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 .
Election/Restrictions
Applicant’s election without traverse of Group III, claims 13-17 in the reply filed on October 13, 2025 is acknowledged. Claims 18-20 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17 depends from claim 16 and recites “a weight ratio”. As a weight ratio was already recited in claim 16, claim 17 should state “the weight ratio”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Note: “Livestock” is defined in the instant specification paragraph 3 as animals that are acclimatized and bred for human use of their products (milk, meat, eggs, hair, skin, fur, labor, etc.) and are bred in human captivity.
Claim 13 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brintrup Meeder (US 2018/0184699).
Brintrup Meeder teaches of a food supplement for animal feed comprising: abscisic acid and proline (abstract, paragraphs 46, 66, Tables N3 and N4, and claim 15).
Regarding the feed as for livestock as recited in claim 13, it is noted that the claimed limitation is intended use and only requires the ability of the product to be used in the claimed manner. Additionally, the claimed limitation is recited in the preamble, and the claim does not appear to depend on the limitation for completeness. Regardless, as Brintrup Meeder teaches that the food is for animals (abstract), including pigs (paragraph 67), which were known livestock, the feed of Brintrup Meeder encompasses a feed for livestock, including mammals as instantly claimed. The position of the office is further supported as Brintrup Meeder teaches of a feed with a composition overlapping that as claimed.
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 (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.
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.
The factual inquiries 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.
Claims 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (CN 1076836A machine translation) in view of Herrero et al (EP 2616058).
Xu teaches enriched feed concentrate (additive) for pigs to increase weight gain (abstract), wherein the concentrate is added to the basic diet composition at 20% (page 2 lines 4-5). Xu teaches that the feed additive contains 2.044% proline (page 1 line 53). Thus, the pig feed would comprise 0.4088% proline.
Xu is silent to abscisic acid and/or salt thereof in the feed as recited in claim 13, preferably from 0.01-100ppm as recited in claim 14, or from 0.1-10ppm as recited in claim 15, wherein the ratio of abscisic acid and/or salt thereof to proline is about 1: 190-2,000,000 as recited in claim 16, or about 1:1,900-200,000 as recited in claim 17.
Herrero et al (Herrero) teaches feed for livestock, including pigs, which includes an effective amount of abscisic acid for weight gain (paragraphs 4, 6-8, 15, 18, and 21). Herrero teaches an effective amount of abscisic acid in the feed composition is about 1-2000g/MT (about 1-2000ppm), preferably 5-500g/MT (5-500ppm), with 1 and 5ppm exemplified (paragraphs 26, 31, and claims 5 and 6).
Regarding abscisic acid and/or salt thereof in the feed as recited in claim 13, preferably from 0.01-100ppm as recited in claim 14, or from 0.1-10ppm as recited in claim 15, wherein the ratio of abscisic acid and/or salt thereof to proline is about 1:190-2,000,000 as recited in claim 16, or about 1:1,900-200,000 as recited in claim 17, it would have been obvious for the feed of Xu to include about 1-2000ppm, preferably 5-500ppm abscisic acid for weight gain as taught by Herrero. As Xu teaches the feed comprises 0.4088% proline, this would result in a ratio of abscisic acid to proline of about 1:2 (0.2:0.4088) to 1:4,088 (0.0001:0.4088). Thus, the prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 13-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15-17 of copending Application No. 18285189 (‘189) or claims 15-17 of copending Application No. 18277407 (‘407) or claim 2 of copending Application No. 18267519 (‘519) as amended November 13, 2025 or claims 15-17 of copending Application No. 18277408 (‘408) or claim 6 of copending Application No. 18037993 (‘993), each respectively in view of Xu (CN 1076836A machine translation).
Each of the copending applications claims a feed for livestock comprising abscisic acid from 0.01-100ppm and/or 0.1-10ppm (‘189 claims 16 and 17; ‘407 claims 16 and 17; ‘519 claim 2; ‘408 claims 16 and 17; ‘993 claim 6), which encompasses the claimed ranges recited in instant claims 14-15.
Each of the copending applications is silent to the livestock feed as comprising proline as recited in claim 13, wherein the ratio of abscisic acid and/or salt thereof to proline is about 1: 190-2,000,000 as recited in claim 16, or about 1:1,900-200,000 as recited in claim 17.
Xu teaches enriched feed concentrate (additive) for pigs to increase weight gain (abstract), wherein the concentrate is added to the basic diet composition at 20% (page 2 lines 4-5). Xu teaches that the feed additive contains 2.044% proline (page 1 line 53). Thus, the pig feed would comprise 0.4088% proline.
It would have been obvious for the livestock feed claimed by each of the copending applications to contain 2.044% proline in order to enrich the feed and promote weight gain as taught by Xu. Thus, the product of each respective application would contain a ratio of abscisic acid and/or salt thereof to proline of 1: 40.88 to 408,800 (abscisic acid from 0.01-100ppm) or 1: 408.8 to 40,880 (abscisic acid from 0.1-10pm) respectively.
These are provisional nonstatutory double patenting rejections.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. WO 96/22019 teaches feed for animals to prevent ascites and reduce stress comprising glutamic acid, glycine and proline.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792