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 was written in response to the Applicants Remarks filed 12/29/25. Claims 1-19 are pending and have been examined on the merits.
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 1-11, 14-17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Penrose (GB 2220124) in view of Moss (US 2004/0086627) and Melgarejo (EP 1825761).
Regarding Claims 1 and 3, 10, 11: Penrose discloses a method of making a spent grain based animal feed [pg. 1, 3rd and 4th paragraph]. Penrose discloses dewatering by centrifuge or screw presses [pg. 2, 1st full paragraph; pg. 6, 3rd paragraph]. Penrose discloses low alcohol beer as being produced by spent grains [pg. 8, 2nd paragraph].
Penrose does not disclose adding a brewery slurry and that the brewery slurry has a water content of 80 to 98%.
Penrose does not disclose pumping a mixture of brewery slurry and spent grains into a screw press while adding a GRAS approved polymer.
Moss discloses combining animal feed ingredients which are food wastes and incorporating a GRAS polymer flocculant with is approved for animal feed additive [0015; 0020;0022]. Moss discloses anionic flocculants [0022]. Moss discloses polyacrylamide as a flocculant [0022]. Moss discloses that the food waste can be spent brewer’ grain [claim 7]. Moss discloses dewatering using a screw press [0006; 0008; 0024; 0025].
Melgarejo discloses a method of making animal feed by containing brewer’s yeast and brewer’s grain [0012; 0013; claim 1, 4-6, 9]. Melgarejo discloses that the brewer’s yeast has a dry matter content of 12% which translates to a water content of 88% [0027].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Penrose to include brewer’s yeast (a brewery slurry) at a water content of 88% with the spent brewer’s grain as in Melgarejo in order to utilize industrial waste as a source of protein for animal feed [Melgarejo, 0012].
Further it would have been obvious to modify the method of Penrose to include the step of adding a food safe polymer in the presence of industrial by products from brewing including spent brewer’s grains as in Moss in order to aid in the dewatering and thickening of the animal feed mixture.
Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Regarding Claim 2: Penrose as modified discloses as discussed above and discloses that spent grains can be used to make lo alcohol beverages. However it is known in the art that spent grains and spent yeast of beer brewing process contain very little alcohol since the alcohol portion has already been separated from it during the brewing process.
Regarding Claim 4: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose where the brewery slurry is added before the spent brewer’s grain slurry. However, Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Regarding Claim 5: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose that the mixture is mixed in an overhead mixer.
However, the determination of patentability is based on the recited method and does not depend on the specifics of the apparatus used to execute the method. The products resulting from the process of Penrose as modified are the same or substantially the same as the products obtained from the instant process and therefore does not depend upon the apparatus of claim 5.
Regarding Claim 6: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose the brewery slurry comprising between about 2% and 20% dry matter.
Melgarejo discloses brewer’s yeast having a DM content of 12% [0027].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Penrose to include the brewer’s yeast at a DM content of 12% in order to allow for adequate mixing of the feed ingredients.
Regarding Claim 7: Penrose as modified discloses as discussed above in claim 1. Penrose discloses that the spent brewer’s grain has a dry matter content of 21.8% [Pg. 12].
Regarding Claims 8 and 9: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose wherein the volume ratio of the spent brewery yeast slurry to spent brewer’s grain slurry used in the yeast-grain slurry is between 99% yeast slurry / 1% spent grain slurry and 1% yeast slurry / 99% spent grain slurry (claim 8); wherein the volume ratio of the spent brewery yeast slurry to spent brewer’s grain is from about 50:50 to about 80:20 (claim 9).
Melgarejo discloses an animal feed composition containing brewer’s grain at 30% and brewer’s yeast at 10% or brewer’s grain at 33% and brewer’s yeast at 34 % [0027].
At the effective filing date of the invention it would have been obvious to modify Penrose to provide the ingredients in proportions as disclosed in Melgarejo in order to provide an adequate source of quality protein to the animal feed.
Regarding Claim 14: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose wherein the finished product comprises from about 65 wt% to about 75
wt% moisture with from about 25 wt% to about 35 wt% dry matter.
Melgarejo discloses feed having a moisture content of 35% to 80% [abstract].
Although Melgarejo does not explicitly disclose about 65% to about 75% moisture 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 Melgarejo 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 15: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose wherein the finished product comprises greater than about 30% crude protein.
Melgarejo discloses that animal feed an animal feed compositions should contain a minimum of 9% protein [0005].
At the effective filing date of the invention it would have been obvious to modify Penrose to provide the ingredients in proportions as disclosed in Melgarejo in order to provide an adequate source of quality protein to the animal feed.
Although Melgarejo does not explicitly disclose at least 30% protein 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 Melgarejo 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 Claims 16, 17: Penrose discloses a spent grain based animal feed [pg. 1, 3rd and 4th paragraph]. Penrose discloses dewatering by centrifuge or screw presses [pg. 2, 1st full paragraph; pg. 6, 3rd paragraph]. Penrose discloses low alcohol beer as being produced by spent grains [pg. 8, 2nd paragraph].
Penrose does not disclose adding a brewery slurry.
Penrose does not disclose pumping a mixture of brewery slurry and spent grains into a screw press while adding a GRAS approved polymer.
Moss discloses combining animal feed ingredients which are food wastes and incorporating a GRAS polymer flocculant with is approved for animal feed additive [0015; 0020;0022]. Moss discloses anionic flocculants [0022]. Moss discloses polyacrylamide as a flocculant [0022]. Moss discloses that the food waste can be spent brewer’ grain [claim 7]. Moss discloses dewatering using a screw press [0006; 0008; 0024; 0025].
Melgarejo discloses a method of making animal feed by containing brewer’s yeast and brewer’s grain [0012; 0013; claim 1, 4-6, 9].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Penrose to include brewer’s yeast (a brewery slurry) with the spent brewer’s grain as in Melgarejo in order to utilize industrial waste as a source of protein for animal feed [Melgarejo, 0012].
Further it would have been obvious to modify the method of Penrose to include the step of adding a food safe polymer in the presence of industrial by products from brewing including spent brewer’s grains as in Moss in order to aid in the dewatering and thickening of the animal feed mixture.
Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
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 16 has been considered regarding its disclosure of the animal feed and its ingredients.
“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 19: Penrose as modified discloses as discussed above in claim 16. Penrose does not disclose wherein the finished product comprises from about 65 wt% to about 75
wt% moisture with from about 25 wt% to about 35 wt% dry matter.
Melgarejo discloses feed having a moisture content of 35% to 80% [abstract].
Although Melgarejo does not explicitly disclose about 65% to about 75% moisture 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 Melgarejo overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 12, 13, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Penrose (GB 2220124) in view of Moss (US 2004/0086627) and Melgarejo (EP 1825761) as applied to claims 1 and 11, 16 above and in further view of Chung et al. (US 5,597,490).
Regarding Claim 12: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose wherein the GRAS-approved polymer is a copolymer of acrylamide and sodium acrylate.
Chung discloses a copolymer of acrylamide and sodium acrylate for treatment of food wastes [abstract; col. 4, lines 6-12; 22-32].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the flocculant of modified Penrose for the copolymer of Chung since it is capable of thickening the mixture.
Regarding Claim 13: Penrose as modified discloses as discussed above in claim 1. Penrose does not disclose wherein the GRAS-approved polymer is a non-ionic polyethylene oxide solubility polymer.
Chung discloses a non-ionic polyethylene oxide for treatment of food wastes [abstract; col. 4, lines 6-12; 22-32].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the flocculant of modified Penrose for the non-ionic polyethylene oxide of Chung since it is capable of thickening the mixture.
Regarding Claim 18: Penrose as modified discloses as discussed above in claim 16. Penrose does not disclose wherein the GRAS-approved polymer is a non-ionic polyethylene oxide solubility polymer.
Chung discloses a non-ionic polyethylene oxide for treatment of food wastes [abstract; col. 4, lines 6-12; 22-32].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the flocculant of modified Penrose for the non-ionic polyethylene oxide of Chung since it is capable of thickening the mixture.
Response to Arguments
Applicant's arguments filed 12/29/25 have been fully considered but they are not persuasive.
The Applicants assert that the references do not disclose a moisture content for the brewery slurry. The Examiner disagrees and has modified the rejection to acknowledge the solids content disclosed in Melgarejo. Further Applicants assert that Melgarejo includes straw. However, the claim does not prohibit the inclusion of other ingredients.
For the reasons above the references have been maintained.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Baker US 2546250 discloses beery yeast slurry having a solids content of 4% to 18% [col. 2, lines 38-45].
Priemer et al. US 20190029280 discloses distillery slurry and brewery slurry as a protein source for foods [0041; claim 9].
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 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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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