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 .
Claims 1-25 are cancelled.
Claims 26-34 are included in the prosecution.
Claim Rejections - 35 USC § 103
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 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.
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 of this title, 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.
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 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating
obviousness or nonobviousness.
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 26-34 are rejected under 35 U.S.C. 103 as being unpatentable over Mitchell et al. (WO2019213703A1) hereinafter Mitchell in view of Becker et al. (“Evidence for a hydrogen-sink mechanism of (+)catechin-mediated emission reduction of the ruminant greenhouse gas methane”, Metabolomics (2014) 10:179–189) hereinafter Becker.
Regarding claims 26-34, Mitchell is drawn to animal supplements and feeds comprising an extract derived from sugar cane, in particular, animal supplements and feeds comprising a polyphenolic extract derived from sugar cane. Mitchell is also drawn to animal supplements, animal feeds, methods and uses for improving or maintaining the health of animals to the benefit of improved food production and food quality (abstract). Mitchell discloses a non-human animal formulated supplement comprising an extract derived from sugar cane, the extract comprising from about 10 catechin equivalent (CE) g/L to about 50 CE g/L of polyphenols or from about 100 CE mg/g to about 500 CE mg/g of polyphenols [10]. Mitchell discloses the extract derived from sugar cane comprises at least about 10 CE g/L of polyphenols or at least about 150 mg CE/g of polyphenols. As explained above, the term "CE", or "catechin equivalent" is a measure of total polyphenolic content, expressed as catechin equivalents mg/g extract derived from sugar cane or catechin equivalents g/L extract derived from sugar cane [167].
Mitchell discloses the extracts derived from sugar cane, together with a conventional adjuvant, carrier or diluent, may be placed into the form of a veterinary composition and unit dosages thereof, and in such form may be employed as solids, such as tablets, powders or filled capsules, liquids as solutions, suspensions, emulsions, syrups, elixirs or capsules filled with the same, creams, serums, gels, and oils. Extracts derived from sugar cane of the present disclosure, together with other conventional additives may be placed in animal feed supplements or animal feeds [239].
Mitchell discloses the compositions, animal supplements or animal feeds of the present disclosure may comprise the extracts derived from sugar cane of the present disclosure in an amount of up to about 20.0 wt % based upon the total weight of the composition, animal supplement or animal feed [253].
Mitchell discloses the compositions, supplements and feeds comprising the extracts can be used for improving or maintaining health in an animal subject. The present inventors have surprisingly found that the extracts derived from sugar cane of the present disclosure have properties making them favorable for use in improving or maintaining the health of animals. Representative properties include: wherein gastrointestinal microbiota function is improved or maintained [264]. One of ordinary skill in the art would reasonably expect success wherein gastrointestinal microbiota function is improved mitigates greenhouse gas emissions by an animal.
Mitchell further teaches that the polyphenols of their disclosed extract include, for example, catechin. Mitchell teaches all of the limitations of the composition, but does not teach that it would result in mitigating greenhouse gas emissions by changing the composition of microbial communities associated with the animal.
However, Becker teaches that catechin acts as an anti-reductant, by acting as a hydrogen-sink by competing with methane production by rumen methanogens, thereby reducing emissions of methane gas by ruminants.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Mitchell, wherein catechin acts as an anti-reductant, by acting as a hydrogen-sink by competing with methane production, thereby reducing emissions of methane gas by ruminants, as previously disclosed by Becker, to arrive at the instant invention.
One of ordinary skill in the art would have been motivated to do so because although Mitchell does not recognize that the composition has the effect of mitigant greenhouse gas emissions by ruminants, this effect would have been recognized in view of the teachings of Becker since Mitchell teaches that their extract includes catechins. Further, one having ordinary still in the art would reasonably expect success in combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
Response to Arguments
Applicant’s arguments on pages 4-7 of the 12/17/2025 remarks have been fully considered; however, while the claim was amended to narrow the range of the amount of extract, the preamble of the claim appears to be a latent property that would inherently result based on practicing the recited method steps, which is particularly disclosed and claimed by Mitchell, such as in claim 9, drawn to a method for improving digestibility in a non-human animal subject. Mitchell teaches that the non-human animal subject can be a ruminant (see para 110). Further note that claim 3 limits the amount of supplement to up to 2 wt%, thereby encompassing the instantly claimed range. Although the prior art does not expressly teach that their disclosed method results in mitigating greenhouse gas emissions by changing the composition of microbial communities associated with the animal, this result would flow naturally. MPEP 2145 notes that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. The recitation of an additional advantage associated with doing what the prior art suggests does not lend patentability to an otherwise unpatentable invention.
Conclusion
No claims are allowed.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615
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