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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 22, 2026, has been entered.
Claims 11-17 and 21-24 are pending in the application. Claims 11-16 and 22-24 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Claims 18-20 and 25-27 have been cancelled. Claims 17 and 21 are examined in this office action.
The previous rejections have been withdrawn in view of applicant’s claim amendments and the cancellation of claims 18-20 and 25-27.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 17 and 21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 17 has been amended to claim the omega-3 fatty acids are present in the feed in an amount of ≥ 0.42 kg per ton of feed. This range has no upper limit. The specification and claims as originally filed recited a range of 0.42 kg to 7 kg omega-3 fatty acids per ton of feed. Therefore, the range of omega-3 fatty acids now recited in claim 17 is not considered to have written description support.
Additionally, claim 17 now recites that the back-fat thickness is reduced by “at least about 20%”. The examiner finds no support for this claimed range, with no upper limit in the amount of back fat reduction, in the specification and claims as originally filed.
Claim 21 is included in the rejection as it depends from claim 17.
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.
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 17 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Goethals (US 2011/0311634; cited on IDS filed July 10, 2023) in view of Ishihara et al. (US 4,276,286).
Regarding claim 17, Goethals teaches a feed additive for animals, including pigs, that comprises a butyrate salt [0007, 0063], with sodium butyrate being preferred [0008].
The feed additive may further comprise omega-3 fatty acids including eicosapentanoic acid (EPA) and docosahexanoic acid (DHA) [0048].
Goethals teaches the additives are added to a diet at 100 g (0.1 kg) or more butyrate derivative per ton of feed [0026], and the additional additive (i.e., omega-3 fatty acid) is added at about 50 g (0.050 kg) or more per ton of feed [0042]. This amount of butyrate is close to the claimed 0.98 kg/ton, and the 0.050 kg/ton or more omega-3 additive encompasses the claimed range. Therefore, the claimed amounts of the butyrate and omega-3 fatty acid are considered to be obvious over the teachings of Goethals.
Goethals teaches the additive can be used mixed with complete feed [0062], but is silent as to the composition of the complete feed (i.e., basal diet).
Ishihara et al. teach a basal diet for pigs, where the basal diet comprises, in % by weight, 50 % corn, 6% soybean meal, 9.2% wheat bran and 0.5% premix (Table 4 “Initial Stage”). These amounts are slightly different than claimed. However, “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.” MPEP § 2144.05(I). Given that the basal diet for pigs as taught by Ishihara et al. comprises the same components as claimed, the claimed basal diet is considered to be obvious over that of the prior art.
Further, it would have been obvious to have utilized the basal diet of Ishihara et al. with the additive of Goethals as Goethals does not limit the diets in which its additive is included.
Modified Goethals doesn’t specifically teach a method for reducing pig back-fat thickness, or an amount of back-fat reduction, by adding additives during feeding. However, where modified Goethals teaches feed additives suitable for pigs, and where the additives comprise butyrate and may further comprise omega-3 fatty acids, it would have been obvious to have arrived at a pig feeding method as claimed. This would have required no more than routine experimentation, as the claimed components are being utilized consistent with the usage as reported in the prior art to provide an animal feed supplement for the intended use in feeding animals including pigs. Further, any effects on the back-fat thickness would have been expected to be present as a result of feeding the feed additive of Goethals in combination with the basal diet of Ishihara et al., given the feed comprises the same ingredients as claimed.
Goethals teaches the feed additive is suitable for pigs (i.e., swine and piglets) [0063]. Ishihara et al. teach a basal diet for pigs (Table 4). Neither reference specifically teaches ternary pigs or Duroc-Landrace-Yorkshire ternary hybrid pigs.
However, where both references teach feeding their products to pigs, it would have been obvious to have provided the additive to any pig, including the claimed ternary pigs and Duroc-Landrace-Yorkshire ternary hybrid pigs.
Response to Arguments
Applicant's arguments filed May 22, 2026, have been fully considered but they are not persuasive.
Applicant again argues that the instant invention is for a different purpose and solves a different technical problem than is discussed in Goethals (Remarks, p. 8).
This arguments are not persuasive. While Goethals may not discuss the effects on back fat thickness, given that Goethals is feeding the same animals (i.e., pigs) a composition comprising the same components (i.e., butyrate and omega-3 fatty acids) any effects on back fat will necessarily be present in the prior art. "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). See MPEP § 2145(II).
Applicant’s remarks discuss comparative data as shown in Tables 3 and 4 and the alleged synergistic effects (Remark, p. 7).
As stated in the final action dated January 23, 2026, the showings in these tables are not commensurate in scope with the claims. In Tables 3 and 4, there is only one group that was fed both the butyrate salt and the omega-3 fatty acid, and in a specific ratio. The claims as amended allow for less omega-3 fatty acid than butyrate to be present, but all of the showings in the spec, including Table 5, appear to have an amount of omega-3 that is at least equal to the amount of butyrate salt, and at the most up to 10x the amount of butyrate salt.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIKKI H. DEES whose telephone number is (571)270-3435. The examiner can normally be reached 10:00 am-5:00 pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tricia Mallari can be reached at 571-272-4729. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Nikki H. Dees
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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