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 .
DETAILED ACTION
Status of Claims
Receipt of Remarks/Amendments filed on 08/05/2026 is acknowledged. Claim 2 is cancelled. Claims 17-20 are withdrawn. Claims 1, 15, and 16 are amended. Claim 21 is new. Claims 1, 3-16, and 21 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Modified Rejection As Necessitated by the Amendment Filed 08/05/2026
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 21 is 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.
Claim 21 recites the limitation "the soybean meal". There is insufficient antecedent basis for this limitation in the claim. The claim depends from Claim 1, which requires “soybean meal particles”, but does not recite the soybean meal per se. Applicant would overcome the rejection by amending “the soybean meal” with “a soybean meal”.
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, 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(a) 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 1, 3-14, 16, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Niederwerder et al. (Of record), hereinafter Niederwerder, and in view of Guo et al. (CN102640879, machine translation from WIPO), hereinafter Guo, and Roth et al. (Of record), hereinafter Roth.
Regarding Claims 1, 13-14, and 16 Niederwerder teaches a method of inhibiting the spread of swine fever virus in animal feed and feed ingredient comprising: introducing a chemical mitigant to said feed or feed ingredients, said chemical mitigant comprising a medium chain fatty acid and/or an essential oil, wherein said chemical mitigant is introduced at an inclusion rate of from about 0.125 weight % to less than 2 weight %, based upon the total weight of the animal feed or feed ingredient taken as 100% by weight (Claim 1). The animal feed ingredient is selected from a group consisting of complete swine diet, porcine meat and bone meal, soybean meal, dry pet kibble etc. or mixtures thereof (Claim 19; p. 13). The chemical mitigant comprises a blend of essential oils comprising approximately equal portions of garlic oleoresin, turmeric oleoresin, capsicum oleoresin, rosemary extract, and wild oregano essential oils, which are plant derived (Claim 18).
Niederwerder does not expressly state that it creates functional soybean meal particles, which comprise both soybean meal and the functional additive within the particle. However, the art teaches introducing the chemical mitigant to a feed or feed ingredient at a given “inclusion rate”.
Guo is also in the field of animal feed, and discloses the invention of a completely cured suckling pig compound feed comprising inter alia soybean meal and acidifier (Abstract; Claim 1). Guo teaches the preparation method comprising weighing the components, and subjecting the soybean meal, corn, wheat, rice bran meal, soybean oil, soy protein concentrate, and fish meal to primary granulation by mixing the components and putting into a pulverizer with a particle size of 35-45 mesh, and then carrying out the first granulation at 70-80°C; a secondary granulation including the other raw materials follows wherein the raw materials are uniformly mixed, cooled, crushed, and sieved (Claim 1; p. 4, bottom half page).
Guo teaches that its invention provides a fully cured milk pig complex feed (p. 1, Summary). In Guo’s invention, the traditional granular machine is fully utilized by firstly subjecting the raw materials to a primary granulation at a temperature of 70-80 °C so that the primary raw materials can be fully cured, which the Examiner interprets the functional ingredient to be fully incorporated, and so as to achieve comprehensive nutrition stability and allow starch gelatinization to reach 95%; and the other raw materials, in particular the heat-sensitive raw material, such as vitamins are added and subjected to the second granulation afterwards to reduce unnecessary loss of the nutritional components (p. 4, last paragraph to p. 5, first paragraph).
Because Guo teaches granulation by pulverizing the soybean meal together with functional additives such as acidulant, Guo therefore teaches the same integration of the functional additive within the soybean meal particles as the instant Specification [0063].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Guo to that of Niederwerder and granulate the soybean meal with functional additives to achieve comprehensive nutrition stability and allow starch gelatinization, and then add other raw material in a second granulation afterwards to reduce unnecessary loss of the nutritional components.
Niederwerder expressly teaches treatment of soybean meal with 1% medium chain fatty acid, meaning that the soybean meal is 99%, rendering Claims 3 and 11 obvious (pp. 13-14).
Regarding Claims 4-6, Niederwerder has taught the blend of essential oils comprising garlic oleoresin, turmeric oleoresin, capsicum oleoresin, rosemary extract, and wild oregano essential oils, which are plant derived (Claim 18).
Regarding Claims 7-8, Niederwerder teaches that essential oils derived from plants and/or MCFA are introduced to the feed or feed ingredients for inhibiting swine fever virus (p. 2, lines 19-25; p. 5, 2nd paragraph; Claim 1). Niederwerder teaches that medium chain fatty acids (MCFA) are effective in inactivating viruses as well as improving growth of pigs when administered orally, and teaches embodiment wherein the MCFA are caproic acid, caprylic acid, capric acid, and/or lauric acid. (p. 4, last paragraph to p. 5, 1st paragraph; Claim 2).
Regarding Claims 9 and 10, Guo teaches acidulant The acidulant is one or more of citric acid, fumaric acid, lactic acid, sorbic acid etc. (p. 2, bottom half). Guo further teaches that lactic acid reduces the pH value in the digestive tract of pig, and aids in digestion of milk and the inhibition of pathogenic bacteria in the digestive tract (p. 3, bottom half).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Guo and add acidulant in the feed additive composition of Niederwerder, for instance lactic acid, which aids in digestive tract health.
Regarding Claim 12, Niederwerder does not require any of its chemical mitigant to specifically be from a source that is not plant. For example, Niederwerder teaches rosemary extract as one essential oil chemical mitigant, and teaches a blend of essential oils comprising approximately equal portions of garlic oleoresin, turmeric oleoresin, capsicum oleoresin, rosemary extract, and wild oregano essential oils (Claims 6 and 18).
Regarding Claim 21, Niederwerder does not expressly teach forming the functional soybean meal particles by combining the soybean meal as it is being milled from soybeans with the functional additive before the soybean meal is dried. However, this is a product-by-process claim, however, patentability is based on the product itself. If the product is the same as a product from the prior art, the claim is unpatentable. The MPEP indicates that the process of making is only relevant “if the process by which a product is made imparts ‘structural and functional differences' distinguishing the claimed product from the prior art”. See MPEP 2113: “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). The MPEP also indicates that “the structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979). “In determining validity of a product-by-process claim, the focus is on the product and not the process of making it.” Amgen Inc. v. F. Hoffman-La Roche Ltd., 580 F.3d 1340, 1369 (Fed.Cir.2009). The process of making is only relevant “if the process by which a product is made imparts ‘structural and functional differences' distinguishing the claimed product from the prior art” Greenliant Systems, Inc. v. XicorLLC, 692 F.3d 1261, 1268 (Fed. Cir. 2012). In the instant case, the burden is on the applicant to show that there exists a structural difference when the soybeans are milled together with the functional additive before the soybean meal is dried, as opposed to mixing after.
In the event that the process in Claim 21 is given patentable weight, Guo has also rendered the granulation of soybean meal with the functional additive, as discussed supra.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Niederwerder in view of Guo, as applied to Claims 1, 3-14, 16, and 21 above, and in view of Roth et al. (Of record), hereinafter Roth.
Regarding Claim 15, Roth also teaches animal feed or an animal feed supplement, wherein the animal feed contains soybean meal in an amount of not more than 14% by weight of the animal feed (p. 9). Roth teaches the animal feed supplement is added to an animal feed in a recommended ratio of feed supplement to base animal feed (p. 11, lines 14-17). Roth teaches corn as a classical carbohydrate-rich and cheap feed component at 51-80% of total feed, which the Examiner would interpret to be comprised by “base animal feed” (pp. 3 and 8; Claim 11). Roth expressly teaches a pig feed formulation comprising 69.5% corn and 8.5% soybean meal (p. 12). The soybean meal may be present in amount of not more than 14% of the animal feed (Claim 12).
By Examiner’s calculation, if the corn is 69.5%, the feed product can comprise up to 30.5% of the total feed; If soybean meal is 14% (max) of the total feed, then it follows that it makes up ~46% of the feed product. One would modify the amounts to accommodate the functional ingredients. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05. Furthermore, "[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). The normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine where in a disclosed set of ranges is the optimum amounts. NOTE: MPEP 2144.05.
Response to Remarks:
Applicant argues that neither Ueno nor Niederwerder teach the amended feature of the functional soybean meal particles comprises both the soybean meal and the functional additive within the particle, not merely contacting the particle on the exterior, but a part of the particle itself.
The Examiner considered the argument, and was partially persuaded. As such, the anticipation rejection has been withdrawn for Ueno and Niederwerder. However, the feature is obvious over Niederwerder in view of Guo, as discussed supra.
Applicant remarks that Claim 15 is independently distinguishable for an additional reason, i.e. it requires functional soybean meal particles that are 50 wt% to 100 wt% of the feed product, however, using Roth's 69.5% corn and maximum 14% soybean meal values, soybean meal would make up about 46% of the feed product, which is below the claimed lower limit of 50 wt%. Moreover, the calculation concerns soybean meal in a feed formulation, not functional soybean meal particles as amended.
This argument was not found convincing. It is well within the skills of an ordinary artisan to modify the amounts in a composition, particularly because while the claimed ranges or amounts do not overlap with the prior art, 46% is close to 50%. See MPEP 2144.05. Furthermore, "[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." One would add the functional ingredients, which would modify by increasing the weight of the functional soybean meal particles. As such, the rejection is proper.
Applicant argues that new Claim 21 is further patentable because neither Ueno nor Niederwerder discloses forming functional soybean meal particles by combining the soybean meal as it is being milled from soybeans with the functional additive before the soybean meal is dried.
The Examiner points to new reference Guo, which is relied on to teach the new claim and feature.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Hou et al. (CN 104082558 A). Hou discloses a feed for young rabbits and the preparation thereof, wherein the feed comprises 40-45 parts of oatmeal, 35-40 parts of rice, 5-6 parts of rapeseed meal, 7-8 parts of soybean meal, 10-11 parts of grain stillage, 5-6 parts of citric acid residue etc. and wherein the feed is free of any chemical additive ( Abstract, Claim 1). Hou expressly teaches a rabbit feed comprising soybean meal (also translated as dregs of beans) and citric acid, mixed with other ingredients, granulated, and dried (Example 1; Claim 2). The citric acid reads on the functional additive, i.e. organic acid; Hou does not teach any non-plant derived antimicrobials.
Afzal et al. (Pakistan J. Zool., vol. 51(5), pp 1741-1750, 2019.) Afzal relates the study on the growth performance, muscle proximate composition and nutrient digestibility performance by rohu (Labeo rohita) juveniles fed citric acid (CA) acidified phytase (PHY) pretreated soybean meal (SBM) based diet, wherein SBM based diet was supplemented with CA and PHY (Abstract). Improved weight gain, specific growth rate, feed conversion ratio (FCR), muscle composition and digestibilities of dry matter, crude protein and crude fat in Labeo rohita juveniles were observed when fed CA supplemented diet; CA addition in the diet also resulted in improved nutrient and mineral digestibilities (Abstract). Afzal teaches feed ingredients were procured and ground to 0.05 mm particle size; pastes of the SBM with CA and/or PHY were prepared using distilled water, and oven dried, and the dried dough was again ground to fine powder prior to addition of vitamins and minerals (pp. 1742-1743, Materials and Methods, 1st paragraph; Table 1). Afzal does not expressly state that it creates functional soybean meal particles, which comprise both soybean meal and the CA. However, because it prepares the SBM in the same manner as the instant Specification ([0014], [0025]), i.e. pastes of the SBM were ground with an organic acid, the ground particle renders obvious the instantly claimed particle. The resulting ground SBM particles of Afzal do not contain non-plant derived antimicrobials.
No claims are allowed.
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 JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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