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 .
This office action is in response to amendment filed on 1/21/26. Claim 9 is amended. Claims 9-10,13-14,22 are pending.
It’s noted that claims 21, 23 are identified as “ Previously Presented”. The identification is not accurate. The claims are depended from withdrawn claims. Thus, they should be identified as “ withdrawn previously presented”.
Claim Rejections - 35 USC § 112
Claims 9-10,13-14 and 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.
The limitation “ at a conventional feeding rate of .75 up to 1.5 pounds per head per day” is not totally supported by the original disclosure. Paragraph 060 of the specification discloses “ about 1 pound per head per day to about 1.8 pounds per head per day”. There is no disclosure of 75. Paragraphs 081 and 090 disclose .75lb and 1.5 lb but it’s tied to the day of feeding and not general. Paragraph 081 discloses feeding .75 lb from day 36 through day 42 and 1.5 lb through day 35. The method in claim 9 does not specify the feeding in correlation with the days. There is no evidence that applicant is in possession of the method with the feeding rate as claimed for any day. For instance, there is no disclosure that the young animal can be fed .75lb on day 1-35 or that 1.5lb is fed beyond day 42.
Claim Rejections - 35 USC § 103
Claim(s) 9-10,13-14 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Miller (2015/0257413) in view of Kenneth ( WO 88/04526).
For claim 9, Miller discloses a method of feeding young animal comprising the step of providing a milk replacer to the young animal. The milk replacer includes at least about 25% protein by dry weight and at least about 15 of the protein by dry weight is a non-milk protein. The non-milk protein comprises about 1-65% by weight. The non-milk protein includes soy protein concentrate, soy protein isolate. The method involves providing at least 1.8 pounds of a milk replacer by dry weight /young animal /day. However, in paragraph 0024, Miller discloses “ implementations are not limited to feeding young animal at these enhanced feeding rates and some young animals may benefit from ingesting a mixture of complementary non-milk and milk proteins in milk replacers containing at least 25% protein by dry weight when fed at traditional feeding rates of 1.5 pounds per head per day or less. After ingesting the milk replacer for 21 day, the young animal experiences improved performance through an increased feed-to-gain ratio. ( see paragraphs 0005-0006,0019). The feeding rate in Miller overlaps with the claimed range. In the case where the claimed ranges "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).
For claim 13, Miller discloses combining the soy protein and a milk protein which is considered a milk replacer precursor to form the milk replacer. Miller discloses the animal exhibit improved performance as an increased feed-to-gain ratio. ( see paragraphs 0005-0006)
For claim 14, Miller discloses young animals include calves. ( see paragraph 0027)
Miller does not disclose the soy protein is extruded, ground texture soy protein having the oligosaccharide and hexose content as in claim 9 and the characteristic as in claim 10 and 22.
Kenneth discloses ground, textured soy protein prepared by moistening the soy protein with water, extruding the protein mixture, breaking and milling into smaller structured particles and drying. The texture soy protein is used in animal feeds. ( see page 2, page 3 lines 5-7, page 4 lines 6-15)
Miller discloses the non-milk protein includes soy protein. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the protein disclosed in Kenneth as an obvious matter of using a known alternative ingredient to obtain the same function of providing a non-milk protein. Kenneth discloses the texture protein can be used in animal feeds. The textured protein in Kenneth is prepared without acid addition and obtained through the same processing steps as disclosed for the claimed textured soy protein. Thus, it’s obviously inherent the oligosaccharide and hexose content is within the claimed ranges and the characteristics in claims 10 and 22 are present. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433.
Response to Arguments
Applicant's arguments filed 1/21/26 have been fully considered but they are not persuasive.
In the response, applicant argues claim 9 is supported in paragraph 78. The claim is not supported as explained in the rejection above.
In the response, applicant argues Miller does not disclose the feeding rate as now claimed. The amendment does not define over Miller as explained in the rejection above. Berry is not relied upon to teach feeding rate.
Applicant argues that Miller actually teaches there is a negative impact on the inclusion of non-milk protein in conventionally fed milk replacers to infant calves as examples 1 and 2. The examiner respectfully disagrees. There is no conflicting teaching in Miller. Miller clearly states the method is related to feeding milk replacers to young animals with high protein levels, at least a portion of which is a non-milk protein. The use non-milk protein is explicitly recited in claim 1. The non milk protein sources are explicitly recited in paragraphs 0019,0021. Examples 1-2 discloses negative impact. However, Miller discloses in example 3 that increasing the protein level in the milk replacer to circumvent the immature enzyme system. Miller also discloses in paragraph 0024 “ implementations are not limited to feeding young animal at these enhanced feeding rates and some young animals may benefit from ingesting a mixture of complementary non-milk and milk proteins in milk replacers containing at least 25% protein by dry weight when fed at traditional feeding rates of 1.5 pounds per head per day or less. Thus, Miller explicitly teaches the feeding rate does not need to be at the enhanced rate. The examples are only exemplified embodiments. They are not the totality of the disclosure. In the case where the claimed ranges "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).
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 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIEN THUY TRAN whose telephone number is (571)272-1408. The examiner can normally be reached Monday-Thursday.
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April 6, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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