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 .
Receipt is acknowledged of the Request for Continued Examination (RCE) under 1.114, the Amendment and Response, all filed 6/2/26.
Claims 2, 4-19, 39-42 are pending and have been examined on the merits. Claims 1, 3, 20-38 were previously cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/2/26 has been entered.
Withdrawn Rejections
The 103(a) rejections of claims 2, 5, 6, 8-16, 39, 40, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (WO 2020/200322) International filing date of 4/5/2020 have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 4 over Li et al. (WO 2020/200322) International filing date of 4/5/2020 as applied to claim 2 above and in further view of Knueven et al. (US 5,773,063) has been withdrawn due to the amendment to claim 2.
The 103(a) rejection of claim 7 over Li et al. (WO 2020/200322) International filing date of 4/5/2020 as applied to claim 5 above and in further view of Shelford et al. (US 20040076659).
The 103(a) rejection of claims 17, 18, 19, and 4 over Li et al. (WO 2020/200322) International filing date of 4/5/2020 as applied to claim 2 above and in further view of Kirejevas (US 2011/0104327) have been withdrawn due to the amendment of claim 2.
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 2, 5, 6, 8-16, 39, 40, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (WO 2020/200322) International filing date of 4/5/2020 in view of Carocho et al. “Anti-oxidants: reviewing the chemistry…” Trends in Food Science and Technology vol. 71 2018 pages 107-120.
Regarding Claim 2: Li discloses a method of making animal feed compositions [abstract]. Li discloses a method of including in animal feed, an animal feed additive containing enzymes wherein one enzyme is a catalase and the other enzyme is a superoxide dismutase (SOD) [pg. 2, lines 1-7]. Li discloses that the catalase and the SOD are of fungal origin [pg. 2, lines 1-11]. Li discloses the feed additive as an antioxidant [pg. 15, lines 18-19].
Li does not explicitly disclose improving the survivability of the bacteria.
Carocho discloses food antioxidants and that they are effective for conserving food [abstract]. Carocho discloses catalase and superoxide dismutase as antioxidants [Fig. 2]. Carocho discloses the catalase and SOD work together to balance the production and neutralization of free radicals [pg. 108, 2nd column, 2nd paragraph]. Carocho discloses the autoxidation in foodstuff is common and that it impacts organoleptic properties and causes rancidity in foods[pg. 109; 2nd column, 3. ]. Carocho discloses adding food antioxidants [pg. 109].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that the survivability of the bacteria would have been increased where Carocho discloses catalase and SOD as conserving and providing antioxidant activity. Such activity would have kept the probiotics in a healthier state thereby promoting their ability to survive.
The Examiner notes that the preamble recites a probiotic, however there is no recitation of a probiotic in the body of the claim.
Regarding the recitation of “preserving a microbial probiotic”, Examiner notes that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA1951). In the instant case, the examiner has given weight to the body of the claim.
Further “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 5: Li discloses as discussed above in claim 2. Li does allow for the inclusion of preservatives but this is in its liquid formulations and it further discloses small amounts as preferable over larger doses [pg. 177, lines 8-17].
Li does not explicitly disclose wherein the level of chemical preservative applied to said animal feed or an animal feed additive is reduced compared to an animal feed or an animal feed additive absent of a preservative comprising a polypeptide having catalase activity, a polypeptide having superoxide dismutase activity, or a combination of a polypeptide having catalase activity and a polypeptide having superoxide dismutase activity, wherein the polypeptide having superoxide dismutase activity is of fungal origin, however “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 6: Li discloses as discussed above in claim 2.
Li discloses the inclusion of one or more antioxidants selected from the group consisting of Vitamin A, Vitamin B12, Vitamin D, Vitamin E, Vitamin K, Carotenoids, Thiamin (vitamin B1), Riboflavin (vitamin B2), Niacin (vitamin B3), Pyridoxine (B6), Biotin (B7), essential fatty acids, Methionine, Zinc [pg. 52, lines 27-36].
Regarding Claim 8: Li discloses as discussed above in claim 2. Li discloses a catalase that is classified as an EC 1.11.1.6 catalase or as an EP 1.11.1.21 catalase peroxidase [pg. 1, lines 15, 16; pg. 158, lines 14-18].
Regarding Claim 9: Li discloses as discussed above in claim 2. Li discloses that the catalase can be of fungal origin [abstract].
Regarding Claim 10: Li discloses as discussed above in claim 2. Li discloses that the catalase can be of fungal origin including Aspergillus versicolor, Humicola hyalothermophila, Aspergillus niger and Thermoascus aurantiacus [pg. 65, lines 12-36].
Regarding Claim 11: Li discloses as discussed above in claim 2. Li discloses that the catalase can be of fungal origin including Aspergillus versicolor, Humicola hyalothermophila, Aspergillus niger and Thermoascus aurantiacus [pg. 65, lines 12-36].
Regarding Claim 12: Li discloses as discussed above in claim 2. Li discloses that the catalase can be of fungal origin including Aspergillus niger and Thermoascus aurantiacus [pg. 65, lines 12-36; pg. 66, lines 12-16].
Regarding Claims 13 and 14: Li discloses an animal feed composition as discussed above in claim 2. Li discloses catalase Seq ID 174 [pg. 37, lines 28, 29] which is 100% identical to the instant Seq ID 1. See sequence alignment noted in the Prior Art Listing/Notice of References cited by Examiner.
Regarding Claim 15: Li discloses as discussed above in claim 2. Li discloses wherein said polypeptide having superoxide dismutase (SOD) activity is obtained, obtainable from or originating from Armillaria ostoyae, Aspergillus japonicus, Trichoderma reesei, and Aspergillus templicola [pg. 49, lines 26-32; pg. 50, lines 1-8].
Regarding Claim 16: Li discloses a method of making animal feed compositions [abstract]. Li discloses a method of including in animal feed, an animal feed additive containing enzymes wherein one enzyme is a catalase and the other enzyme is a superoxide dismutase (SOD) [pg. 2, lines 1-7]. Li discloses that the catalase and the SOD are of fungal origin [pg. 2, lines 1-11; pg. 65, lines 12-36; pg. 66, lines 12-16]. Li discloses the feed additive as an antioxidant [pg. 15, lines 18-19]. Li discloses SOD having Seq ID No 46 which is 100% identical to the instant Sed ID 28. See sequence alignment noted in the Prior Art Listing/Notice of References cited by Examiner.
The Examiner notes that the preamble recites a probiotic, however there is no recitation of a probiotic in the body of the claim.
Regarding the recitation of “preserving a microbial probiotic”, Examiner notes that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA1951). In the instant case, the examiner has given weight to the body of the claim.
Further “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990
Regarding Claim 39: Li discloses a method of making animal feed compositions [abstract]. Li discloses a method of including in animal feed, an animal feed additive containing enzymes wherein one enzyme is a catalase and the other enzyme is a superoxide dismutase (SOD) [pg. 2, lines 1-7]. Li discloses that the catalase and the SOD are of fungal origin [pg. 2, lines 1-11]. Li discloses the feed additive as an antioxidant [pg. 15, lines 18-19].
Li does not explicitly disclose improving the survivability of the bacteria.
Carocho discloses food antioxidants and that they are effective for conserving food [abstract]. Carocho discloses catalase and superoxide dismutase as antioxidants [Fig. 2]. Carocho discloses the catalase and SOD work together to balance the production and neutralization of free radicals [pg. 108, 2nd column, 2nd paragraph]. Carocho discloses the autoxidation in foodstuff is common and that it impacts organoleptic properties and causes rancidity in foods[pg. 109; 2nd column, 3. ]. Carocho discloses adding food antioxidants [pg. 109].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that the survivability of the bacteria would have been increased where Carocho discloses catalase and SOD as conserving and providing antioxidant activity. Such activity would have kept the probiotics in a healthier state thereby promoting their ability to survive.
The Examiner notes that the preamble recites a probiotic, however there is no recitation of a probiotic in the body of the claim.
Regarding the recitation of “preserving a microbial probiotic”, Examiner notes that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA1951). In the instant case, the examiner has given weight to the body of the claim.
Further “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 40: Li discloses an animal feed composition as discussed above in claim 39. Li discloses Seq 174 [pg. 37, lines 28, 29] which is 100% identical to the instant Seq ID 1. See sequence alignment noted in the Prior Art Listing/Notice of references cited by Examiner. Li discloses Li discloses SOD having Seq Id No 46 which is 100% identical to the instant Sed ID 28. See sequence alignment noted in the Prior Art Listing/Notice of References cited by Examiner.
Regarding Claim 42: Li discloses as discussed above in claim 2. Li discloses that the catalase can be of fungal origin including Thermoascus aurantiacus [pg. 49, lines 26-39].
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (WO 2020/200322) International filing date of 4/5/2020 and Carocho et al. “Anti-oxidants: reviewing the chemistry…” Trends in Food Science and Technology vol. 71 2018 pages 107-120 as applied to claim 2 above and in further view of Knueven et al. (US 5,773,063).
Regarding Claim 4: Li discloses as discussed above in claim 2. Li does not explicitly disclose storing the animal feed under aerobic conditions.
Knueven discloses a preserved animal feed that is stored under aerobic conditions [claim 1].
At the effective filing date of the invention it would have been obvious to modify the method of Li to include storing the feed under aerobic conditions as in Knueven since the feed of Li contains catalase which would be effective in an oxygen rich environment converting any H2O2 present from the SOD reaction.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (WO 2020/200322) International filing date of 4/5/2020 and Carocho et al. “Anti-oxidants: reviewing the chemistry…” Trends in Food Science and Technology vol. 71 2018 pages 107-120 as applied to claim 5 above and in further view of Shelford et al. (US 20040076659).
Regarding Claim 7: Li discloses as discussed above in claim 5.
Li does not disclose the inclusion of BHT, ethoxyquin or BHA.
Shelford discloses an animal feed additive [abstract]. Shelford discloses including the antioxidants BHA, BHT, or ethoxyquin [0035].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Li to include antioxidants in its formulation as in Shelford since it discloses the inclusion of preservatives/antioxidants in order to provide a more nutritionally complete animal feed formulation and to further aid in the stabilization of the feed additive.
Claims 17, 18, 19, and 41 is rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (WO 2020/200322) International filing date of 4/5/2020 and Carocho et al. “Anti-oxidants: reviewing the chemistry…” Trends in Food Science and Technology vol. 71 2018 pages 107-120 as applied to claim 2 above and in further view of Kirejevas (US 2011/0104327).
Regarding Claims 17, 18, 19: Li discloses as discussed above in claim 2. Li does not disclose Lactococcus cremoris, Lactococcus lactis, Lactobacillus acidophilus, Lactobacillus rhamnosus, Lactobacillus casei, Lactobacillus kefiri, Lactobacillus bifidus, Lactobacillus brevis, Lactobacillus helveticus, Lactobacillus paracasei, Lactobacillus rhamnosus, Lactobacillus salivarius, Lactobacillus curvatus, Lactobacillus bulgaricus, Lactobacillus sakei, Lactobacillus reuteri , Lactobacillus fermentum, Lactobacillus farciminis, Lactobacillus lactis, Lactobacillus delbrueckii, Lactobacillus plantarum, Lactobacillus paraplantarum, Lactobacillus crispatus, Lactobacillus gasseri, Lactobacillus johnsonii, Lactobacillus jensenii, Leuconostoc, Carnobacterium, Enterococcus, Propionibacteium, Pediococcus, Streptococcus, Bifidobacterium lactis, Bifidobacterium bifidium, Bifidobacterium longum, Bifidobacterium animalis, Bifidobacterium breve, Bifidobacterium infantis, Bifidobacterium catenulatum, Bifidobacterium pseudocatenulatum, Bifidobacterium adolescentis, Bifidobacterium angulatum), Weissella confusa, Bacillus pumilus, and Pediococcus acidilactici (claim 17); wherein the microbial probiotic is selected from Lactobacillus, Lactococcus, Streptococcus, Bacillus, Pediococcus, and Weissella (claim 18); wherein the microbial probiotic is a facultative anaerobe or facultative aerobe (claim 19).
Kirejevas discloses a probiotic pet food containing B. pumilus, Bifidobacterium adolescentis, B. animalis, B. breve, B. bifidum, B. infantis, B. lactis, B. longum, B. pseudolongum, Enterococcus cremoris, E. diacetylactis, E. faecium, E. intermedius, E. lactis, E. muntdi, E. thermophilus, Lactobacillus acidophilus, L. crispatus, L. brevis, L. casei L. curvatus, L. delbrueckii ss. bulgaricus, L. fermentum, L. gasseri, L. helveticus, L. lactis, L. plantarum, L. johnsonii, L. reuteri, L. rhamnosus, L. salivarius, Leuconostoc mesenteroides, P. cereviseae (damnosus), Pediococcus acidilactici, P pentosaceus, Propionibacterium freuclenreichii, Prop. shertnanii, Staphylococcus carnosus, Staph. xylosus, Streptococcus infantarius, Strep. Salivarius ss. thermophilus, Strep. thermophilus, or Strep. Lactis [0080]. It is known in the art that Lactobacilli are facultative anaerobes.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Li to include probiotics as in Kirejevas in order to improve the digestive tract of the animal the production of valuable enzymes, vitamins [Kirejevas 0026] and also the reduction of the effects of stress in pets such as diarrhea [Kirejevas 0030].
Regarding Claim 41: Li discloses as discussed above in claim 2. Li does not disclose that the antioxidant is astaxanthin or canthaxanthin.
Kirejevas discloses a probiotic pet food composition [abstract]. Kirejevas discloses including astaxanthin in the composition [0072; 0138].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Li to include the astaxanthin as in Kirejevas in order to utilize a natural antioxidant to further stabilize the feed additive in alternative to synthetic preservatives.
Response to Arguments
The 103(a) rejections of claims 2, 5, 6, 8-16, 39, 40, and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (WO 2020/200322) International filing date of 4/5/2020 have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 4 over Li et al. (WO 2020/200322) International filing date of 4/5/2020 as applied to claim 2 above and in further view of Knueven et al. (US 5,773,063) has been withdrawn due to the amendment to claim 2.
The 103(a) rejection of claim 7 over Li et al. (WO 2020/200322) International filing date of 4/5/2020 as applied to claim 5 above and in further view of Shelford et al. (US 20040076659).
The 103(a) rejection of claims 17, 18, 19, and 4 over Li et al. (WO 2020/200322) International filing date of 4/5/2020 as applied to claim 2 above and in further view of Kirejevas (US 2011/0104327) have been withdrawn due to the amendment of claim 2.
Conclusion
16. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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