DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 21 May 2025 has been entered.
Status of the Application
Claims 1, 6-11, 14-17 and 19-22 are pending. Claims 2-5, 12-13 and 18 have been cancelled. The previous 112 rejections have been withdrawn in view of applicant’s amendments to the claims.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 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, 6-11, 14-17 and 19-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 (lines 10-11) recites “wherein sugar from the concentrated separator by-product accounts for about 22 to about 27 wt% of the animal feed block on a dry matter basis.” The specification indicates in [020] the protein and sugar content of the concentrated separator by-product, however the proportion of the sugar or protein from the concentrated separator by-product in the animal feed block on a dry matter basis is not disclosed. There is no support in the disclosure for the sugar from the concentrated separator by-product accounts for about 22 to about 27 wt% of the animal feed block on a dry matter basis. Therefore the limitation adds new matter to the claim. The new matter should be deleted from the claim.
Claim 1 (lines 12-13) recites “wherein protein from the concentrated separator by-product accounts for about 8.8 to about 12 wt% of the animal feed block on a dry matter basis.” The specification indicates in [020] the protein and sugar content of the concentrated separator by-product, however the proportion of the sugar or protein from the concentrated separator by-product in the animal feed block on a dry matter basis is not disclosed. There is no support in the disclosure for the protein from the concentrated separator by-product accounts for about 8.8 to about 12 wt% of the animal feed block on a dry matter basis. Therefore the limitation adds new matter to the claim. The new matter should be deleted from the claim.
Claim 1 (lines 16-17) recites “wherein the protein from the concentrated separator by-product and the added protein are present from about 10 wt% to less than about 20 wt% on a dry matter basis.” The specification discloses the protein and non-protein nitrogen sources in the feed supplement block may be 10-40 wt% on a dry matter basis [025]. However the claim limitation is drawn to protein only and not protein and non-protein nitrogen sources. There is no support in the disclosure for protein from the concentrated separator by-product and the added protein are present from about 10 wt% to less than about 20 wt% on a dry matter basis. Therefore the limitation adds new matter to the claim. The new matter should be deleted from the claim.
Claim 11 (lines 8-9) recites “wherein sugar from the concentrated separator by-product accounts for about 18 to about 27 wt% of the animal feed block.” The specification indicates in [020] the protein and sugar content of the concentrated separator by-product, however the proportion of the sugar or protein from the concentrated separator by-product in the animal feed block is not disclosed. There is no support in the disclosure for the sugar from the concentrated separator by-product accounting for about 18 to about 27 wt% of the animal feed block. Therefore the limitation adds new matter to the claim. The new matter should be deleted from the claim.
Claims 6-10 and 21 are rejected here because they depend from claim 1.
Claims 14-17, 19-20 and 22 are rejected here because they depend from claim 11.
Claim Interpretation
In claims 3 and 11-20, the phrase “substantially free of molasses” means “the blocks contain less than 2 wt.% molasses on a dry matter basis”.
In paragraph [019], the specification discloses “By free of molasses, it is meant that the feed blocks contain no molasses. By substantially free of molasses, it is meant that the blocks contain less than 2 wt.% molasses on a dry matter basis.”
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, 6-11, 15-17 and 19-22 are rejected under 35 U.S.C. 103 as being unpatentable over Ethington, Jr. (US 2003/0152689 A1) in view of Westberg (US 2004/0018288 A1) and Donovan (US 4,735,809).
Regarding claims 1, 6 and 7 Ethington discloses a solid cast feed product (abstract), which can be a block [0085]. Ethington discloses the feed product can comprise sucrose and/or fructose (added sugars) [0051] and dry ingredients [0022]. Ethington discloses the solid cast feed product may include a source of exogenous nitrogen, which may be proteinaceous plant or animal material [0055]. Ethington also discloses a moisture level of between about 3-15 weight percent [0081], which overlaps with the claimed range of 2%-5% moisture. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Ethington discloses the solid cast feed product may include one or more exogenous carbohydrate sources [0051]. Ethington discloses the exogenous carbohydrate is present in a range of 0.1-65% [0019]. Ethington discloses the exogenous carbohydrate suitable for the solid feed cast are sucrose or fructose [0051]. Ethington’s disclosure of one or more exogenous carbohydrate sources selected from a list including sucrose and fructose meets the claim limitation of: an added sugar consisting of sucrose, fructose, galactose or lactose. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected sucrose, fructose or a combination thereof as the only exogenous carbohydrates used in Ethington since Ethington discloses sucrose and/or fructose as appropriate choices for the one or more exogenous carbohydrates of the invention.
Ethington discloses the base mixture has 40-70% dry solids and the final product is concentrated to between 71-97% dry solids [0081]. The step of concentrating the base mixture to the final product will result in a final composition with an increase sugar content compared to the base mixture (removal of water from the base mixture will result in the final composition having a higher percentage sugar), which reasonably suggests a final sugar concentration of approximately 0.2% to 90% depending on the degree of concentration used to obtain the final product. Therefore Ethington’s 0.1-65% sucrose or fructose included in the base mixture (and approximately 0.2-90% sugar in the final composition) encompasses the claim 1 range of 1-30 wt% sugar in the animal feed block, the claim 6 range of about 10 wt% added sugar in the animal feed block and the claim 7 range of about 15 wt% added sugar in the animal feed block. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Ethington discloses the mixture comprises 0.1-25% exogenous fat and the mixture is then concentrated to form the solid feed cast [0021]. The concentration step of Ethington would increase the exogenous fat in the final product to greater than 0.1%, which encompasses the claimed range of about 2 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Ethington discloses the exogenous carbohydrate may be carbohydrates other than molasses, such as starch, maltodextrins, syrup solids, corn syrup solids, low dextrose equivalent corn syrup, regular dextrose equivalent corn syrup, high dextrose equivalent corn syrup, dextrose, sucrose, fructose, [0051].
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to select a sugar (exogenous carbohydrate) that is something other than molasses because it has been held that the selection of a known material on the basis of its suitability for the intended use is a matter of obvious design choice. MPEP 2144.07. Therefore selecting one of the exogenous carbohydrate of Ethington, such as sucrose or fructose (and not molasses) would result in a product substantially free of molasses.
Ethington also discloses the solid cast feed product includes a substantially liquid agricultural byproduct such as steepwater, condensed fermented corn extractives, stillage, distillers solubles, whey, condensed whey solubles, lignin sulfonate, hemicellulose extract, citrus molasses, lecithin, condensed extracted glutamic acid fermentation product, condensed fermentation solubles, or any mixture thereof [0016]. Ethington discloses the phrase “condensed fermented corn extractives” is also known as steep liquor and steepwater [0012]. Ethington discloses the substantially liquid agricultural byproduct can be included in the feed block from 45-75 wt % [0019].
Ethington discloses magnesium oxide, calcium oxide, and calcium hydroxide (curing agents) are optional ingredients [0064] and in Example III Ethington discloses a method of making the solid feed cast that does not require a curing agent [0088]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to elected to not include a curing agent in the solid feed cast of Ethington since Ethington discloses a method of making the solid feed cast without a curing agent.
Ethington does not disclose concentrated separator by-product nor the pH of about 8-11.
Westberg, in the field of animal feed supplements (abstract), discloses a feed supplement which comprises a carbohydrate material which may be molasses, concentrated separator by-product or corn steep liquor [0008]. Westberg discloses the concentrated separator by-product may be used in lieu of some or all of the molasses [0008]. Westberg discloses increasing molasses costs as a reason to substitute other concentrated separator by-product materials for the molasses [0008].
Westberg further discloses forming an admixture by adding dry materials to the premixture [0012]. Westberg discloses the admixture has a taffy like state after initial cooling, it is then packaged and set aside to further cool to ambient temperature, where it becomes hardened [0024].
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to substitute the steepwater, condensed fermented corn extractives, and/or molasses, as taught in Ethington, with concentrated separator by-product, as taught in Westberg, for use in an animal feed supplement. One having ordinary skill in the art at the time of invention would expect the substitution would yield the predictable result of supplying a carbohydrate source that may be formed into an admixture, and solidified into a block at ambient temperature. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. MPEP 2143 B. Furthermore, one having ordinary skill in the art at the time the invention was filed would have been motivated to use concentrated separator by-product instead of molasses to reduce cost (Westberg, [0008]).
Substituting Westberg’s concentrated separator by-product for Ethington’s steepwater, molasses or condensed fermented corn extractives suggests the concentrated separator by-product accounts for 45-75 wt % of the base mixture for the feed block (Ethington [0019]). Ethington discloses the base mixture has 40-70% dry solids and the final product is concentrated to between 71-97% dry solids [0081]. The step of concentrating the base mixture to the final product will result in a final composition with an decreased concentrated separator by-product content compared to the base mixture (removal of water from the base mixture will result in the final composition having a lower percentage concentrated separator by-product because the concentrated separator by-product contains water), which reasonably suggests a final concentrated separator by-product concentration of less than 75 wt% depending on the degree of concentration used to obtain the final product. Therefore Ethington in view of Westberg’s 45-75 wt% concentrated separator by-product in the base mixture and less than 75 wt% concentrated separator by-product in the feed block encompass the claimed range of 55-60 wt% concentrated separator by-product in the feed block. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Additionally, substituting Westberg’s concentrated separator by-product for Ethington’s steepwater, molasses or condensed fermented corn extractives suggests a product substantially free of molasses.
Donovan, in the field of animal feed blocks (abstract), discloses a feed block comprising molasses (col 2, lines 56-61), dry ingredients (col 2, lines 65-66), 0-20% water (claim 8), and condensed fermented corn extractives, which comprises inositol (a sugar) (col 3, lines 13-23 and claim 1). Donovan discloses the mixture is transferred to containers and then hardened (claim 1). Donovan further discloses the feed bock has a highly alkaline pH, preferably a pH of 9.65, in order to limit consumption of the feed block (col 2, lines 1-3) and prevent a toxic reaction due to the consumption of an excessive amount of ammonia (col 2, lines 27-32).
Donovan’s pH of 9.65 falls within the claimed range of a pH of 8-11. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
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 solid cast feed product of Ethington with the highly alkaline pH of Donovan’s feed block in order to limit consumption of the feed block and avoid ammonia toxicity.
Regarding the claim limitation “wherein sugar from the concentrated separator by-product accounts for about 22 to about 27% of the animal feed block on a dry matter basis,” it is noted the claims are drawn to the final product where the source of the sugar will be indistinguishable. As discussed above, Ethington in view of Westberg and Donovan discloses the solid animal feed cast with the claimed quantity of concentrated separator by-product and 0.1-65% sucrose or fructose included in the base mixture (and approximately 0.2-90% sugar in the final, concentrated, composition) which encompasses the claimed amount of sugar contributed by the concentrated separator by-product (22-27%) and the claimed amount of total sugar (1-30%). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding the claim limitation “wherein protein from the concentrated separator by-product accounts for about 8.8 to about 12 wt% of the animal feed block on a dry matter basis,” it is noted the claims are drawn to the final product where the source of the protein will be indistinguishable. As discussed above, Ethington in view of Westberg and Donovan discloses the solid animal feed cast with the claimed quantity of concentrated separator by-product. Westberg further discloses the pre-blend contains 4-20% protein [0008] and the pre-blend is heated and moisture removed [0011], thus increasing the wt% protein to greater than 4 wt% in the final product, which encompasses the claimed range of about 8.8-12 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding the claim limitation “wherein the protein from the concentrated separator by-product and the added protein are present from about 10 wt% to less than about 20 wt% on a dry matter basis,” Westberg further discloses the pre-blend contains 4-20% protein [0008] and the pre-blend is heated and moisture removed [0011], thus increasing the wt% protein to greater than 4 wt% in the final product, which encompasses the claimed range of about 10-20 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claim 8, Ethington discloses the exogenous carbohydrate can be sucrose, a non-reducing sugar [0051].
Regarding claim 9, Ethington discloses the solid cast feed product can include general purpose additives, including sodium hydroxide [0072] and supplemental minerals, including calcium oxide [0064].
Regarding claim 10, Ethington discloses the solid cast feed product can include nutrients and or dietary supplements including inositol, mannitol and sorbitol (sugar alcohols) [0076].
Regarding claim 21, Ethington in view of Westberg and Donovan discloses the feed block of claim 1 as discussed above, including the substitution of the concentrated separator by-product for the steepwater, condensed fermented corn extractives, and/or molasses, as taught in Ethington. This substitution would result in a feed block free of other liquid agricultural byproducts, including condensed distiller solubles and corn steep liquor. Additionally, Ethington discloses molasses, condensed fermentation solubles, distiller solubles and steepwater in the alternative [0016], therefore the condensed fermentation solubles, distiller solubles and steepwater are not required ingredients.
Regarding claim 11, Ethington discloses a solid cast feed product (abstract), which can be a block [0085]. Ethington discloses the feed product can comprise sucrose and/or fructose (added sugars) [0051] and dry ingredients [0022].
Ethington discloses the solid cast feed product may include one or more exogenous carbohydrate sources [0051]. Ethington discloses the exogenous carbohydrate is present in a range of 0.1-65% [0019]. Ethington discloses the exogenous carbohydrate suitable for the solid feed cast are sucrose or fructose [0051]. Ethington’s disclosure of one or more exogenous carbohydrate sources selected from a list including sucrose and fructose meets the claim limitation of: an added sugar consisting of sucrose, fructose, galactose or lactose. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected sucrose, fructose or a combination thereof as the only exogenous carbohydrates used in Ethington since Ethington discloses sucrose and/or fructose as appropriate choices for the one or more exogenous carbohydrates of the invention.
Ethington discloses the base mixture has 40-70% dry solids and the final product is concentrated to between 71-97% dry solids [0081]. The step of concentrating the base mixture to the final product will result in a final composition with an increase sugar content compared to the base mixture (removal of water from the base mixture will result in the final composition having a higher percentage sugar), which reasonably suggests a final sugar concentration of approximately 0.2% to 90% depending on the degree of concentration used to obtain the final product. Therefore Ethington’s 0.1-65% sucrose or fructose included in the base mixture (and approximately 0.2-90% sugar in the final composition) encompasses the claim 11 range of 5-15 wt% sugar in the animal feed block. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Ethington discloses the exogenous carbohydrate may be carbohydrates other than molasses, such as starch, maltodextrins, syrup solids, corn syrup solids, low dextrose equivalent corn syrup, regular dextrose equivalent corn syrup, high dextrose equivalent corn syrup, dextrose, sucrose, fructose, [0051].
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to select a sugar (exogenous carbohydrate) that is something other than molasses because it has been held that the selection of a known material on the basis of its suitability for the intended use is a matter of obvious design choice. MPEP 2144.07. Therefore selecting one of the exogenous carbohydrate of Ethington, such as sucrose or fructose (and not molasses) would result in a product substantially free of molasses.
Ethington discloses magnesium oxide, calcium oxide, and calcium hydroxide (curing agents) are optional ingredients [0064] and in Example III Ethington discloses a method of making the solid feed cast that does not require a curing agent [0088]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to elected to not include a curing agent in the solid feed cast of Ethington since Ethington discloses a method of making the solid feed cast without a curing agent.
Ethington also discloses the solid cast feed product includes a substantially liquid agricultural byproduct such as steepwater, condensed fermented corn extractives, stillage, distillers solubles, whey, condensed whey solubles, lignin sulfonate, hemicellulose extract, citrus molasses, lecithin, condensed extracted glutamic acid fermentation product, condensed fermentation solubles, or any mixture thereof [0016]. Ethington discloses the phrase “condensed fermented corn extractives” is also known as steep liquor and steepwater [0012]. Ethington discloses the substantially liquid agricultural byproduct can be included in the feed block from 45-75 wt % [0019].
Ethington does not disclose concentrated separator by-product nor the pH of about 8-11.
Westberg, in the field of animal feed supplements (abstract), discloses a feed supplement which comprises a carbohydrate material which may be molasses, concentrated separator by-product or corn steep liquor [0008]. Westberg discloses the concentrated separator by-product may be used in lieu of some or all of the molasses [0008]. Westberg discloses increasing molasses costs as a reason to substitute other concentrated separator by-product materials for the molasses [0008].
Westberg further discloses forming an admixture by adding dry materials to the premixture [0012]. Westberg discloses the admixture has a taffy like state after initial cooling, it is then packaged and set aside to further cool to ambient temperature, where it becomes hardened [0024].
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to substitute the steepwater, condensed fermented corn extractives, and/or molasses, as taught in Ethington, with concentrated separator by-product, as taught in Westberg, for use in an animal feed supplement. One having ordinary skill in the art at the time of invention would expect the substitution would yield the predictable result of supplying a carbohydrate source that may be formed into an admixture, and solidified into a block at ambient temperature. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. MPEP 2143 B. Furthermore, one having ordinary skill in the art at the time the invention was filed would have been motivated to use concentrated separator by-product instead of molasses to reduce cost (Westberg, [0008]).
Substituting Westberg’s concentrated separator by-product for Ethington’s steepwater, molasses or condensed fermented corn extractives suggests the concentrated separator by-product accounts for 45-75 wt % of the base mixture for the feed block (Ethington [0019]). Ethington discloses the base mixture has 40-70% dry solids and the final product is concentrated to between 71-97% dry solids [0081]. The step of concentrating the base mixture to the final product will result in a final composition with an decreased concentrated separator by-product content compared to the base mixture (removal of water from the base mixture will result in the final composition having a lower percentage concentrated separator by-product because the concentrated separator by-product contains water), which reasonably suggests a final concentrated separator by-product concentration of less than 75 wt% depending on the degree of concentration used to obtain the final product. Therefore Ethington in view of Westberg’s 45-75 wt% concentrated separator by-product in the base mixture and less than 75 wt% concentrated separator by-product in the feed block encompass the claimed range of about 50 up to about 60 wt% concentrated separator by-product in the feed block. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I. It is noted that the claim limitation.
Additionally, substituting Westberg’s concentrated separator by-product for Ethington’s steepwater, molasses or condensed fermented corn extractives suggests a product substantially free of molasses.
Donovan, in the field of animal feed blocks (abstract), discloses a feed block comprising molasses (col 2, lines 56-61), dry ingredients (col 2, lines 65-66), 0-20% water (claim 8), and condensed fermented corn extractives, which comprises inositol (a sugar) (col 3, lines 13-23 and claim 1). Donovan discloses the mixture is transferred to containers and then hardened (claim 1). Donovan further discloses the feed bock has a highly alkaline pH, preferably a pH of 9.65, in order to limit consumption of the feed block (col 2, lines 1-3) and prevent a toxic reaction due to the consumption of an excessive amount of ammonia (col 2, lines 27-32).
Donovan’s pH of 9.65 falls within the claimed range of a pH of 8-11. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
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 solid cast feed product of Ethington with the highly alkaline pH of Donovan’s feed block in order to limit consumption of the feed block and avoid ammonia toxicity.
Regarding the claim limitation “wherein sugar from the concentrated separator by-product accounts for about 18 to about 27% of the animal feed block,” it is noted the claims are drawn to the final product where the source of the sugar will be indistinguishable. As discussed above, Ethington in view of Westberg and Donovan discloses the solid animal feed cast with the claimed quantity of concentrated separator by-product and 0.1-65% sucrose or fructose included in the base mixture (and approximately 0.2-90% sugar in the final, concentrated, composition) which encompasses the claimed amount of sugar contributed by the concentrated separator by-product (18-27%) and the claimed amount of added sugar (5-15%) combined (a total of 23-42% total sugar claimed). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claim 15, Ethington discloses the solid cast feed product can comprise an exogenous nitrogen source [0024]. Ethington discloses the exogenous nitrogen source may be proteinaceous plant and animal materials or from non-protein sources [0055]. Ethington discloses exemplary embodiments having 20% protein [0092] and 30.20 % protein [0094].
Regarding the quantity of the combined protein and non-protein nitrogen sources. Ethington discloses an embodiment with 20% protein [0092] and an undisclosed amount of non-protein nitrogen source [0055]. Ethington’s 20% protein and any amount of non-protein nitrogen source would result in a combined amount of protein and non-protein nitrogen sources of at least 20%, which overlaps with the claimed range of 10%-40% wt. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claim 16: Ethington discloses the solid cast feed product comprises an exogenous fat [0024] included at about 8-13 wt% [0020], which falls within the claimed rage of 2%-15% fat.
Regarding claim 17, Ethington also discloses moisture level of between about 3-15 wt% [0081], which overlaps with the claimed range of 2%-5% moisture. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claim 19, Ethington discloses the solid cast feed product can include general purpose additives, including sodium hydroxide [0072] and supplemental minerals, including calcium oxide [0064].
Regarding claim 20, Ethington discloses the solid cast feed product can include nutrients and or dietary supplements including inositol, mannitol and sorbitol (sugar alcohols) [0076].
Regarding claim 22, Ethington in view of Westberg and Donovan discloses the feed block of claim 11 as discussed above, including the substitution of the concentrated separator by-product for the steepwater, condensed fermented corn extractives, and/or molasses, as taught in Ethington. This substitution would result in a feed block free of other liquid agricultural byproducts, including condensed distiller solubles and corn steep liquor. Additionally, Ethington discloses molasses, condensed fermentation solubles, distiller solubles and steepwater in the alternative [0016], therefore the condensed fermentation solubles, distiller solubles and steepwater are not required ingredients.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Ethington, Jr. (US 2003/0152689 A1) in view of Westberg (US 2004/0018288 A1) and Donovan (US 4,735,809) as evidenced by Rasby (Understanding Feed Analysis, https://beef.unl.edu/learning/feedanalysis.shtml).
Regarding claim 14, Ethington in view of Westberg and Donovan does not disclose the concentrated separator by-products comprise the recited amounts of crude protein, fat, organic matter, digestible nutrients and sugars.
However, the with regards to the final composition of the feed block, the source of the crude protein, fat, organic matter, digestible nutrients and sugars does not make the composition patentably distinct. If the prior art discloses a composition with the disclosed quantities of crude protein, fat, organic matter, digestible nutrients and sugars then it is considered to meet the claim 14 limitations. Claim 11 requires about 50 to about 60% of the concentrated separator by-product. The requirements of claim 14 are listed below in Table 1, on the left had side. If the concentrated separator by-product is included in the final composition at the quantity required by claim 11, from 50 wt% up to about 60 wt%, then the final product is required to have the quantities of crude protein, fat, organic matter, digestible nutrients and sugars listed below in Table 1, right hand column. Note, since the claims are “comprising” these are minimum amounts of crude protein, fat, organic matter and total digestible nutrients since other ingredients will contribute to these quantities in the final product in addition to the protein, fat, organic matter and total digestible nutrients contributed by the concentrated separator by-product.
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Ethington discloses a feed block with 30.20% protein and 4.25 % fat (Example VIII, [0094]), which falls within the claimed ranges of protein and fat in the final product as seen in Table 1.
Ethington further discloses the feed block of Example VIII includes 25.56% corn gluten meal (organic matter) [0093] and 60% base mixture from Example VI (corn syrup, heavy steepwater and soy oil) all organic matter [0090]. Which falls within the claimed amount of organic matter as seen in Table 1 above.
As evidenced by Rasby, the total digestible nutrients is the sum of the digestible fiber, protein, lipid and carbohydrate components in feedstuff (p3, Energy, 1st paragraph). Ethington discloses in Example VIII there is 1.5% digestible fiber (ADF), 30.20% protein and 4.25% fat (lipids) [0094], a total of approximately 36%. Ethington does not disclose the quantity of carbohydrates, however the sum of fiber, protein and fat (36%) already meets the claim 14 requirement of an amount of total digestible nutrients greater than 30%. Whatever undisclosed amount of carbohydrates are comprised in Ethington’s Example VIII feed block, the total digestible nutrients would still fall within the claim 14 range of greater than 30 wt% as indicated in Table 1 above.
Ethington does not disclose all of these quantities in one embodiment. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the cited quantities of crude protein, fat, organic matter, total digestible nutrients and sugars of Ethington since they are all disclosed as appropriate concentrations for preparing animal feed blocks.
Response to Arguments
Applicant's arguments filed 21 May 2025 have been fully considered. To the extent they apply to the above rejections they are not persuasive.
Applicant argues Ethington, Westberg and Donovan teach the problem of condensing liquid feed components into product form is completely solved with their inventions. Ethington, Westberg and Donovan do not identify the need for modification of their products. Applicant argues there is no reason to combine Ethington and Westberg and Donovan other than the reasons identified in the instant application and the Examiner has used impermissible hindsight in the rejection. Remarks pp7-8.
This argument is not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In the instant case, Westberg, in the field of animal feed supplements (abstract), discloses a feed supplement which comprises a carbohydrate material which may be molasses, concentrated separator by-product or corn steep liquor [0008]. Westberg discloses the concentrated separator by-product may be used in lieu of some or all of the molasses [0008]. Westberg discloses increasing molasses costs as a reason to substitute other concentrated separator by-product materials for the molasses [0008]. Westberg further discloses forming an admixture by adding dry materials to the premixture [0012]. Westberg discloses the admixture has a taffy like state after initial cooling, it is then packaged and set aside to further cool to ambient temperature, where it becomes hardened [0024]. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to substitute the steepwater, condensed fermented corn extractives, and/or molasses, as taught in Ethington, with concentrated separator by-product, as taught in Westberg, for use in an animal feed supplement. One having ordinary skill in the art at the time of invention would expect the substitution would yield the predictable result of supplying a carbohydrate source that may be formed into an admixture, and solidified into a block at ambient temperature. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. MPEP 2143 B. Furthermore, one having ordinary skill in the art at the time the invention was filed would have been motivated to use concentrated separator by-product instead of molasses to reduce cost (Westberg, [0008]).
Applicant argues one of ordinary skill would not look to combine Ethington, Westberg and Donovan because the references solve the same problems. One of ordinary skill would view the references as alternative solutions to the same problem, not combinable structures. Remarks p8.
This argument is not persuasive. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the fact that all the references are drawn to solid animal feed blocks and their suitable ingredients is motivation to combine. One of ordinary skill in the art interested in making a solid animal feed block would be motivated to investigate the ingredients and methods that have been previously used to make successful solid animal feed blocks in order to select the ingredients and proportions thereof to include in their own solid animal feed block.
Applicant argues neither Ethington or Westberg disclose the claimed amount of sugar derived from the concentrated separator by-product. Remarks p9.
This argument is not persuasive. As discussed above, it is noted the claims are drawn to the final product where the source of the sugar will be indistinguishable. Ethington in view of Westberg and Donovan discloses the solid animal feed cast with the claimed quantity of concentrated separator by-product and 0.1-65% sucrose or fructose included in the base mixture (and approximately 0.2-90% sugar in the final, concentrated, composition) which encompasses the claimed amount of sugar contributed by the concentrated separator by-product (22-27%) and the claimed amount of total sugar (1-30%). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Applicant argues Ethington’s examples do not disclose the claimed amount of concentrated separator by-product when combined with Westberg. Remarks p9.
This argument is not persuasive. This argument is not persuasive. Ethington Jr discloses between 35-99.9 wt% substantially liquid agricultural byproduct included in the mixture with exogenous carbohydrates, which is then concentrated in to an amorphous cast solid [0019]. Ethington's disclosure of 35-99.9 wt% substantially liquid agricultural byproduct followed by concentration would result in the feed block with less than 99.99 wt% substantially liquid agricultural byproduct in the final product (after the removal of water) which encompasses the claimed range of concentrated separator by-product.
Applicant argues even assuming the Ethington Jr. base mixture were formed with 99.9 wt¾ of an agricultural by-product with 97 wt¾ solids, e.g., as disclosed at Ethington Jr. para. 81 and Office Action, paras. 10 and 30, the resulting feed blocks from the combined teachings of Ethington Jr. and Westberg would not reach the feed blocks of Applicant's amended claims 1 and 11. Particularly, such a base mixture would limit Ethington Jr.' s other base mixture components to 0.1 wt%, including 1640 corn syrup. Thus, the Westberg-modified animal feed blocks of Ethington Jr. would not include added sugar that accounts for about 1 to about 30 wt % of the animal feed block on a dry matter basis as recited in amended claim 1, or added sugar that accounts for about 5 to about 15 wt% of the animal feed block on a dry matter basis as recited in amended claim 11. Remarks p9.
This argument is not persuasive. Ethington Jr discloses between 35-99.9 wt% substantially liquid agricultural byproduct included in the mixture with exogenous carbohydrates at 25-55 wt%, which is then concentrated in to an amorphous cast solid [0019]. Ethington's disclosure of 35-99.9 wt% substantially liquid agricultural byproduct followed by concentration would result in less than 99.99 wt% substantially liquid agricultural byproduct in the final product (after the removal of water) which encompasses the claimed range of concentrated separator by-product and also leaves space for the added sugars of Ethington.
Applicant argues Ethington does not disclose the claimed amounts of protein and fat of claim 1. Remarks p10.
This argument is not persuasive. As discussed above, regarding the claim limitation “wherein the protein from the concentrated separator by-product and the added protein are present from about 10 wt% to less than about 20 wt% on a dry matter basis,” Westberg further discloses the pre-blend contains 4-20% protein [0008] and the pre-blend is heated and moisture removed [0011], thus increasing the wt% protein to greater than 4 wt% in the final product, which encompasses the claimed range of about 10-20 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding the claim 1 limitation about fat content, Ethington discloses the mixture comprises 0.1-25% exogenous fat and the mixture is then concentrated to form the solid feed cast [0021]. The concentration step of Ethington would increase the exogenous fat in the final product to greater than 0.1%, which encompasses the claimed range of about 2 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Conclusion
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
/C.L.G./Examiner, Art Unit 1793