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 .
This office action is written in response to the Applicants Remarks filed 3/12/26. Claims 19-24, 36-38 are pending. Claims 19-24, 26, 27, 35, and 38 have been examined on the merits. Claims 28-34, 36, and 37 were withdrawn. Claim 25 has been cancelled.
Withdrawn Rejections
The 103(a) rejections of claims 19, 21, 22, 23, 35, and 38 over Simmons (US 11,006,658) in view of JP 2004504043 Machine Translation have been withdrawn.
The 103(a) rejection of claim 24 over Simmons (US 11,006,658) in view of JP 2004504043 Machine Translation as applied to claim 19 above and in further view of Vineyard (US 20160100610) has been withdrawn.
The 103(a) rejections of claims 20, 26, and 27 over Simmons (US 11,006,658) in view of JP 2004504043 Machine Translation as applied to claim 19 above and in further view of Amicucci et al. (US 2018/0363016) have been withdrawn.
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 19, 21, 22, 23, 35, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Simmons (US 11,006,658) in view of Abbas et al. (US 2006/0251764).
Regarding Claims 19, 22, 23: Simmons discloses a sweetener composition containing oligosaccharides with a DP 2 to 12 [abstract]. Simmons discloses the composition as part of a food or feed or nutritional supplement [col. 14, lines 28-43]. Simmons discloses the composition containing less than 20% monosaccharides or less than 5% monosaccharide [claim 10; col. 9, lines 53-56]. Simmons discloses at most 20% of the oligosaccharides are xylo-oligosaccharides which are oligosaccharides with xylose monomers units and with a DP of 4-11 [pg. 4, lines 13-36]. Simmons discloses the composition comprising polysaccharides and oligosaccharides where the oligosaccharides are enzymatically produced [abstract; col. 33, lines 45-58]. Simmons discloses soluble and insoluble matter [col. 33, lines 45-49]. Simmons discloses degrading fiber by using one or more carbohydrases selected from mannanase, xylanase, glucanase, and cellulase [col. 33, lines 50-58]. Simmons does not mention raffinose, stachyose, or verbascose.
Simmons does not disclose that the source of the oligosaccharides is soy hulls.
Simmons does not disclose including yeast in the feed.
Abbas discloses an animal and feed and method of making an animal feed [abstract]; discloses using soy hulls as a feedstock and that they are readily available [0022]. Abbas discloses upgrading DDG by adding hulls including soybean hulls [0015]. Abbas discloses pretreating hulls to hydrolyze the cellulose and hemicellulose portions to produce oligosaccharide fractions [0017]. Abbas discloses using cellulase and hemicellulase [0017] (which includes xylanase). Abbas discloses the enzymatic treatment of soy hulls to produce/release oligosaccharides [0042]. Abbas discloses mixing yeast with an animal feed product [0043].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Simmons to include yeast as in Abbas in order to provide and additional source of protein to the composition. Further it would have been obvious to utilize soy hulls as a substrate in order to make use of soy hull since they are a source of hydrolysable indigestible oligosaccharides; are readily available; can be hydrolyzed by carbohydrases to produce oligosaccharides; and are suitable for animal feed.
Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 19 has been considered regarding its disclosure of degraded soy fiber hulls with oligosaccharides having 3-30 monomer sugar units.
“Even 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 art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Regarding Claim 21: Simmons discloses as discussed above in claim 19. Simmons discloses oligosaccharides as present from 5% to 80% of the composition [claim 1].
Although Simmons does not explicitly disclose comprising 5 % by weight or more of said Oligosaccharides DP 3-30, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Simmons overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 35: Simmons discloses a food or feed or nutritional supplement [col. 14, lines 28-43] and as discussed above in claim 19. Simmons discloses oligosaccharides as present from 5% to 80% of the composition [claim 1].
Although Simmons does not explicitly disclose a feed, food product, or nutritional supplement comprising from 0.5 to 99% by weight of the feed or food ingredient , one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Simmons overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 38: Simmons discloses as discussed above in claim 19. Further regarding the process steps of the claim, since there is no evidence that the recited process produces a product that is materially different from what is disclosed in the prior art, claim 38 has been considered regarding its disclosure of the food or feed ingredient of claim 19.
“Even 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 art was made by a different process.” In re Thorpe, 777 F.2d 695, 698.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Simmons (US 11,006,658) in view of Abbas et al. (US 2006/0251764) as applied to claim 19 above and in further view of Vineyard (US 20160100610).
Regarding Claim 24: Simmons as modified discloses as discussed above in claim 19. Simmons does not disclose wherein the yeast is present at an amount of from 0.05 to 10 %.
Vineyard discloses animal feed and including 0.1 to 1% or 0.1 to 2% yeast [0020].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Simmons to include yeast at the amounts disclosed in Vineyard in order to provide an additional source of protein in the feed product.
Claims 20, 26, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Simmons (US 11,006,658) in view of Abbas et al. (US 2006/0251764) as applied to claim 19 above and in further view of Amicucci et al. (US 2018/0363016).
Regarding Claim 20: Simmons as modified discloses as discussed above in claim 19. Simmons does not disclose providing a prebiotic effect.
Amicucci discloses oligosaccharides having a DP of 3 to 20 as providing a prebiotic effect [0011]. Amicucci discloses including the oligosaccharides in human food and animal feed [0066].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that the composition of Simmons would have had a prebiotic effect as in Amicucci since Amicucci discloses oligosaccharides as having a prebiotic effect.
Regarding Claims 26 and 27: Simmons as modified discloses as discussed above in claim 19. Simmons does not disclose further comprising one or more selected from (1) one or more microorganisms and (ii) metabolic products of carbohydrate degradation of the soy hulls by the one or more microorganisms (claim 26); wherein the one or more microorganisms comprise lactic acid bacteria (claim 27).
Amicucci discloses an oligosaccharide containing composition that includes Lactobacillus [0073]. Amicucci discloses including the oligosaccharides in human food and animal feed [0066].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Simmons to include Lactobacillus as in Amicucci in order to provide the beneficial effect of probiotic microorganisms.
Response to Arguments
The 103(a) rejections of claims 19, 21, 22, 23, 35, and 38 over Simmons (US 11,006,658) in view of JP 2004504043 Machine Translation have been withdrawn.
The 103(a) rejection of claim 24 over Simmons (US 11,006,658) in view of JP 2004504043 Machine Translation as applied to claim 19 above and in further view of Vineyard (US 20160100610) has been withdrawn.
The 103(a) rejections of claims 20, 26, and 27 over Simmons (US 11,006,658) in view of JP 2004504043 Machine Translation as applied to claim 19 above and in further view of Amicucci et al. (US 2018/0363016) have been withdrawn.
Pertinent Prior Art
13. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mielenz et al. (US 2010/0015282) discloses applying carbohydrases to soybean hulls to produce a food additive [claims 13 and 14]. Mielenz discloses using cellulase, pectinase, [Table 4].
Conclusion
14. 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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