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
2. Applicants’ arguments and amendments filed on 5/27/2026 overcomes the rejections of record. However, the new grounds of rejection as set forth below are necessitated by applicants’ amendment and therefore, the following action is Final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 27, 30-33, 36-44, 49-52, 74 and 75 are pending in this office action.
Claims 28, 34 have been further cancelled.
Claims 74, 75 are new.
Claims 27, 30-33, 36-44, 49-52, 74 and 75 have been rejected.
Claim Rejections - 35 USC § 112
4. The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
5. Claim 33 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 33 recites “ “by at least about 10 percent”. Claim 33 depends on independent amended claim 27. Amended independent claim 27 recites “at least about 50 percent”. Therefore, claim 33 is failing to further limit the subject matter of the claim 27 upon which it depends. This makes claim 33 having 112 fourth paragraph rejection. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
6. The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
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.
7. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
8. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) are summarized as follows:
a. Determining the scope and contents of the prior art.
b. Ascertaining the differences between the prior art and the claims at issue.
c. Resolving the level of ordinary skill in the pertinent art.
d. Considering objective evidence present in the application indicating obviousness or nonobviousness.
9. Claims 27, 32-33, 36, 38, 39-42, 43, 44, 49, 51, 52 are rejected under 35 U.S.C. 103 as being unpatentable over Dijcker et al. WO 2020/229357 A1 in view of Miller et al. USPN 4888185 in view of Pratt et al. USPN 3806001.
10. Regarding claims 27, 32, 36, 51, Dijcker et al. discloses a feed composition comprising ‘total mixed ration’ and further comprising water, binders e.g. starch-based binder, protein binder etc. (at least page 2, under summary, Paragraphs 1-3 ). Dijcker et al. also discloses nutrients like vitamins, minerals can be used in feed composition (at least page 2, under summary, Paragraph 3 and page 3 , last paragraph, page 4 first two paragraphs). It is known that vitamins, minerals can be considered as fine particulates to meet “fine particulates “ of claim 27 and “vitamins, minerals’ of claim 36. Therefore, it also meets “Total mixed ration” of claim 27. Therefore, it meets the claim limitation of the fine particulates are “vitamins, minerals’ as claimed in claim 36.
Dijcker et al. discloses that mature dairy cows tend to sort for the smaller feed components of their total mixed ration and therefore, loosing valuable nutritional components from mixed ration (at least page 2, second paragraph). Dijcker et al. also discloses that binder in the composition provides reduction of feed sorting in livestock (Under Summary of the Invention, paragraph 2). Dijcker et al. also discloses the method of reducing feed sorting behavior by evaluating the feed sorting behavior score (FSS) (at least on page 5 paragraphs 1-5) with the reduction of feed sorting by controlling the separation of small particulates with the adherence with binders etc. and therefore, it reduces the tendency of small particulates (e.g. vitamins etc.) to which fall down from the total composition as adherence of the base feed materials is increased and is effective at any weather condition (at least first four paragraphs of page 7). Furthermore, Dijcker et al. also discloses that the reduction of feed sorting provides benefits of utilization and consumption of all the nutritional components present in the feed composition by the livestock, e.g. ruminants, so that rumen health is improved, as every bite taken by the cow, has the same nutritional value (at least two last paragraphs of page 6).
It is to be noted that claim 27 can be interpreted as the steps include mixing the (i) aqueous composition, (ii) fine particulates (iii) and the total mixed ration as claimed in claim 27. It is to be noted that aqueous composition can be aqueous water or any aqueous solution or suspension in water. In this instance only aqueous water in combination with fine particulates cannot make ‘an increased consistency of fine particulates”.
It is evidenced by applicants specification (at least in PGPUB [0096]) and also as claimed in claim 32 (discussed below) that fine particulates are not rejected (i.e. sorted out) by the animals during consumption of feed composition when they are allowed to adhere with the large particles present in the aqueous composition, to make aggregates, which makes uniformity of the distribution of all components in the composition and it increases consistency of fine particulate dosing to animals as claimed in claim 27.
It is to be noted that Dijcker et al. discloses the addition of ‘aqueous water’ and binders, additives etc. separately to the feed composition (at least in Abstract, and page 2, under Summary of the invention, paragraphs 1-3) as discussed above. Dijcker et al. also discloses that binders stimulate the adherence of feed particles (at least page 4, third paragraph) and it reduces feed sorting in livestock ( page 6, third paragraph under “Detailed description”, which include fine particulates like minerals etc. (at least page 3 last paragraph). Dijcker et al. also discloses that water may be optional (page 2under Summary of the invention, third paragraph), however, addition of water is preferable because it has positive effect on the reduction of segregation ( page 11, mid-section e.g. “Effect of adding Water”).
However, more specifically, Dijcker et al. does not specifically teach an aqueous composition comprising ‘water plus binder’ together to be added to TMR plus fine particulates as an “aqueous composition” as claimed in claims 27, 32. In order to have the combined positive effects of water and binder in the “aqueous composition”. This will allow fine particulate to adhere with the large particles present in the aqueous composition during mixing together in order to make an increased consistency of fine particulates as evidenced by applicants’ specification (at least in PGPUB [0096]) when mixed with fine particulates containing TMR as claimed in claim 27.
Miller et al. discloses that a ruminant feed supplement can contain a fluid suspension comprising fat, molasses protein (i.e. binders) etc. (at least in Abstract) to be added to feed stuffs to correct nutritional imbalance in the feed ( col 2 lines 48-52).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Dijcker et al. by modifying Dijecker’s separate addition of water and binder with the teaching of Miller to make aqueous composition with water and binder’s together in order to have an additive ‘aqueous composition’ to be added in the feedstuff (col 2 lines 48-52 of Miller) which would have resulted in a more efficient system because of homogeneous mixing and uniform distribution of aqueous composition into feed composition will distribute the agglomerated particles made by fine particulates adhered to binder component in the aqueous composition and thereby it increases consistency and better utilization of fine particulates containing nutritional elements with minimal tendency to reject them.
Therefore, the adherence of the small particles to be bound to the large particles (e.g. binders) present in the aqueous composition, will make aggregates as discussed above as also claimed in claim 32.
Dijcker et al. in view of Miller et al. disclose the claim limitations of claim 27.
However, they do not specifically teach the claimed step by step of addition and mixing steps in a vessel as claimed in claim 27.
It would have been obvious that the disclosed ingredients can be mixed in a vessel to make final TMR to be used by the animal. Also, it is within the skill of one of ordinary skill in the art to consider the teachings of Dijcker et al. in view of Miller et al. to address these claimed steps as claimed in claim 27.
For example, Dijcker et al. discloses that feed composition includes base feed materials such as roughage etc. which is Total mixed ration (TMR) (Abstract, page 3 second paragraph) roughage plus minerals (i.e. fine particulates) (At least in Abstract and page 3 last paragraph). It is within the skill of one of ordinary skill in the art to add them in a container (i.e. vessel).
Dijcker et al. also discloses that minerals, vitamins (Abstract, page 3, last paragraph) which are known fine particulates can be added to TMR.
Dijcker et al. also discloses that base feed mixed ration (TMR ) composition can further comprise water, binder etc. (Abstract). This can be interpreted that TMR plus fine particulates and aqueous composition with ‘water plus binder’ can read on “mixed total mixed ration of claim 27.
Therefore, it meets “adding TMR to a vessel and adding fine particulates to the vessel” as claimed in claim 27.
As discussed above, Miller et al. discloses a ruminant feed supplement can contain a fluid suspension comprising fat, molasses protein (i.e. binders) etc. (at least in Abstract) to be added to feed stuffs to correct nutritional imbalance in the feed ( col 2 lines 48-52).
Therefore, one of ordinary skill in the art would have been motivated to make aqueous composition having water plus binder together as taught by Dijcker et al. in view of Miller et al. to be ready to add to the vessel containing TMR and fine particulates to meet the ‘step of adding an aqueous composition’ to the vessel as claimed in claim 27.
Regarding mixing step to mix aqueous composition , the fine particulates, and the total mixed ration, it is within the skill of one of ordinary skill in the art.
One of ordinary skill in the art would have been motivated to mix them together with a reasonable expectation of success in order to have homogeneous mixing of aqueous composition with no/minimal segregation of small particulates in the final mixed total mix ration to be delivered to an animal. It is to be noted that it is also within the skill of one of ordinary skill in the art to provide the mixed total mixed ration to an animal.
However, more specifically Dijcker et al. in view of Miller et al. is silent about specific arrangement of apparatus with a vessel having mixing arrangement to perform the claimed steps, including mixing steps as claimed in claim 27.
Pratt et al. discloses an apparatus and process to add the dry particulates as dry additive(s) from dry additive and liquid including aqueous liquid composition which can be added to a final mixer 28 which is a vessel (Fig 1, #28 mixing vessel and at least in col 3 lines 1-12).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Dijcker et al.in view of Miller et al. by including the teaching of Pratt et al., to perform the steps with the disclosed apparatus using mixing vessels in order to provide the homogeneous mixing of all the ingredients to make mixed total mixed ration before it is delivered to the animal (Fig 1 #28 and at least in col 3 lines 1-12).
It is to be noted that In this instance, Pratt et al. has broadly disclosed the apparatus to make such feed composition. Pratt et al. is used only specifically to address “vessel” and having mixing arrangement to the vessel to serve as mixing vessel. It is within the skill of one of ordinary skill in the art to consider his teaching of “mixing vessel” of Pratt et al. to perform the claimed mixing steps with a vessel with reasonable expectation of success to make homogeneously mixed final mixed total mix ration.
According to MPEP 2143.01, “Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation-suggestion-teaching test as a guard against using hindsight in an obviousness analysis). Axonics, Inc. v. Medtronic, Inc., 73 F.4th 950, 957-58, 2023 USPQ2d 795 (Fed. Cir. 2023) (the court found an erroneous framing of the motivation inquiry led to an incorrect conclusion of nonobviousness). In this instance, there is some teaching, suggestion, or motivation to consider “mixed vessel” etc. to do so as taught by Pratt et al. to modify Dijcker et al.in view of Miller et al. to meet the claimed invention of claim 27.
11. Regarding claims 27, 33, Dijcker et al. discloses that the composition may contain water in an amount of at least 5% to at least 25% by weight (at least in claim 8 of Dijcker et al.). It is to be noted that when binder, water, are mixed in combination with fine particulates (e.g. vitamins) as discussed above for claim 27, it is the aqueous composition which comprises the particles from binder and fine particles together. It would have been obvious that when binder is mixed with water, it makes “Aqueous composition” of claim 27 with desired binder like starch, etc. which would have obvious to bind fine particulates in order to serve as agglomerating agent as is also evidenced by applicant’s specification (in PGPUB [0096]). Therefore, even if the combinations of prior arts do not specifically mention the increase of average particle size by at least 50 percent in presence of the aqueous composition as claimed in amended claim 27 and by at least 10 percent in presence of the aqueous composition, as claimed in claim 33, it depends on the size of the fine particulates and type of binder which makes an aqueous composition after mixing together with water and other components in the TMR.
It is also within the skill of one of ordinary skill in the art to consider the particle size of the initial fine particulates with the type of binder which contributes the particle size of the binder in the mixture comprising mixed aqueous composition and to optimize time of mixing together to make the final increase of the average particle size within the total mixed ration by at least about 50 percent” as claimed in amended claim 27 and also by at least about 10 percent as claimed in claim 33.
Absent showing of unexpected results, the specific amount of an increased in the average particle size is not considered to confer patentability to the claims. As the initial particle size of the fine particle, number of fine particles to be adhered to the large particles (e.g. binder) in the aqueous composition) are variables that can be modified, among others, by adjusting the aggregation conditions like time of mixing etc., the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, an increased average particle size in Dijcker et al. to amounts, including that presently claimed in claims 27, 33 , in order to obtain the desired effect e.g. desired increase in average particle size within the total mixed ration in order to have an increased consistency of fine particulate dosing to animals (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
12. Regarding claims 38, 52, Miller et al. discloses that the aqueous suspension can include fat in an amount of up to 30% by weight in such ruminant feed composition (at least in Abstract and under Table in col 11 lines 32-35). It is known that fat is hydrophobic which meets claim 52.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Dijcker et al. by including the teaching of Miller to include fat in the ruminant’s feed composition in order to provide more complete nutritionally balanced feed composition ((at least in Abstract and under Table in col 11 lines 32-35).
13. Regarding claims 39-42, Dijcker et al. discloses that the composition may contain water in an amount of at least 5% to at least 25% by weight (at least in claim 8 of Dijcker et al.). Even if water adds further components to make aqueous composition, still it meets the claim limitation of claims 39-42 because claims 39-42 claims the amount of the aqueous composition with the phrase “at least” 2.5% -10% by weight ”. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
14. Regarding claim 43, Pratt et al. discloses that the content in the transport cart 30 is disposed in the plurality pans (i.e. feed bunk) at the feed yard (at least in Fig 1, col 3 lines 1-12) to meet claim 43.
15. Regarding claim 44, as discussed for claim 27 above, and is applicable for claim 44 also that Dijcker et al. discloses that the feed composition according to the present disclosure reduces feed sorting of livestock, by controlling the separation of small particulates with the adherence with binders etc. and therefore, it reduces the tendency of small particulates (e.g. vitamins etc.) to which fall down from the total composition as adherence of the base feed materials is increased and is effective at any weather condition (at least first four paragraphs of page 7). Therefore, it is within the skill of one of ordinary skill in the art to optimize the time to provide the mixed total mixed ration to the animal within the short time interval after the mixing step with the aqueous composition, the fine particulates, and the total mixed ration together including claimed “no more than 360 minutes” with a reasonable expectation of success to prevent ‘sorting’ which is separation of fine particulates in order to minimize “feed sorting” by maintaining an increased consistency of the fine particulates dosing to animals during consumption of mixed total mixed ration.
16. Regarding claim 49, Dijcker et al. discloses that the livestock is preferably ruminants (at least on page 6, Under “Detailed Description of the invention”-third paragraph).
17. Regarding claim 51, as discussed above, Dijcker et al. discloses that mature dairy cows tend to sort for the smaller feed components of their total mixed ration and therefore, loosing valuable nutritional components from mixed ration (at least page 2, second paragraph). Therefore, one of ordinary skill in the art would have been interested to select “an animal exhibiting feed sorting behavior” from mature dairy cows to meet claim 51.
18. Claims 30, 31 are rejected under 35 U.S.C. 103 as being unpatentable over Dijcker et al. WO 2020/229357 A1 in view of Miller et al. USPN 4888185 in view of Miller et al. USPN 4888185 in view of Pratt et al. USPN 3806001 as applied to claim 27 and further in view of Taylor et al. US 2006/0073194.
19. Regarding claims 30, 31, Dijcker et al. WO 2020/229357 A1 in view of Miller et al. and Pratt et al. are silent about surfactant, sarsasaponins and yucca extract.
Taylor et al. discloses that Yucca extract is approved for use in animal feed composition ([0017], [0018]) because it is the source of saponin ([0015]) (i.e. sapogenin), a source of multi-vitamins ([0021]), and also serves as an antiprotozoal composition ([0013]). Taylor et al. also discloses that Sarsapogenin is the major sapogenins found in yucca extract having antiprotozoal activity ([0013]). Taylor et al. also discloses Saponin composition can be in a solution form also ([0026]). Taylor et al. discloses Yucca extracts as liquid saponin composition contains vitamins like E, B1, B2, B6, B12 etc. and water ([0021]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify feed ration of Dijcker et al. in view of Miller et al. and Pratt et al. to make a liquid Yucca/saponin composition as an “aqueous composition” to be use in animal feed ration ([0021], [022]) in order to provide a source surfactant (e.g. saponin) , a source of vitamins, and as an antiprotozoal composition ([0013]) and it is approved for use in animal feed composition ([0017], [0018]).
20. Claim 37 is rejected under 35 U.S.C. 103 as being unpatentable over Dijcker et al. WO 2020/229357 A1 in view of Miller et al. USPN 4888185 in view of Pratt et al. USPN 3806001 as applied to claim 21 and further in view of Raun USPN 3794732.
21. Regarding claim 37, Pratt et al. is silent about animal feed contains fine particulate monensin and the animal comprising ruminant.
Raun et al. discloses that Ruminant animals having a developed rumen function convert their feed more efficiently to energy when monensin is used in the feed composition (at least in Abstract, Under Summary, col 2 lines 36-45 and claims 1-3 of Raun et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify feed ration of Dijcker et al. in view of Pratt et al. to consider the teaching of Raun et al. to include monensin in the form of fine particulates in the animal composition of animal including ruminants because monensin has beneficial effect to convert the feed more efficiently to energy when monensin is used in the feed composition (at least in Abstract, Under Summary, col 2 lines 36-45 and claims 1-3 of Raun et al.).
22. Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over Dijcker et al. WO 2020/229357 A1 in view of Miller et al. USPN 4888185 in view of Pratt et al. USPN 3806001 as applied to claim 27 and as evidenced by Bogh et al. WO 2017/144730 A1.
23. Regarding claim 50, Dijcker et al. discloses that the livestock is preferably ruminants, cows etc. (at least on page 6, Under “Detailed Description of the invention”-third paragraph). It is known and as evidenced by Bogh et al. that cow is “Bos Taurus (in Bogh et al. Second paragraph, under Summary of the Invention).
24. Claims 74 and 75 are rejected under 35 U.S.C. 103 as being unpatentable over Dijcker et al. WO 2020/229357 A1 in view of Miller et al. USPN 4888185 in view of Miller et al. USPN 4888185 in view of Pratt et al. USPN 3806001 and further in view of Taylor et al. US 2006/00734194.
25. It is to be noted that new independent claim 74 is a combination of part claim limitations of prior original claim 27 and cancelled claim 28. Therefore, the rejection for claim 74 is made accordingly. Regarding new independent claim 75, claim 75 is a combination of part claim limitations of prior original claim 27 and claim 31. Therefore, the rejection for claim 75 is made accordingly. These are presented below.
26. Regarding claims 74, 75, Dijcker et al. discloses a feed composition comprising ‘total mixed ration’ and further comprising water, binders e.g. starch-based binder, protein binder etc. (at least page 2, under summary, Paragraphs 1-3 ). Dijcker et al. also discloses nutrients like vitamins, minerals can be used in feed composition (at least page 2, under summary, Paragraph 3 and page 3 , last paragraph, page 4 first two paragraphs). It is known that vitamins, minerals can be considered as fine particulates to meet “fine particulates “ of claim 74 and 75. Therefore, it also meets “Total mixed ration” of claim 27.
Dijcker et al. discloses that mature dairy cows tend to sort for the smaller feed components of their total mixed ration and therefore, loosing valuable nutritional components from mixed ration (at least page 2, second paragraph). Dijcker et al. also discloses that binder in the composition provides reduction of feed sorting in livestock (Under Summary of the Invention, paragraph 2). Dijcker et al. also discloses the method of reducing feed sorting behavior by evaluating the feed sorting behavior score (FSS) (at least on page 5 paragraphs 1-5) with the reduction of feed sorting by controlling the separation of small particulates with the adherence with binders etc. and therefore, it reduces the tendency of small particulates (e.g. vitamins etc.) to which fall down from the total composition as adherence of the base feed materials is increased and is effective at any weather condition (at least first four paragraphs of page 7). Furthermore, Dijcker et al. also discloses that the reduction of feed sorting provides benefits of utilization and consumption of all the nutritional components present in the feed composition by the livestock, e.g. ruminants, so that rumen health is improved, as every bite taken by the cow, has the same nutritional value (at least two last paragraphs of page 6).
It is to be noted that claims 74, 75 can be interpreted as the steps include mixing the (i) aqueous composition, (ii) fine particulates (iii) and the total mixed ration as claimed in claim 74,75. It is to be noted that aqueous composition can be aqueous water or any aqueous solution or suspension in water. In this instance only aqueous water in combination with fine particulates cannot make ‘an increased consistency of fine particulates”.
It is evidenced by applicants specification (at least in PGPUB [0096]) and also as claimed in claims 74, 75 and discussed above that fine particulates are not rejected (i.e. sorted out) by the animals during consumption of feed composition when they are allowed to adhere with the large particles present in the aqueous composition, to make aggregates, which makes uniformity of the distribution of all components in the composition and it increases consistency of fine particulate dosing to animals as claimed in claims 74, 75.
It is to be noted that Dijcker et al. discloses the addition of ‘aqueous water’ and binders, additives etc. separately to the feed composition (at least in Abstract, and page 2, under Summary of the invention, paragraphs 1-3) as discussed above. Dijcker et al. also discloses that binders stimulate the adherence of feed particles (at least page 4, third paragraph) and it reduces feed sorting in livestock ( page 6, third paragraph under “Detailed description”, which include fine particulates like minerals etc. (at least page 3 last paragraph). Dijcker et al. also discloses that water may be optional (page 2 under Summary of the invention, third paragraph), however, addition of water is preferable because it has positive effect on the reduction of segregation ( page 11, mid-section e.g. “Effect of adding Water”).
However, more specifically, Dijcker et al. does not specifically teach an aqueous composition comprising ‘water plus binder’ together to be added to TMR plus fine particulates as an “aqueous composition” as claimed in claims 74,75 in order to have the combined positive effects of water and binder in the “aqueous composition”. This will allow fine particulate to adhere with the large particles present in the aqueous composition during mixing together in order to make an increased consistency of fine particulates as evidenced by applicants’ specification (at least in PGPUB [0096]) when mixed with fine particulates containing TMR as claimed in claims 74,75.
Miller et al. discloses that a ruminant feed supplement can contain a fluid suspension comprising fat, molasses protein (i.e. binders) etc. (at least in Abstract) to be added to feed stuffs to correct nutritional imbalance in the feed ( col 2 lines 48-52).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Dijcker et al. by modifying Dijecker’s separate addition of water and binder with the teaching of Miller to make aqueous composition with water and binder’s together in order to have an additive ‘aqueous composition’ to be added in the feedstuff (col 2 lines 48-52 of Miller) which would have resulted in a more efficient system because of homogeneous mixing and uniform distribution of aqueous composition into feed composition will distribute the agglomerated particles made by fine particulates adhered to binder component in the aqueous composition and thereby it increases consistency and better utilization of fine particulates containing nutritional elements with minimal tendency to reject them.
Therefore, the adherence of the small particles to be bound to the large particles (e.g. binders) present in the aqueous composition, will make aggregates as discussed above as also claimed in claims 74,75.
Dijcker et al. in view of Miller et al. disclose the claim limitations of claim 74,75.
However, they do not specifically teach the claimed step by step of addition and mixing steps in a vessel as claimed in claims 74, 75.
It would have been obvious that the disclosed ingredients can be mixed in a vessel to make final TMR to be used by the animal. Also, it is within the skill of one of ordinary skill in the art to consider the teachings of Dijcker et al. in view of Miller et al. to address these claimed steps as claimed in claims 74, 75.
For example, Dijcker et al. discloses that feed composition includes base feed materials such as roughage etc. which is Total mixed ration (TMR) (Abstract, page 3 second paragraph) roughage plus minerals (i.e. fine particulates) (At least in Abstract and page 3 last paragraph). It is within the skill of one of ordinary skill in the art to add them in a container (i.e. vessel).
Dijcker et al. also discloses that minerals, vitamins (Abstract, page 3, last paragraph) which are known fine particulates can be added to TMR.
Dijcker et al. also discloses that base feed mixed ration (TMR ) composition can further comprise water, binder etc. (Abstract). This can be interpreted that TMR plus fine particulates and aqueous composition with ‘water plus binder’ can read on “mixed total mixed ration of claims 74,75.
Therefore, it meets “adding TMR to a vessel and adding fine particulates to the vessel” as claimed in claims 74, 75.
As discussed above, Miller et al. discloses a ruminant feed supplement can contain a fluid suspension comprising fat, molasses protein (i.e. binders) etc. (at least in Abstract) to be added to feed stuffs to correct nutritional imbalance in the feed ( col 2 lines 48-52).
Therefore, one of ordinary skill in the art would have been motivated to make aqueous composition having water plus binder together as taught by Dijcker et al. in view of Miller et al. to be ready to add to the vessel containing TMR and fine particulates to meet the ‘step of adding an aqueous composition’ to the vessel as claimed in claims 74, 75.
Regarding mixing step to mix aqueous composition , the fine particulates, and the total mixed ration, it is within the skill of one of ordinary skill in the art.
One of ordinary skill in the art would have been motivated to mix them together with a reasonable expectation of success in order to have homogeneous mixing of aqueous composition with no/minimal segregation of small particulates in the final mixed total mix ration to be delivered to an animal. It is to be noted that it is also within the skill of one of ordinary skill in the art to provide the mixed total mixed ration to an animal.
However, more specifically Dijcker et al. in view of Miller et al. is silent about specific arrangement of apparatus with a vessel having mixing arrangement to perform the claimed steps, including mixing steps as claimed in claims 74, 75.
Pratt et al. discloses an apparatus and process to add the dry particulates as dry additive(s) from dry additive and liquid including aqueous liquid composition which can be added to a final mixer 28 which is a vessel (Fig 1, #28 mixing vessel and at least in col 3 lines 1-12).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Dijcker et al.in view of Miller et al. by including the teaching of Pratt et al., to perform the steps with the disclosed apparatus using mixing vessels in order to provide the homogeneous mixing of all the ingredients to make mixed total mixed ration before it is delivered to the animal (Fig 1 #28 and at least in col 3 lines 1-12).
It is to be noted that In this instance, Pratt et al. has broadly disclosed the apparatus to make such feed composition. Pratt et al. is used only specifically to address “vessel” and having mixing arrangement to the vessel to serve as mixing vessel. It is within the skill of one of ordinary skill in the art to consider his teaching of “mixing vessel” of Pratt et al. to perform the claimed mixing steps with a vessel with reasonable expectation of success to make homogeneously mixed final mixed total mix ration.
According to MPEP 2143.01, “Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation-suggestion-teaching test as a guard against using hindsight in an obviousness analysis). Axonics, Inc. v. Medtronic, Inc., 73 F.4th 950, 957-58, 2023 USPQ2d 795 (Fed. Cir. 2023) (the court found an erroneous framing of the motivation inquiry led to an incorrect conclusion of nonobviousness). In this instance, there is some teaching, suggestion, or motivation to consider “mixed vessel” etc. to do so as taught by Pratt et al. to modify Dijcker et al.in view of Miller et al. to meet the claimed invention of claim 74, 75.
Dijcker et al. in view of Miller et al. and in view of Pratt et al. USPN 3806001 are silent about “the aqueous composition comprising a surfactant” as claimed in new claim 74 and also “an aqueous composition comprising a yucca extract” as claimed in claim 75.
Taylor et al. discloses that Yucca extract can be used in solution form also ([0026]) in animal feed composition because it is the source of saponin ([0015]) (i.e. sapogenin), a source of multi-vitamins ([0021]), and also serves as a surfactant (at least in [0013]) and as an antiprotozoal composition ([0013]) and it is approved for use in animal feed composition ([0017], [0018]). Taylor et al. also discloses that saponin ([0015]) (i.e. sapogenin), found in yucca extract is a surfactant (at least in [0013]). Taylor et al. discloses Yucca extracts as liquid saponin composition contains vitamins like E, B1, B2, B6, B12 etc. and water ([0021]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify feed ration of Dijcker et al. in view of Miller et al. and Pratt et al. to make a liquid Yucca/saponin composition as an “aqueous composition” to be use in animal feed ration ([0021], [022]) in order to provide a source surfactant (e.g. saponin) , a source of vitamins, and as an antiprotozoal composition ([0013]) and it serves as surfactant ([0012], [0013]) when present in such a feed composition.
Response to arguments
27. Applicants’ arguments and amendments filed on 5/27/2026 overcomes the rejections of record.
After review, examiner noticed that prior combined prior arts can be considered to address the amended independent claim 27 and new independent claims 74 and 75. It is to be noted that the dependent claim 33 has 112 fourth paragraph rejection due to the amendment of independent claim 27 and addressed in this office action.
It is to be noted that new independent claim 74 is a combination of part claim limitations of prior original claim 27 and cancelled claim 28. Therefore, the rejection for claim 74 is made accordingly.
Regarding new independent claim 75, claim 75 is a combination of part claim limitations of prior original claim 27 and claim 31. Therefore, the rejection for claim 75 is made accordingly.
28. Applicants argued on second page last but one paragraph that “However, neither Dijcker, Miller, nor Pratt recognize that the aqueous composition of claim 27 can achieve a 50 percent increase in average particle size in a mixed total mixed ration while maintaining appropriate moisture levels and feeding characteristics. In contrast, the present application provides empirical data in Example 1 and FIGS. 10-11 demonstrating that, by using the claimed aqueous composition, the average particle size can be increased by at least 50 percent”.
In response, it is to be noted that the result of example 1 , Fig 10 and Table 1, and also at least Table 2 shows the particle size is increased due to agglomeration due to more fine particles are bound to large particles [e.g. in Table 1, from T1…> T8 trays having coarse to fine particles containing trays at 0% moisture addition (MA) 184.0 (T1) to 1.50 (T8) is becoming at 10% MA, 193.00 (T1) to 0.10 (T8)]. In Table 2 it shows the same result by making an average value between T1-T3 (considering average large particles) vs T4-T8 (considering average small particles) and comparing the values which is e.g. at 20% MA , it is an increase of (96.84-62.38) /62.38x100= about 55% and reducing the loss of small particles from 37.62 to 3.16 due to enhanced bonding of small particles to make agglomerated large particles (Table 2).
This would have been obvious and helpful to avoid loss of valuable nutrient containing fine particles contributed by aqueous composition in the Total Mixed Ration (TMR) and is also cited in applicant’s specification (in PGPUB [0172]).
Primary prior art by Dijcker et al. discloses the same effect. Dijcker et al. discloses that water can be added at least 15% by weight or preferably 25% by weight (at least in claim 8 of Dijcker et al.) and water addition has the contribution to reduce particle size (at least in Table 4 , e.g. first line under Table 4, Page 12 of Dijcker et al.). It is evidenced by applicants’ specification and as discussed above that 20% MA contributes about 55% increase of particle size (at least in Table 2) . As Dijcker et al. does not specify any small amount of water which cannot make an increase of “at least about 50 percent average particle size”, therefore, Dijcker et al. is proper.
Dijcker et al. discloses sufficient amount of water which can be used to achieve “at least 50% increase in average particle size through optimization. This is addressed in the office action using Result Effective variable.
Regarding claims 27 and 75 it is also within the skill of one of ordinary skill in the art to optimize the percent amount “Moisture addition” from considering different amounts of TMR addition (in PGPUB [0173]) and measuring agglomerated particles vs small particle distribution in the final product.
Therefore, the experimental results presented in the applicant’s specification do not provide any criticality of the claimed invention with respect to “ an increase of an average particle size by at least about 50%” as claimed in independent claim 27 and 75.
29. Applicants argued on fourth page last paragraph that
(a) Taylor is directed to an entirely different problem and mode of administration because Taylor discloses the methods are aimed at counteracting the loss in feed intake that is observed "after a post-receiving stressful event ([0002]) such as handling, weighing, vaccination, implanting, ultrasonic back fat screening, pregnancy testing, etc." Id. at paragraph [0003]) and optionally followed by smaller "maintenance" doses over time (Taylor [0026]-[0029]).
(b) Taylor further underscores that "embodiments of the current invention involve the oral administration of a higher dosage of a saponin liquid or dry supplement to an animal in order to counteract the loss in feed intake that is observed after a stressful event." Id. at paragraph [0017].”
(c ) By contrast, the present application is not directed to administering a stress-event bolus or rescue dose. The claimed methods relate to the continuous preparation of total mixed rations with an aqueous composition including a surfactant (e.g., yucca-derived saponins) in order to agglomerate fine particulates with coarser TMR components, thereby increasing average particle size in the feed and reducing fines and feed sorting behavior over routine feeding cycles, not to deliver a single high oral dose in temporal proximity to a stress event.”
In response to applicant's argument, it is to be note that Taylor et al. is an analogous 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, the examiner notes that Taylor’s disclosed invention is “not at all any different problem”. The reason is it is related to relevant behavioral , health conditions of the animals and feed composition.
As discussed in the office action above Dijcker et al. is modified by Taylor to incorporate Yucca/saponin composition as an “aqueous composition” in animal feed ration ([0021], [0022]) in order to provide a source surfactant (e.g. saponin) , a source of vitamins E, B1, B2, B6, B12 etc. and water ([0021], [0026]), and it provides an antiprotozoal effect ([0013]) and it is approved for use in animal feed composition ([0017], [0018]).
Therefore, the motivation from secondary prior art by Taylor is also appropriately relevant with respect to feed composition and animal nutrition and applicable here. Even if Taylor does not specify any property from embodiments of applicant’s invention, it does not mean that the prior art is not relevant and non-analogous.
Even if Taylor et al. does not specify claimed property of Yucca extract, the disclosed Yucca extract is identical to the claimed Yucca extract and therefore, it will have an identical claimed property . According to MPEP 2143.01, “ Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation-suggestion-teaching test as a guard against using hindsight in an obviousness analysis)”.
30. Applicants argued that “Further, Taylor is silent as to any use of surfactants, such as yucca extracts, to reduce fines or feed sorting behavior by physically binding fine particulates to larger feed particles. Taylor discusses that yucca extracts are approved for use in animal feeds "as a flavoring agent (IFN 8-19-700, reg 172.510)" and acknowledges that "Yucca extracts have been fed to livestock in low doses for many years." Id. at paragraph [0017]”.
In response, Taylor et al. discloses that Yucca extract can be used in solution form ([0026]) in animal feed composition because it is the source of saponin ([0015]) (i.e. sapogenin) a source of multi-vitamins ([0021]), and also which serves as a surfactant (at least in [0013]). In addition, it is also to be noted that the disclosed Yucca extract is identical to the claimed Yucca extract and therefore, it will have an identical property including the property to serve as surfactant and also it will have property to “reduce fines or feed sorting behavior by physically binding fine particulates to larger feed particles”.
31. Applicants argued that “Accordingly, even if one were to accept that Taylor generally discloses that yucca extracts and saponins are "approved for use in animal feeds," Taylor does not provide any motivation for one of skill in the art to incorporate a yucca-based, saponin-containing aqueous composition into a TMR mixing process in the manner and for the purposes claimed in the present application. Taylor at paragraph [0017]. In light of Dijcker's already complete dry-binder solution to feed sorting and Taylor's focus on high-dose stress-event oral administration to counteract post-receiving feed-intake depression, there is no articulated rationale, to modify or combine these disclosures to arrive at claim 74.
In response, as mentioned above for the rejection of claim 74, Taylor et al. is used to address “surfactant is saponin present in yucca extract (in Taylor [0013], [0015]) in addition to other nutritional property of Yucca extract ([0015], [0013], [0021], [0026]).
Even if the alleged paragraph [0017] of Taylor discloses that saponin liquid or dry supplement counteracts the loss in feed intake that is observed after a stressful event which is relevant to the present claimed invention. This is also related to the disclosed invention by Dijcker's composition. However, the motivation to combine Taylor to modify Dijcker's composition is also proper because Taylor’s Yucca/saponin composition as an “aqueous composition” serves as surfactant having an additional nutritional sources of vitamins etc. in animal feed ration ([0021], [0022], [0026]) with an additional antiprotozoal effect ([0013]) which is relevant to Dijcker's animal feed composition because it enhances nutritional quality of Dijcker's animal feed composition as discussed above.
Conclusion
32. 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 extension fee 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 date of this final action.
Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, 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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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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