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 .
Status of the Application
Applicant's submission filed on 17 December 2025 has been entered. Claims 1-3 and 5-11 are pending. Claims 4 and 12 have been cancelled. The previous 112(b) rejections have been withdrawn in view of applicant’s amendments to the claims. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
Claim Objections
Claim 9 is objected to because of the following informalities: Claim 9, line 2: delete “source”. Appropriate correction is required.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-3, 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over Vanderbilt (US Pat 4,804,547 Animal Feed Supplement Formulation, 1989).
Regarding claim 1, Vanderbilt teaches methods for making an animal feed supplement comprising mixtures of calcium salts of certain volatile fatty acids (Col 1, line 11) where the calcium source is lime (95.4% calcium hydroxide) and the volatile fatty acids are isobutyric acid, 2-methylbutyric acid, valeric acid and isovaleric acid (Col 3, Example 1). Vanderbilt further teaches the mole ratio of calcium metal source (Ca) to low molecular weight volatile fatty acid source (FA) is 1:2 (See Table 1. below, source data from Vanderbilt Example 1, Col 3).
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Vanderbilt’s Ca:FA ratio of 1:2 as seen above in Table 1, is considered close to the instantly claimed range of “1:1 to 1:1.9” Ca:FA. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 I).
Vanderbilt further teaches the only ingredients in the mixture are lime and the fatty acids (Col 3, Example 1), which meets the claim limitations “wherein the reaction is run neat”.
Regarding the claim language that the process produces a product which “has a tolerable odor of less than 5,000 ppm fatty acids measured in the headspace of a sample,” and which is “substantially odor free”; since Vanderbilt teaches all of the process steps of claim 1 the resultant product is considered to be substantially odor free and have a tolerable odor of less than 5,000 ppm fatty acids measured in the headspace of a sample.
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). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. MPEP 2112.01 I.
Regarding the claim limitation “calcium oxide and calcium hydroxide in the solid phase”, Vanderbilt discloses the lime is heated to 130 oC (Col 3, Example 1), while the melting point of calcium hydroxide is 580 oC and the melting point of calcium oxide is 2,613 oC. Since the melting point of calcium hydroxide and calcium oxide are above 130 oC, the calcium hydroxide and calcium oxide of Vanderbilt would have been in the solid phase.
Regarding claim 2, Vanderbilt’s Ca:FA ratio of 1:2 as seen above in Table 1, is considered close to the instantly claimed range of “about 1:1.5 to 1:1.9” Ca:FA. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 I).
Regarding claim 3, Vanderbilt teaches the process takes place in a kettle equipped with an agitator (Col 3, Example 1), which meets the claim limitation of “a mechanical mix reactor”. Vanderbilt further teaches the only ingredients in the mixture are lime and the fatty acids (Col 3, Example 1), which meets the claim limitations of “without any fat encapsulating additive.”
Regarding claim 10, Vanderbilt teaches the feed supplement is prepared in a resin kettle equipped with an agitator and addition funnel (Col 3, Example 1), which meets the claim limitation of “reacting is performed in a commercially available mixer.”
Regarding claim 6, Vanderbilt teaches an animal feed supplement comprising mixtures of calcium salts of certain volatile fatty acids (Col 1, line 11) where the calcium source is lime (95.4% calcium hydroxide) and the volatile fatty acids are isobutyric acid, 2-methulbutyric acid, valeric acid and isovaleric acid (Col 3, Example 1). Vanderbilt further teaches the mole ratio of calcium metal source (Ca) to low molecular weight volatile fatty acid source (FA) is 1:2 (See Table 1. below, source data from Vanderbilt Example 1, Col 3).
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Vanderbilt’s Ca:FA ratio of 1:2 as seen above in Table 1, is considered close to the instantly claimed range of “1:1 to 1:1.9” Ca:FA. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 I).
Vanderbilt further teaches the only ingredients in the mixture are lime and the fatty acids (Col 3, Example 1), which meets the claim limitations “wherein the reaction is run neat”.
Regarding the claim language that the process produces a product which “has a tolerable odor of less than 5,000 ppm fatty acids measured in the headspace of a sample,” and which is “substantially odor free”; since Vanderbilt teaches all of the process steps of claim 1 the resultant product is considered to be substantially odor free and have a tolerable odor of less than 5,000 ppm fatty acids measured in the headspace of a sample for the same reasons as detailed in the claim 1 rejection above.
Regarding the claim limitation “calcium oxide and calcium hydroxide in the solid phase”, Vanderbilt discloses the lime is heated to 130 oC (Col 3, Example 1), while the melting point of calcium hydroxide is 580 oC and the melting point of calcium oxide is 2,613 oC. Since the melting point of calcium hydroxide and calcium oxide are above 130 oC, the calcium hydroxide and calcium oxide of Vanderbilt would have been in the solid phase.
Regarding claim 7, Vanderbilt’s Ca:FA ratio of 1:2 as seen above in Table 1, is considered close to the instantly claimed range of “1:1.5 to 1:1.9” Ca:FA. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 I).
Regarding claim 8, Vanderbilt teaches an animal feed supplement comprising mixtures of calcium salts of certain volatile fatty acids (Col 1, line 11) that can be fed to dairy cattle (Col 1, lines 25-27) where the calcium source is lime (95.4% calcium hydroxide) and the volatile fatty acids are isobutyric acid, 2-methulbutyric acid, valeric acid and isovaleric acid (Col 3, Example 1). Vanderbilt further teaches the mole ratio of calcium metal source (Ca) to low molecular weight volatile fatty acid source (FA) is 1:2 (See Table 1. below, source data from Vanderbilt Example 1, Col 3).
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Vanderbilt’s Ca:FA ratio of 1:2 as seen above in Table 1, is considered close to the instantly claimed range of “1:1 to 1:1.9” Ca:FA. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 I).
Vanderbilt further teaches the only ingredients in the mixture are lime and the fatty acids and the product is a powder(Col 3, Example 1), which meets the claim limitations of “non-encapsulated” and “prepared neat”.
Regarding the claim language that the product have “a tolerable odor of less than 5,000 ppm fatty acids measured in the headspace of a sample,” since Vanderbilt teaches all of the process steps of claim 8 the resultant product is considered to have a tolerable odor of less than 5,000 ppm fatty acids measured in the headspace of a sample for substantially the same reasons as detailed in the claim 1 rejection.
Regarding claim 9, Vanderbilt’s Ca:FA ratio of 1:2 as seen above in Table 1, is considered close to the instantly claimed range of “1:1.5 to 1:1.9” Ca:FA. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 I).
Claims 5 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Vanderbilt as applied to claims 3 and 10 above, and further in view of Ingetecsa (https://web.archive.org/web/20210304222310/https://www.ingetecsa.com/machines/paddle-dryer/ March 2021).
Regarding claim 5, Vanderbilt teaches the process of preparing the feed supplement of claim 3 as described above. Vanderbilt discloses the process in a resin kettle heated to 130 oC (Col 3, Example 1).
Vanderbilt does not disclose the process run in a shear mechanical mixer with a paddle dryer system.
Ingetecsa, also in the field of composition mixing and processing, discloses a paddle dryer system with high shear force where the paddles mix the contents in a radial direction (page 2, Paddle Design). The paddle dryer system allows for excellent temperature control and enables a uniform product quality (page 1, paragraph 2).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of making a feed supplement of Vanderbilt with the paddle dryer of Ingetecsa in order to have excellent temperature control over the mixture and to provide a uniform product.
Regarding claim 11, Vanderbilt teaches a resin kettle equipped with an agitator and addition funnel (Col 3, Example 1), which meets the claim limitation of “a commercially available mixer.” Vanderbilt further teaches the resin kettle is heated to 130 oC (Col 3, Example 1).
Vanderbilt does not disclose the feed supplement prepared with a paddle dryer.
Ingetecsa, also in the field of composition mixing and processing, discloses a paddle dryer system with high shear force where the paddles mix the contents in a radial direction (page 2, Paddle Design). The paddle dryer system allows for excellent temperature control and enables a uniform product quality (page 1, paragraph 2).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the feed supplement of Vanderbilt with the paddle dryer of Ingetecsa in order to have excellent temperature control over the mixture and to provide a uniform product.
Response to Arguments
Applicant's arguments filed 17 December 2025 have been fully considered. To the extent they apply to the above rejection they are not persuasive.
Applicant argues the composition of Vanderbilt relied upon by the office (Example 1) utilize 31.5% isobutyric acid and 68.5% a mixture of (36% 2-methylbutyric acid, 33% valeric, and 31 % isovaleric). Vanderbilt, Col. 3, lines 60-62. Applicant argues in all instances where isobutyric acid was included as a volatile fatty acid in Applicant's data, the headspace well-exceeded the claimed amount at Vanderbilt's ratio (Applicant points to Tables 1 and 2 in the specification). Similarly, where 2-methyl butyric acid was included as a volatile fatty acid Applicant's data, the headspace well-exceeded the claimed amount at Vanderbilt's ratio (Applicant points to Tables 4 and 5 in the specification). Applicant also points to Table 7 of the specification where a 1:8 ratio where 70% isobutyric acid and 30% 2-methylbutyric acid were employed the resultant headspace exceeded 10,000 ppm. Applicant asserts the evidence of record demonstrates that the compositions of Vanderbilt would not fall within the headspace requirements of the claims. Remarks pp7-8.
This argument is not persuasive. Example 1 of Vanderbilt comprises a mixture of isobutyric acid (31.5 wt%), 2-methylbutyric acid (24.6 wt%), valeric acid (22.6 wt%) and isovaleric acid (21.2 wt%), which as can be seen in Table 1 above, provides a mole ratio of 1:2 of calcium metal source to low molecular weight volatile fatty acid. The data presented by the applicant (Tables 1, 2, 4 and 5 in the specification) are not directly comparable to the Example 1 of Vanderbilt. Tables 1 and 2 of the specification have a low molecular weight volatile fatty acid which is 100% isobutyric acid while Vanderbilt, Example 1, has a mixture of four different low molecular weight volatile fatty acids. Tables 4 and 5 of the specification have a low molecular weight volatile fatty acid which is 100% 2-methylbutyric acid while Vanderbilt, Example 1, has a mixture of four different low molecular weight volatile fatty acids. Table 7 of the specification has a mixture of two different low molecular weight volatile fatty acids, isobutyric (70%) and 2-methylbutyric (30%). The data showing that these compounds have a concentration of fatty acids in the headspace measuring more than 5000 ppm does not necessarily demonstrate that the compound of Vanderbilt, Example 1, will also have a concentration of fatty acids in the headspace measuring more than 5000 ppm.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
/C.L.G./Examiner, Art Unit 1793