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. Applicants’ arguments and amendments filed on 10/14/2025, overcomes the rejections of record, however, the new grounds of rejection as set forth below are necessitated by applicants’ amendment and therefore, the following action is Final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 1-15 are pending in this application.
Claims 1, 8 are amended.
Claims 1-15 have been rejected.
Claim Rejections - 35 USC § 103
4. 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.
5. The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
5. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) are summarized as follows:
a. Determining the scope and contents of the prior art.
b. Ascertaining the differences between the prior art and the claims at issue.
c. Resolving the level of ordinary skill in the pertinent art.
d. Considering objective evidence present in the application indicating obviousness or non-obviousness.
6. Claim(s) 1-3, 6-7 and 13-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bevans et al. US 2006/0045957A1 (Hereinafter 'Bevans’ et al.) in view of R1 (No inventor’s name) NL 8120423 A.
7. Regarding claims 1, 2, 7, Bevans discloses an animal feed composition comprising a formulation containing (a) non-fat fortifying ingredients and (b) liquefiable fat containing components comprising fatty acid component in it ([0032], [0033]).
Bevans et al. also discloses that these are mixed to make pellet form ([0033]). Bevans et al. also discloses that a calcium salt of a fatty acid and a liquefiable conditioner are in combination to form a substantially uniform mixture, wherein the mixture comprises between about 50% and about 99% by weight of a calcium salt of a fatty acid and about 1% to about 5% by weight liquefiable conditioner (at least in claims 1-3 of Bevans et al.). Therefore, it reads on “ a fatty acid component is 50-99% by weight in the liquefied fat composition as claimed in claim 1.
Bevans also discloses an animal feed product of claim 1, wherein the melting point of individual fats or fat blends, have melting points preferably between -20 to 80 C., more preferably between 30 to 70 deg C., and most preferably between 45 to 65 deg C (i.e. about 113 to 149 deg F) ([0033]). It is to be noted that, based on Bevans disclosure it would have been obvious to anyone of ordinary skill in the art to consider the fat blends in a way which will have the desired melting point including claimed melting point of “at least 70 -degree F” of claim 1 and “to be at least 120 deg F” of claim 7 through routine experimentation. However, the disclosed range amount mp of fat blends overlap with the claimed range of “at least 70 -degree F” of claim 1 and “to be at least 120 deg F” of claim 7 showing prima facie case of obviousness. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Bevans et al. is silent about “a non-fat liquid nutrient” component in an amount of 1% to 40% by weight” as claimed in claim 1 and “from 1 to 25%” as claimed in claim 2.
R1 et al. as another secondary prior art who discloses that an animal feed can contain molasses in an amount between 20 and 90%, preferably between 25 and 75% by weight of the total feed composition (at least in claim 2 of R1 et al.).
It is also within the skill of one of ordinary skill in the art that one of ordinary skill in the art may consider the amount of molasses based on the intensity of sweetness and taste to be provided to the final feed composition.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bevans et al. with the teaching of R1 et al. (at least in claim 2 of R1 et al.) which provides the feed composition with nutritional supplement sugar i.e. a balanced ration with an appealing taste to the animal.
8. Regarding claim 3, Bevans discloses an animal feed composition of claim 1 or claim 2, wherein the composition is a hard pellet (example 2, para (0044], "...When the mash was compacted through the die, hard pellets were formed that had a waxy appearance...").
However, Bevan et al. does not disclose the shore A hardness and therefor does not specifically disclose wherein the composition has a Shore A hardness of at least 50.
It would have been obvious to anyone of ordinary skill in the art to measure the shore A hardness of the hard pellet composition disclosed by Bevans and find a shore A hardness of at least 50 through routine experiment.
It is to be noted that the disclosed components and their amounts, in combination, disclosed animal feed composition which are identical to the claimed components containing claimed composition and therefore, will have identical claimed property including claimed “Shore A hardness of at least 50” as claimed in claim 3.
Bevan et al. discloses method to test hardness of a pellet ( [0037]). However, Bevans et al. does not specifically disclose wherein the composition has a Shore A hardness of at least 50. It is within the skill of one of ordinary skill in the art to optimize the amounts of the components to be used using the method in order to have desired “Shore A Hardness” of the claim 3 of presently claimed invention. It would have been obvious to anyone of ordinary skill in the art to measure the shore A hardness of the hard pellet composition disclosed by Bevans and find a shore A hardness of at least 50 through routine experiment. It is optimizable.
Absent showing of unexpected results, the specific amount of “Shore A hardness” is not considered to confer patentability to the claims. As the Shore A hardness value is variables that can be modified, among others, by adjusting the proportionate amount of “a liquid nutrient component” and “a fatty acid component”, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of “Shore A hardness” value in Bevans et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired Shore A hardness of at least 50 (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
9. Regarding claim 6, Bevans et al. discloses that soy oil can be considered in such a composition (at least in [0042], Example 2).
10. Regarding claim 13, Bevans et al. discloses that the nutritional composition can be fed to dairy -beef cattle and lactating dairy cattle (at least in [0054], [0055] and Tables 7, 8).
11. Regarding claim 14, Bevans et al. discloses that the nutritional composition uses low -fat mash (at least in [0019], Tables 2-4, 7) which can be fed to dairy -beef cattle and lactating dairy cattle (at least in [0054], [0055] and Tables 7, 8).
12. Regarding claim 15, it is to be noted that claim 15 depends on claim 1. The disclosed prior arts by Bevans et al. in view of R1 in view of Miller disclose the identical animal food composition from the identical components as claimed in claim 1 and therefore, the disclosed composition will have identical claimed property including the property of “increasing milk protein content in milk with low protein content produced by a lactating cow” to meet claim 15.
13. Claims 4, 5 are rejected under 35 U.S.C. 103 as being unpatentable over Bevans et al. US 2006/0045957A1 (Hereinafter 'Bevans’ et al.) in view of R1 (No inventor’s name) NL 8120423 A and further in view of Miller (USPN 4963371) as applied to claim 1 and further in view of Lorbert et al. US 2007/0292485 A1.
14. Regarding claims 4,5, Bevans et al. discloses amino acid as nutrient is present in the composition (at least in [0032]).
However, Bevans et al. is specifically silent about “ a liquid analog of methionine.
Lorbert et al. discloses that a popular source of supplemental methionine for animal diets is the methionine analog, 2-hydroxy-4-(methylthio)butanoic acid (HMTBA, sold under the trade name ALIMET.RTM. by Novus International, Inc., St. Louis, Mo.) with multi-benefits e.g. (a) HMTBA is absorbed by the cells of the small and large intestine by passive diffusion and is rapidly converted to methionine. Another advantage of HMTBA is that high concentrations may be given to animals, whereas high levels of methionine are toxic (b) the addition of free amino acids to a food supplement, may be degraded in the harsh environment of the stomach, therefore, an analog is preferred choice in any form (at least in [0004], [0009]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bevan et al. with the teaching of Lorbert et al. to supplement methionine for animal diets as the methionine analog, 2-hydroxy-4-(methylthio)butanoic acid (HMTBA, sold under the trade name ALIMET.RTM. by Novus International, Inc., St. Louis, Mo.) in order to have multi-benefits e.g. (a) HMTBA is absorbed by the cells of the small and large intestine by passive diffusion and is rapidly converted to methionine. Another advantage of HMTBA is that high concentrations may be given to animals, whereas high levels of methionine are toxic (b) the addition of free amino acids to a food supplement, may be degraded in the harsh environment of the stomach, therefore, an analog is preferred choice.
15. Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Wan et al. (US 2018/0055071) and further in view of Miller (USPN 4963371).
16. Regarding claims 8, 9, Wan et al. discloses rumen by-pass compositions comprising fatty acid salt and free fatty acid together to make pelleted feed product of a ruminant (at least in[0007], [0052], [0053] , [0112], [0139]). Wan et al. also discloses rumen by-pass composition comprising two components, wherein the first component comprises a fatty acid salt composition and the second component comprises a free fatty acid composition having a melting point of at least 50°C (122°F) ([0007], [0067], [0112]). The first component comprises a fatty acid salt composition. Wan also discloses that combining the first and second components, the material is heated to the melting temperature using a heating block ([0139]) which reads on “melting a fatty acid composition” as claimed in claim 8. Therefore, the disclosed combinations of two components contain fatty acid salt plus free fatty acid together as “ fatty acid composition”. This meets “Fatty acid composition” and “melting a fatty acid composition” of claim 8.
Wan et al. also discloses that the rumen by-pass composition may have a core-shell structure having a shell at least partially encapsulating a core, wherein the core comprises the first component and the shell comprises the second component. In some embodiments, the rumen by-pass composition may have a core-shell structure having a shell wholly encapsulating a core, wherein the core comprises the first component and the shell comprises the second component (at least in [0067]). Therefore, this total encapsulated composition can represent a dietary composition comprising “a fatty composition” made by melting a fatty acid composition” (at least [0067], [0112]) as discussed above.
Wan et al. also discloses that the pelleted feed comprising about 3% to about 50% by weight of the rumen by pass composition (at least in claims 47 and 48 of Wan et al.). Wan et al. also discloses that if glucose is considered in the feed composition ([0066]) it is used more efficiently for lactose production and it also increases milk protein because there is no need to produce glucose from amino acids (i.e. protein source) if added additionally ([0066]).
Wan is silent about amended claim limitation of “adding a non-fat liquid nutrient”.
Miller discloses an animal feed composition comprising molasses-based liquid animal feed (at least col 2 lines 40-45 and lines 65-67) as a source of at least one nutritional component sugar including glucose ( col 4 lines 55-57). Miller et al. also discloses that the feed composition can also include fat (at least in 32-35).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Wan et al. (at least in [0007], claims 47,48 of Wan et al.) with the teaching of Miller et al. to include molasses-based liquid in animal feed composition as a source of at least one nutritional supplement sugar (col 4 lines 55-57) which provides the feed composition a balanced ration with sugar supplement and also with an appealing taste to the animal feed.
It is to be noted that one of ordinary skill in the art would have been motivated to add the non-fat liquid at the melted condition of fatty acid composition with a reasonable expectation of success for a homogeneous mixing between tow compositions e.g. “ non-fat liquid nutrient” and “a fatty acid composition”, which reads on “intermediate mixture” followed by cooling (discussed “cooling step” below item #16) to produce a solid animal feed supplement.
17. Regarding claims 8 and 9, Wan et al. also discloses that in prilling, the material is heated to the melting temperature using a heating block and the temperature can be at or slightly above the melting temperature ([0139]) which reads on “intermediate mixture” as claimed in claim 8. Wan et al. also discloses that then the melt is distributed through a droplet -producing device at the top of the prilling tower, block 304 ([0139]) which may be further encapsulated with an encapsulation prilling process ([0139], [0140]) which reads on claim 9. Wan et al. also discloses that as the droplet fall in the tower, the droplets will congeal and solidify by the time they reach the bottom of the tower as solid beads, block 306 ([0138], [0139]), therefore, this reads on cooling the intermediate mixture in a manner effective to produce a solid animal feed supplement” as claimed in claim 8.
18. Regarding claim 10, Wan et al. discloses a method of making animal feed composition of claim 8. Wan et al. also discloses that fatty acid salt includes broadly many fatty acids salt including oleic acid salt also ([0024]). It is to be noted that since Wan et al. discloses encapsulation by prilling, coating etc. ([0140]) with fat materials having a melting point of at least 50°C ([0007], [0067], [0112]), the share A hardness levels required by claim 10 is unavoidably reached by the compositions of Wan et al. It is to be noted that the disclosed components, in combination, with the disclosed method makes animal feed composition which are identical to the claimed components containing identical claimed method to make claimed animal feed composition. Therefore, the final product will have identical claimed property including claimed “Shore A hardness of at least 50” as claimed in claim 10.
It would have been obvious to anyone of ordinary skill in the art to measure the shore A hardness of the hard pellet composition disclosed by Wan et al. and find a shore A hardness of at least 50 through routine experiment.
It is to be noted that claim 10 depends on claim 8. Claim 8 is broad and does not recite any specific amounts of the components used in the method to make final product. However, it is within the skill of one of ordinary skill in the art to optimize the amounts of the components to be used using the method in order to have desired “Shore A Hardness” of the claim 10 and presently claimed invention.
However, Wan et al. does not disclose the shore A hardness and therefor does not specifically disclose wherein the composition has a Shore A hardness of at least 50. However, it would have been obvious to anyone of ordinary skill in the art to measure the shore A hardness of the hard pellet composition disclosed by Wan et al. and find a shore A hardness of at least 50 through routine experiment. It is optimizable.
Absent showing of unexpected results, the specific amount of “Shore A hardness” is not considered to confer patentability to the claims. As the Shore A hardness value is variables that can be modified, among others, by adjusting the proportionate amount of “a liquid nutrient component” and “a fatty acid component”, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of “Shore A hardness” value in Bevans et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired Shore A hardness of at least 50 (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
19. Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Wan et al. (US 2018/0055071) in view of Miller (USPN 4963371) as applied to claim 8 and further in view of R1 et al.
20. Regarding claim 11, as discussed above, Wan et al. discloses rumen by-pass compositions comprising fatty acid salt and free fatty acid together to make pelleted feed product of a ruminant (at least in [0007], [0052], [0053] , [0112], [0139]). Wan et al. also discloses that the pelleted feed comprising about 3% to about 50% by weight of the rumen by pass composition (at least in claims 47 and 48 of Wan et al.).
Wan is silent about amended claim limitation of “adding a non-fat liquid nutrient” fatty acid: non-fat liquid nutrient ratio of from 99:1 to 75:25 by weight.
Miller discloses an animal feed composition comprising molasses-based liquid animal feed (at least col 2 lines 40-45 and lines 65-67) as a source of at least one nutritional supplement sugar ( col 4 lines 55-57).
It is to be noted that Miller does not specifically disclose the amount of non-fat liquid nutrient component which is molasses. However, it is within the skill of one of ordinary skill in the art that one of ordinary skill in the art may consider the amount of molasses based on the intensity of sweetness and taste to be provided to the final feed composition.
However, to be more specific, in order to provide a guideline to one of ordinary skill in the art , examiner considered R1 et al. as another secondary prior art who discloses that an animal feed can contain molasses in an amount between 20 and 90%, preferably between 25 and 75% by weight of the total feed composition (at least in claim 2 of R1 et al.). Therefore, it overlaps the ratio of claim 11. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Wan et al. with the teaching of Miller et al. to include molasses-based liquid in animal feed composition as a source of at least one nutritional supplement sugar ( col 4 lines 55-57) and the amount of molasses can range from contain molasses in an amount between 20 and 90%, preferably between 25 and 75% by weight of the total feed composition as disclosed by R1 et al. (at least in claim 2 of R1 et al.) which provides the feed composition a balanced ration with an appealing taste to the animal.
21. Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Wan et al. (US 2018/055071) in view of Miller (USPN 4963371) as applied to claim 8 and further in view of Lorbert et al. US 2007/0292485 A1.
22. Regarding claim 12, Wan et al. also discloses that the first component also includes an amino acid, a vitamin, a lipid, etc. ([0081]) and an amino acid can be methionine, an essential amino acid e.g. methionine ([0082]).
Wan is specifically silent about “analog of methionine”.
Lorbert et al. discloses that a popular source of supplemental methionine for animal diets is the methionine analog, 2-hydroxy-4-(methylthio)butanoic acid (HMTBA, sold under the trade name ALIMET.RTM. by Novus International, Inc., St. Louis, Mo.) with multi-benefits e.g. (a) HMTBA is absorbed by the cells of the small and large intestine by passive diffusion and is rapidly converted to methionine. Another advantage of HMTBA is that high concentrations may be given to animals, whereas high levels of methionine are toxic (b) the addition of free amino acids to a food supplement, may be degraded in the harsh environment of the stomach, therefore, an analog is preferred choice (in Lorbert et al. [0004]; even if it is from Background section, however, it is disclosed property). It is known (and as evidenced by Google Search) that the methionine analog, 2-hydroxy-4-(methylthio) butanoic acid (HMTBA) is highly water soluble. Therefore, one of ordinary skill in the art would have been motivated to consider a solution to be incorporated into the non-fat liquid with a reasonable expectation of success to have a homogeneous mixture for its convenient use in the feed composition.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Wan et al. with the teaching of Lorbert et al. to supplement methionine for animal diets as the methionine analog, 2-hydroxy-4-(methylthio)butanoic acid (HMTBA, sold under the trade name ALIMET.RTM. by Novus International, Inc., St. Louis, Mo.) in order to have multi-benefits e.g. (a) HMTBA is absorbed by the cells of the small and large intestine by passive diffusion and is rapidly converted to methionine. Another advantage of HMTBA is that high concentrations may be given to animals, whereas high levels of methionine are toxic (b) the addition of free amino acids to a food supplement, may be degraded in the harsh environment of the stomach, therefore, an analog is preferred choice ([0004]).
Response to Arguments
23. Applicants’ arguments and amendments have been considered. Applicants’ arguments and amendments overcome the rejections of record. Therefore, two new secondary prior arts by R1 (No inventor’s name) NL 8120423 A and further in view of Miller (USPN 4963371) have been considered to address the amended claim limitation of “a non-fat liquid nutrient composition” as claimed in independent claims 1, and 8.
24. Applicants’ arguments in remarks, page 3 last three paragraphs made for the secondary prior art by Lobert et al. is considered.
In response, it is known (and as evidenced by Google Search) that the methionine analog, 2-hydroxy-4-(methylthio) butanoic acid (HMTBA) is highly water soluble.
It is also to be noted that and it is evidenced by NPL Alimet (Google Search) that Alimet feed additive with HMTBa as a source of methionine is available in liquid form from Alimet company (NPL Alimet, page 4). Alimet is mentioned in the office action above. Therefore, it is a liquid and that one of ordinary skill in the art would recognize it is a liquid.
25. Applicants argued in remarks ( last paragraph from page 3 to first paragraph page 4) that Lobert provides no teaching directing one to the animal feed composition of claim 1, in which non-fat liquid nutrient is mixed into the animal feed composition prior to the composition being cooled”.
In response, it is to be noted that and as discussed above that HMTBa is in solution (Water soluble). Therefore, one of ordinary skill in the art would have been motivated to consider water soluble HMTBa in combination with other “non-fat” liquid nutrient component and further mixed with melted fatty acid component (heated to melt) together at the mixing step which includes mixing all ingredients together with a reasonable expectation of success to have a homogeneous mixture followed by cooling for its convenient use in the feed composition. It is known that fatty acid component is melted with heat at the mixing step to have homogeneous mixing. Therefore, mixing step is performed prior to cooling step.
As the independent claims 1, 8 are amended and the new ground of rejection is due to the amendment of independent claims 1, 8, therefore, the rejection is made as final.
Conclusion
24. 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 extension fee 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 date of this final action.
Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, 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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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792