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 1, 4-6, 8-13, 15, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over and Vondran et al. (herein referred to as Vondran, FR 3030276 A1) in view of Brown et al. (herein referred to as Brown, “Duckweed (Landoltia punctata) in dog diets decreases digestibility but improves stool consistency”) and Stein (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”)
With regard to Claim 1, Vondran teaches an animal or pet food product widely marketed for pets such as cats and dogs ([0001]). Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein, carbohydrates, and fiber in the composition. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Brown teaches carbohydrates (brown rice and corn) in the amount of 22.5%, 20.2%, 16.8% and 13.5% (Table 1). And Brown teaches fiber (in the form of non-starch polysaccharides) in an amount of 1.8%, 2.3%, 2.5%, and 3%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”), carbohydrates in the amount of 22.5%, 20.2%, 16.8% and 13.5% and fiber in an amount of 1.8%, 2.3%, 2.5%, and 3%. (Table 1) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
With regard to Claim 4, Vondran teaches the composition can be an entirely plant-based animal feed composition ([0005]Vondran teaches an embodiment wherein the product is made from 100% plant extracts).
With regard to Claim 5, the combination of Vondran, Brown, and Stein teach the protein component is substantially identical as presented in instant Claim 1. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected Amino Acid Index would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, and Stein inherently teach the corrected Amino Acid Index as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “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)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
With regard to Claim 6, the combination of Vondran, Brown, and Stein teach the protein component is substantially identical as presented in instant Claim 1. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, and Stein inherently teach the protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “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)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
With regard to Claim 8, Vondran is silent to the protein originating from duckweed of the genus Lemna, Wolffiella, or Wolffia, or combinations thereof.
Stein teaches the duckweed concentrate is specifically a Lemna Protein Concentrate from the genus Lemna (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”). Stein teaches aquatic plants from the genus lemna are relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products. It also contains relatively little fiber, making it a highly digestible feed ingredient (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Stein to use Duckweed from the genus Lemna because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products. It also contains relatively little fiber, making it a highly digestible feed ingredient (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
With regard to Claims 9 and 10, Vondran teaches including plant extracts in the form of evening primrose oil and/or linseed oil ([0004]). Vondran teaches the one or more plant extracts may comprise less than about 0.001%, 0.01%, 0.1%, 0.5%, 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 11%, 12%, 13%, 14%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 55%, 60%, 65%, 70%, 75%, 80%, 85%, 90%, 95%, 99% or 100% by weight of the total kibble ([0005]). Thus reading that the composition can comprising 1 to 10 weight% of fat in the form of evening primrose oil and/or linseed oil.
With regard to Claim 11, Vondran teaches in some embodiments the composition comprises one or more minerals such as, but not limited to, calcium, phosphorus, potassium, sodium, chloride, iron, copper, manganese, zinc, iodine, selenium, cobalt, sulfur, fluorine, chromium, boron, and oxalate ([0008]). Vondran teaches the composition may be prepared by any suitable means from any suitable ingredients for animal or pet nutrition ([0008]). Therefore, it would have been obvious to one with ordinary skill in the art to optimize the amount of mineral supplement in the composition to ensure the composition is suitable for the desired pet nutrition ([0008]). See MPEP 2144.05(II)(A) "[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).
With regard to Claims 12 and 13, Vondran teaches in some embodiments the composition comprises comprise one or more amino acids such as, but not limited to, arginine, histidine, isoleucine, leucine, lysine, methionine, phenylalanine, threonine, tryptophan, valine, taurine, carnitine, alanine, aspartate, cysteine, glutamate, glutamine, glycine, proline, serine, tyrosine, and hydroxyproline ([0008]). Vondran also teaches the compositions may contain essential nutrients such as taurine ([0008]). ]). Vondran teaches the composition may be prepared by any suitable means from any suitable ingredients for animal or pet nutrition ([0008]). Therefore, it would have been obvious to one with ordinary skill in the art to optimize the amount of amino acids and essential nutrients in the composition to ensure the composition is suitable for the desired pet nutrition ([0008]). See MPEP 2144.05(II)(A) "[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).
With regard to Claim 15, Vondran teaches the composition may be prepared by any suitable means from any suitable ingredients, such as, for example, a protein source, a carbohydrate source, a fat source, and any other ingredients suitable for animal or pet nutrition ([0008]).
However, Vondran is silent to the type of carbohydrate.
Brown teaches a composition which contains broken rice as the carbohydrate (Table 1).
Therefore, the combination of Vondran and Brown impart reasoning for obviousness because Vondran teaches any suitable carbohydrate is appropriate for the composition and Brown teaches utilizing broken rice has a carbohydrate in pet food in combination with duckweed. Thus showing it was known in the art for rice to be successfully used as a suitable carbohydrate and it would have been within the knowledge at the time of filing for one with ordinary skill in the art to have utilized rice as a carbohydrate on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 24, Vondran teaches an animal or pet food product widely marketed for pets such as cats and dogs ([0001]). Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products.
However, Vondran is silent to the protein originating from duckweed of the genus Lemna, Wolffiella, or Wolffia, or combinations thereof.
Stein teaches the duckweed concentrate is specifically a Lemna Protein Concentrate from the genus Lemna (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”). Stein teaches aquatic plants from the genus lemna are relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products. It also contains relatively little fiber, making it a highly digestible feed ingredient (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Stein to use Duckweed from the genus Lemna because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products. It also contains relatively little fiber, making it a highly digestible feed ingredient (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
With regard to the corrected Amino Acid index and the apparent protein digestibility, the combination of Vondran, Brown, Stein, and Dr. Basko teach the protein component is substantially identical as presented in instant Claims 1 and 22. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected Amino Acid Index and apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, Stein, and Dr. Basko inherently teach the corrected amino acid index and the apparent protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “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)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
Claims 2-3 and 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over and Vondran (FR 3030276 A1) in view of Brown ( “Duckweed (Landoltia punctata) in dog diets decreases digestibility but improves stool consistency”) Stein (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”), and Dr. Basko (“The Many Health Benefits of Mushrooms (And How to Add Them To Your Pet’s Diet”)
With regard to Claims 2 and 3, Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to < 50 weight % of the protein content consists of protein concentrate obtained from duckweeds.
Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”) because pets saw firmer stools which is an important issue for dog owners and , duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, the combination of Vondran, Brown, and Stein are silent to > 50 weight % of the protein content comprises one or more plant-based, non-duckweed protein sources and/or protein from fungi.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran, Brown, and Stein in view of Dr. Basko to include pillar fungi, in the form of white or oyster mushrooms, as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”). As a protein source, the fungi taught by Dr. Basko contains anywhere from 2 to 14 percent protein and all the essential amino acids and can make an ideal meat substitute. Thus, through routine optimization of the type of fungi, the preparation method (raw, cooked, dried or fresh), and the amount included, one with ordinary skill in the art would have been able to optimize the amount of pillar fungi used to achieve the desired protein content, positive health benefits, and amino acid composition. See MPEP 2144.05(II)(A) "[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).
With regard to Claim 22, Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein, carbohydrates, and fiber in the composition. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Brown teaches carbohydrates (brown rice and corn) in the amount of 22.5%, 20.2%, 16.8% and 13.5% (Table 1). And Brown teaches fiber (in the form of non-starch polysaccharides) in an amount of 1.8%, 2.3%, 2.5%, and 3%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”), carbohydrates in the amount of 22.5%, 20.2%, 16.8% and 13.5% and fiber in an amount of 1.8%, 2.3%, 2.5%, and 3%. (Table 1) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, Vondran is silent to < 50 weight % of the protein content consists of protein concentrate obtained from duckweeds of the genus Lemna, Wolffiella, or combination thereof.
Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”) because pets saw firmer stools which is an important issue for dog owners and , duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate from the genus Lemna because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, the combination of Vondran, Brown, and Stein are silent to > 50 weight % of the protein content comprises one or more plant-based, non-duckweed protein sources and/or protein from fungi.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran, Brown, and Stein in view of Dr. Basko to include pillar fungi, in the form of white or oyster mushrooms, as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”). As a protein source, the fungi taught by Dr. Basko contains anywhere from 2 to 14 percent protein and all the essential amino acids and can make an ideal meat substitute. Thus, through routine optimization of the type of fungi, the preparation method (raw, cooked, dried or fresh), and the amount included, one with ordinary skill in the art would have been able to optimize the amount of pillar fungi used to achieve the desired protein content, positive health benefits, and amino acid composition. See MPEP 2144.05(II)(A) "[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).
With regard to the corrected Amino Acid index and the apparent protein digestibility, the combination of Vondran, Brown, Stein, and Dr. Basko teach the protein component is substantially identical as presented in instant Claims 1 and 22. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected amino acid index and the apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, Stein, and Dr. Basko inherently teach the corrected amino acid index and the apparent protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “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)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
With regard to Claim 23, Vondran teaches an embodiment wherein the product is made from 100% plant extract(s) ([0005]). One with ordinary skill in the art would recognize a product produce 100% from plant extracts would be considered vegan because the product is not derived from any animal products. Vondran teaches the product contains a protein source, a carbohydrate source, and fiber ([0008]).
However, Vondran is silent to the quantity of protein, carbohydrates, and fiber in the composition. In addition, Vondran is silent to the protein being obtained from the family of duckweeds (Lemnaceae)
Brown evaluated duckweed as a novel protein source for dogs by incorporating Landoltia punctata into dog diets (Abstract). Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). Brown teaches carbohydrates (brown rice and corn) in the amount of 22.5%, 20.2%, 16.8% and 13.5% (Table 1). And Brown teaches fiber (in the form of non-starch polysaccharides) in an amount of 1.8%, 2.3%, 2.5%, and 3%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”), carbohydrates in the amount of 22.5%, 20.2%, 16.8% and 13.5% and fiber in an amount of 1.8%, 2.3%, 2.5%, and 3%. (Table 1) because pets saw firmer stools which is an important issue for dog owners.
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, Vondran is silent to 1 to 99 weight % of the protein content consists of protein concentrate obtained from duckweeds of the genus Lemna, Wolffiella, or combination thereof.
Brown teaches diets containing 10%, 20%, and 30% duckweed (Table 1). Upon analysis, the duckweed had a crude protein concentration of 25.3% (“Duckweed Analyses”). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Brown teaches this diet with the inclusion of the duckweed resulted in firmed stools (Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Vondran in view of Brown to incorporate duckweed as the protein source in an amount of 10%, 20%, and 30%, with a crude protein concentration of 25.3%, (“Duckweed Analyses”) because pets saw firmer stools which is an important issue for dog owners and , duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Introduction).
However, Brown does not specify isolated duckweed protein or duckweed protein concentrate.
Stein teaches Lemna Protein Concentrate (i.e., duckweed protein concentrate) contains a greater concentration of standardized ileal digestible protein and amino acids compared with soybean meal, and similar amounts of digestible protein and many amino acids compared as in fish meal (“Key points”). In addition, Stein reaffirms Browns views by stating duckweed is advantageous as a protein source because it is relatively inexpensive to produce and requires less growing area and fewer inputs than other plant protein sources such as soybean products (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran and Brown in view of stein to utilize duckweed protein concentrate from the genus Lemna because it contains a greater concentration of standardized ileal digestible protein compared with soybean meal similar amounts of digestible protein and many amino acids compared as in fish meal which are other standard protein sources in the art (“Key Points”).
Continuing, the combination of Vondran, Brown, and Stein are silent the composition additionally comprising amino-acid-optimized protein from pillar fungi species (Basidiomycota) or mold.
Dr. Basko teaches adding mushrooms to a pet’s diet can help support liver, kidney function, improves diversity of nutrients in the diet, Improve nutrition in weak and deficient animals, Improves geriatric conditions (blood sugar and metabolism), Lowers cholesterol and helps support weight loss and fatty liver diseases, Prevent viral infections, Contain many antioxidants and immunomodulators and improves health (“Health Benefits of Mushrooms For Your Pets”). Dr. Basko teaches pets can eat a variety of types of mushrooms such as Brown mushrooms such as porcini, crimini, portabella, white mushrooms (Agaricus bisporous), and oyster mushrooms (“The Best Mushrooms To Feed Your Pets” one with ordinary skill in the art would recognize that white and oyster mushrooms are a type of pillar fungi). Lastly, Dr. Basko teaches mushrooms contain anywhere from 2 to 14 percent protein and all the essential amino acids depending upon whether they are eaten raw, cooked, dried or fresh. They make the ideal meat substitute. (“Dried Mushrooms vs Raw vs Cooked”)
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Vondran, Brown, and Stein in view of Dr. Basko to include pillar fungi, in the form of white or oyster mushrooms, as a protein source in an amount which can help support liver, kidney function, improve diversity of nutrients in the diet, improve nutrition in weak and deficient animals, improve geriatric conditions (blood sugar and metabolism), lower cholesterol, helps support weight loss and fatty liver diseases, and prevent viral infections (“Health Benefits of Mushrooms For Your Pets”). As a protein source, the fungi taught by Dr. Basko contains anywhere from 2 to 14 percent protein and all the essential amino acids and can make an ideal meat substitute. Thus, through routine optimization of the type of fungi, the preparation method (raw, cooked, dried or fresh), and the amount included, one with ordinary skill in the art would have been able to optimize the amount of pillar fungi used to achieve the desired protein content, positive health benefits, and amino acid composition. See MPEP 2144.05(II)(A) "[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).
With regard to the corrected Amino Acid index and the apparent protein digestibility, the combination of Vondran, Brown, Stein, and Dr. Basko teach the protein component is substantially identical as presented in instant Claims 1 and 22. Thus resulting in the amino acid contributing portions of the compositions being similar. It is important to note there would be negligible or no detectable amino acids from the other contributing elements including the carbohydrates and fats. Therefore, properties such as the corrected amino acid index and the apparent protein digestibility would inherently be substantially identical as well because products of identical chemical composition can not have mutually exclusive properties. Thus, the combination of Vondran, Brown, Stein, and Dr. Basko inherently teach the corrected amino acid index and the apparent protein digestibility as claimed. See MPEP 2112.01(I) and MPEP 2112.01(II) which state “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)” and “’Products of identical chemical composition can not have mutually exclusive properties.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id”
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over and Vondran (FR 3030276 A1) in view of Brown ( “Duckweed (Landoltia punctata) in dog diets decreases digestibility but improves stool consistency”) Stein (“Amino acid digestibility in Lemna Protein Concentrate fed to weanling pigs”), and Audic (“Natural Goodness, pet food’s new wave”)Haarmony
With regard to Claim 14, Vondran is silent to the type of protein.
Audic teaches the rising consciousness and interest of pet parents in where, how and by whom a product has been produced has changed how they buy pet food (“Better Sourced”). Audic teaches for natural-minded pet parents, nature reveals plenty of new and interesting ingredients and flavors. They want to explore nature’s facets and potential by trying out veggies and fruits instead of ‘just meat’ for their four-legged friends (“Creative Nature”). Audic teaches pet food manufacturers thus extend their vegan pet food offerings, developing products that include various plant-based protein sources such as soybean, potatoes, lentils and peas.
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combinations of Vondran, Brown, and Stein to include plant-based protein sources such as soybean, potatoes, lentils and peas as taught by Audic because pet parents are highly interested in veggies and fruits instead of ‘just meat’ for their four-legged friends (“Creative Nature”).
Additionally, Audic imparts reasoning for obviousness because the teaching shows that the claimed potato protein was known to have been successfully utilized in vegan pet food and published at the time of filing, which means it was within the general skill of a worker in the art to select potato protein for vegan pet food because it would have been obvious to one with ordinary skill in the art to do so on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Response to Arguments
Applicant's arguments filed 31 October 2023 have been fully considered but they are not persuasive.
First, Applicant noted as an initial matter that there was no indication of in the provided documentation that the reference Stein was published in 2014 and that the reference Basko was published in 2017. The examiner acknowledges the date of publication was inadvertently left off of the files provides for Stein and Basko. As a result, this action is a non-final action and new documentation has been uploaded including evidence of the publication dates for both Stein and Basko. The examiner would like to note for Basko that both the google publication date and the Wayback machine date have been included as evidence showing Basko was published prior to the effective filing date of the claimed invention.
Continuing, applicant argues that Vondran does not teach a complete feed formulation and does not motivate a person of ordinary skill in the art to formulate a vegan complete feed. Applicant argues that although Vondran does teach the product can be formed from 100% plant extracts, making it a vegan product, such extracts could not possibly provide complete nutrition for a dog or cat. This argument is not found to be persuasive because the product taught by Vondran is an animal feed kibble (abstract) and does not specifically state the kibble is for supplementation purposes only and therefore, under broadest reasonable interpretation, the kibble taught by Vondran could be considered a complete feed. Thus, applicants arguments are not found to be persuasive.
Applicant argues that Brown does not provide motivation to modify Vondran to use isolated duckweed protein and/or duckweed protein concentrate in a vegan complete feed for dogs or cats. This argument is not found to be persuasive because obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Brown provides motivation to combine because the reference teaches diet with the inclusion of the duckweed resulted in firmed stools (Brown, Conclusion). In addition, duckweed has a rapid growth rate, an ability to grow on Waste water and is abundant in the wild making it an attractive food source (Brown, Introduction). The examiner does note that, as applicant pointed out, the diet taught by Brown does decrease DM, the diet still has advantageous motivation to combine because it resulted in firmer stools which is often a desire from pet owners whose pets suffer from digestive tract issues. In addition Brown still clearly points out the duckweeds ability to grow in waste water and its abundance in the wild makes it an attractive food source. Thus, applicants arguments are not found to be persuasive.
Applicant argues that Stein provides no reasonable expectation of success that Lemna protein concentrate could be used in a complete feed for dogs and cats. Applicant argues that the results from nutritional studies on pigs do not necessarily provide a reasonable expectation of success when applied to nutritional compositions for dogs and cats. This argument is not found to be persuasive because Brown teaches the use of duckweed was known in the art to be consumed by dogs. Therefore, Stein teaching more in depth the use of duckweed and more specifically duckweed protein concentrate is reasonably pertinent to the particular problem with which the inventor was concerned. Thus because it was already well known dogs would consume the duckweed, as taught by Brown, the applicants arguments are not found to be persuasive.
Applicant argues that the experimental evidence in the specification supports a finding of non-obviousness over the art of record. Applicant points to Figure 3A, however the evidence presented in this figure does not show any quantitative evidence of an unexpected result and merely shows observational evidence of food consumption. Vondran teaches clear examples of cats consuming the feed for 10 weeks (table 1). One with ordinary skill in the art would recognize that if the cat is consuming the feed consistent for 10 weeks than the feed taught by Vondran is appetizing and thus the results presented by the applicant would not be unexpected. See MPEP 716.02(c) Where the unexpected properties of a claimed invention are not shown to have a significance equal to or greater than the expected properties, the evidence of unexpected properties may not be sufficient to rebut the evidence of obviousness. In re Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977). Thus, applicants arguments are not found to be persuasive.
In response to applicant's argument that Basko provides teachings concerning the use of mushrooms in a diet for dogs and cats, there is no teaching or suggestion that such mushrooms can not be combined with isolated duckweed protein and/or duckweed protein concentrate in a complete feed for dogs and cats with a reasonable expectation of success. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Thus, applicants arguments are not found to be persuasive. In addition, the examiner would like to note that Brown is relied upon to teach the inclusion of duckweed while Basko is not relied upon to teach the inclusion of duckweed but rather the advantageous inclusion of fungi into the composition.
Lastly, In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Brown is not relied upon to the teach the specific genera but rather that duckweed is a sufficient protein source. Stein then is relied upon and provides ample motivation to use duckweed from the genera Lemna as the protein sources because it has a greater combination of standardized ileal digestible protein. Thus, applicants arguments are not found to be persuasive.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792