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 8/8/25. Claims 1-3 are pending and have been examined on the merits.
Withdrawn Rejections
The 103(a) rejections of claims 2-3 over Feng et al. (US 2021/0244048) have been withdrawn due to the amendments to the claims.
The 102(a)(1) rejection of claim 1 as being anticipated by Feng et al. (US 2021/0244048) has been withdrawn due to the amendment to the claim.
The 103(a) rejections of claims 2-3 over Feng et al. (US 2021/0244048) have been withdrawn due to the amendments to the claims.
Claim Rejections - 35 USC § 112
5. The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
6. Claim 2 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 2 as amended recites wherein the feed comprises 4.298% crude protein. There is no support for this limitation in the specification or in the original presentation of the claims. It appears that support is provided for 42.98% crude protein. Appropriate correction is required.
6. 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.
6. Claim 1 is 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.
7. The claim recites the amount of feed additive in the feed. However this is improper because claim 1 is directed towards a feed additive, not a feed containing/comprising the feed additive. The search of the claim would require more than the feed additive. A more appropriate recitation of claim 1 would have been simply; a feed additive consisting of glycerol monolaurate (GML). It is not possible for the feed additive to consist of 0.04% GML because by definition it is the only component and therefore 100% of the feed additive. Further, the recitation of the feed component is an intended use. The claim has been interpreted regarding its recitation of a feed additive consisting of glyceryl monolaurate.
Claim Rejections - 35 USC § 102
8. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
10. Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mo et al. “High-Dose Glycerol Monolaurate Up-Regulated Beneficial Indigenous Microbiota without Inducing Metabolic Dysfunction and Systemic Inflammation: New Insights into Its Antimicrobial Potential” Nutrients 2019.
Regarding Claim 1: Mo discloses glycerol monolaurate (GML) as a feed additive [abstract]. Mo discloses GML at a dose of 400, 800, or 1200 mg/kg (.04%, .08%, .12%)[abstract]. Mo discloses feeding the GML to mice [abstract].
However, claim 1 recites “for use in feed” and “for improving intestinal structure of Larimichthys crocea” which are recitations of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Further, the 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.
Claim Rejections - 35 USC § 103
9. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
10. Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Ye et al. CN 109105307 2019 Machine Translation in view of Wang et al. (CN 103355491 2013 Machine Translation, Jensen et al. (US 2018/0055788), Peng et al. (CN 112753892), and Mo et al. “High-Dose Glycerol Monolaurate Up-Regulated Beneficial Indigenous Microbiota without Inducing Metabolic Dysfunction and Systemic Inflammation: New Insights into Its Antimicrobial Potential” Nutrients 2019).
Regarding Claim 2: Ye discloses a feed for fish and specifically discloses large yellow croaker (Larimichthys crocea). Ye discloses a feed containing 25-35% fish meal, 6-8% krill meal, 8-12% fermented soybean meal (dehulled soybean meal), 8-14% gluten and 7-12% wheat flour (bread flour), 1-2% soybean lecithin, 0.8-1.2% vitamin complex, 0.8-1.2% mineral complex, 600 mg monocalcium phosphate in the mineral complex, 0.8-1.5% choline chloride, a preservative at 0.01-.2%, 1:1 mixture of glycine/betaine (a feed attractant) within the vitamin complex, about 45% crude protein and about 10.26% crude fat [Table 1].
Ye does not disclose 7% soybean oil, 2% ascorbyl phosphate, 0.05% mold inhibitor, 2% monocalcium phosphate,.05% ethoxyquin (Preservative), 0.04% glycerol monolaurate, 0.12% microcrystalline cellulose.
Wang discloses aquaculture containing high quality fish meal, 1-3 parts (1-3%) soybean oil, and .1 parts (.1%) mold inhibitor, (1-3%) 1-3 parts monocalcium phosphate [0012; 0020; 0021].
Jensen discloses an aquaculture feed and further discloses including ethoxyquin and ascorbyl phosphate as preservatives at 0.01% to 10% [0084].
Peng discloses a fish feed containing microcrystalline cellulose at 0.5 to 0.8 parts (.5 to .8%) [abstract; pg. 3].
Mo discloses glycerol monolaurate (GML) as a feed additive [abstract]. Mo discloses GML at a dose of 400, 800, or 1200 mg/kg (.04%, .08%, .12%)[abstract]. Mo discloses feeding the GML to mice [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the fish feed composition of Ye to include high quality fish meal, 1-3 parts (1-3%) soybean oil, and .1 parts (.1%) mold inhibitor, (1-3%) 1-3 parts monocalcium phosphate as in Wang in order to provide fat, to inhibit the growth of mold and to add a source of calcium to the feed.
Further, it would have been obvious to modify the composition of Ye to include ascorbyl phosphate and ethoxyquin as preservatives at 0.01% to 10% as in Jensen in order to provide a source of antioxidants/preservatives to the feed.
Further it would have been obvious to one of ordinary skill in the art to modify the composition of Ye to include microcrystalline cellulose as in Peng in order to help aid in the binding of the ingredients in the fish feed.
Further it would have been obvious to one of ordinary skill in the art to modify the fish feed composition of Ye to include GML as in Mo in order to improve gut function and inflammatory responses.
Although Ye does not disclose premium krill meal, 1%; dehulled soybean meal, 25%; bread flour, 7%; soyabean lecithin, 2%; compound vitamin premix, 0.2%; compound mineral premix, 1%; monocalcium phosphate, 0.05%; choline chloride, 0.2%; ethoxyquin, 0.05%; feed attractant, and instead discloses 6-8% krill meal, 8-12% fermented soybean meal (dehulled soybean meal), 8-14% gluten and 7-12% wheat flour (bread flour), 1-2% soybean lecithin, 0.8-1.2% vitamin complex, 0.8-1.2% mineral complex, 600 mg monocalcium phosphate in the mineral complex, 0.8-1.5% choline chloride, 1:1 mixture of glycine/betaine (a feed attractant) within the vitamin complex, about 45% crude protein and about 10.26% crude fat it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amounts of the ingredients for the intended application, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Although Ye does not explicitly disclose white fish meal at 32%, .2 %ethoxyquin; and instead discloses 25-35% fish meal; a preservative (ethoxyquin) at 0.01-.2%, 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 Ye overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Wang does not disclose 7% soybean oil, 0.05% mold inhibitor, 2% monocalcium phosphate, and instead discloses 1-3 parts (1-3%) soybean oil, and .1 parts (.1%) mold inhibitor, (1-3%) 1-3 parts monocalcium phosphate it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amounts of the ingredients for the intended application, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Although Jensen does not explicitly disclose,.05% ethoxyquin (Preservative), 2% ascorbyl phosphate, Jensen discloses ethoxyquin and ascorbyl phosphate as preservatives at 0.01% to 10% 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 Jensen overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Peng does not disclose 0.12% microcrystalline cellulose, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount for binding the feed ingredients, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Regarding Claim 3: Ye as modified discloses as discussed above in claim 2. Ye discloses feeding for about 7 weeks [pg. 5].
Mo discloses glycerol monolaurate (GML) as a feed additive [abstract] Mo discloses feeding for four months [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the feed of Ye to feed for 4 months as in Mo in order to achieve a fuller effect of the ingredients over time.
Response to Arguments
11. The 103(a) rejections of claims 2-3 over Feng et al. (US 2021/0244048) have been withdrawn due to the amendments to the claims.
12. The 102(a)(1) rejection of claim 1 as being anticipated by Feng et al. (US 2021/0244048) has been withdrawn due to the amendment to the claim.
13. The 103(a) rejections of claims 2-3 over Feng et al. (US 2021/0244048) have been withdrawn due to the amendments to the claims.
Pertinent Prior Art
14. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Anikin RU 2690487 discloses monolaurin as an antiviral, antibacterial, and antiprotozoal monoglyceride
Wu et al. CN 1120226673 discloses glycerol monostearate as protecting the liver , the digestive tract, improving immunity and inhibiting the growth of pathogenic microorganisms [abstract].
Conclusion
15. 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.
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