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 .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 60-74 are rejected under 35 U.S.C. 103 as being unpatentable over Cohen et al., US 2006/0148378 A1, cited in Notice of References Cited filed 12/20/2022; in view of Zhang (CN 104782887), cited as pertinent art in the Final rejection filed 03/28/2025, of which a more accurate translation has been included with this office action.
Regarding claim 60, Cohen teaches method for increasing bee performance (support growth and development of honey bees, sustain brood rearing, and maintain hive vigor, para 0010), comprising: administering to a bee a pollen substitute composition (artificial diets and diet formulations, para 0010), comprising:
a) at least one component which is a source of protein (protein para 0033);
b) at least one component which is a source of one or more fatty acids fatty acids (lipid, para 0033; lipid sources include soy, egg, and vegetable oils like canola oil and flax oil para 0039; lipid sources provide fatty acids polyunsaturated fatty acids, free fatty acids, mono- and di-glycerides, para 0033); and
c) at least one component which is a source of one or more carbohydrates (sugar source, para 0044);
wherein: the ratio of protein and one or more fatty acids in the composition is between about 1 (protein): 10 (fatty acid) w/w and about 20 (protein): 1 (fatty acid) w/w (0.75-10% protein para 0031; 0.75-5% lipid para 0031; protein:fatty acid of 1.5:10 to 13.3:1).
Cohen does not disclose the composition comprises omega-6 fatty acids and omega-3 fatty acids in a ratio of between about 2:1 to 1:5 and wherein the increased bee performance is selected from one or more of (a) optimized biological membrane biosynthesis, (b) increased biological fitness, (c) increased learning, and (d) increased brood production.
Zhang, in the same field of endeavor, teaches a composition comprising omega-6 fatty acids and omega-3 fatty acids in a ratio of between about 100:1 to 1:200 (less than 100 g/kg of arachidonic acid (ARA), less than 100 g/kg of docosahexaenoic acid (DHA), less than 100 g/kg of eicosapentaenoic acid
(EPA) Abstract). As DHA and EPA are both omega-3 fatty acids and ARA is an omega-6 fatty acid, this provides a ratio of omega-6 fatty acids and omega-3 fatty acids of 100:1 to 1:200, which encompasses the claimed range.
It would have been obvious to one having ordinary skill, at the time of filing, to modify the invention of Cohen with the omega-6 fatty acid to omega-3 fatty acid ratio of Zhang. One would have been motivated to make this modification to benefit bee nerve system development and enhance immunity (Zhang Abstract).
Zhang does not disclose the composition comprises omega-6 fatty acids and omega-3 fatty acids in a ratio of between about 2:1 to 1:5
Regarding the composition comprises omega-6 fatty acids and omega-3 fatty acids in a ratio of between about 2:1 to 1:5, Zhang teaches a ratio of 100:1 to 1:200 of omega-6 fatty acids to omega-3 fatty acids (Abstract, a seen above). Zhang discloses a range which encompasses the claimed range, and therefore a prima facie case of obviousness exists. It would have been obvious to one having an ordinary skill in the art to modify Zhang to have 2:1 to 1:5omega-6 to omega-3 fatty acids. Prior art encompassing the claimed range is sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range. See In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941); See MPEP 2144.05 (I).
Regarding the increased bee performance is selected from one or more of (a) optimized biological membrane synthesis, (b) increased biological fitness, (c) increased learning, and (d) increased brood production, the prior art suggests administering the claimed components in the claimed composition to the claimed animals. Cohen discloses the composition provides nutrients in amounts and proportions effective to support growth and development of honey bees, sustain brood rearing, and maintain hive vigor (para 0010). Cohen also discloses the composition is palatable to bees (para 0014). Zhang discloses benefit to bee nerve system development, enhanced immunity, strong breeding rate and decrease in deformations (Abstract Pg. 1) as well as strong ability, long service life, high pupating rate and learning ability (First embodiment Pg. 3). One having ordinary skill in the art would recognize that these aspects would increase biological fitness, therefore teaching aspect (b), as well as Zhang’s teaching of high learning ability discloses aspect (c) increased learning.
Regarding claim 61, Cohen and Zhang do not disclose wherein administration of the composition increases palatability.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar palatability.
Regarding claim 62, Cohen and Zhang do not disclose wherein administration of the composition increases brood production.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on brood production.
Regarding claim 63, Cohen and Zhang do not disclose wherein administration of the composition increases foraging.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on foraging.
Regarding claim 64, Cohen and Zhang do not disclose wherein administration of the composition increases cognitive function.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on cognitive function.
Regarding claim 65, Cohen and Zhang do not disclose wherein administration of the composition increases consumption.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on consumption.
Regarding claim 66, Cohen does not disclose administration of the composition increases survival.
Zhang teaches administration of the composition increases survival (increased immunity Abstract Pg. 1). It would have been obvious to one having ordinary skill, at the time of filing, to modify the invention of Cohen with Zhang’s composition which increases survival. One would have been motivated to make this modification to benefit bee nerve system development (Zhang Abstract Pg. 1).
Regarding claim 67, Cohen and Zhang do not disclose wherein administration of the composition increases bee size.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on bee size.
Regarding claim 68, Cohen and Zhang do not disclose wherein administration of the composition increases honey production.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on honey production.
Regarding claim 69, Cohen and Zhang disclose wherein the increased bee performance is increased biological fitness.
Cohen discloses the composition provides nutrients in amounts and proportions effective to support growth and development of honey bees and sustain brood rearing (para 0010). Zhang discloses benefit to bee nerve system development, enhanced immunity and strong breeding rate (Abstract Pg. 1). One having ordinary skill in the art would recognize that these aspects would increase biological fitness.
Regarding claim 70, Cohen and Zhang do not disclose wherein the increased bee performance is optimized biological membrane synthesis.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on membrane synthesis.
Regarding claim 71, Cohen and Zhang do not disclose wherein the increased bee performance is increased learning.
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on learning.
Regarding claim 72, Cohen and Zhang disclose wherein the increased bee performance is at least one of (a) through (d).
Cohen discloses the composition provides nutrients in amounts and proportions effective to support growth and development of honey bees and sustain brood rearing (para 0010). Zhang discloses benefit to bee nerve system development, enhanced immunity and strong breeding rate (Abstract Pg. 1). One having ordinary skill in the art would recognize that these aspects would increase biological fitness (b).
Cohen and Zhang do not teach wherein the increased bee performance is at least one of (a) through (d).
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on biological membrane biosynthesis, learning, and brood production.
Regarding claim 73, Cohen and Zhang do not disclose wherein the increased bee performance is at least three of (a) through (d).
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on membrane synthesis.
Regarding claim 74, Cohen and Zhang do not disclose wherein the increased bee performance is all of (a) through (d)
However, as the invention of Cohen and Zhang teach the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar effect on membrane synthesis.
Response to Arguments
Applicant's arguments filed 12/24/2025 have been fully considered but they are not persuasive.
Applicant argues there is no example of Zhang which teaches the use of ARA. ARA is specified as a possible component in the abstract and it is specified that it may be used in a concentration of less than 100g/kg. As applicant points out, ARA is the only omega-6 component taught by Zhang so Zhang renders it obvious to use ARA (omega-6) in the invention in an amount of less than 100g/kg (a range of 0-100g/kg).
Applicant argues Zhang teaches contradicting amounts of components. “less than 100g/kg”, “100g/kg”, and “not more than 100g/kg” are all embodiments of the invention of Zhang and do not contradict the possibility of an invention with “less than 100g/kg” of ARA.
Applicant argues Zhang is an invitation to experiment with amounts of EPA and DHA with no guidance on amounts of ARA. Zhang provides a potential range of ARA to use (less than 100g/kg) and it would have been within the skill of one having ordinary skill in the art to try concentrations within the taught range to find a preferred amount.
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).
Applicant argues Zhang does not teach ARA in combination with other components and therefore there is no range of omega-6 fatty acids to omega-3 fatty acids. In the abstract of Zhang, it is taught an invention comprising less than 100 g/kg of arachidonic acid (ARA), less than 100 g/kg of docosahexaenoic acid (DHA), and less than 100 g/kg of eicosapentaenoic acid (EPA). DHA and EPA are both omega-3 fatty acids and ARA is an omega-6 fatty acid; therefore, Zhang teaches an invention with a ratio of omega-6 fatty acids and omega-3 fatty acids of 100:1 to 1:200.
Regarding applicant’s assertion that unexpected results have been established, though some criticality has been shown at the upper end of the range, there is no criticality shown at the lower end of the claimed range in view of Zhang. Applicant needs to provide further evidence to distinguish the significance of the 1:5 lower end of the claimed range. Without data on the impact on learning abilities both inside and outside of the claimed range, applicant has not proven criticality. See MPEP 716.02(d)II. Therefore, an assertion of criticality across the entirety of the claimed range has not been shown and the arguments/data has not been found persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792