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 .
The amendment filed February 13, 2026 is acknowledged. Claims 1-15 and 18-21 are pending in the application. Claims 16 and 17 have been cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 13, 2026 has been entered.
Domestic Benefit
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AlA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The present application claims benefit to prior filed application numbers 14/278968; 14/794589; and 16/855409.
The disclosure of the prior-filed application, Application No. 14/278968, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AlA 35 U.S.C. 112, first paragraph for one or more claims of this application. Application No. 14/278968 does not disclose positioning a high fat feed block in an area of a pasture accessible to a ruminant, a ruminant ingesting the feed block in response to positioning of the block in a pasture, and a ruminant ingesting an amount of the feed block sufficient to improve performance.
Application No. 14/794589 supports the presently claimed subject matter. Since Application No. 14/278968 does not provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a), the effective filing date of the present application is the filing date of Application No. 14/794589, i.e., 7/8/2015.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3-7, 9-15, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Karr et al. US 3669676 (hereinafter “Karr”) in view of Cox US 5006361 (hereinafter “Cox”), Theuninck et al. US 4851244 (hereinafter “Theuninck”), and Findley et al. GB 2191379 (Findley).
With respect to claim 1, Karr teaches a method of feeding animals (C2, L40-47; and C4, L43-46).
Regarding the recitation of “of feeding an animal” in the preamble of claim 1, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method comprising positioning a high fat feed block in an area accessible to the animal, wherein the high fat feed block comprises high fat pellets at about 5 wt% to 50 wt% of the high fat feed block, wherein the high fat pellets have a fat content of about 40 wt% up to about 60 wt%, wherein the high fat feed block includes an additional fat source, and wherein a total fat content is at least about 7 wt% to about 33 wt% of the high fat feed block, wherein the additional fat source is present at about 3 wt% to about 6 wt% of the high fat feed block with a majority of the total fat content provided by the high fat pellets; wherein the high fat pellets constitute discrete components of the high fat feed block in claim 1, Karr teaches a feed supplement comprising 1-12% by weight fish oil (additional fat source), and the supplement may be in the form of large blocks. The blocks are offered to the animals in a manner that they have free and ready access to it (C3, L59-62; and C4, L37-54). The range in Karr encompasses the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
However, Karr does not expressly disclose the block is a high fat feed block comprising high fat pellets, wherein the high fat pellets have a fat content of about 40 wt% up to about 60 wt%, wherein a total fat content is at least about 7 wt% to about 33 wt% of the high fat feed block with a majority of the total fat content provided by the high fat pellets, and wherein the high fat pellets constitute discrete components of the high fat feed block.
Cox teaches pellets containing up to 99% lipid materials which can be readily mixed with other feed products for animal consumption. The lipid pellets are animal food supplements that may be readily incorporated as discrete particles in range blocks, and the range blocks can contain a broad range of up to 30% fat (C1, L29-36 and 41-45; C2, L27-30; C7, L10-11; C22, L33-36, 55-56, and 61-65).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Cox, to select the lipid pellets in the blocks of Karr based in their suitability for their intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Karr and Cox similarly teach feed blocks for animals comprising lipid materials, Karr teaches the fish oil is combined with feed supplement ingredients to form the block (C3, L3-12; and C4, L37-50), Cox teaches the lipid pellets may be mixed with other feed materials and incorporated into range blocks without risk of bleeding, damage, and consequent spoilage (C11, L29-31; C22, L34-36 and 61-65), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Karr as modified by Cox does not expressly disclose wherein the block comprises high fat pellets at about 5 wt% to about 50 wt% of the block. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the amount of pellets in the feed block of Karr in view of Cox through routine experimentation to obtain a block with desired nutritional properties. One of ordinary skill in the art would have been motivated to do so because Karr teaches the feed supplement may be intended to meet the full nutritional requirements of the animal (C3, L3-12), Cox teaches the pellets may be incorporated in the blocks in any desired proportion without risk of rancidity, clumping, and agglomeration and the blocks will be designed to meet the specific nutritive needs of the animals being fed (C1, L60-63 and C22, L42-44), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Regarding the recitation of wherein the high fat feed block comprises a hardening agent and an intake modifier, wherein the intake modifier comprises a chloride ion present in the high fat feed block at about 1.0 wt% to about 3.5 wt%, and wherein the hardening agent comprises calcium hydroxide and one or more of magnesium oxide or ionic salts of magnesium or calcium in claim 1, Karr does not expressly disclose this limitation.
Theuninck teaches a hardened animal feed block with improved control over the rate of ad-libitum consumption of the block by the animal. The block comprises magnesium oxide hardening agent and about 1 to about 12 percent by weight of chloride ion (C1, L10-13; C3, L31-34; and C4, L38-40).
Findley teaches solid animal feed blocks. Magnesium oxide and calcium hydroxide may be included to adjust the hardness of the block (P1, L3, 12, 28, 54-55, and 62-63; P2, L11-13; and P5, L27).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Theuninck and Findley, to select chloride ion, magnesium oxide, and calcium hydroxide in the block of modified Karr based in its suitability for its intended purposed with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Karr, Theuninck, and Findley similarly teach animal block formulations, Karr teaches the composition limits intake and may also contain additives for improving weight maintenance (C1, L18-23; and C3, L39-42), Theuninck teaches block hardness and chloride ion play a role in controlling animal consumption of blocks (C8, L32-33), Findley teaches preparing a block that has proper hardness to limit consumption (P1, L58-59; P2, L10-11; and P9, L19-21), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Regarding the recitation of wherein in response to positioning the high fat feed block in the area accessible to the animal, the animal ingests the high fat feed block in an amount sufficient to improve performance, comprising an increase in at least one of a body condition score, weight gain, meat production, milk production, or a combination thereof, relative to an animal not provided the high fat feed block in claim 1, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.” Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the animal ingests the high fat feed block in an amount sufficient to improve performance, comprising an increase in body condition score, meat production, and/or milk production would naturally occur from said method since modified Karr, as demonstrated above, positively recites the step(s) of the claimed process, Karr teaches the animal intakes an amount of the feed supplement needed for proper weight gain or weight maintenance (C1, L47-51), and the animal ingesting the high fat feed block in an amount sufficient to improve performance is an intended result of the claimed process.
With respect to claim 3, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the high fat feed block constitutes a supplemental, free-choice feed in claim 3, modified Kerr teaches this limitation since Kerr teaches the blocks are a feed supplement offered free choice to the animal (C1, L33-35; and C4, L46-50).
With respect to claims 4 and 5, modified Kerr is relied upon for the teaching of the method of claim 3 as addressed above.
Regarding the recitation of wherein the high fat feed block is provided concurrently with a main source of feed in claim 4 and wherein the main source of feed comprises forage in claim 5, modified Kerr teaches this limitation since Kerr teaches the feed supplement block is administered in combination with forage (C3, L45-52; and C4, L37-43).
With respect to claim 6, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the high fat pellets comprise two fat sources in claim 6, Kerr as modified by Cox teaches this limitation since Cox is relied upon for the teaching of the high fat pellets as addressed above in claim 1, and Cox teaches the use of blends of lipids in the pellets (C20, L17-19).
With respect to claim 7, modified Kerr is relied upon for the teaching of the method of claim 6 as addressed above.
Regarding the recitation of wherein the two fat sources include a first fat and a second fat, the second fat having a melting point less than a melting point of the first fat in claim 7, Kerr as modified by Cox teaches this limitation since Cox is relied upon for the teaching of the high fat pellets as addressed above in claims 1 and 6, and Cox teaches blending lipids with low temperature melting points with other lipids having higher melting points (C20, L17-22).
With respect to claim 9, modified Kerr is relied upon for the teaching of the method of claim 7 as addressed above.
Regarding the recitation of wherein the first fat is disposed substantially at a surface of the high fat pellets in claim 9, Kerr as modified by Cox teaches this limitation since Cox is relied upon for the teaching of the high fat pellets as addressed above in claim 1, and Cox teaches forming a lipid film on the surface of the pellet (C20, L6-16).
With respect to claim 10, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the high fat pellets comprise one or more fats selected from the group consisting of: animal fat, vegetable fat, and hydrogenated vegetable fat in claim 10, Kerr as modified by Cox teaches this limitation since Cox is relied upon for the teaching of the high fat pellets as addressed above in claim 1, and Cox teaches the pellets comprise animal and/or vegetable based fats, oils, and greases (C1, L29-32).
With respect to claim 11, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the high fat pellets comprise one or more of carrier materials selected from the group consisting of: corn, wheat, barley, oats, sorghum, tapioca, soybean meal, cottonseed meal, and corn gluten meal in claim 11, Kerr as modified by Cox teaches this limitation since Cox is relied upon for the teaching of the high fat pellets as addressed above in claim 1, and Cox teaches the pellets comprise carriers such as wheat, corn, and soybean meal (C3, L1-12; and C15, L43-46).
With respect to claim 12, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the high fat feed block further includes a medicament in claim 12, modified Kerr teaches this limitation since Kerr teaches the feed supplement block may also include a medicament (C3, L39-41).
With respect to claim 13, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the additional fat source comprises one or more fat sources selected from the group consisting of: yellow grease, choice white grease, vegetable oil, hydrogenated analogs of vegetable oil, nut oil, seed oil, fish oil, beef fat, and chicken fat in claim 13, modified Kerr teaches this limitation since Kerr teaches the feed supplement block comprises fish oil (C4, L37-50).
With respect to claim 14, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the animal is selected from the group consisting of: cattle, sheep, goats, and deer in claim 14, modified Kerr teaches this limitation since Kerr teaches animals such as cattle (C3, L8-12; and C4, L42-45) and Cox teaches the entire gamut of the animal world including ruminants (C1, L42-45; and C2, L24-30).
With respect to claim 15, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the animal is a pig or a horse in claim 15, modified Kerr teaches this limitation since Kerr teaches animals (C3, L8-12; and C4, L42-45) and Cox teaches the entire gamut of the animal world including swine (C1, L42-45; and C2, L24-30).
With respect to claim 18, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the intake modifier further comprises one or more intake modifiers selected from the group consisting of: ammonium sulfate, calcium sulfate, salt, sodium hydroxide, diammonium phosphate, fish oil, coconut oil, palm kernel oil, meat meal, chlorinated fat, and acidulated fat in claim 18, modified Kerr teaches this limitation since Kerr teaches the feed supplement block comprises between about 1-12% by weight fish oil, between about 0.1-5% by weight of ammonium sulfate, between about 0.1-5% by weight of diammonium phosphate, and between about 0.1-20% by weight of meat meal (C3, L59-62; C3, L72-C4, L1; C4, L11-15 and 26-31).
With respect to claim 19, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the high fat feed block further comprises molasses in claim 19, Kerr as modified by Cox teaches this limitation since Cox is relied upon for the teaching of the high fat pellets as addressed above in claim 1, and Cox teaches the pellets in the block may comprise molasses (C20, L27-31 and 43-46; and C22, L33-36 and 61-65).
With respect to claim 20, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the area accessible to the animal comprises a confined pasture in claim 20, modified Kerr teaches this limitation since Kerr teaches a pasture or range (C1, L31; and C4, L45-50).
With respect to claim 21, modified Kerr is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the hardening agent is present at about 1 wt% to about 20 wt% of the high fat feed block in claim 21, Kerr as modified by Theuninck and Findley teaches this limitation since Theuninck and Findley are relied upon for the teaching of the hardening agent as addressed above in claim 1, Theuninck teaches the block comprises from about 1.0 to about 10.0 percent by weight of magnesium oxide (C2, L1-2), and Findley teaches 0-10% of hardening agents are used (P2, L50).
Claims 2 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Karr et al. US 3669676 (hereinafter “Karr”) in view of Cox US 5006361 (hereinafter “Cox”), Theuninck et al. US 4851244 (hereinafter “Theuninck”), and Findley et al. GB 2191379 (hereinafter “Findley”) as applied to claims 1, 6, and 7 above, and in further view of Bevans et al. US 20060045957 (hereinafter “Bevans”).
With respect to claims 2 and 8, modified Kerr is relied upon for the teaching of the method of claims 1, 6, and 7 as addressed above.
Regarding the recitation of where the high fat pellets comprise a high melting point fat, the high melting point fat having a melting point equal to or greater than about 60⁰C (140⁰F) in claim 2 and wherein the first fat has a melting point equal to or greater than about 60⁰C (140⁰F) in claim 8, Kerr as modified by Cox does not expressly disclose the melting point of the lipid(s) in the pellet.
Bevans teaches high-fat content pellets for use in animal feed. The melting point of the fat or fat blends in the pellet is below about 80⁰C (paragraphs [0002], [0023], and [0033]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed melting point range, from the range disclosed in the prior art reference with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Bevans and Kerr as modified by Cox similarly teach high fat pellets used in feedstuff, Bevans teaches the quality of the pellet can be affected by the melting point of the fat(s) included (paragraph [0033]), and Cox teaches preparing stable pellets with animal and/or vegetable based fats, oils, and greases (C1, L29-32 and 40). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Response to Arguments
Applicant’s remarks filed February 13, 2026 are acknowledged.
Due to the amendments to the claims, the 35 USC 103 rejection of claims 1, 3-7, 9-15, and 18-20 over Karr in view of Cox and Theuninck and claims 2 and 8 over Karr in view of Cox, Theuninck, and Bevans in the previous Office Action have been withdrawn. Upon further searching and consideration, a new ground of rejection has been made. As addressed above, Karr in view of Cox, Theuninck, and Findley teaches a method that is substantially similar to that as presently claimed. Applicant’s arguments have been considered but are moot as they pertain to the amendment of “wherein the hardening agent comprises calcium hydroxide…”, and newly added Findley is relied upon for this teaching as addressed above in claim 1.
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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