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 Claims
Note: The amendment of December 19th 2026 has been considered.
Claim 1 has been amended.
Claims 3 and 12 are been cancelled.
Claims 1, 2, 4-11 and 13-20 are pending in the current application.
Claims 1, 2 and 4-10 are withdrawn from consideration.
Claims 11 and 13-20 are examined in the current application.
Any rejections not recited below have been withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 19th, 2026 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 11 and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Miller et al (US 2013/0280369 A1) in view of Cook et al (US 2007/0275152 A1) and NPL Jiang et al., “Effects of Soybean Isoflavone on Growth Performance, Meat Quality, and Antioxidation in Male Broilers” (from Poultry Science Vol 86, Issue 7, July 1st 2007, pages 1356-1362).
Regarding claims 11 and 13-16 : Miller discloses feeding young animals, such as piglets, milk replacer comprising about 30wt% protein that are milk and/or soy based on a daily basis during the first several weeks of life in order to improve the performance (see Miller abstract; paragraphs [0009]-[0016] and [0028]), but fails to disclose an isoflavone supplementation; However, Cook discloses of supplementing domestic animal feed (e.g., piglet feed) with 200ppm to 1400ppm (i.e., 0.02% to 0.14%) genistein aglycone (a soy-derived isoflavone), and between 250-1400ppm of soy isoflavone at growth stages including pre-weaning period, in order to impart the consuming animal the health benefits and improved performance associated with genistein aglycone intake (see Cook abstract; paragraphs [0001], [0011]-[0012] and [0006]-[0018]; Examples 1 and 2). Which reads on claims 11, 15 and 16: “a milk replacer…comprising at least…60wt% [or 70wt%] genistein, up to…40wt% [or 30wt%] daidzein…wherein the milk replacer comprises about 700 mg/kg to about 5000 mg/kg of the isoflavone extract”, because a milk replacer comprising 700mg/kg to 5000mg/kg of an extract comprising at least 60wt% or 70wt% genistein and up to 40wt% or 30wt% daidzein is a milk replacer comprising more than 420ppm, or 490ppm to 3000ppm, or 3500ppm of genistein and less than 280ppm, or 210ppm to 2000ppm, or 1500ppm daidzein. Accordingly, it would have been obvious to a skilled artisan at the time the invention was made, to have modified Miller and to have supplemented the milk replacer with the soy derived aglycone in order to impart the health benefits and improved performance associated with genistein aglycone intake to the consuming animal, and thus arrive at the claimed limitations.
As to the exclusion of glycitein: Cook discloses supplementing the feed with soy isoflavone extracts which are known to include genistein, daidzin and glycitein (see Cook paragraphs [0003], [0006]; claims 6 and 18), but fails to disclose the absence of glycitein; However, Jiang discloses on page 1360, left column, that glycitein is known to have estrogen activity higher than genistein, therefore, it would have been obvious to a skilled artisan at the time the application was filed to have modified Miller and supplemented the milk replacer with soy derived aglycone without glyceitein, to impart the health benefits and improved performance with reduced estrogenic effect, and thus arrive at the claimed limitations.
As to the formulation of the milk replacer composition to improve one or more of a total weight gain, an average daily gain, a feed intake, or a feed to gain ratio of the young animal in the pre-weaning phase recited in claim 11: While Miller in view of Cook and Jiang fails to disclose the claimed improvements imparted by milk replacer composition, given the fact Miller modified by Cook and Jiang discloses a composition with the same constituents at similar amounts, it is examiner’s position the claimed improvements are inherently present in the milk replacer in Miller in view of Cook and Jiang. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 17-20: Miller discloses of feeding young animals, such as piglets, milk replacer comprising about 30wt% protein that are milk and/or soy based (see Miller abstract; paragraphs [0009]-[0016] and [0028]).
Response to Arguments
Applicant's arguments filed on March 19th, 2026 have been fully considered but they are not persuasive.
Applicant argues on pages 5-6 of the “Remarks” that the prior art references fail to render the claimed invention fails to render the claimed invention obvious, because Cook fails to disclose the total amount of isoflavone concentration in the feed. The examiner respectfully disagrees.
Cook discloses in paragraph [0017] the feed comprises 250ppm-1400ppm of isoflavone concentration, which meets the claimed limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached on M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the 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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/ASSAF ZILBERING/Examiner, Art Unit 1792
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