DETAILED ACTION
Amendments made January 6, 2026 have been entered.
Claims 6 and 9-19 are pending;
Claim 19 has been withdrawn.
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 .
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.
Election/Restrictions
Newly submitted claim 19 is directed to an invention that lacks unity with originally elected claim 6 for the following reasons: Elected claim 6 which was drawn to a method for preventing and/or improving reduction of productivity of a pig due to cold and/or heat stress, shares the common feature of pig feed comprising 0.1-10ppm abscisic acid and/or salt thereof with newly presented claim 19 which is drawn to a method of increasing an amount of a reduced glutathione contained in the body of a young pig. The common technical feature was known over the prior art Herrero et al (EP 2616058), as discussed previously, and herein. Thus, the groups are not linked by an inventive concept or special technical feature and claim 19 has been withdrawn as it is not directed to the originally presented and elected invention. Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 19 has been withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 112
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 6 and 9-18 are 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.
Claim 6 recites “…increasing a body weight and/or feed intake…”. As the term “increasing” is relative to a set point or benchmark, and no benchmark has been recited, the metes and bounds of the term are unclear. It is unknown as to what levels would and would not encompass an increase. For example, it is unclear as to if the claimed increase is measured as compared to a pig not under heat or cold stress, a pig of a different age, the same pig under the same heat or cold stress, but fed another fed, etc. Similarly, the terms “increasing a feed efficiency” in claim 9, and “reduction of a period” in claim 10 are unclear for being a relative terms.
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 6, 9-12, and 14-18 are rejected under 35 U.S.C. 103 as being unpatentable over BRF (“How Temperature Affects Pig Farming” pages 1-3 May 8, 2019 https://www.brfingredients.com/en/blog/posts/temperature-growth-pig-farming/) in view of Herrero et al (EP 2616058).
BRF teaches a method of preventing and/or improving a reduction of productivity in a pig due to temperature variations, including heat stress, by feeding the pig with high quality ingredients and high digestibility feed, ensuring nutrition and growth of animals (page 1 paragraphs 1-3, 10, and 11; and page 2 paragraphs 1, 11, and 12).
Regarding the method for increasing a body weight and/or feed intake of a pig in cold stress at 20C or lower, or heat stress at 30C or higher as recited in claim 1, or 15C or lower as recited in claim 17, or 35C or higher as recited in claim 18, BRF teaches a method of preventing and/or improving a reduction of productivity in a pig due to temperature variations, including heat stress, by feeding the pig with high quality ingredients and high digestibility feed. BRF is not specific to the temperatures of heat stress the pig being fed experiences in the method, however, does discuss studies which show heat stress at 33C and 34C (page 1 paragraph 11 and page 2 paragraph 7). Thus, it would have been obvious to one of ordinary skill in the art when practicing the method of BRF that the pigs being fed would be under heat stress, and thus experiencing temperatures of at least 33C or higher. As heat stress is a condition of the environment that the pig experiences, and not an intentional heating step, to have the feed be administered to pigs within known environmental temperature ranges, including above 30C (86F) or 35C (95F), would have been obvious to one of ordinary skill in the art.
BRF is silent to the feed as including 0.1-10ppm abscisic acid and/or a salt thereof as recited in claim 1, preferably 0.1-10ppm abscisic acid as recited in claim 11, or 0.1-1ppm as recited in claim 15, or 0.1-0.5ppm as recited in claim 16, wherein the acid comprises S-abscisic acid as recited in claim 12, and to the pig as 21-71 days old as recited in claim 14.
Herrero et al (Herrero) teaches animal feed for livestock, including pigs, preferably comprising S-abscisic acid, which increases feed efficiency, increases weight gain, and decreases the time to market (paragraphs 6-8, 12, 13, 15, 21, 24, 25, and claims 1 and 2). Herrero teaches that the methods of using the feed including methods of increasing feed efficiency, increased weight gain, and decreasing the time to market of livestock by using an effective amount of ABA (abscisic acid) (title, and paragraphs 4-8 and 21). Herrero teaches that an “effective amount” is that, when administered to livestock for attaining a desired result, is sufficient to effect such desired result, and that said amount may be determined “by one of ordinary skill in the art” (paragraph 18). Herrero teaches that the abscisic acid is preferably included in the feed from about 1-2000 grams per metric ton (1-2000 ppm), including 1ppm and 5ppm specifically (paragraphs 26, 28, 31, 32 and claims 5, 6, 9, and 10).
Regarding the feed as including 0.1-10ppm abscisic acid and/or a salt thereof as recited in claim 1, preferably 0.1-10ppm abscisic acid as recited in claim 11, or 0.1-1ppm as recited in claim 15, or 0.1-0.5ppm as recited in claim 16, wherein the acid comprises S-abscisic acid as recited in claim 12, it would have been obvious for the method of BRF to include feeding the pigs throughout farming with the feed of Herrero, which comprises an effective amount of S-abscisic acid as BRF requires a feed which has high digestibility and ensures growth of animals, and the feed of Herrero has high/increasing feed efficiency, decreased time to market, and increases weight gain, i.e. growth. Herrero teaches that an “effective amount” is that, when administered to livestock for attaining a desired result, is sufficient to effect such desired result, and that said amount may be determined “by one of ordinary skill in the art” (paragraph 18), thus, the claimed ranges are at least obvious over the teachings of the prior art. Alternatively, it would have been obvious to use the preferred range, or close to it, such as about 1-2000 ppm, including 1ppm and 5ppm which explicitly encompass within the range recited in claims 6 and 11, and about 1ppm which is the upper end of the range in claim 15, and is close to about 0.5ppm which is the upper range recited in claim 16. It is noted that there appears to be nothing critical about the ranges recited in claims 15 and 16 (see instant specification page 15 lines 16-19 which states an amount of abscisic acid is from 0.1-10ppm, preferably 0.5-5ppm, more preferably from 0.5-2ppm, and still more preferably from 1-2ppm). The prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding claim 9, as discussed above, the claim is unclear. Regardless, as the method of BRF includes ensuring nutrition and growth of animals, and it would have been obvious for the method of BRF to include the feed as taught by Herrero which was specifically taught to increase feed efficiency and decrease time to market, i.e. reduce the rate of raising the pig (paragraphs 5-8), the method of BRF in view of Herrero would achieve the claimed results. The position of the office is further supported as the prior art makes obvious an overlapping active step to that as claimed.
Regarding the method as including reducing of a period after weaning until the pig is shipped as a meat pig as recited in claim 10, as discussed above, the claim is unclear. Regardless, as the method of BRF includes ensuring nutrition and growth of animals, and it would have been obvious for the method of BRF to include feeding the pigs throughout farming with the feed of Herrero which was specifically taught to increase feed efficiency and decrease time to market, i.e. reduce the rate of raising the pig (paragraphs 5-8), wherein BRF teaches that the pigs provide for high meat performance (page 1, paragraph 1), the method of BRF in view of Herrero would achieve the claimed results. The position of the office is further supported as the prior art makes obvious an overlapping active step to that as claimed.
Regarding the pig being feed as 21-71 days old as recited in claim 14, as discussed above, it would have been obvious for the method of BRF to include feeding the pigs throughout farming with the feed of Herrero, thus the claimed step is considered obvious over the teachings of the prior art. Alternatively, the examiner takes official notice that pigs were breast-feed for about 3-4 weeks (21-28 days), and thus it would have been further obvious that the feed for the pig during farming would be provided around 21-28 days depending on the exact time of weaning, and the claimed range would be a natural result of the process disclosed by the prior art.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over BRF (“How Temperature Affects Pig Farming” pages 1-3 May 8, 2019 https://www.brfingredients.com/en/blog/posts/temperature-growth-pig-farming/) in view of Herrero et al (EP 2616058), further in view of Kreis, Anna (“The effect of feed particle size on pig health” July 2, 2019, pages 1-7 https://www.feedstrategy.com/animal-nutrition/swine/article/15440570/the-effect-of-feed-particle-size-on-pig-health).
As discussed above, BRF teaches a method of preventing and/or improving a reduction of productivity in a pig due to temperature variations, including heat stress, by feeding the pig with high quality ingredients and high digestibility feed, ensuring nutrition and growth of animals, wherein it would have been obvious for the feed of BRF to be the one taught by Herrero which contains abscisic acid.
BRF is silent to the particle size of the abscisic acid as 0.03-3mm as recited in claim 13.
Kreis teaches adaptation of the particle size is an ideal way to improve pig performance and maintain health (page 1). Kreis teaches that the pig feed is mainly supplied as mash and pellets which comprise smaller particles (page 2 paragraph 1 and page 3 Figure). Kreis teaches that a smaller particle size allows for a larger surface area for digestive enzymes to attack and a better feed conversion rate (page 3), but too fine of particles reduces gastric efficiency (pages 4 and 5). Thus, it is recommended to use a particle size of about 200-700 microns (0.2-0.7mm).
Regarding the particle size of the abscisic acid as 0.03-3mm as recited in claim 13, it would have been obvious for the feed of BRF in view of Herrero to include particle components, including particles of abscisic acid with a size of 0.2-0.7mm as particles with the claimed size were used as components in a main food form to increase feed efficiency without causing gastric issues as taught by Kreis. It is additionally noted that Herrero teaches the abscisic acid as added was a dry powder (paragraph 29), and thus, it would have been further obvious for the abscisic particles to be of the claimed size for the benefits taught by Kreis.
Response to Arguments
Applicant's arguments filed January 6, 2026 have been fully considered but they are not persuasive.
It is noted that Applicant commented the instant claims are clear. Although the previous 112 rejections were withdrawn in light of the amendments, the current language remains unclear for the reasons presented above.
Applicant argues that evidence was submitted showing that a compounds known performance in promoting growth and feed efficiency under normal conditions do not reliable translate to increasing body weight under thermal stress, and thus, there would be no reasonable expectation of success that abscisic acid may be used to increase body weight in a pig subject to cold or heat stress in view of the general disclosure of Herrero.
This argument is not convincing as it does not consider the combination of references presented in the rejection. The primary reference, BRF specifically teaches a method of preventing and/or improving a reduction of productivity in a pig due to temperature variations, including heat stress, by feeding the pig with high quality ingredients and high digestibility feed, ensuring nutrition and growth of animals (page 1 paragraphs 1-3, 10, and 11; and page 2 paragraphs 1, 11, and 12). Thus, when using a high digestibility feed disclosed by Herrero, one of ordinary skill in the art would have a reasonable expectation of success. The method steps as claimed are considered obvious over the teachings of the prior art for the reasons stated herein.
Regarding the evidence submitted, it is noted that no specific citations were made, and thus the Examiner generally considered the references submit in the remarks as a whole. Regarding “Antioxidant benefits in pig feed”, this reference appeared related to antioxidant use to preserve feed and prevent oxidation in the feed, see for example, pages 1-2, and thus was related to feed shelf stability and was not convincing to show unexpected results in terms of body weight and/or feed intake for pigs was unexpected. The additional references Song and Silva-Gullen were also not convincing at least because: 1) they were not commensurate in scope with the claims which encompass both heat stress at 30C or higher and cold stress, as well as feed with abscisic acid and salts thereof as the active ingredient; and 2) do not appear to show the argued result. Although the references show no effects in supplementation were detected on growth performance under heat stress, the references also show none was detected at normal temperatures. Silva-Guillen states that “the supplementation of vitamin E and botanical extract in feed did not affect BW, ADFI, or G:F, regardless of environmental temperatures (see page 11, column 2). Song similarly teaches on page 12 lines 9-10 that there were no dietary treatment effects on ADG, ADFI, and G:F under thermal neutral environments.
Conclusion
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 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792