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 .
The amendment filed December 16, 2025, has been entered. Claims 11-27 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 Claims 11-16 and 22-24 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
The previous rejections over Goethals (US 2013/0034629) have been withdrawn in view of applicant’s claim amendments.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 18, 19 and 27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 17 has been amended to recite the butyrate and the omega-3 fatty acids are in a weight ratio of 1:3. Claim 18 recites an amount of 0.15 to 20 g butyrate and 0.3 to 14 g of the omega-3 fatty acids. However, the upper and lower limits of these ranges do not work with the weight ratio in claim 17. E.g., if 0.3 g of omega-3 fatty acids are included, the 0.1 g of butyrate to meet the 1:3 ratio is outside of the claimed range. Therefore, it is not clear what amounts of butyrate and omega-3 fatty acids are needed to meet claim 18.
Claim 19 has issues similar to claim 18, in that the upper and lower limits of the ranges in claim 19 do not work with the weight ratio in claim 17.
Claim 27 claims a “water soluble microencapsulated fat powder.” It is unclear how a fat powder is to be water soluble, as oil (i.e., fat) is not soluble in water. For purposes of examination, the fatty acids encapsulated in fat will be considered to meet the claim.
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, 19-21 and 25-27 are rejected under 35 U.S.C. 103 as being unpatentable over Goethals (US 2011/0311634; cited on IDS filed July 10, 2023).
Regarding claim 17, Goethals teaches a feed additive for animals, including pigs, that comprises a butyrate salt [0007, 0063]. The feed additive may further comprise omega-3 fatty acids including eicosapentanoic acid (EPA) and docosahexanoic acid (DHA) [0048].
Goethals doesn’t specifically teach a method for reducing pig back-fat thickness by adding additives during feeding. However, where 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 of Goethals, given the feed comprises the same ingredients as claimed.
Regarding the weight ratio in claim 17, 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 (0.50 kg) or more per ton of feed [0042]. Given the weight ranges in Goethals allow for more omega-3 fatty acids than butyrate to be provided in the additive, it would have been obvious to have provided the butyrate and omega-3 fatty acids in a weight ratio as claimed through no more than routine experimentation. This would have been expected to provide the predictable result of a suitable additive comprising a greater amount of omega-3 fatty acids than butyrate which, in turn, provides the desired nutrients to the pigs being fed.
Regarding claim 19, 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 (0.50 kg) or more per ton of feed [0042].
Given the ranges of Goethals are both “or more” than the recited amount, the ranges taught by Goethals overlap and thereby render obvious the claimed amounts for the butyrate and omega-3 fatty acids.
Regarding claims 20 and 21, Goethals teach the feed additive is suitable for pigs (i.e., swine and piglets) [0063]. Ternary pigs and Duroc-Landrace-Yorkshire ternary hybrid pigs are not specifically taught by Goethals.
However, where Goethals generally teaches the feed additive is suitable for piglets and swine [0063], 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.
Regarding claims 25 and 26, Goethals teaches all of sodium butyrate, potassium butyrate, magnesium butyrate and calcium butyrate, with sodium butyrate being preferred [0008].
Regarding claim 27, Goethals teaches the granules, which comprise the butyrate and additives (e.g., omega-3 fatty acids) are coated with a fatty coating [0014].
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Goethals (US 2011/0311634) in view of Swine Nutrition (“Swine Nutrition.” UNH Cooperative Extension. 2018. https://extension.unh.edu/sites/default/files/migrated_unmanaged_files/Resource004502_Rep6414.pdf; downloaded September 10, 2025).
As detailed above with regard to claim 17, Goethals teaches a feed additive for animals, including pigs, that comprises that comprises a butyrate salt [0007, 0063]. 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 (0.50 kg) or more per ton of feed [0042].
Goethals does not teach the daily intake of the butyrate derivative or omega-3 fatty acids.
Swine Nutrition teaches feeding pigs from 5-8 pounds of feed/day, depending on whether or not one is feeding a male or female pig (p. 3 “Feeding Replacement Gilts”, “Feeding Boars”). Taking an average intake of 6.5 lbs of feed per day, and adding 100 g butyrate derivative/ton of feed provides a daily intake of 0.325 g of butyric acid derivative. Similarly, taking an average intake of 6.5 lbs of feed per day, and adding 100 g (i.e., more than 50 g/ton) omega-3 fatty acid/ton of feed provides a daily intake of 0.325 g of omega-3 fatty acid.
Therefore, the claimed daily intake of both the butyrate derivative and omega-3 fatty acids is rendered obvious by the combination of Goethals and Swine Nutrition, as the claimed amounts are reasonably expected to be the result of feeding an additive with amounts of butyrate derivative and omega-3 fatty acid as taught by Goethals in combination with standard pig feed in amounts as taught by Swine Nutrition. Further, arriving at the claimed amounts would have required no more than routine experimentation based on the amounts of butyrate derivative, omega-3 fatty acid and pig feed taught in the prior art.
Response to Arguments
Applicant's arguments filed December 16, 2025, have been fully considered but they are not persuasive.
Applicant argues that the instant invention is for a different purpose and solves a different technical problem than is discussed in Goethals (Remarks, pp. 7-9).
These 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 argues that one of ordinary skill would expect back fat thickness to increase based on Zhuang et al. (2020) (Remarks, p. 9).
The examiner notes that Zhuang et al. is provided with applicant’s response, but was not made of record by applicant. It is not clear how Zhuang et al. provides evidence to overcome the rejection over Goethals, as the Abstract in Zhuang (which is the only portion of the document in English) does not appear to be discussing the effects of feeding omega-3 fatty acids, or butyrate, to pigs. Rather, it appears the article compares a control group of pigs, a group of pigs fed antibiotics, and a group of pigs fed polysaccharides and discusses the differences between the groups.
Applicant argues that there is a synergistic effect in backfat reduction provided by the claimed invention. Applicant points to results shown in Tables 3 and 4 of the instant specification (Remarks, pp. 9-10).
This argument is not persuasive. The showings in Tables 3 and 4 are not commensurate in scope with the claims. The experimental data involves a particular breed of pigs fed a specific basal diet, and specific blends of sodium butyrate and omega 3 fatty acids for a particular amount of time. The claims are directed to feeding pigs butyrate and omega 3 fatty acids in a particular weight ratio. Further, the claims do not require a specific amount of back-fat thickness reduction. Therefore, based on the teachings of Goethals, as discussed in the rejection above, where a combination of butyrate and omega 3 fatty acids are known to be fed to pigs, the claimed method steps are not considered to provide an unobvious contribution over the prior art.
Conclusion
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 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.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yvonne (Bonnie) Eyler can be reached at 571-272-1200. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Nikki H. Dees
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791