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
2. This Office Action is responsive to Applicant’s Amendment and Remarks, filed December 23, 2025. The amendment, filed December 23, 2025, is entered, wherein claims 3 – 4 and 10 are amended and claims 12 – 25 are withdrawn.
Claims 1 – 25 are pending in this application and claims 1 – 11 are currently examined.
Priority
This application is a national stage application of PCT/US21/38278, filed June 21, 2021, which claims benefit of domestic application 63/041,224, filed June 19, 2020.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/22/2025, 11/14/2025, 01/15/2026, and 02/05/2026 were filed in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Withdrawn Objections
5. The objection of claim 10 in the previous Office Action, mailed September 24, 2025, is withdrawn in view of the amended claim 10.
Withdrawn Rejections
6. The rejection of claim 3 in the previous Office Action, mailed September 24, 2025, 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for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been considered and is withdrawn in view of the amended claim 3.
The rejection of claim 4 in the previous Office Action, mailed September 24, 2025, 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for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been considered and is withdrawn in view of Applicant’s Remarks and the specification, which distinguish saccharides and “free saccharides” from saponins.
The following are maintained / modified grounds of rejection necessitated by Applicant’s Amendment and Remarks, filed December 23, 2025, wherein claims 3 – 4 and 10 are amended. Previously cited references have been used to establish the maintained / modified grounds of rejection.
Claim Objections
Claim 3 is objected to because of the following informalities:
Claim 3, line 1, “the” should be inserted immediately after “wherein”.
Appropriate correction is required.
Claim Interpretation
The phrase “substantially free” does not necessarily require absolute absence. Instead, it allows for trace or incidental amounts that would reasonably be expected in the art. Therefore, “substantially free” is interpreted to encompass any amount that is in trace or incidental amounts, but not in complete absence.
Maintained / Modified 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 (i.e., changing from AIA to pre-AIA ) 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 for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
i. Determining the scope and contents of the prior art.
ii. Ascertaining the differences between the prior art and the claims at issue.
iii. Resolving the level of ordinary skill in the pertinent art.
iv. Considering objective evidence present in the application indicating obviousness or
nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3 – 8, and 10 – 11 are rejected under 35 U.S.C. 103 as being unpatentable over McNeff et al. (US2018/0333450A1, cited in the previous Office Action) in view of Wooton (US Department of Agriculture, 1918, cited in the previous Office Action).
a. Regarding claims 1, 3 – 8, and 10 – 11, McNeff et al. teach a composition that can include a saponin composition including saponins and at least one medium chain fatty acid (MCFA) or ester or salt thereof, McNeff et al. also teach a method of processing animal fed using the compositions herein (Abstract). In some embodiments, compositions included herein can be mixed in with animal feed material (para. [0010]). Saponins useful in the invention can be extracted from plants of the family: Lilaecase, genus: Yucca and family: Amaryllidaccase, genus: Agave, or others (para. [0016]). In some embodiments, the composition can include at least about 0.1% by weight of MCFAs (para. [0027]). Saponins and the MCFAs can be included in a composition in a molar ratio of about 30:1 (para. [0026]). In some embodiments, the composition can include less than about 2.0% by weight of the MCFAs (para. [0027 – 0028]). McNeff et al. also teach that Yucca extract is usually in the range of about 5 – 20 % saponins content by weight as measured by the butanol extract method (para. [0018]).
However, McNeff et al. do not teach an extract from Hesperaloe.
Wooton discloses that the first idea to use plants, specifically yucca, for feed was in 1914. Wooton also discloses that Hesperaloe parviflora of Texas east of Del Rio could be used in animal feed because they occur in sufficient abundance (page 10, para. 1).
It would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to substitute yucca as taught by McNeff et al. with Hesperaloe parviflora in view of Wooton because both plants are known separately in the prior art for the purpose of making animal feed. It would have been obvious to substitute yucca with Hesperaloe parviflora as it has been known for animal feed. For the amount of water soluble solids and water insoluble solids in the composition, McNeff et al. teach saponins to MCFAs molar ratio. One would have performed routine experimentation to discover the best amount of water soluble solids and water insoluble solids in the composition for optimal animal feed characteristics. Wooton does not explicitly teach the components of the extract. However, an extract from Hesperaloe parviflora disclosed by Wooton that is being used in animal feed should encompass all the claimed components recited in claims 7 and 11. One of the ordinary skill in the art would have considered to maintain the amount of saponin in the extract to be about 5 – 20 % as McNeff et al. teach said amount of saponins and it is known in the art that said amount is being used in animal feed. Therefore, one of the ordinary skill in the art would have had a reasonable expectation of success to modify the animal feed as taught by McNeff et al. with the teachings of Wooton because Wooton demonstrates the feasibility of using Hesperaloe parviflora as animal feed, thereby yielding predictable results.
Claims 2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over McNeff et al. (US2018/0333450A1, cited in the previous Office Action) in view of Wooton (US Department of Agriculture, 1918, cited in the previous Office Action) as applied to claims 1, 3 – 8, and 10 – 11 above, and further in view of Zhan (US6007822, cited in the previous Office Action).
b. Regarding claims 2 and 9, McNeff et al. and Wooton teach the limitations discussed above.
However, these references do not explicitly teach the amount of saponins in the basal animal feed.
Zhan teaches that saponins in feed can be in the range of 50 – 1500 ppm (Col. 3, lines 22 – 23).
It would have been prima facie obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the animal feed as taught by McNeff et al. with the amount of saponin explicitly disclosed in view of Zhan because Zhan teaches the amount of saponins used in animal feed. Such modification will yield predictable results. Furthermore, Zhan teaches 50 – 1500 ppm. After calculation, 1000 ppm is equal to 100 g saponins per 100 kg feed. Therefore, one of the ordinary skill in the art would have had a reasonable expectation of success to combine the animal feed as taught by McNeff et al. with the amount of saponin explicitly disclosed in view of Zhan because the amount of saponins in animal feed is already known in the art.
Responses to Applicant’s Remarks:
Applicant’s Remarks, filed December 23, 2025, have been fully considered and are found to be not persuasive.
Regarding McNeff et al., Applicant argues that McNeff et al. do not teach or suggest, and in fact teach away from the concept that a composition of saponins can itself be used to reduced gaseous emissions and one of the skill in the art would be discouraged by McNeff from pursing such a composition. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., reduce gaseous emission) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Applicant’s argument regarding “teach away” is not persuasive because a reference teaches away only when it criticizes, discredits, or discourages the claimed invention. The disclosure of MCFA being included in the formulation does not criticize or discourage use of saponins without MCFA, nor does it state that saponins alone are ineffective. McNeff et al. teach the inclusion of MCFA may provide additional benefit and such disclosure does not constitute teaching away from pursuing the claimed composition. McNeff et al. also disclose that the composition may include less than 2.0% by weight of MCFAs, which encompasses 0% by weight of MCFAs. This indicates that MCFAs may be absent from the composition. It would have been obvious for one of ordinary skill in the art, in view of McNeff et al., to include or exclude MCFAs when processing animal feed. Moreover, the limitations of claim 1 do not exclude other possible components.
Applicant further argues that McNeff et al. fails to teach or suggest the specific saponins recited in claim 1 and Wooten does not cure the deficiencies of McNeff et al. because yucca and other desert plants are only considered as an emergency food substitute during drought and their reduced nutritive value. However, the argument is not persuasive. McNeff et al. teach saponin-containing composition for use with animal feed and further teach that the saponins may be extracted from plant, such as yucca. Wooton discloses that Hesperaloe parviflora may be used in animal feed because it occurs in sufficient abundance. Therefore, Hesperaloe is a known plant that may be used as animal feed based on the disclosure of Wooten. Although Wooten discloses that yucca is limited to emergency stock feed and discusses reduced nutritive value, Wooten still ensures that Hesperaloe parviflora is suitable as animal feed. Moreover, Wooten suggests that “if fed with concentrates a properly balanced ration” to solve the problem of reduced nutritive value (page 26, para. 2). In addition, Wooten discloses that these emergency feed plants grow vigorously during favorable seasons and less so during unfavorable ones, but as long as they grow they are storing up food in what is in reality a living, self-filling silo. The feed is fresh and may be used at any time. The “silo” will refill itself in many cases if given time. These provide motivation for one to consider using these plants as animal feed source.
Regarding Zhan, Applicant argues that Zhan fails to cure the deficiencies of McNeff and Wooten because Zhan merely teaches an animal feed that includes triterpenoid saponin and Zhan fail to teach or suggest a composition that includes a basal animal feed in combination with the extract from Hesperaloe. Applicant argues that McNeff, Wooten, and Zhan, taken alone or in combination, each fails to teach or suggest all the limitations of claim 1. However, the arguments are not persuasive. Zhan is not relied upon to teach the plant source of the saponins or the specific saponins recited in claim 1. Zhan is relied upon for the teaching that saponins in animal feed may be present in a known range. A person of ordinary skill in the art would have understood that the disclosed amounts of saponin are applicable to animal feed compositions generally and are not limited to the particular plant source. Therefore, the claimed composition is obvious over McNeff et al. in view of Wooten and Zhan because McNeff et al. teach the animal feed composition comprising saponins, Wooton teaches that Hesperaloe may be used as plant source for animal feed and suggests the way to solve the problem with the reduced nutritive value, and Zhan teaches the general amount of saponin that are formulated in the animal feed.
Conclusion
No claim is found to be allowable.
Applicant's amendment necessitated the maintained / modified 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.
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/H.Y.L./Examiner, Art Unit 1693
/SCARLETT Y GOON/Supervisory Patent Examiner, Art Unit 1693