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
Status of the application
2. Claims 1-12, 14-16 are pending in this office action.
Claims 1-12, 14-16 have been rejected.
Obviousness Double Patenting
3. The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQe2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQe2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a non-statutory double patenting ground provided the conflicting application or patent
either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. It is to be noted that, in this instance, these two applications filed by the same applicant or assignee. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
In this instance, it is to be noted that current application by Fillieres et al. has combined claim limitation of independent claim 1 and dependent claim 16 which is similar to independent claim 1 of Fillieres et al. ‘365 (PGPUB date Jan 24, 2019). However, current application by Fillieres et al. claims “a pre-drying step (2) in independent claim 1. This is not claimed in the independent claim of Fillieres et al. ‘365 (PGPUB date Jan 24, 2019). Therefore, it is ODP rejection.
Dependent claims 2, 4,5,6, 7, 8, 9, (10, 11) and 12 of the present application are identical to the dependent claims 2, 3, 7, 8, 9, 11, 12, (13) and 14 of Fillieres et al. ‘365. Claim 3 of the current application is obvious over the disclosed paragraph [0031] of Fillieres et al. ‘365 (PGPUB date Jan 24, 2019).
It is to be noted that even if current application by Fillieres et al. claims “a pre-drying step (2) in independent claim 1. This is not claimed in the independent claim of Fillieres et al. ‘365 (PGPUB date Jan 24, 2019). Therefore, it is not considered as DP, but it is ODP.
Claim Rejections - 35 USC § 112
4. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
5. Claim 14 rejected 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.
Regarding claim 14, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102/103
6. 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.
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
A rejection on this statutory basis (35 U.S.C. 102(g) as in force on March 15, 2013) is appropriate in an application or patent that is examined under the first to file provisions of the AIA if it also contains or contained at any time (1) a claim to an invention having an effective filing date as defined in 35 U.S.C. 100(i) that is before March 16, 2013 or (2) a specific reference under 35 U.S.C. 120, 121, or 365(c) to any patent or application that contains or contained at any time such a claim.
7. 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:
8. 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.
9. Claim 1-12, 14, 16 is rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Fillieres et al. (US 2019/0021365) or, in the alternative, under 35 U.S.C. 103(a) as obvious over Fillieres et al. (US 2019/0021365)
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.
10. Regarding claim 1, Fillieres et al. ‘365 discloses a method for producing highly digestible , partly hydrolyzed keratinaceous material from feather, hair, wool, nails etc. comprising the steps of (1) hydrolyzing keratinaceous material in the presence of water, in a hydrolyser with heat and at a pressure between about 2 bar and about 100 bar, and (2) concurrently drying and grinding the resultant hydrolyzed keratinaceous material in an air turbulence mill at about atmospheric pressure such that the drop in pepsin N and/or ileal digestibility is less than 10%, and/or the pepsin and ileal digestibility remain higher than respectively 75% and 80%, wherein the resultant keratinaceous material comprises at least partly insoluble material, and wherein the average particle size of the dry product leaving the air turbulence mill measured as d50 in volume fraction, as measured with laser diffraction using a dry powder Beckman Coulter particle size analyzer, is between about 20 μm and about 0.7 mm and the d90 is below about 1 mm (At least in Abstract and in claim 1 of Fillieres et al. ‘365). These meets claim 1 step (1) and (3).
Regarding step (2) of claim 1, Fillieres et al. ‘365 also discloses that the partly hydrolyzed keratinaceous material will be dried hereafter according to step (ii) of the present invention. The first step comprises bringing the mixture leaving the steam-hydrolyser to atmospheric pressure, while evaporating part of the water ([0031]) and the mixture leaving the hydrolyser, of which part of the water is evaporated because of the reduction in pressure, is subjected to a pressing step. In this step, part of the water from the keratinaceous material is removed, to bring the water content from, for example, about 65 wt. % to about 45 wt.% which reads on “pre-drying step of claim 1 (2). Therefore, Fillieres et al. ‘365 anticipates claim 1.
11. Regarding claim 2, Fillieres et al. ‘365 also discloses that the method according to claim 1 wherein concurrently drying and grinding the resultant partly hydrolyzed keratinaceous material comprising at least partly insoluble material in an air turbulence mill is performed at a temperature such that the keratinaceous material remains at a temperature below about 90° C. (at least in claim 2 of Fillieres et al. ‘365).
12. Regarding claim 3, Fillieres et al. ‘365 also discloses that the partly hydrolyzed keratinaceous material will be dried and drying generally is done in a number of steps which includes this evaporation step which reads on pre-drying step of claim 1 (2) discussed above ([0031]). The first step comprises bringing the mixture leaving the steam-hydrolyser to atmospheric pressure, while evaporating part of the water ([0031]) and the mixture leaving the hydrolyser, of which part of the water is evaporated because of the reduction in pressure, is subjected to a pressing step ([0031]). Therefore, this evaporation step can be made in an evaporator and also ‘pressing step’ can be done by a conventional equipment to meet claim 3.
13. Regarding claim 4, Fillieres et al. ‘365 also discloses that the method according to any one of the preceding claims, wherein the air turbulence mill comprises a chamber with appropriate inlets and outlets for product and stream(s) of gas in which a rotating member is mounted with stacks of impacting devices which rotating member can rotate at high speed, and wherein preferably the inner walls of the stator are lined with impacting members, wherein the rotating member rotates at a tip speed between 20-150 m/s (at least claim 3 of Fillieres et al.) .
14. Regarding claim 5, Fillieres et al. ‘365 discloses that the dried partly hydrolyzed keratinaceous material has a homogeneous creamy light color with the disclosed L*a*b color space which meets claimed invention of claim 5 (at least in claim 7 of Fillieres et al.).
15. Regarding claim 6, Fillieres et al.’365 discloses that the dried partly hydrolyzed keratinaceous material has an average particle size (d50) of between about 20 micron and about 0.5 mm (at least in claim 8 of Fillieres et al.).
16. Regarding claim 7, Fillieres et al.’365 discloses wherein the dried and ground digestible keratinaceous material has a d90 particle size below about 0.7 mm measured by laser diffraction using a dry powder Beckman Coulter particle size analyzer, and/or wherein the dried and ground digestible keratinaceous material has a d10 particle size above about 10 μm, preferably above about 15 μm, as measured by laser diffraction using a dry powder Beckman Coulter particle size analyzer (at least in claim 9 of Filler ‘365 et al.).
17. Regarding claim 8, Fillieres et al.’365 discloses wherein the dried and ground digestible keratinaceous material leaving the dryer and grinder has a poured density of about 0.2 g/cm.sup.3 or higher, preferably of about 0.25 g/cm.sup.3 or higher (at least in claim 11 of Filler ‘365 et al.).
18. Regarding claim 9, Fillieres et al.’365 discloses wherein the dried and ground digestible keratinaceous material as leaving the dryer and grinder has a tapped bulk density of about 0.25 g/cm.sup.3 or higher, preferably of about 0.3 g/cm.sup.3 or higher, even more preferably about 0.35 g/cm.sup.3 or higher (at least in claim 12 of Filler ‘365 et al.).
19. Regarding claims 10 and 11, Fillieres et al. discloses that the blood is fed into the air turbulence mill together with the partly hydrolyzed keratinaceous material is between 10-50 wt.% blood and about 50-90% keratinaceous material as claimed in claim 10 (at least in claim 13 of Fillieres et al.).
20. Regarding claim 12, Fillieres et al.’365 discloses wherein the resultant keratinaceous material with or without blood has a pepsin and/or ileal digestibility higher than about respectively 80% and 90%, more preferably higher than about respectively 82% and 92% (at least in claim 14 of Filler ‘365 et al.).
21. Regarding claim 14, Fillieres et al.’365 discloses the process of the present invention can be easily applied in conventional feather meal plants, because the air turbulence mill with the optional classifier, the cyclone and the air supply occupy substantially less space than a conventional disc dryer or other conventional dryers with ancillary equipment. Hence, the present invention also relates to a method of retrofitting a feather meal plant by replacing conventional drying equipment with an air turbulence mill and a cyclone with ancillary equipment ([0083]).
22. Regarding claim 16, Fillieres et al.’365 discloses a method for producing digestible, partly hydrolyzed keratinaceous material, preferably from feathers, hair, hooves, wool or nails, comprising the steps of (i) hydrolyzing keratinaceous material in the presence of water, in a hydrolyser with heat and at a pressure between about 2 bar and about 100 bar, and (ii) concurrently drying and grinding the resultant hydrolyzed keratinaceous material in an air turbulence mill, at about atmospheric pressure, such that the drop in pepsin and/or ileal digestibility is less than 10%, and/or the pepsin and ileal digestibility remains higher than respectively 75% and 80% (at least in [0008], and in claim 1 of Fillieres et al.’365 ).
Therefore, Fillieres et al.’365 anticipates independent claims 1, 14 and dependent claims 2-12, 14 and 16 which depend on independent claim 1.
OR as obvious variant
13. Regarding claim 1, Fillieres et al. ‘365 discloses a method for producing highly digestible , partly hydrolyzed keratinaceous material from feather, hair, wool, nails etc. comprising the steps of (1) hydrolyzing keratinaceous material in the presence of water, in a hydrolyser with heat and at a pressure between about 2 bar and about 100 bar, and (2) concurrently drying and grinding the resultant hydrolyzed keratinaceous material in an air turbulence mill at about atmospheric pressure such that the drop in pepsin N and/or ileal digestibility is less than 10%, and/or the pepsin and ileal digestibility remain higher than respectively 75% and 80%, wherein the resultant keratinaceous material comprises at least partly insoluble material, and wherein the average particle size of the dry product leaving the air turbulence mill measured as d50 in volume fraction, as measured with laser diffraction using a dry powder Beckman Coulter particle size analyzer, is between about 20 μm and about 0.7 mm and the d90 is below about 1 mm (At least in Abstract and in claim 1 of Fillieres et al. ‘365). These meets claim 1 step (1) and (3).
Regarding step (2) of claim 1, Fillieres et al. ‘365 also discloses that the partly hydrolyzed keratinaceous material will be dried hereafter according to step (ii) of the present invention. The first step comprises bringing the mixture leaving the steam-hydrolyser to atmospheric pressure, while evaporating part of the water ([0031]) and the mixture leaving the hydrolyser, of which part of the water is evaporated because of the reduction in pressure, is subjected to a pressing step. In this step, part of the water from the keratinaceous material is removed, to bring the water content from, for example, about 65 wt. % to about 45 wt.% which reads on “pre-drying step of claim 1 (2).
Therefore, it would have been obvious that one of ordinary skill in the art would consider the teachings of Fillieres et al. ‘365 to consider pre-drying step at the step (2) of claim 1, with a reasonable expectation of success to evaporating part of the water ([0031]) and the mixture leaving the hydrolyser, of which part of the water is evaporated because of the reduction in pressure, is subjected to a pressing step. In this step, part of the water from the keratinaceous material is removed, to bring the water content from, for example, about 65 wt. % to about 45 wt.% and this will help to reduce the total water content load to perform the next step(s) of “concurrently drying using an air turbulence mill etc.
14. Regarding claim 2, Fillieres et al. ‘365 also discloses that the method according to claim 1 wherein concurrently drying and grinding the resultant partly hydrolyzed keratinaceous material comprising at least partly insoluble material in an air turbulence mill is performed at a temperature such that the keratinaceous material remains at a temperature below about 90° C. (at least in claim 2 of Fillieres et al. ‘365).
15. Regarding claim 3, Fillieres et al. ‘365 also discloses that the partly hydrolyzed keratinaceous material will be dried and drying generally is done in a number of steps which includes this evaporation step which reads on pre-drying step of claim 1 (2) discussed above ([0031]). The first step comprises bringing the mixture leaving the steam-hydrolyser to atmospheric pressure, while evaporating part of the water ([0031]) and the mixture leaving the hydrolyser, of which part of the water is evaporated because of the reduction in pressure, is subjected to a pressing step ([0031]). Therefore, this evaporation step can be made in an evaporator and also ‘pressing step’ can be done by a conventional equipment to meet claim 3.
16. Regarding claim 4, Fillieres et al. ‘365 also discloses that the method according to any one of the preceding claims, wherein the air turbulence mill comprises a chamber with appropriate inlets and outlets for product and stream(s) of gas in which a rotating member is mounted with stacks of impacting devices which rotating member can rotate at high speed, and wherein preferably the inner walls of the stator are lined with impacting members, wherein the rotating member rotates at a tip speed between 20-150 m/s (at least claim 3 of Fillieres et al.) .
17. Regarding claim 5, Fillieres et al. ‘365 discloses that the dried partly hydrolyzed keratinaceous material has a homogeneous creamy light colour with the disclosed L*a*b color space which meets claimed invention of claim 5 (at least in claim 7 of Fillieres et al.).
18. Regarding claim 6, Fillieres et al.’365 discloses that the dried partly hydrolyzed keratinaceous material has an average particle size (d50) of between about 20 micron and about 0.5 mm (at least in claim 8 of Fillieres et al.).
19. Regarding claim 7, Fillieres et al.’365 discloses wherein the dried and ground digestible keratinaceous material has a d90 particle size below about 0.7 mm measured by laser diffraction using a dry powder Beckman Coulter particle size analyzer, and/or wherein the dried and ground digestible keratinaceous material has a d10 particle size above about 10 μm, preferably above about 15 μm, as measured by laser diffraction using a dry powder Beckman Coulter particle size analyzer (at least in claim 9 of Filler ‘365 et al.).
20. Regarding claim 8, Fillieres et al.’365 discloses wherein the dried and ground digestible keratinaceous material leaving the dryer and grinder has a poured density of about 0.2 g/cm.sup.3 or higher, preferably of about 0.25 g/cm.sup.3 or higher (at least in claim 11 of Filler ‘365 et al.).
21. Regarding claim 9, Fillieres et al.’365 discloses wherein the dried and ground digestible keratinaceous material as leaving the dryer and grinder has a tapped bulk density of about 0.25 g/cm.sup.3 or higher, preferably of about 0.3 g/cm.sup.3 or higher, even more preferably about 0.35 g/cm.sup.3 or higher (at least in claim 12 of Filler ‘365 et al.).
22. Regarding claims 10 and 11, Fillieres et al. discloses that the blood is fed into the air turbulence mill together with the partly hydrolyzed keratinaceous material is between 10-50 wt.% blood and about 50-90% keratinaceous material as claimed in claim 10 (at least in claim 13 of Fillieres et al.).
23. Regarding claim 12, Fillieres et al.’365 discloses wherein the resultant keratinaceous material with or without blood has a pepsin and/or ileal digestibility higher than about respectively 80% and 90%, more preferably higher than about respectively 82% and 92% (at least in claim 14 of Filler ‘365 et al.).
24. Regarding claim 14, Fillieres et al.’365 discloses the process of the present invention can be easily applied in conventional feather meal plants, because the air turbulence mill with the optional classifier, the cyclone and the air supply occupy substantially less space than a conventional disc dryer or other conventional dryers with ancillary equipment. Hence, the present invention also relates to a method of retrofitting a feather meal plant by replacing conventional drying equipment with an air turbulence mill and a cyclone with ancillary equipment ([0083]).
25. Regarding claim 16, Fillieres et al.’365 discloses a method for producing digestible, partly hydrolyzed keratinaceous material, preferably from feathers, hair, hooves, wool or nails, comprising the steps of (i) hydrolyzing keratinaceous material in the presence of water, in a hydrolyser with heat and at a pressure between about 2 bar and about 100 bar, and (ii) concurrently drying and grinding the resultant hydrolyzed keratinaceous material in an air turbulence mill, at about atmospheric pressure, such that the drop in pepsin and/or ileal digestibility is less than 10%, and/or the pepsin and ileal digestibility remains higher than respectively 75% and 80% (at least in [0008], and in claim 1 of Fillieres et al.’365 ).
Therefore, Fillieres et al.’365 meet independent claims 1, 14 and dependent claims 2-12, 14 and 16 which depend on independent claim 1.
26. Claim 15 is rejected under 35 U.S.C. 103(a) as being unpatentable over Fillieres et al. (US 2019/0021365).
27. Regarding claim 15, it is to be noted that the steps as disclosed by Fillieres et al.’365 are performed by using the processing line comprising sequential arrangement of (i) hydrolyzer (ii) a conventioneer dryer (iii) an air turbulence mill as also disclosed by Fillieres et al.’365 (at least in Abstract and in claim 1 of Fillieres et al.’365). It would have been obvious that, in order to follow the sequential steps with the sequential arrangement of the processing line, one of ordinary skill in the art would follow the claim limitation of “hydrolyzer and the conventional dryer are arranged such that at least part of the output of the hydrolyzer can be fed to the conventional dryer, and wherein the conventional dryer and the air turbulence mill are arranged such that at least part of the output of the conventional dryer can be fed to the air turbulence mill” as claimed in claim 15. It is considered that “at least part of can be interpreted as “all” also.
Pertinent Note(s)
28. NPL Hosokawa et al. (in IDS submitted on 8/8/2023, #3 NPL Ref. has date Jan 1, 2003 and the article posted on 8/8/2023 as NPL reference).
Applicants are advised to submit the complete website address with the prior art date to be mentioned in the NPL reference. However, examiner has considered this prior art based on the date mentioned in IDS, but it is not showing in the NPL article.
Regarding claim 14, Fillieres et al. is silent about the claim limitation of claim 14.
NPL Hosokawa et al. discloses that Drymiester (DMR-H) flash dryer is the first drying system which can transform feed materials including damp feed materials into an ultrafine powder with an extremely narrow particle size distribution in a matter of seconds, making it more economical alternative to spray and other dryers (at least on third page under “High evaporation capacity, first and second paragraphs).
Therefore, one of ordinary skill in the art would have been motivated to add further drying system in order to improve the system with a reasonable expectation of success to make desired narrow particle size distribution in a matter of seconds, making it more economic alternative to spray and other dryers (at least on third page under “High evaporation capacity, first and second paragraphs).
Conclusion
29. 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