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 .
Claim Rejections - 35 USC § 103
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.
Claims 1, 2, 4, 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Dee USPGPub 20200281227 and EFSA “Opinion of the Scientific Panel on Additives and Products or Substances used in Animal Feed on the safety and efficacy of the product VevoVitall® as a feed additive for weaned piglets in accordance with Regulation (EC) No 1831/2003, The EFSA Journal (2005) 290, 1-13.
Regarding claims 1, 4, 16 and 17, Dee teaches a method of at least partially inactivating African swine fever virus in pig feed comprising adding benzoic acid and at least one essential oil (eugenol and/or thymol) in an amount to at least partially inactivate African swine fever virus in the pig feed as recited in claims 1 and 4. [0004,0011,0017,0040]
Dee further teaches including organic acid in a proportion of 0.05 to 1 wt% based on the total weight of the animal feed. [0014-0019] Benzoic acid is disclosed to comprise about 15-25 wt% of the added organic acid which means Dee discloses an embodiment comprising about 0.25 wt% benzoic acid. [0019] This proportion of benzoic acid overlaps with the ranges recited in claims 1, 16 and 17. 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)
Dee is silent regarding the benzoic acid being added as flakes.
EFSA teaches “VevoVitall®, a product consisting of 99.9% benzoic acid, is proposed as a feed additive (category: zootechnical additives; functional group: other zootechnical additives) for weaned piglets (weight up to 35 kg) to be incorporated directly in feeding stuffs, at concentration of 0.5% in complete feed. Benzoic acid and its derivatives are widely distributed in plants, including those used in feeds. Benzoic acid has been previously authorised at Community level as “acidity regulator” for pigs for fattening at levels of 0.5-1% complete feed and it has been evaluated by the Scientific Committee on Animal Nutrition (SCAN) in 2002 as regards efficacy and safety for target animals, consumer, user and the environment.”(Pg. 1) The appearance is white flakes. (Pg. 13)
Dee and EFSA are both directed towards compositions for feeding animals comprising benzoic acid. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used VevoVitall® benzoic acid flakes in Dee since this form of benzoic acid was known to be suitable in pig feed. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07) Therefore, the modification of Dee with EFSA renders obvious the limitations of claims 1, 4, 16 and 17.
Regarding claim 2, Dee does not require the addition of the recited components and therefore Dee anticipates the negative limitations of claim 2.
Claims 5, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Dee USPGPub 20200281227 and EFSA “Opinion of the Scientific Panel on Additives and Products or Substances used in Animal Feed on the safety and efficacy of the product VevoVitall® as a feed additive for weaned piglets in accordance with Regulation (EC) No 1831/2003, The EFSA Journal (2005) 290, 1-13 as applied to claims 1 and 4 above in further view of Frehner USPGPub 20090004308.
Regarding claims 5 and 20, Dee teaches what has been recited above but is silent regarding the proportions of eugenol and thymol relative to the proportion of benzoic acid.
Frehner teaches a feed additive for pigs having virucidal activity comprising benzoic acid, thymol and eugenol. [0010,0011,0026,0031-0033] Frehner teaches adding thymol/eugenol in a proportion of 0.1 to 20 mg/kg of feed. (0.00001-0.002 wt%) [0032]
Dee and Frehner are both directed towards pig feed having virucidal activity. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the proportions of eugenol and thymol disclosed by Frehner in Dee since Dee is since Dee is silent regarding the proportion of essential oil and the proportions disclosed by Frehner were known to be useful in combination with benzoic acid for having virucidal activity. This modification of Dee would have resulted in a composition having a ratio of benzoic acid to thymol/eugenol ranging from 125-25000:1. These proportions encompass the ratios recited in claims 5 and 20. 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)
Regarding claim 19, Dee is silent regarding a powder mixture of eugenol and thymol.
Frehner teaches using thymol and eugenol adsorbed on a mineral carrier to produce a powder composition as part of the composition disclosed to have virucidal activity.
Dee and Frehner are both directed towards pig feed having virucidal activity. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used a powder having eugenol and thymol to add these essential acids to Dee since Dee teaches these compounds, Frehner teaches their combination with benzoic acid to enhance virucidal activity and adding thymol/eugenol adsorbed on a powder carrier was known in the art to be suitable for inclusion in animal feed. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Dee USPGPub 20200281227, EFSA “Opinion of the Scientific Panel on Additives and Products or Substances used in Animal Feed on the safety and efficacy of the product VevoVitall® as a feed additive for weaned piglets in accordance with Regulation (EC) No 1831/2003, The EFSA Journal (2005) 290, 1-13 and Frehner USPGPub 20090004308.
Regarding claim 21, Dee teaches a method of at least partially inactivating African swine fever virus in pig feed comprising adding benzoic acid and at least one essential oil (eugenol and/or thymol) in an amount to at least partially inactivate African swine fever virus in the pig feed. [0004,0011,0017,0040]
Given that Dee teaches inactivating African swine virus in pig feed, it would have been obvious to one of ordinary skill in the art at the time the application was filed to have employed the process of preparing pig feed in a country having reported any outbreaks of African swine fever at any time, including within the last 12 months in order to prevent or ameliorate such outbreaks.
Dee is silent regarding the benzoic acid being added as flakes.
EFSA teaches “VevoVitall®, a product consisting of 99.9% benzoic acid, is proposed as a feed additive (category: zootechnical additives; functional group: other zootechnical additives) for weaned piglets (weight up to 35 kg) to be incorporated directly in feeding stuffs, at concentration of 0.5% in complete feed. Benzoic acid and its derivatives are widely distributed in plants, including those used in feeds. Benzoic acid has been previously authorised at Community level as “acidity regulator” for pigs for fattening at levels of 0.5-1% complete feed and it has been evaluated by the Scientific Committee on Animal Nutrition (SCAN) in 2002 as regards efficacy and safety for target animals, consumer, user and the environment.”(Pg. 1) The appearance is white flakes. (Pg. 13)
Dee and EFSA are both directed towards compositions for feeding animals comprising benzoic acid. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used VevoVitall® benzoic acid flakes in Dee since this form of benzoic acid was known to be suitable in pig feed. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07) Dee is silent regarding a powder mixture of eugenol and thymol.
Frehner teaches using thymol and eugenol adsorbed on a mineral carrier to produce a powder composition as part of the composition disclosed to have virucidal activity.
Dee and Frehner are both directed towards pig feed having virucidal activity. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used a powder having eugenol and thymol to add these essential acids to Dee since Dee teaches these compounds, Frehner teaches their combination with benzoic acid to enhance virucidal activity and adding thymol/eugenol adsorbed on a powder carrier was known in the art to be suitable for inclusion in animal feed. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
Therefore, the modification of Dee with EFSA and Frehner renders obvious the limitations of claim 21.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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