examiner. A signed copy of the corresponding 1449 form has been included with this Office action.
Drawings
The drawings filed 06/04/2021 are accepted.
Specification
The amendments to the specification filed 06/04/2021 have been accepted.
Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites “a. obtaining …; and b. analyzing …”. The use of multiple periods suggests that the claim is composed of more than one sentence, which makes the scope of the claimed invention unclear. According to MPEP 608.01(m), each claim begins with a capital letter and ends with a period. Periods may not be used elsewhere in the claims except for abbreviations. See Fressola v. Manbeck, 36 USPQ2d 1211 (D.D.C. 1995).
Claim 1 recites “a tissue sample” in step a, line 1; “the biopsy tissue sample” in step b, line 1; “the tissue sample” in step b, line 2; and “the biopsy tissue sample” in step b, line 3. Inconsistent naming of “tissue sample” is present throughout the entire claim set. Confusion in naming may lead to indefiniteness. Appropriate correction is required.
Claim rejection - 35 USC§ 112(b)
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.
Claims 8-11 are 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.
Claims 8 recites "said marbling microscore" in line 1, which has unclear antecedence. Claim 1, from which claim 8 depends, does not instantiate a “marbling microscore”. As such, failing to particularly point out and distinctly claim the subject matter. Claim 9 also recites “the marbling microscore” in line 3.
Claim 9 fails to particularly point out and distinctly claim the subject matter. Claim 9 recites “… score from a chart similar to Figure 10”. Where possible, claims are to be complete in themselves. Incorporation by reference to a specific figure or table "is permitted only in exceptional circumstances where there is no practical way to define the invention in words and where it is more concise to incorporate by reference than duplicating a drawing or table into the claim. Incorporation by reference is a necessity doctrine, not for applicant’s convenience." Ex parte Fressola, 27 USPQ2d 1608, 1609 (Bd. Pat. App. & Inter. 1993) (citations omitted). See MPEP 2173.05(s).
Additionally, the term “Similar” in claim 9 is a relative term which renders the claim indefinite. The term “similar” in line 2 is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. As such, the determination of Meat Standards Australia Marbling (MSA MB) score in the claim has been rendered indefinite by the use of the term “similar”. See MPEP 2173.05(b)IIIc.
Furthermore, claim 9 fails to particularly point out and distinctly claim the subject matter. Figure 10, as recited in claim 9 does not refer to “determining Meat Standards Australia Marbling (MSA MB) score from … the marbling microscore”. As disclosed in specification (pg. 8) Figure 10 illustrates a relationship between the melting temperature (Tm) of the subcutaneous fat around the base of the tail (Ischiatic tuber fat) and at the loin (11th intercostal space fat). Therefore, the scope of the claimed invention is unclear.
Claim 10 is rejected because it recites " The method of claim 1, wherein said chart", in line 1, which has unclear antecedence. Claim 1, from which claim 10 depends, does not instantiate a “chart”. As such, failing to particularly point out and distinctly claim the subject matter.
Claim 11 is rejected because it recites " The method of claim 1, wherein the treatment " which has unclear antecedence. Claim 1, from which claim 11 depends, does not instantiate a “treatment”. As such, failing to particularly point out and distinctly claim the subject matter.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
The Supreme Court has established a two-step framework for this analysis, wherein a claim does not satisfy § 101 if (1) it is “directed to” a patent-ineligible concept, i.e., a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered “both individually and as an ordered combination,” do not add enough to “transform the nature of the claim into a patent-eligible application.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (quoting Alice, 134 S. Ct. at 2355). Applicant is also directed to MPEP 2106.
Step 1: The instantly claimed invention (claims 1-12 being representative) is directed to a method. Therefore, the instantly claimed invention falls into one of the four statutory categories. [Step 1: YES]
Step 2A: First it is determined in Prong One whether a claim recites a judicial exception, and if so, then it is determined in in Prong Two if the recited judicial exception is integrated into a practical application of that exception.
Step 2A, Prong 1: Under the MPEP § 2106.04, the Step 2A (Prong 1) analysis requires determining whether a claim recites an abstract idea, law of nature, or natural phenomenon.
Claims 1-12 recite the following steps which fall under the mathematical concepts, mental processes, and/or certain methods of organizing human activity groupings of abstract ideas:
Claim 1 recites analyzing the biopsy tissue sample to determine at least one fat characteristic of the tissue sample; the plain meaning of “analyzing” encompasses mental observation, evaluation, judgment, and opinion that can be practically performed in human mind (mental process), since human mind is capable of analyzing a sample to determine its characteristics. See MPEP 2106.04(a)(2), subsection III.
Claim 6 recites analyzing a digital photograph taken through a microscope of the stained biopsy to determine the adipose tissue area and the muscle tissue area which can be distinguished by color; the plain meaning of “analyzing” encompasses mental observation, evaluation, judgment, and opinion that can be practically performed in human mind (mental process), since human mind is capable of analyzing a digital photograph to determine an area.
Claim 7 recites utilizing an artificial intelligence algorithm to calculate the adipose tissue area from the stained biopsy; the limitations utilizing an algorithm to calculate tissue area is considered a mathematical calculation, and as such, fall into mathematical concepts groupings of abstract ideas.
Claim 9 recites determining Meat Standards Australia Marbling (MSA MB) score from a chart similar to Figure 10 and the marbling microscore; and determining a treatment of the animal from the MSA MB score; the limitations determining a score similar to figure 10 encompasses mathematical calculation of a regression equation, as recited in claim 10. As such, said limitations fall within mathematical concepts grouping of abstract ideas. furthermore, th limitation of determining a treatment encompasses mental observation, evaluation, judgment, and opinion that can be practically performed in human mind (mental process), since human mind is capable of determine a treatment/an outcome based on the result of an analysis.
The identified claims recite a law of nature, a natural phenomenon (product of nature) or fall into one of the groups of abstract ideas of mathematical concepts, mental processes, and/or certain methods of organizing human activity for the reasons set forth above. See MPEP 2106.04 (a)(2) III and MPEP 2106.04 (b) I. Therefore, claims are directed to one or more judicial exception(s) and require further analysis in Prong Two. [Step 2A, Prong 1: YES]
Step 2A: Prong 2: Under the MPEP § 2106.04, the Step 2A, Prong 2 analysis requires identifying whether there are any additional elements recited in the claim beyond the judicial exception(s), and evaluating those additional elements to determine whether they integrate the exception into a practical application of the exception. This judicial exception is not integrated into a practical application for the following reasons.
The additional elements of claims 1-12 include the following.
Claim 1 recites obtaining a tissue sample by biopsy.
Claim 4 recites staining the tissue sample to visualize adipose cells in the tissue sample and viewing through an optical microscope.
Claim 5 recites fat characterization is conducted using a computer-assisted method.
The additional elements of a computer in the computer-assisted method is generic computer component and/or processes. There are no limitations that indicate that the computer in computer-assisted method require anything other than generic computing systems. The courts have found the use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application. See MPEP 2106.05(f).
Furthermore, the additional elements of obtaining, staining and visualizing a sample only serves to collect the information for use by the abstract idea and amounts to mere data gathering. The courts have found the limitations that amount to necessary data gathering and outputting are insignificant extra-solution activity that do not integrate a recited judicial exception into a practical application in Mayo, 566 U.S. at 79, 101 USPQ2d at 1968 and O/P Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015) (see MPEP 2106.05(g)).
Therefore, the additionally recited elements amount to generic computer components and/or insignificant extra-solution activity and, as such, the claims as a whole do no integrate the abstract idea into practical application. See MPEP 2106.05(g). Thus, claims 1-12 are directed to an abstract idea. [Step 2A, Prong 2: NO]
Step 2B: In the second step it is determined whether the claimed subject matter includes additional elements that amount to significantly more than the judicial exception. An inventive concept cannot be furnished by an abstract idea itself. See MPEP § 2106.05.
The claims do not include any additional steps appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception.
The additional elements of claims 1-12 include the following.
Claim 1 recites obtaining a tissue sample by biopsy.
Claim 4 recites staining the tissue sample to visualize adipose cells in the tissue sample and viewing through an optical microscope.
Claim 5 recites fat characterization is conducted using a computer-assisted method.
The additional elements of a computer in the computer-assisted method are conventional computer components and/or processes. The courts have found the use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TU Communications LLC v. AV Auto, LLC, 823 F.3d 607,613,118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit).
Furthermore, the additional elements of obtaining a sample, staining the sample, and viewing the sample through an optical microscope only serves to collect the information for use by the abstract idea and amounts to mere data gathering. The courts have found the limitations that amount to necessary data gathering and outputting are insignificant extra-solution activity that do not do not amount to significantly more in Mayo, 566 U.S. at 79, 101 USPQ2d at 1968 and O/P Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015) (see MPEP 2106.05(g)).
Furthermore, the additional elements of staining and viewing the sample under the microscope is well-understood, routine, and conventional method of viewing samples. This position is supported by Girolamo et al. (A simple method to determine fat cell size and number in four mammalian species, American Journal of Physiology, Vol. 221, No. 3, September 1971). Girolamo discloses determining fat cell size by based on direct microscopic determination of the diameter of the fat cells (pg. 850, col. 2, para.1 and 2). Girolamo further discloses staining the samples for the purpose of determination of fat cell diameter (pg. 851).
Therefore, the additional element is not sufficient to amount to significantly more than the judicial exception.
Taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception(s). Even when viewed as a combination, the additional elements fail to transform the exception into a patent-eligible application of that exception. Thus, the claims as a whole do not amount to significantly more than the exception itself. [Step 2B: NO]
Therefore, the instantly rejected claims are not drawn to eligible subject matter as they are directed to an abstract idea without significantly more.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated.
Regarding claim 1, Bosch discloses a method of estimating intramuscular fat content in live samples, where the sampling consists of 1-3 biopsies of longissimus dorsi (LM) (abstract); reading on limitations of obtaining a tissue sample by biopsy from a non-meat location of the animal.
Bosch further discloses analyzing data on LM for determining Intramuscular fat (IMF) content and composition and finding correlation between IMF and polyunsaturated FA content after comparison to post-mortem samples of LM, where IMF and Fatty acid composition are correlated to meat quality (abstract), where intramuscular fat is formed mainly by phospholipids with high polyunsaturated fatty acids (PUFA) content and triglycerides with SFAs and monounsaturated fatty acids (MUFA); see pg. 433-435 “IMF content and composition”); reading on limitations of analyzing the biopsy tissue sample to determine at least one fat characteristic of the tissue sample, wherein the determined fat characteristic of the biopsy tissue sample is correlated to a fat characteristic of meat of the animal.
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 2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated, in view of Girolamo et al. (A simple method to determine fat cell size and number in four mammalian species, American Journal of Physiology, Vol. 221, No. 3, September 1971).
Claims 2 and 4 depends on claim 1, the limitations of claim 1 has been taught in the above rejections.
Regarding claim 2, Bosch discloses determining IMF by quantitative gas chromatography, a precise measure of the fat content within a specific muscle sample (for example fat characteristic of the sample), reflecting the marbling level (abstract). Bosch further discloses using both live real-time loin ultrasound images and ultrasound backfat measurements (pg. 435, col. 2, para. 1). Bosch further discloses predicting subcutaneous fat and loin thickness using the Autofom automatic carcass grading (p. 433, col. 1, last para.), which calculates the depth and thickness of adipose tissue.
Further regarding claim 2, Bosch does not expressly disclose that the fat characteristic is selected from the group consisting of area of adipose tissue (AAT), adipose cell number/area, adipose cell size, adipose cell distribution, intramuscular fat melting temperature, and combinations thereof.
Girolamo discloses a method to determine fat cell size and number in mammalian species, where the isolated fat suspension was stained with methylene blue and examined under the microscope equipped with camera attachment. Girolamo further discloses determining fat cell diameters and providing a frequency distribution of diameters in different size categories. Girolamo further discloses calculating mean surface area and volume of the fat cell population (pg. 851).
Regarding claim 4, Girolamo discloses determining fat cell size by based on direct microscopic determination of the diameter of the fat cells (pg. 850, col. 2, para.1 and 2). Girolamo further discloses staining the samples for the purpose of determination of fat cell diameter (pg. 851); reading on limitations of the step of analyzing the biopsy tissue sample to determine at least one fat characteristic of the tissue sample, comprises: staining the tissue sample to visualize adipose cells in the tissue sample and viewing through an optical microscope.
In KSR Int 'l v. Teleflex, the Supreme Court, in rejecting the rigid application of the teaching, suggestion, and motivation test by the Federal Circuit, indicated that “The principles underlying [earlier] cases are instructive when the question is whether a patent claiming the combination of elements of prior art is obvious. When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.” KSR Int'l v. Teleflex lnc., 127 S. Ct. 1727, 1740 (2007).
Applying the KSR standard to Bosch and Girolamo, the examiner concludes that the combination of Bosch and Girolamo represents applying a known technique to a known method. Both Bosch and Girolamo are directed to fat cell sizing. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples, for the purpose of assessing meat quality. In the same field of research, Girolamo disclosed that fat characteristic is fat cel size/number. Combining the meat quality assessment method of Bosch with fat characteristic of Girolamo would have allowed for deeper insight into mechanisms that influence palatability. One ordinary skilled in the art before he effective filing data of the claimed invention would have been capable of applying this known technique to the known method of Bosch and the results would have been predictable. This combination would have been expected to have been provided a better meat quality assessment. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated 10/29/2021, as applied to claim 1 above, in view of Johnson et al. (Technique for Sampling Subcutaneous Fat from the Tailhead of Sheep, October 1977, Am J Vet Res, Vol 38, No. 10, pages 1635-1636).
Claim 3 depends on claim 1, the limitations of claim 1 has been taught in the above rejections.
Regarding claim 3, Bosch discloses biopsies of longissimus dorsi (LM). Bosch does not expressly disclose that the biopsy tissue sample is selected from the group consisting of a sample of the Sacrocaudalis dorsis medialis muscle and a tailhead subcutaneous fat sample. Johnson discloses a fat biopsy technique (either omental or subcutaneous) of fat located around the tailhead from range animals (summary).
Applying the KSR standard to Bosch and Johnson, the examiner concludes that the combination of Bosch and Johnson represents simple substitution of one known element for another. Both Bosch and Johnson are directed to live animal sampling techniques. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples from biopsies of longissimus dorsi (LM), which contains non-meat locations, for the purpose of assessing meat quality. In the same field of research, Johnson discloses sampling subcutaneous fat from the tailhead of animal. One ordinary skilled in the art before he effective filing data of the claimed invention could have substituted the known sampling technique of Johnson with sampling of Bosch and there result of the substitution would have been predictable. This Substitution of longissimus dorsi sampling of Bosch with tailhead sampling of Johnson would have allowed for a less invasive sampling of a non-meat location. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated 10/29/2021, as applied to claim 1 above, in view of Chen et al. (Determination of adipocyte size by computer image analysis, Methods Volume 43, Issue 6, p986-989, June 2002).
Claims 5-6 depends on claim 1, the limitations of claim 1 has been taught in the above rejections.
Regarding claims 5 and 6, Bosch does not disclose that the determination of the at least one fat characteristic is conducted using a computer-assisted method comprises analyzing a digital photograph taken through a microscope of the stained biopsy to determine the adipose tissue area and the muscle tissue area which can be distinguished by color. Chen discloses methods that allow rapid and accurate determination of adipocyte size by measuring the cross-sectional area of adipocytes with computer image analysis (abstract). Chen further discloses that samples were stained with hematoxylin and eosin and the histology sections were viewed at 10× magnification, and images were obtained with a SPOT digital camera (Diagnostic Instruments, Sterling Heights, MI); The images were converted into a binary format with Adobe PhotoShop 5.0.1 (Adobe Systems, San Jose, CA) and Image Processing Tool Kit (Reindeer Games, Gainesville, FL) and the mean adipocyte surface area was measured (pg. 986, col. 2-pg. 987, col. 1).
Applying the KSR standard to Bosch and Chen, the examiner concludes that the combination of Bosch and Chen represents use of known technique to improve similar methods. Both Bosch and Chen are directed to fat cell sizing. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples. In the same field of research, Chen disclosed computer implemented method of image analysis through a microscope of the stained biopsy. Combining the meat quality assessment method of Bosch with computer-assisted image analysis of Chen would have allowed for a more accurate fat characterization. One ordinary skilled in the art before he effective filing data of the claimed invention would have been capable of applying this known technique to the known method of Bosch and the results would have been predictable. This combination would have been expected to have been provided a more accurate meat quality assessment. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Claims 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated 10/29/2021, as applied to claim 1 above, in view of Chen et al. (Determination of adipocyte size by computer image analysis, Methods Volume 43, Issue 6, p986-989, June 2002), and further in view of Liu et al. (Predicting pork loin intramuscular fat using computer vision system, Meat Science, Volume 143, September 2018, Pages 18-23).
Claims 7-9 depend on claims 6 and 1 respectively, the limitations of claims 6 and 1 have been taught in the above rejections.
Regarding claim 7, Chen discloses methods that allow rapid and accurate determination of adipocyte size by measuring the cross-sectional area of adipocytes with computer image analysis (abstract). Bosch and Chen do not expressly disclose that the hardware and software is an artificial intelligence algorithm. Liu discloses predicting intramuscular fat using artificial intelligence for the image processing. Liu further discloses acquiring and segregating image to estimate IMF%. Liu further discloses image segmentation by calculating the B value of every pixel and automatically estimating the threshold between lean and fat tissue (Fig. 2(d)) according to Sun's method. Liu further discloses using image color features and image IMF% in a support vector machine model (abstract; pg. 19, col. 2, subsection 2.3).
Regarding claims 8 and 9, Liu discloses a 10-point subjective scoring system to evaluate intramuscular fat (IMF) percentage in pork loin samples, with trained human graders assigning scores based on National Pork Board standards (equivalent to Meat Standard Australia Marbling (MSA MB) score). This scoring was compared to chemical measurements and computer vision predictions (implicitly disclosing a score on a scale of 0 to 10 for subjective, chemical, and image predictions) (pg. 18, col. 2, para. 1 & pg. 19, col. 2, subsection 2.4-2.5); reading on limitations of wherein said marbling microscore, between 0 and 10, and wherein said marbling microscore is determined based on said adipose tissue area and said muscle tissue area.
Further regarding claim 9, Bosch discloses that backfat biopsies are frequently used to assess the impact of dietary treatments and age on fatty acid (FA) composition in animals due to the need to track changes over time. Therefore, it would have been obvious to one ordinary skilled in the art to slaughter or adjust treatment of the animal according to the result of the scoring analysis to obtain desired marbling.
Applying the KSR standard to Bosch, Chen, and Liu examiner concludes that the combination of Bosch, Chen, and Liu represents use of known technique to improve similar methods. Bosch, Chen, and Liu are directed to intramuscular fat assessments. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples. In the same field of research, Chen disclosed computer implemented method of image analysis through a microscope of the stained biopsy. Liu further implemented Artificial intelligence for the image processing of samples. Combining the computer-assisted image analysis for assessing meat quality of Bosch and Chen with known technique of using artificial intelligence for image processing of Liu would have allowed for a more accurate fat characterization. One ordinary skilled in the art before he effective filing data of the claimed invention would have been capable of applying this known technique to the known method of Bosch and Chen and the results would have been predictable. This combination would have been expected to have been provided a more accurate meat quality assessment. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated 10/29/2021, as applied to claim 1 above, in view of Chen et al. (Determination of adipocyte size by computer image analysis, Methods Volume 43, Issue 6, p986-989, June 2002), in view of Liu et al. (Predicting pork loin intramuscular fat using computer vision system, Meat Science, Volume 143, September 2018, Pages 18-23), and further in view of Konarska et al. (Relationships between marbling measures across principal muscles, Meat Science 123 (2017) pages: 67-78, January 2017).
Claim 10 depends on claim 1, the limitations of claim 1 has been taught in the above rejections.
Regarding claim 10, Bosch, Chen, and Liu do not disclose a chart that comprises a range of marbling scores and a range of MSA MB scores and a regression equation.
Konarska discloses how different methods of measuring marbling fat correlate with one another and whether marbling in one muscle can predict marbling in others. The study compared three marbling assessment methods: trained personnel, near-infrared spectroscopy (NIR), and image analysis. The research confirmed that marbling measurements taken on one muscle can be used to predict marbling in other muscles within the same carcass. The study found varying relationships between the assessment methods: Image analysis vs. human graders and Near-infrared spectroscopy (NIR) vs. human graders Image analysis was performed on digital pictures of the meat slices to quantify marbling characteristics (abstract).
Konarska further discloses scattered plot of MSA marbling against image analysis marbling percentage and their corresponding linear regression lines (see figures 5, 8); reading on limitations of wherein said chart, comprises: an x-axis with a range of marbling microscore is from 0 to 10; a y-axis with a range of MSAMB scores from 200 to 1200; and a regression equation relating said range of marbling microscore to said range of MSAMB.
Applying the KSR standard to Bosch, Chen, Liu, and Konarska examiner concludes that the combination of Bosch, Chen, and Liu represents applying a known technique to a known method. Bosch, Chen, Liu, and Konarska are directed to intramuscular fat assessments. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples. In the same field of research, Chen disclosed computer implemented method of image analysis through a microscope of the stained biopsy. Liu further implemented Artificial intelligence for the image processing of samples. Konarska provided the downstream statistical analysis of generating a plot of the results. Combining the computer-assisted image analysis for assessing meat quality of Bosch, Chen, and Liu with known technique of generating scattered plots as a downstream analysis of Konarska would have allowed visualizing the relationship between the assessed score and the standard MSA MB score. One ordinary skilled in the art before he effective filing data of the claimed invention would have been capable of applying this known technique to the known method of Bosch, Chen, and Liu and the results would have been predictable. This combination would have been expected to have been provided a more effective data visualization to see patterns, trends and correlations in data. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS dated 10/29/2021, as applied to claim 1 above, in view of Chen et al. (Determination of adipocyte size by computer image analysis, Methods Volume 43, Issue 6, p986-989, June 2002), in view of Liu et al. (Predicting pork loin intramuscular fat using computer vision system, Meat Science, Volume 143, September 2018, Pages 18-23), and further in view of Houghton et al. (Application of ultrasound for feeding and finishing animals: a review, Animal Science, 1992 March; 70 (3):930-41).
Claim 11 depends on claim 1, the limitations of claim 1 has been taught in the above rejections.
Regarding claim 11, Bosch, Chen, and Liu do not expressly disclose a treatment as a result of an image analysis of intramuscular fat. Houghton discloses the use of real-time ultrasound as a non-invasive method to predict the body composition of live animals like beef, swine, and sheep. This technology employs high-frequency sound waves (2-10 MHz) to create images of fat and muscle tissue beneath an animal's hide, aiding in the optimization of feeding strategies and improving carcass value. Houghton further discloses that in beef finishing programs, image analysis, been used successfully to predict fat and muscle traits before slaughter and beef carcass chemical composition as well as predicting days on feed (abstract); reading on limitations of the treatment comprises one of: slaughtering the animal; or continuing feeding regimen of the animal.
Applying the KSR standard to Bosch, Chen, Liu, and Houghton examiner concludes that the combination of Bosch, Chen, and Liu represents applying a known technique to a known method. Bosch, Chen, Liu, and Houghton are directed to animal trait analysis for the purpose of meat quality. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples. In the same field of research, Chen disclosed computer implemented method of image analysis through a microscope of the stained biopsy. Liu further implemented Artificial intelligence for the image processing of samples. Houghton provided the downstream task of treating animals based on the result of the meat assessment. Combining the computer-assisted image analysis for assessing meat quality of Bosch, Chen, and Liu with known technique of employing a treatment/ feed or finish would have allowed estimation of time to market. One ordinary skilled in the art before he effective filing data of the claimed invention would have been capable of applying this known technique to the known method of Bosch, Chen, and Liu and the results would have been predictable. This combination would have been expected to have been provided a complete animal production cycle. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Bosch et al. (Estimating intramuscular fat content and fatty acid composition in live and post-mortem samples in pigs, Meat Science, Volume 82, Issue 4, August 2009, Pages 432-437) newly cited in the IDS 10/29/2021, as applied to claim 1 above, in view of Lloyd et al. (Genetics of Marbling in Wagyu Revealed by the Melting Temperature of Intramuscular and Subcutaneous Lipids, International Journal of Food Science, 2017 Oct 23, pages 1-6).
Claim 12 depends on claim 1, the limitations of claim 1 has been taught in the above rejections.
Regarding claim 12, Bosch discloses that the sample is a subcutaneous fat sample (pg. 433, col. 1, last para.). further regarding claim 12, Bosch does not expressly disclose that the fat characteristic is the melting temperature of the subcutaneous fat sample of the animal; and wherein the melting temperature of intra-muscular fat of the animal at a loin is correlated to the melting temperature of the subcutaneous fat sample of the animal.
Lloyd discloses that the melting temperature (Tm) of intramuscular fat (IMF) in Wagyu cattle is a more reliable and genetically linked measure of marbling than visual scores. Lloyd further discloses significant differences in Tm between Wagyu sires and showed that Tm is highly heritable, can be used for traceability, and is an effective predictor of marbling quality and healthiness of beef (abstract).
Applying the KSR standard to Bosch and Lloyd, the examiner concludes that the combination of Bosch and Lloyd represents applying a known technique to a known method. Both Bosch and Lloyd are directed to meat marbling assessment. Bosch disclosed estimating fat characteristic, intramuscular fat content, in live samples, for the purpose of assessing meat quality. In the same field of research, Lloyd disclosed that fat characteristic is melting temperature of intramuscular and subcutaneous lipids. Combining the meat quality assessment method of Bosch with fat characteristic of Lloyd would have allowed for deeper insight into chemical composition of the meat. One ordinary skilled in the art before he effective filing data of the claimed invention would have been capable of applying this known technique to the known method of Bosch and the results would have been predictable. This combination would have been expected to have been provided a better meat quality assessment. Therefore, the invention would have been prima facie obvious to one of skill in the art before the effective filing date of the claimed invention, absent evidence to the contrary.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GHAZAL SABOUR whose telephone number is (703)756-1289. The examiner can normally be reached M-F 7:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Larry D. Riggs can be reached at (571) 270-3062. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/G.S./Examiner, Art Unit 1686
/LARRY D RIGGS II/Supervisory Patent Examiner, Art Unit 1686