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
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 12-15, 18-19 and 21-28 are rejected under 35 U.S.C. 103 as being unpatentable over Gregson (GB1310232) in view of Haschen (20050255220).
Gregson teaches a process of making a protein-containing feedstuff, said process comprising:
(i) mixing (pg. 3 lines 43-46) (a) at least one protein feed material (pg. 3 lines 58-61) with (b) added methionine (pg. 2 lines 101-103; pg. 3 lines 37-39; pg. 3 lines 71), to obtain a mixture (pg. 3 lines 43-46) and
(ii) (ii) removing said mixture (pg. 3 lines 46-48), to obtain said protein-containing feedstuff (pg. 3 lines 46-48), wherein:
Said added methionine is purified methionine or a salt thereof (pg. 2 lines 101-103; pg. 3 lines 37-39; pg. 3 lines 71).
Gregson teaches protein supplemented production of feed, including distillers grains to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) and thus one of ordinary skill in the art would have been motivated to look to the art of feed formulations as taught by Haschen.
More specifically Haschen teaches
(i) mixing (par. 0031) (a) at least one protein feed material (par. 0031; corn distillers grain; CP) with (b) added methionine (par. 0032 soybean meal comprising methionine table 1), to obtain a mixture (par. 0031-0032, par. 0058) and
(ii) drying said mixture (par. 0059), to obtain said protein-containing feedstuff (par. 0035, 0069), wherein:
the protein-containing feedstuff comprises the added methionine (relative obtained mixture) in an amount of not less than 1 gram of methionine per 100 grams of protein in the protein feed material (table 1; 30.3% protein of 52% of mixture corn distillers grain: 52x.303= 15.6% of mixture protein of distiller grain; soybean meal comprises .83% methionine thus relative soybean meal being 48% of the mixture, par. 0031, 48 x .0083= .398 of mixture added methionine; .398 methionine added per 15.6% protein of distillers grain= .398/15.6=.0255 x 100=2.55; alternatively 100/15.6=6.41; .398x6.41=2.55) and
the protein-containing feedstuff comprises at least 20 wt. % protein on a dry matter basis (table 1 distiller grain 30.3% protein).
wherein said added methionine (par. 0032 soybean meal comprising methionine table 1) is in addition to protein of the protein feed material (table 1; methionine of soybean meal not corn distillers grain, i.e. added to a) protein feed material).
Though silent to drying the mixture, Gregson does teach removing the mixture after completing the mixing process of ingredients and bagging for dispatch (pg. 3 lines 46-48). Thus since both teach mixing the ingredients and since Haschen teaches optionally further drying the mixture after the first mixing stage (par. 0027, 0059). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of drying the mixture thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Though silent to the protein content of the feed material, thus silent to the amount of methionine to protein in the protein feed material. Gregson teaches the protein feed material supplemented with essential synthetic amino acids (pg. 2 lines 100-103) including methionine (pg. 2 lines 101-103; pg. 3 lines 37-39; pg. 3 lines 71).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises the added methionine in an amount of not less than 1 gram of methionine per 100 grams of protein in the protein feed material through routine experimentation to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) for its art recognized purpose of providing essential amino acids to the protein containing mixture such as the instant case the addition of methionine as further taught and providing the feed according to formulation requirements.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises at least 20 wt. % protein on a dry matter basis, through routine experimentation to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) and more specifically in the instant case to achieve the protein supplemented feedstuff comprising an added protein comprising concentrate (pg. 3 line 75).
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises the added methionine (relative obtained mixture) in an amount of not less than 1 gram of methionine per 100 grams of protein in the protein feed material (table 1; 30.3% protein of 52% of mixture corn distillers grain: 52x.303= 15.6% of mixture protein of distiller grain; soybean meal comprises .83% methionine thus relative soybean meal being 48% of the mixture, par. 0031, 48 x .0083= .398 of mixture added methionine; .398 methionine added per 15.6% protein of distillers grain= .398/15.6=.0255 x 100=2.55; alternatively 100/15.6=6.41; .398x6.41=2.55) as taught by Haschen to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) for its art recognized purpose of providing essential amino acids to the protein containing mixture such as the instant case the addition of methionine as further taught and providing the feed according to formulation requirements determined on a case by case basis based on animal type and nutrient deficiencies as further taught by Haschen (par. 0031).
Alternatively, since both teach the addition of methionine to the base ingredient. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises at least 20 wt. % protein on a dry matter basis as taught by Haschen (table 1 distiller grain 30.3% protein) to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) and more specifically in the instant case to achieve the protein supplemented feedstuff comprising an added protein comprising concentrate as taught by Gregson (pg. 3 line 75) determined on a case by case basis based on animal type and nutrient deficiencies as further taught by Haschen (par. 0031).
Claim 13, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of drying with heating (par. 0059) the mixture thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of the protein-containing feedstuff has a moisture content between 0 and 20 wt. %, based on the total weight of said protein- containing feedstuff (par. 0061; DM after processing) thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Claim 15, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises a ratio of methionine to protein in said protein feed material is 2 to 10 grams of methionine to 100 grams of protein in said protein feed material through routine experimentation to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) for its art recognized purpose of providing essential amino acids to the protein containing mixture such as the instant case the addition of methionine as further taught and providing the feed according to formulation requirements.
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises added methionine are mixed in relative amounts such that a ratio of methionine to protein in said protein feed material is 2 to 10 grams of methionine to 100 grams of protein in said protein feed material (table 1; 30.3% protein of 52% of mixture corn distillers grain: 52x.303= 15.6% of mixture protein of distiller grain; soybean meal comprises .83% methionine thus relative soybean meal being 48% of the mixture, par. 0031, 48 x .0083= .398 of mixture added methionine; .398 methionine added per 15.6% protein of distillers grain= .398/15.6=.0255 x 100=2.55; alternatively 100/15.6=6.41; .398x6.41=2.55) as taught by Haschen to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) for its art recognized purpose of providing essential amino acids to the protein containing mixture such as the instant case the addition of methionine as further taught and providing the feed according to formulation requirements determined on a case by case basis based on animal type and nutrient deficiencies as further taught by Haschen (par. 0031).
Claim 18, Gregson teaches the feed material comprising distillers grain (pg. 3 line 61). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute a type of distillers grain, such as in the instant case corn distillers grains (par. 0031) as taught by Haschen relative the teaching of the genus distillers grains as taught by Gregson for its art recognized purpose of producing nutritionally enhanced feed as taught by both from fermentation byproducts.
Claim 19, Gregson teaches the feed material comprising distillers grain (pg. 3 line 61). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute a type of distillers grain, such as in the instant case corn distillers grains plus solubles (par. 0031) as taught by Haschen relative the teaching of the genus distillers grains as taught by Gregson for its art recognized purpose of producing nutritionally enhanced feed as taught by both from fermentation byproducts.
Claim 21, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of the protein feed material has a moisture content between 10 and 90 wt. %, based on the total weight of said protein feed material (table 1; par. 0061) thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Claim 22, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of exposing said mixture to an atmosphere having a temperature of 80C (176F) to 600°C (par. 0059) the mixture thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Claim 23, Haschen teaches drying in an atmosphere having a temperature of 80 to 600C (par. 0059). Though silent to a time of drying, importantly Haschen teaches drying to achieve a specific end moisture content, i.e. the constant. Thus since product exposure time depends on the efficiency of applying the heat to the product as taught by Haschen (par. 0059 last 3 lines) and the size and scale of the processing operation (par. 0059) relative an undefined amount.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to teach a drying time of 1-60 minutes relative drying temperature for its art recognized purpose of achieving a final moisture content which prevents spoilage during shipment and storage as taught by Haschen (par. 0061) and since one of skill in the art would have a reasonable expectation of success that through routine experimentation teach a desired drying time relative same temperatures as taught to achieve the constant, i.e. final moisture content.
Claims 24-26, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of exposing said mixture to an atmosphere having a temperature of 80C (176F) to 250°C (par. 0059) or 80C to 150C (par. 0059) or 150C to 250 (table 17) the mixture thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Claim 27, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of the protein feed material has a moisture content of 0 to 19 wt. %, based on the total weight of said protein- containing feedstuff (par. 0061) thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Claim 28, a protein-containing feedstuff, which is prepared by a process according to claim 12 (example 1).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Gregson (GB1310232) in view of Haschen (20050255220) and Miller et al. (20110236559).
Gregson and Haschen are taken as above.
Gregson and Haschen teach distillers grains for the production of feed, Haschen teaches the feed product comprising corn distillers grains and thus one of ordinary skill in the art would have been motivated to look to the art of corn distiller grains for feed as taught by Miller.
Miller further the distillers grain obtained as ethanol by-products employing a starting starch bearing grain including corn (par. 0016).
Thus since Gregson and Haschen teach the protein feed material comprising distillers grains, since both Haschen and Miller teach corn distillers grain, though Haschen is silent to the origin of the corn distillers grains. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the corn distillers grains of Haschen obtained from known grain production by-products such as resulting from industrial production of ethanol as taught by Miller (par. 0016) for its art recognized purpose of obtaining a same distiller grain for producing animal feed as desired by Haschen and since the distillers grains would need to be produced due to processing.
Response to Arguments
Applicant’s arguments with respect to the source of Methionine of Haschen have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Gregson.
Gregson teaches a process of making a protein-containing feedstuff, said process comprising:
(i) mixing (pg. 3 lines 43-46) (a) at least one protein feed material (pg. 3 lines 58-61) with (b) added methionine (pg. 2 lines 101-103; pg. 3 lines 37-39; pg. 3 lines 71), to obtain a mixture (pg. 3 lines 43-46) and
(ii) removing said mixture (pg. 3 lines 46-48), to obtain said protein-containing feedstuff (pg. 3 lines 46-48), wherein:
Said added methionine is purified methionine or a salt thereof (pg. 2 lines 101-103; pg. 3 lines 37-39; pg. 3 lines 71).
Though silent to drying the mixture, Gregson does teach removing the mixture after completing the mixing process of ingredients and bagging for dispatch (pg. 3 lines 46-48). Thus since both teach mixing the ingredients and since Haschen teaches optionally further drying the mixture after the first mixing stage (par. 0027, 0059). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teachings Haschen of drying the mixture thus achieving a same feedstuff of desired nutrient targets for the end product and a desired final moisture content desired of animal feed as taught by Haschen (par. 0027) for bagging as desired by Gregson (pg. 3 lines 46-48).
Though silent to the protein content of the feed material, thus silent to the amount of methionine to protein in the protein feed material. Gregson teaches the protein feed material supplemented with essential synthetic amino acids (pg. 2 lines 100-103) including methionine (pg. 2 lines 101-103; pg. 3 lines 37-39; pg. 3 lines 71).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises the added methionine in an amount of not less than 1 gram of methionine per 100 grams of protein in the protein feed material through routine experimentation to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) for its art recognized purpose of providing essential amino acids to the protein containing mixture such as the instant case the addition of methionine as further taught and providing the feed according to formulation requirements.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises at least 20 wt. % protein on a dry matter basis, through routine experimentation to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) and more specifically in the instant case to achieve the protein supplemented feedstuff comprising an added protein comprising concentrate (pg. 3 line 75).
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises the added methionine (relative obtained mixture) in an amount of not less than 1 gram of methionine per 100 grams of protein in the protein feed material (table 1; 30.3% protein of 52% of mixture corn distillers grain: 52x.303= 15.6% of mixture protein of distiller grain; soybean meal comprises .83% methionine thus relative soybean meal being 48% of the mixture, par. 0031, 48 x .0083= .398 of mixture added methionine; .398 methionine added per 15.6% protein of distillers grain= .398/15.6=.0255 x 100=2.55; alternatively 100/15.6=6.41; .398x6.41=2.55) as taught by Haschen to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) for its art recognized purpose of providing essential amino acids to the protein containing mixture such as the instant case the addition of methionine as further taught and providing the feed according to formulation requirements determined on a case by case basis based on animal type and nutrient deficiencies as further taught by Haschen (par. 0031).
Alternatively, since both teach the addition of methionine to the base ingredient. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to teach the protein-containing feedstuff comprises at least 20 wt. % protein on a dry matter basis as taught by Haschen (table 1 distiller grain 30.3% protein) to achieve formulations of ingredients which are variable and are suitably selected according to formulation requirements (pg. 3 lines 20-27) and more specifically in the instant case to achieve the protein supplemented feedstuff comprising an added protein comprising concentrate as taught by Gregson (pg. 3 line 75) determined on a case by case basis based on animal type and nutrient deficiencies as further taught by Haschen (par. 0031).
With respect to applicants urging directed to Miller, Miller is relied upon to teach known production methods which produce corn distillers grain.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN N LEFF whose telephone number is (571)272-6527. The examiner can normally be reached on M-F 8:30-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571)270-34753475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN N LEFF/Primary Examiner, Art Unit 1792
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