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 .
DETAILED ACTION
Claims 1-7 and 9-22 are pending and examined on the merits.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
In view of the Appeal Brief filed on 2/6/2026, PROSECUTION IS HEREBY REOPENED. New grounds of rejection are set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 8/18/2025, 3/15/2022, 2/4/2022 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 and 9-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for treating an autoimmune disease, does not reasonably provide enablement for prevention of autoimmune diseases. The claims are also rejected for failing to enable the prevention of all allergies as encompassed by claim 1 and dependent claims therefrom. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to practice the invention commensurate in scope with these claims.
Undue experimentation would be required to practice the invention as claimed due to the quantity of experimentation necessary; limited amount of guidance and limited number of working examples in the specification; nature of the invention; state of the prior art; relative skill level of those in the art; predictability or unpredictability in the art; and the breadth of the claims. In re Wands, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988).
Limited amount of guidance and limited number of working examples in the specification
While the Specification recited allergy and autoimmune disease as the immune disorders, there is no prevention of allergy or autoimmune treatments [0004]. No other types of allergy or autoimmune diseases are cited.
Nature of the invention
There are more than 100 different types of autoimmune diseases, which can affect any tissue or organ in the body (see 2024, Autoimmune Diseases: Types, Symptoms & Treatments). The causes of autoimmune disease are unknown. Thus it would be impossible to prevent someone from getting autoimmune diseases. Similarly there are many categories of allergies and the exact number is unknown, because multiple substance can come into contact to trigger an immune reaction.
State of the prior art
There are many types of autoimmune diseases. It has been found that factors that increase the risks of developing autoimmune disease may be viral infections, your sex, genetics, environmental factors, and smoking (see What are the risk factors?, 2024, Autoimmune Diseases: Types, Symptoms & Treatments).
Relative skill level of those in the art
Those in the art would have a difficult time to treat autoimmune diseases, let alone prevent autoimmune diseases in general, because of the unknown causes for autoimmune diseases. The same can be for the genus of any allergy. Therefore, the relative skill level required would be high.
Predictability or unpredictability in the art
Because of the unknown causes of autoimmune diseases, the unpredictability in the art would be high. There are many categories of allergies and the exact number is unknown, because multiple substance can come into contact to trigger an immune reaction, including rare allergies, such as solar uritcaria – an allergy to sunlight, exercise-induced anaphylaxis – intense allergic reactions triggered solely by physical activity, and likewise there is unpredictability in the art.
The breadth of the claims
The breadth of the claims is broad, particularly for preventing autoimmune diseases and allergies, and for treatment of autoimmune diseases and allergies in general.
Applicant’s claims are broadly drawn to a composition that is able to prevent autoimmune diseases and allergies. In order to be enabled for prevention of a condition, applicant must demonstrate that the invention is able to prevent the condition each and every instance of that condition. Applicant’s specification does not set forth any evidence that the claimed product is able to prevent autoimmune diseases for all potential causes of autoimmune diseases or all allergies. In addition, the art teaches autoimmune diseases prevention is not accepted as possible because many risk factors such as family history cannot be controlled. Because applicant’s specification does not show prevention of autoimmune diseases and the art acknowledges that prevention is not currently possible, a person of ordinary skill in the art would be forced to experiment unduly in order to determine if applicant’s invention actually functions as claimed. Therefore, the claims are not considered enabled for the prevention of autoimmune diseases and allergies.
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 1-7, and 9-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a method of using a product of nature without significantly more. The claim(s) recite(s) a method of preventing an animal identified with allergy and administration to an animal a composition comprising colostrum to prevent allergy would read on a mammal breast feeding its newborn young with colostrum, which exists in milk. The claims are also rejected for encompassing a mental step of identifying the animal in the methods claimed.
The first step of the eligibility analysis evaluates whether the claim falls within a statutory category (see MPEP 2106.03). Claim 1 is directed to a method of preventing allergy, the claims are directed to a process. Claims 9 and 10 are directed to methods of treating or preventing an autoimmune disease, and enhancing vaccine efficacy in a senior animal, these claims and dependent claims therefrom are drawn to a process.
Effective January 7, 2019, subject matter eligibility determinations under 35 U.S.C. § 101 follow the procedure explained in the Federal Register notice titled 2019 Revised Patent Subject Matter Eligibility Guidance (Federal Register, Vol. 84, No.4, 50-57), which is found at: https://www.govinfo.gov/content/pkg/FR-2019-01-07/pdf/2018-28282.pdf. Applicants are kindly asked to review this guidance as well as MPEP 2106.
The statutory categories of invention under 35 U.S.C. 101 are processes, machines, manufactures, and compositions of matter. However, certain members of these categories constitute judicial exceptions, i.e., the courts have determined that these entities are not patentable subject matter. These judicial exceptions include abstract ideas, laws of nature, and natural phenomena. The Office released guidance on December 16, 2014 for the examination of claims reciting natural products under 35 U.S.C. 101 in light of the recent Supreme Court decisions in Association for Molecular Pathology v. Myriad Genetics, Inc. (569 U.S. ___, 133 S. Ct. 2107, 2116, 106 USPQ2d 1972 (2013)) and Mayo Collaborative Services v. Prometheus Laboratories (566 U.S. ___, 132 S. Ct. 1289, 101 USPQ2d 1961 (2012)), Diamond v. Chakrabarty, 447 U.S. 303 (1980)) and Funk Brothers Seed Co. v. Kalo Inoculant Co. - 333 U.S. 127 (1948)). (inter alia). See eg. MPEP 2106.04(b)
The Supreme Court has explained that the judicial exceptions reflect the Court’s view that abstract ideas, laws of nature, and natural phenomena are "the basic tools of scientific and technological work", and are thus excluded from patentability because "monopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it." Alice Corp., 134 S. Ct. at 2354, 110 USPQ2d at 1980 (quoting Myriad, 133 S. Ct. at 2116, 106 USPQ2d at 1978 and Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012)). The Supreme Court’s concern that drives this "exclusionary principle" is pre-emption. Alice Corp., 134 S. Ct. at 2354, 110 USPQ2d at 1980. The Court has held that a claim may not preempt abstract ideas, laws of nature, or natural phenomena; i.e., one may not patent every "substantial practical application" of an abstract idea, law of nature, or natural phenomenon, even if the judicial exception is narrow.
While preemption is the concern underlying the judicial exceptions, it is not a standalone test for determining eligibility. Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042, 1052, 119 USPQ2d 1370, 1376 (Fed. Cir. 2016). Instead, questions of preemption are inherent in and resolved by the two-part framework from Alice Corp. and Mayo (the Alice/Mayo test referred to by the Office as Steps 2A and 2B). It is necessary to evaluate eligibility using the Alice/Mayo test, because while a preemptive claim may be ineligible, the absence of complete preemption does not demonstrate that a claim is eligible.
Products of Nature: When a law of nature or natural phenomenon is claimed as a physical product, the courts have often referred to the exception as a "product of nature". Products of nature are considered to be an exception because they tie up the use of naturally occurring things, but they have been labeled as both laws of nature and natural phenomena. See Myriad 133 S. Ct. at 2116-17, 106 USPQ2d at 1979 (claims to isolated DNA held ineligible because they "claim naturally occurring phenomena" and are "squarely within the law of nature exception"); Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 76 USPQ 280, 281 (1948) (claims to bacterial mixtures held ineligible as "manifestations of laws of nature" and "phenomena of nature"). Step 2A of the Office’s eligibility analysis uses the terms "law of nature" and "natural phenomenon" as inclusive of "products of nature".
It is important to keep in mind that product of nature exceptions include both naturally occurring products and non-naturally occurring products that lack markedly different characteristics from any naturally occurring counterpart. Instead, the key to the eligibility of all non-naturally occurring products is whether they possess markedly different characteristics from its closest naturally occurring counterpart.
When a claim recites a nature-based product limitation, examiners use the markedly different characteristics analysis discussed in MPEP § 2106.04(c) to evaluate the nature-based product limitation and determine the answer to Step 2A. Nature-based products, as used herein, include both eligible and ineligible products and merely refer to the types of products subject to the markedly different characteristics analysis used to identify product of nature exceptions.
The Markedly Different Characteristics Analysis
The markedly different characteristics analysis is part of Step 2A, because the courts use this analysis to identify product of nature exceptions. If the claim includes a nature-based product that has markedly different characteristics, then the claim does not recite a product of nature exception and is eligible. If the claim includes a nature-based product that does not exhibit markedly different characteristics from its closest naturally occurring counterpart in its natural state, then the claim is directed to a "product of nature" exception (Step 2A: YES), and requires further analysis in Step 2B to determine whether any additional elements in the claim add significantly more to the exception.
Nature-based Product Claim Analysis
Where the claim is to a nature-based product by itself, the markedly different characteristics analysis should be applied to the entire product. Where the claim is to a nature-based product produced by combining multiple components, the markedly different characteristics analysis should be applied to the resultant nature-based combination, rather than its component parts. Where the claim is to a nature-based product in combination with non-nature based elements, the markedly different characteristics analysis should be applied only to the nature-based product limitation. For a product-by-process claims, the analysis turns on whether the nature-based product in the claim has markedly different characteristics from its naturally occurring counterpart.
The markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state. Markedly different characteristics can be expressed as the product’s structure, function, and/or other properties, and are evaluated based on what is recited in the claim on a case-by-case basis. If the analysis indicates that a nature-based product limitation does not exhibit markedly different characteristics, then that limitation is a product of nature exception. If the analysis indicates that a nature-based product limitation does have markedly different characteristics, then that limitation is not a product of nature exception. Because the markedly different characteristics analysis compares the nature-based product limitation to its naturally occurring counterpart in its natural state, the first step in the analysis is to select the appropriate counterpart(s) to the nature-based product. When there are multiple counterparts to the nature-based product, the comparison should be made to the closest naturally occurring counterpart. When the nature-based product is a combination produced from multiple components, the closest counterpart may be the individual nature-based components of the combination. Because there is no counterpart mixture in nature, the closest counterparts to the claimed mixture are the individual components of the mixture, i.e., each naturally occurring species by itself. See, e.g., Funk Bros., 333 U.S. at 130, 76 USPQ at 281 (comparing claimed mixture of bacterial species to each species as it occurs in nature).
Markedly changed characteristics can include structural, functional, chemical changes. In order to show a marked difference, a characteristic must be changed as compared to nature, and cannot be an inherent or innate characteristic of the naturally occurring counterpart or an incidental change in a characteristic of the naturally occurring counterpart. Myriad, 133 S. Ct. at 2111, 106 USPQ2d at 1974-75. Thus, in order to be markedly different, applicant must have caused the claimed product to possess at least one characteristic that is different from that of the counterpart.
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If there is no change in any characteristic, the claimed product lacks markedly different characteristics, and is a product of nature exception.
Step 1: Determine if the claims are directed to one of the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: a process, machine, manufacture or composition of matter. YES, the claims are directed to a process, which are statutory categories within at least one of the four categories of patent eligible subject matter.
Step 2A: PRONG ONE: Evaluate whether the claim recites a Judicial Exception
(e.g., law of nature, natural phenomenon, or an abstract idea; see MPEP 2106.04). YES, the claims are process claims using a natural process (i.e., a process of administering a colostrum to prevent allergy in a mammal identified as needing prevention of allergy) which is not markedly different from the closest naturally-occurring counterpart (i.e., a mother feeding its young with colostrum, which will inherently lead to prevention of allergy in the young identified as needing prevention of allergy).
Because the claim states the natural process of a mother feeding its young with colostrum, there is no markedly different characteristics as performed by comparing the nature-based process limitation to its natural counterpart.
The claim recites the naturally process of preventing allergy in a mother feeding its young with colostrum. This process equates to a mother feeding its baby in nature. The closest naturally occurring counterparts of the process of preventing allergy with the same components found in the breast milk as colostrum. All of these are naturally processes occurring in nature and are not markedly different from its naturally occurring counterpart in its natural state. The properties of the nature-based process as claimed are not markedly different than the properties of these naturally occurring counterparts found in nature as these activities would inherently be found in a mother nursing its young with colostrum in nature. The components which would give the activities claimed in the instant invention would inherently do the same in nature as there has been nothing done in the instant invention that would make them act in any different way.
Step 2A prong two evaluates whether the claim as a whole integrates the recited judicial exception into a practical application (see MPEP 2106.04(d)). This evaluation is performed by (a) identifying whether there are any additional recited elements in the claim beyond the judicial exception and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application.
This judicial exception is not integrated into a practical application because the process of preventing allergy in a mother feeding its young with the colostrum is a natural process in nature. The “identification” of the young is a mental step that is a nonstatutory matter because there is no clear step for “identifying” a subject in need. The claims do not integrate the judicial exceptions into a practical application because in the claims are drawn to a method of administering to an identified animal a composition comprising colostrum, which is the method of feeding an animal with mother’s colostrum.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because these process and their activity are already found naturally occurring in nature and the addition of an intended use does not impart any added benefit to the compounds or integrate the composition into a practical application.
Step 2 B evaluates whether the claim as a whole, amounts to significantly more than the recited exception, i.e., whether any additional element, or combination of additional elements, adds an inventive concept to the claim (see MPEP § 2106.05(b)).
The claims as a whole do not amount to more than the recited exceptions because there aren’t any other additional elements to consider, which does not add an inventive concept to the claims. Thus, the claims are not eligible subject matter under current 35 U.S.C. 101 standards.
Additional method step analysis encompassing “identifying”
Step 1: Determine if the claims are directed to one of the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: a process, machine, manufacture or composition of matter. YES, the claims are directed to a process, which are statutory categories within at least one of the four categories of patent eligible subject matter.
Step 2A: PRONG ONE: Evaluate whether the claim recites a Judicial Exception
(e.g., law of nature, natural phenomenon, or an abstract idea; see MPEP 2106.04). YES, the claims are process claims using method step of identifying the animal, encompassing a mental process step (i.e., a process of identifying the animal or senior animal).
The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012) ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same). [AltContent: rect]
Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions.
Step 2A prong two evaluates whether the claim as a whole integrates the recited judicial exception into a practical application (see MPEP 2106.04(d)). This evaluation is performed by (a) identifying whether there are any additional recited elements in the claim beyond the judicial exception and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application.
This judicial exception is not integrated into a practical application because the identifying the animal step is a mental process step. The claim as a whole also includes an additional step that is not integrated into a practical application because the process of preventing allergy in a mother feeding its young with the colostrum is a natural process in nature.
The claims as a whole do not amount to more than the recited exceptions because there aren’t any other additional elements to consider, which does not add an inventive concept to the claims. Thus, the claims are not eligible subject matter under current 35 U.S.C. 101 standards.
Claim Rejections - 35 USC § 103
Claim(s) 1-7 and 9-21 are rejected under 35 U.S.C. 103 as being unpatentable over Larsen-Vefring et al. (DE 102011006535 A1) further in view of The Vetstreet Team (2011, https://www.vetstreet.com/care/ehrlichiosis). This is not a new rejection.
Larsen-Vefring et al. teaches a method of supplementing feed for dogs, cats and rodents with colostrum (Claim 1), at 0.1-20% weight (Claims 8). The supplement improves immune response (paragraphs 14-15), which affects allergy and enhances vaccine efficacy. The method inherently prevents and treats allergy because the same ingredient in the same amounts are taught by the reference. The supplemental feed is particularly suitable for all stages of life (eg. puppies, juveniles, adult dogs, senior dogs) (II Embodiment 2: Dogs). A supplement would require administration as a food and feed additive (page 3, paragraph 2). Colostrum as a supplement can function as a vaccine because a way of administrating vaccines can be orally.
However, Larsen-Vefring et al. does not teach identifying animal having risk of allergy.
The Vetstreet Team teaches ticks can cause symptoms of autoimmune disease (page 1, paragraph 1), such as allergies. Clinical signs are lethargy, fever, appetite loss, and enlarged lymph nodes (Symptoms and Identifications). Dogs are at risk of getting tick bites, which can lead to allergies, from being outdoors. Animals bitten by ticks would be identifies as the animal at risk of having allergies.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to identify animals having risk of allergy because Larsen-Vefring et al. teaches a method of supplementing feed for dogs, cats and rodents with colostrum (Claim 1), at 0.1-20% weight (Claims 8). The supplement improves immune response (paragraphs 14-15), which affects allergy and enhances vaccine efficacy. Dogs are at risk of getting tick bites, which can lead to allergies, from being outdoors. Animals bitten by ticks would be identifies as the animal at risk of having allergies. One would have been motivated to include identifying animals that require treatment for the expected benefit of treating a disease. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references. Supplements are taken at a regular basis.
Claim(s) 1-7 and 9-22 are rejected under 35 U.S.C. 103 as being unpatentable over Larsen-Vefring et al. (DE 102011006535 A1) and The Vetstreet Team (2011, https://www.vetstreet.com/care/ehrlichiosis) as applied to claims 1-7 and 9-21 above, and further in view of Rhonda et al. (WO 2019110486 A1). This is a new rejection.
The teachings of Larsen-Vefring et al. and The Vetstreet Team are set forth above and applied as before.
The combination of Larsen-Vefring et al. and The Vetstreet Team do not specifically teach the Lyme vaccine.
Rhonda et al. teaches a method of boosting immune system with vaccines comprising the immunogenic compositions of the present invention, more specifically the vaccines are nonadjuvanted vaccines. In particular embodiments, the vaccine aids in the prevention of disease due to B. burgdorferi. In specific embodiments, the disease due to B. burgdorferi is Lyme disease. In more specific embodiments, the Lyme disease is canine Lyme disease (page 9, paragraph 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to use Lyme vaccine because Rhonda et al. teaches a method of boosting immune system with vaccines comprising the immunogenic compositions of the present invention, more specifically the vaccines are nonadjuvanted vaccines. In particular embodiments, the vaccine aids in the prevention of disease due to B. burgdorferi. In specific embodiments, the disease due to B. burgdorferi is Lyme disease. In more specific embodiments, the Lyme disease is canine Lyme disease (page 9, paragraph 2). One would have been motivated to make a Lyme vaccine with colostrum for the expected benefit of improving immune system in canine. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Response to Arguments
Applicant argues that Larsen-Vefring does not teach colostrum can treat or prevent allergy.
In response to Applicant’s argument, the claims are drawn toward a method of preventing. Larsen-Vefring et al. teaches a method of supplementing feed for dogs, cats and rodents with colostrum (Claim 1). Larsen-Vefring et al. and The Vetstreet Team do not expressly teach that the colostrum and Lyme vaccine can prevent or treat immune disease in senior dogs, the claimed functional properties are inherent to the method and colostrum and Lyme vaccine taught by Larsen-Vefring et al. and The Vetstreet Team and Rhonda et al. because the ingredients and method taught by Larsen-Vefring et al. and The Vetstreet Team and Rhonda et al. are one and the same as disclosed in the instantly claimed invention of Applicant. Furthermore, the “identification” step is a mental step that would be occur when administering the colostrum. Thus, the method taught by Larsen-Vefring et al. and The Vetstreet Team and Rhonda et al. inherently treats allergy in senior animals and has immunopotentiation function.
Therefore, the references teach the instantly claimed invention.
Applicant argues that there is no expectation of success from the references.
In response to Applicant’s argument, the claims are drawn to a method of preventing or treating animals with autoimmune disease. The Vetstreet Team teaches ticks can cause symptoms of allergies (page 1, paragraph 1). Larsen-Vefring et al. teaches a method of supplementing feed for dogs, cats and rodents with colostrum (Claim 1), at 0.1-20% weight (Claims 8). The supplement improves immune response (paragraphs 14-15), which affects allergy and enhances vaccine efficacy. Dogs are prone to tick bites and supplementing dog diets with colostrum would prevent tick bitten allergies. One would have been motivated to include identifying animals that require treatment for the expected benefit of treating a disease. The method of preventing or treating would inherently occur because the same method and ingredient is used in the same subject. No evidence is required so as the method and ingredients are taught.
Applicant argues that non-obviousness evidence was not considered in the Affidavit filed May 30, 2025.
In response to Applicant’s argument, the Affidavit of Pin Yu is insufficient to overcome the last Office action of record because the evidence is mere argument and there is no data with the claimed invention. Furthermore, for the evidence to be considered convincing, the data amounts must match the claimed amounts. There are no amounts in the Claims 1, 3-7, 9-10, 12-15, and 17-22; therefore, the affidavit is not convincing.
Applicant argues that senior dog is not taught.
In response to Applicant’s argument, Claims 1-7, 9,18- 21 are not drawn toward “senior” dogs. Senior dogs are subjects for the feed supplement taught by Larsen-Vefring et al., who teaches a method of supplementing feed for dogs, cats and rodents with colostrum (Claim 1), at 0.1-20% weight (Claims 8). The supplement improves immune response (paragraphs 14-15), which affects allergy and enhances vaccine efficacy. The method inherently prevents and treats allergy because the same ingredient in the same amounts is taught by the reference. The supplemental feed is particularly suitable for all stages of life (eg. puppies, juveniles, adult dogs, senior dogs) (II Embodiment 2: Dogs). Therefore, senior dogs are taught.
Applicant argues that there is no reasonable expectation of success for enhancing vaccine efficacy in a senior animal.
In response to Applicant’s argument, Larsen-Vefring et al. teaches a method of supplementing feed for dogs, cats and rodents with colostrum (Claim 1), at 0.1-20% weight (Claims 8). The supplement improves immune response (paragraphs 14-15), which affects allergy and enhances vaccine efficacy. The supplemental feed is particularly suitable for all stages of life (eg. puppies, juveniles, adult dogs, senior dogs) (II Embodiment 2: Dogs). A supplement would require administration as a food and feed additive (page 3, paragraph 2). Therefore, improving immune response in a senior dog is taught.
Conclusion
No claim is allowed.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERYNE CHEN whose telephone number is (571)272-9947. The examiner can normally be reached on Monday-Friday 9-5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anand U Desai can be reached on 571-272-0947. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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