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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/4/26 has been entered.
Claim 9 is amended. Claims 9-10,13-14,22-23 are pending.
Claim Rejections - 35 USC § 112
Claims 9-10,13-14 and 22-23 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 “ a feeding rate of up to 1.5 pounds per head/day beginning at about 10 days old for 35 days than up to .75 pounds per head/day for 7 days “ is not supported by the original disclosure. Applicant points paragraphs 0075-0111 and examples 3-6 of the published application. The claim recites “ up to 1.5 pounds per head/day and up to .75 pounds per head/day”; these are ranges because up to 1.5 pounds includes amount of from 0-1.5 pounds and up to .75 pound include amount of from 0-.75. There is no disclosure of ranges in examples 3-6. Paragraph 0078 discloses feeding during days 1-42 and the calves were fed 1.5 pound/day till day 35 and then .75 pound/day till day 42. The disclosure is for single amount of 1.5 pound from day 1-35 and then .75 pound till day 42. There is no disclosure of any other amount to support the ranges recited. Also, the feeding starts at day 1, there is no support for the feeding only beginning at about 10 days old. The feeding days as claimed are 32 which is not disclosed. There is no evidence that applicant is in possession of the method with the feeding rate as claimed in which the feeding amount can be anywhere from 0-1.5 or 0-.75 and starting at date 10.
Claim 9-10,13-14 and 22-23 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 9, the limitation “ at about 10 days” is vague and indefinite because it’s unclear what time length would be considered as “ about 10”. The animal is either at 10 day or 11 day etc.. What would “about 10” cover? The limitation of “ feeding rate” is vague and indefinite because “ up to 1.5 pounds or up to .75 pound” include 0 amount or very minute amount”; thus, it’s unclear what is being feed to consider at feeding rate.
Claim Rejections - 35 USC § 103
Claim(s) 9-10,13-14 and 22-23 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 and feeding of .75 pound for 7 days as in claim 9 and the characteristic as in claim 10,22,23.
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 22,23 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. Miller discloses the feeding rate can be 1.5 pound or less for the length of feeding of 42 days. It would have been obvious to one skilled in the art to reduce the feeding for the last few days of the feeding period depending on the degree of weight gain desired. The specific amount and the number of days selected can be depended on the desirable weight gain in the animal and such factor can be determined by one skilled in the art through routine experimentation.
Response to Arguments
Applicant's arguments filed 6/4/26 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.
Conclusion
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September 19, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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