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 .
Oath/Declaration
The Affidavit of 03/18/2026 was received and is considered herein. The office appreciates Applicant’s Chairperson of the Board, Dr. Thierry Bogaert’s time, education and experience in this matter.
The Affidavit was considered and found to not be persuasive. Examiners response is discussed in detail below.
Claim Objections
Claims 96-97 are objected to because of the following informalities:
Claims 96 and 97 are written as “87.96.” and “88.97.”, respectively. It appears they are intended to be written “96.” And “97.”. Appropriate correction is required.
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.
Claim 84-97 are rejected under 35 U.S.C. 103 as being unpatentable over Cohen (US 2006/0148378) in view of Bernacchia (“Chemical Composition and Health Benefits of Flaxseed”).
Regarding claim 84, Cohen teaches a method of increasing bee performance (support growth and development of honey bees, sustain brood rearing, and maintain hive vigor, ab., par. 0010),
administering to bees a composition for providing nutrition (methods of providing nutritional diet formulations to bees, ab.)
comprising flax oil (par. 0039).
Cohen does not teach linoleic acid and α-linoleic acid in a ratio of between about 5:1 to 1:20, or wherein the increased performance is one or more of: (a) optimized biological membrane synthesis; (b) increased biological fitness; (c) increased learning; (d) increased palatability; (e) increased cognitive function; (f) increased consumption; (g) increased survival; (h) increased foraging; (i) increased size; (j) increased honey production; and (k) increased brood production.
Bernacchia, in the same field of endeavor, teaches linoleic acid and α-linoleic acid in a ratio of between about 5:1 to 1:20 (17 % linoleic acid (LA) and 53% α- linolenic acid (ALA), section “Omega-3 fatty acids in flaxseed and health benefits”). 17 % linoleic acid (LA) and 53% α- linolenic acid (ALA) is a ratio of about 1 part linoleic acid to about 3 parts α- linolenic acid, which is encompassed by the claimed ratio of between about 5:1 to 1:20 of linoleic acid (omega-6) to α- linolenic acid (omega 3).
It would have been obvious to one of skill in the art, at the time of filing to modify Cohen’s method of using flaxseed oil to include the types and amounts of fatty acids therein, of Bernacchia, because it was known for such a thing to have been successfully identified and published at the time of filing, which means it was within the general skill of a worker in the art to have this knowledge when using flaxseed oil, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Bernacchia does not teach the increased performance is one or more of: (a) optimized biological membrane synthesis; (b) increased biological fitness; (c) increased learning; (d) increased palatability; (e) increased cognitive function; (f) increased consumption; (g) increased survival; (h) increased foraging; (i) increased size; (j) increased honey production; and (k) increased brood production;
Regarding the increased performance is one or more of: (a) optimized biological membrane synthesis; (b) increased biological fitness; (c) increased learning; (d) increased palatability; (e) increased cognitive function; (f) increased consumption; (g) increased survival; (h) increased foraging; (i) increased size; (j) increased honey production; and (k) increased brood production, when looking for light in the pending specification, it is noted that it is the mixture of nutrients in the composition fed to the bees that results in their claimed: increased functions (0013). Therefore, since the modified teaching provides a similar method of administering a similar composition comprising similar amounts of similar nutrients, which reflects the breadth of the claimed composition, it would be reasonable to expect that the claimed increased functions and reduced mortality, absent a showing of criticality, would have been obvious because the teaching of a similar composition imparts a suggestion in or expectation that the composition taught will have the same or a similar utility.
It would have been obvious to one of skill in the art, at the time of filing/the invention to modify the method of making nutritional bee feed compositions, as the modified teaching above, to include that when administering said composition, it will:
is one or more of:
(a) optimized biological membrane synthesis;
(b) increased biological fitness;
(c) increased learning;
(d) increased palatability;
(e) increased cognitive function;
(f) increased consumption;
(g) increased survival;
(h) increased foraging;
(i) increased size;
(j) increased honey production; and
(k) increased brood production; as claimed,
because the administration of composition established through the modified teaching above, provides a sufficiently close relationship between the ingredients to create an expectation that such a similar compositions would have similar capabilities, properties or functionality because the claims are not physically or structurally distinguishable over the prior art compositions. See MPEP 2144. III, which states that when case law imparts legal precedence, wherein the facts in this prior legal decision are sufficiently similar to those in an application, wherein the court applied the law of obviousness to similar facts. This includes a wide spectrum of illustrations and accompanying reasoning (i.e. obviousness) that exist in case law. In re Eli Lilly & Co., 902 F.2d 943, 14 USPQ2d 1741 (Fed. Cir. 1990). Herein, although not cited in the MPEP, more recent caselaw on the topic, “In re Dillon, 919 F.2d 688 (1990)” ( (https://cite.case.law/f2d/919/688/)) provides that when a claimed compositions has been made obvious from combined teachings, it is clear that the discovery that the claimed composition possesses a property not disclosed for the prior art subject matter, and this itself does not defeat a prima facie case.
Regarding claim 85, Cohen further teaches a diet which provides all or substantially all of the nutrients required for survival, a dietary supplement, or a pollen substitute which is a replacement of floral pollen (to provide nutrition, par. 0016), therefore a dietary supplement. Cohen also teaches the use of vitamins and minerals (0002), which are also dietary supplements, as claimed.
Regarding claim 86, Cohen further teaches sterols (lipids include sterols par. 0033, 0034).
Regarding claim 87, Cohen further teaches at least two sterols (lipids include sterols par. 0033, 0034), which imparts a plural amount and encompasses least two sterols.
wherein the at least two sterols are selected from 24-methylene cholesterol, campesterol, β-sitosterol and cholesterol (beta-sitosterol, stigmasterol, and campesterol; and cholesterol would suffice as the sterols used par. 0039).
Regarding claim 88, modified Cohen teaches the linoleic acid and a-linolenic acid are delivered through at least one component which is a source of fatty acids (flaxseed oil Cohen par. 0039).
Regarding claim 89, Cohen further teaches fats from between about 1% and about 10% by weight of the composition (about 0.75 to 5 % lipids, Claim 1), which is encompassed by the claimed composition of fats between about 1 and 10 wt% of the composition.
Regarding claim 90, Cohen teaches proteins (Claim 1).
Regarding claim 91, Cohen teaches proteins and wherein the concentration of proteins is from about 10% to about 50% by weight of the composition (about 0.75 to 10 % protein, Claim 1), which is encompassed by the claimed concentration of proteins of from about 10 to 50 wt% of the composition.
Regarding claim 92, Cohen teaches the composition comprises carbohydrates (Claim 1).
Regarding claim 93, Cohen teaches the composition comprises carbohydrates and the concentration of carbohydrates is from between about 20% to about 90% by weight of the composition (about 25-45 % carbohydrates, Claim 1), which is encompassed by the claimed range of between about 20 to 90 wt % of the composition.
Regarding claim 94, Cohen teaches proteins and fats (Claim 1).
Regarding claim 95, Cohen teaches the composition comprises proteins and fats and wherein the ratio of proteins to fats is between about 25:1 and 1:10 by weight of the composition (about 0.75 to 10 % protein and about 0.75 to 5 % lipids, Claim 1), which imparts a ratio of proteins to fats of about 13.3: to 1:6.66, which is encompassed by the claimed ratio of proteins to fats of between about 25:1 and 1:10 by weight of the composition.
Regarding claim 96, Cohen teaches the composition comprises proteins and carbohydrates and wherein the ratio of proteins to carbohydrates is between about 2 (protein):1 (carbohydrate) and about 1 (protein):10 (carbohydrate) by weight of the composition ( about 0.75 to 10 % protein and about 25-45 % carbohydrates, Claim 1), given about 25 to 45 % carbs = 1 part, Cohen imparts about 2.5 to 60 parts protein to 1 part carbohydrate, which is encompassed by the claimed ratio of proteins to carbohydrates of between about 1-2 (protein): 1 to 10 (carbohydrate) by weight of the composition, because the claim of about 2 parts protein reaches up to and surpasses the teaching of about 2.5 parts protein.
Regarding claim 97, Cohen teaches proteins and carbohydrates and wherein ratio of proteins to carbohydrates is between about 1 (protein):1 (carbohydrate) and about 1 (protein):5 (carbohydrate) by weight of the composition ( about 0.75 to 10 % protein and about 25-45 % carbohydrates, Claim 1), given 12.5 to 22.5 % carbs = 1 part, Cohen imparts about 1.25 to 30 parts protein to 2 parts carbohydrates which is encompassed by the claimed ratio of proteins to carbohydrates of between about 1 part protein to 1-5 parts carbohydrates by weight of the composition, because the claim of about 1 parts protein reaches up to and surpasses the teaching of about 1.25 parts protein.
Response to Arguments
Applicant's Affidavit filed 03/18/2026 has been fully considered but it is not persuasive.
IV. There is NO motivation to combine Cohen and Bernacchia
It is asserted that there is no suggestion, teaching, or motivation to combine Cohen and Bernacchia. As seen in the above rejection, Cohen teaches the inclusion of flax oil but does not list the composition of fatty acids of flax oil. One would have been motivated by this to look to the art for the concentration of fatty acids found in flax oil and would look to Bernacchia, because it was known for such a thing to have been successfully identified and published at the time of filing, which means it was within the skill of one having ordinary skill in the art to have this knowledge when using flaxseed oil, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
a. Cohen teaches away!
It is asserted that Cohen teaches away from the claimed invention as Cohen’s list of potential oils skew towards those which are omega-6 heavy compared to omega-3, which is teaching a preference for oils with omega 6:3 ratios outside of the claimed range. The list of oils is teaching alternative embodiments and the existence of flax oil in the list of possible oils shows that it is an acceptable oil to use in the invention with reasonable expectation of success. There is no mention of flax oil causing the invention to be ineffective, and therefore Cohen does not teach away from its use.
b. Improper “Obvious to try” standard
It is asserted that the provided list of oils in Cohen is not finite and therefore it would not have been obvious to try flax oil from the provided list. Cohen teaches 9 suggestions for oils to use in its invention. That is in fact a finite number of options, not infinite. It would have been reasonable for one to select flax oil from the 9 provided options, and as it is taught by Cohen to be an option for a lipid source, one would have reasonable expectation that selecting flax oil would result in a functional product. Further, the examiner disagrees that trying oils from the 9 taught options would require undue experimentation as 9 is a finite number of options.
c. Bernacchia is non-analogous art
In response to applicant's argument that Bernacchia is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Bernacchia, though not in the field of the inventor’s endeavor, is reasonably pertinent to the particular problem in which the inventor is concerned. Specifically, the problem being creating an alternative bee food with balanced nutrients. Bernacchia describes the composition of linoleic and α-linoleic acid, which are nutrients that the inventor is concerned with, within a substance which could reasonably be consumed by bees (flax oil, as taught by Cohen). One having ordinary skill in the art would have reasonably consulted Bernacchia when faced with the problem of selecting components for an alternative bee food and therefore would have found the teachings of Bernacchia relatively pertinent to the problem of the inventor.
d. The Examiner’s Rejection Relies on Impermissible Hindsight
It is further asserted that the examiner's conclusion of obviousness regarding the selection of flax oil from Cohen’s provided list of fats, and the composition of LA:ALA in the flax oil found in Bernacchia is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Further, as reiterated above, there is motivation to combine these references which would have been obvious to one with ordinary skill in the art.
e. The claimed method achieves unexpected results.
It is further asserted that there are unexpected results achieved by the claimed method. For an effective rebut to a prima facie case of obviousness, applicant must compare the claimed subject matter with the closest prior art. In this case, the closest prior art is Cohen. Cohen discloses the use of flax oil but is silent regarding the LA:ALA ratio of flax oil. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. See MPEP 716.02(d-e).
The provided data refers to ratios of omega 6:3 rather than the claimed linoleic acid:α-linoleic acid, and is therefore not commensurate in scope with the claims. Further, the provided data teaches omega 6:3 ratios of 5:1, 1:1, and 1:3, while the claimed range is 5:1 to 1:20. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside of the claimed rage (See MPEP 716.02(d)II.). There is no data provided directly outside of the claimed range, and the provided 1:3 isn’t considered directly inside the claimed 1:20 ratio. There is not enough data to determine if there are unexpected results across the entirety of the claimed range.
Applicant's arguments filed 03/18/2026 have been fully considered but they are not persuasive.
Applicant argues that Cohen and Bernacchia are not within the same field of endeavor as it is directed at human nutrition, not bee nutrition. Bernacchia is merely relied on for the composition of linoleic and α-linoleic acid in flax oil. It is relied on for an inherent composition of flax oil which exists outside of its application.
Applicant further argues that Cohen teaches away from the present invention as it is teaching the state of the art rather than an improvement to the art. Cohen’s teachings do not teach that any method steps of the present invention would render the invention inoperable or ineffective and therefore it does not teach away. Regarding the argument that Cohen discloses that the feed of its invention is similar to pollen and therefore that is teaching away from the present invention, Cohen teaches improvements to bees from the use of its invention (Par. 0010). This is in no way suggesting that the method of the present invention would be rendered ineffective, but the contrary that bees would be improved with its use. Cohen discloses the method steps of the present invention (with the exception of the fatty acid composition of flax oil which is taught by a secondary reference), and as explained in the above rejection of claim 84, as the inventions of modified Cohen and the present invention have similar compositions one would expect them to have similar utility.
Applicant argues Cohen does not suggest the use of two or more sterols as essential or material. As seen in the rejection of claim 87 above, Par. 0033 of Cohen describes sterols (plural) and then Par. 0039 describes specific sterols that may be used. Cohen’s suggestion of these sterol inclusions is motivation enough to include them in the invention or at least to try them. Further, Cohen may not teach the concentration of sterols as applicant asserts, but the claims do not require a specific concentration of sterols. Claim 87 suggests a concentration, but it is listed with an optional “or”.
Applicant further argues that there is no motivation to combine Cohen and Bernacchia as a person having ordinary skill in the art would not have been motivated to try the flax oil of Bernacchia in the invention of Cohen as there is no finite number of possible solutions due to Cohen’s long list of potential oils. Cohen teaches 9 suggestions for oils to use in its invention. That is in fact a finite number of options, not infinite. It would have been reasonable for one to select flax oil from the 9 provided options, and as it is taught by Cohen to be an option for a lipid source, one would have reasonable expectation that selecting flax oil would result in a functional product. With this in mind it would have been obvious for one having ordinary skill in the art to look to Bernacchia for the inherent composition of linoleic and α-linoleic acid in flax oil, regardless of it being in the field of human or bee nutrition. The composition of LA and ALA within flax oil would not change depending on its application, so it would have been a valid source of information of flax oil.
Applicant argues the examiner's conclusion of obviousness regarding the selection of flax oil from Cohen’s provided list of fats, and the composition of LA:ALA in the flax oil found in Bernacchia is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues the claimed invention achieves unexpected results. For an effective rebut to a prima facie case of obviousness, applicant must compare the claimed subject matter with the closest prior art. In this case, the closest prior art is Cohen. Cohen discloses the use of flax oil but is silent regarding the LA:ALA ratio of flax oil. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. See MPEP 716.02(d-e).
The provided data refers to ratios of omega 6:3 rather than the claimed linoleic acid:α-linoleic acid, and is therefore not commensurate in scope with the claims. Further, the provided data teaches omega 6:3 ratios of 5:1, 1:1, and 1:3, while the claimed range is 5:1 to 1:20. To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside of the claimed rage (See MPEP 716.02(d)II.). There is no data provided directly outside of the claimed range, and the provided 1:3 isn’t considered directly inside the claimed 1:20 ratio. There is not enough data to determine if there are unexpected results across the entirety of the claimed range.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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