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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/03/2026 has been entered.
Status of Claims
Receipt of Remarks/Amendments filed on 09/09/2025 is acknowledged. Claim 2 is cancelled. Claims 17-20 are non-elected claims, and are withdrawn. Claims 1and 4 are amended. Claims 1 and 3-20 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3, and 9-12 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Ueno et al. (Of record), hereinafter Ueno.
Ueno relates a method of producing pet food with good storage stability comprising admixing granules consisting of fine powder of sorbic acid and another ingredient selected from binding agent and/or surfactant and/or acids, with pet food materials (Claim 1).
Regarding Claim 1, Ueno expressly teaches a pet food recipe with 47% by-products of beef, 15% sugar, 28% soybean meal, 0.1% citric acid, 2% propylene glycol and 7.9% water (Example 1). This pet food recipe does not comprise sorbic acid powder, which is used as a preservative according to Ueno (Example 1, lines 22-40). The citric acid reads on the functional additive, i.e. organic acid. The 2% propylene glycol in this example is not sufficient to provide antibacterial activity because Ueno teaches that 5 to 8% propylene glycol is needed to utilize its antibacterial activity, thereby meeting the claimed feature of “wherein the functional soybean meal particles are substantially free of non-plant-derived antimicrobials” (Col. 1, lines 65-68). Furthermore, the instant specification defines the term "substantially free” as “having none or having a trivial amount of, such that the amount of material present does not affect the material properties of the composition including the material, such that about 0 wt% to about 5 wt% of the composition is the material, or about 0 wt% to about 1 wt%, or about 5 wt% or less…” [0023]. As such, the recipe of Ueno anticipates the composition that is an animal feed or an animal feed product for forming the animal feed in Claim 1.
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Example 1 Table under Recipe (1)
Ueno goes on to teach adding sorbic acid to the pet food by admixing the pet food with
01%-0.7% sorbic acid powder, which is also encompassed by the claimed “substantially free of non-plant-derived antimicrobials” recitation (Claim 1).
The mixture is kneaded and molded into granules, which necessarily comprises particles because granules are aggregates of particles (Abstract; Example 1; Col 5, lines 5-9). Further, because Ueno teaches soybean meal, and “meal” comprises powder particles, the soybean meal of Ueno reads on the soybean meal particles. Regarding the claimed feature of “wherein the functional additive is integrated within each of the soybean meal particles”, Ueno relates that the most important feature of its invention is that the fine powder of sorbic acid is uniformly mixed with the pet food starting materials and subjected to heat so that it permeates through them entirely to achieve good storage stability (Col. 3, lines 43-61). The Examiner gives the broadest reasonable interpretation of “integrated within each particle” to encompass permeating of the additive into the starting material, i.e. comprising soybean meal particles.
Regarding Claims 3 and 11, Ueno teaches soybean meal at 28% and the citric acid at 0.1%, and the combination gives a functional soybean meal at 99.64% and the acid functional additive is 0.36%, which are within the claimed ranges (Example 1). Admixing the sorbic acid at 0.1%-0.7% maintains the additive within the claimed ranges in Claims 3 and 11.
Regarding Claims 9-10 and 12, Ueno expressly teaches citric acid in Example 1, anticipating these claims (Claims 1 and 2).
Claims 1 and 4-8 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Niederwerder et al. (Of record), hereinafter Niederwerder.
Regarding Claims 1, and 4-6, Niederwerder teaches the method 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). As such, Claims 1, 4-5 are anticipated.
Niederwerder expressly teaches treatment of soybean meal with 1% medium chain fatty acid, meaning that the soybean meal is 99% (pp. 13-14).
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).
Response to Remarks:
Applicant argues that Ueno does not teach the amended feature of “wherein the functional soybean meal particles are substantially free of non-plant-derived antimicrobials“ because Ueno teaches that 1) sorbic acid is an antiseptic, and recites 2) “addition of 5 to 8% by weight of propylene glycol to utilize its antibacterial activity", presumably pertaining to the amount.
The Examiner considered the argument but was not persuaded. As a first matter, the instant Specification also describes sorbic acid, and other organic acids as being able to inhibiting the development of pathogens [0034]. However, the claims still includes these acids as functional additives. Therefore, it is unknown how the sorbic acid of the prior art differs from that of the instant claims, and whether there is criticality to the source of sorbic acid. The Examiner further notes that neither the instant Specification nor the claims recite any source for the organic acids as being plant-derived, nor are the sources differentiated so as to show difference in functionality of the organic acids.
More importantly, as discussed in the rejection above, the instant specification defines the term "substantially free” as “having none or having a trivial amount of, such that the amount of material present does not affect the material properties of the composition including the material, such that about 0 wt% to about 5 wt% of the composition in the material, or about 0 wt% to about 1 wt%, or about 5 wt% or less…” [0023]. As such, Ueno teaches what the specification considers to be trivial amount, and that the composition is substantially free of non-plant-derived antimicrobials.
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 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Ueno, as applied to Claims 1 and 3, 9-12 above, and in view of Roth et al. (Of record), hereinafter Roth.
Example 2 of Ueno teaches a pet food recipe with soybean meal at 13%. Ueno expressly teaches citric acid for adjusting the pH, and expressly teaches 0.1% citric acid (Examples 1-2). Ueno teaches sorbic acid amounts in pet food to range from 0.1-0.7% (Col. 2, lines 55-57). However, Ueno does not expressly teach the claimed amount of functional soybean meal with respect to the amount of the animal feed.
Regarding Claims 13-14, Roth also teaches animal feed or an animal feed supplement and cures the deficiency of Ueno by teaching embodiments 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).
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 Roth with that of Ueno and prepare an animal feed supplement comprising functional soybean meal taught by Ueno and starting with the amount of soybean meal taught by Roth in the animal feed composition, adding the functional ingredient in the ratio or amount already taught by Ueno, and adjusting as needed to obtain the desired function of the functional soybean meal.
Regarding Claim 15, Ueno has taught the functional soybean meal particles comprising ~99% soybean meal, and expressly taught the functional additive at 1%, and is substantially free of non-plant-derived antimicrobials based on Applicant’s definition of “substantially free”; Roth has taught the animal feed supplement, and the amount of soybean meal and amount of corn base animal feed. 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.
Regarding Claim 16, Ueno has taught complete feed, the functional soybean meal particles comprising ~99% soybean meal, and expressly taught the functional additive at 1%, and substantially free of non-plant-derived antimicrobials; Roth has taught the amount of soybean meal and amount of corn base animal feed. By Examiner’s calculation, if the corn is at 69.5%, the feed product can comprise up to 30.5% of the total feed. The soybean meal is 14% or less, and one skilled in the art can incorporate for example 1% soybean meal based on the weight of feed product. One would modify the amounts to accommodate the functional ingredients.
While the exact amounts of the components are not disclosed by the prior art, it is generally noted that differences in amounts do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amounts are critical. "[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). Given that applicant did not point out the criticality of the amounts of the invention, it is concluded that 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.
Claims 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Niederwerder, as applied to Claims 1 and 4-8 above, and in view of Roth et al. (Of record), hereinafter Roth.
Regarding Claims 13-14, Roth also teaches animal feed or an animal feed supplement and cures the deficiency of Ueno by teaching embodiments 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).
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 Roth with that of Niederwerder and prepare an animal feed supplement comprising functional soybean meal taught by Niederwerder and starting with the amount of soybean meal taught by Roth in the animal feed composition, adding the functional ingredient in the ratio or amount already taught by Niederwerder, and adjusting as needed to obtain the desired function of the functional soybean meal.
Regarding Claim 15, Ueno has taught the functional soybean meal particles comprising ~99% soybean meal, and expressly taught the functional additive at 1%, and substantially free of non-plant-derived antimicrobials; Roth has taught the animal feed supplement, and the amount of soybean meal and amount of corn base animal feed. 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.
Regarding Claim 16, Niederwerder has taught complete feed (Tables 2 and 3), the functional soybean meal, and expressly taught the functional additive from about 0.125% to <2% of the feed, and substantially free of non-plant-derived antimicrobials (Claims 1 and 19; Tables 2-3). Roth has taught the amount of soybean meal and amount of corn base animal feed. By Examiner’s calculation, if the corn is at 69.5%, the feed product can comprise up to 30.5% of the total feed. The soybean meal is 14% or less, and one skilled in the art can incorporate for example 1% soybean meal based on the weight of feed product. One would modify the amounts to accommodate the functional ingredients. As above, "[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 Niederwerder does not teach or suggest at least "wherein the functional soybean meal particles are substantially free of non-plant-derived antimicrobials".
The Examiner traverses. Upon further consideration, Niederwerder is also a 102 art because it teaches the soybean meal particles and the essential oils from plants, i.e. garlic oleoresin, turmeric oleoresin, capsicum oleoresin, rosemary extract, and wild oregano essential oils, which makes up the functional soybean meal particles.
Conclusion
No claims are allowed.
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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