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 .
DETAILED ACTION
2. Applicants’ arguments and amendments filed on 12/03/2025, overcomes the rejections of record, however, the new grounds of rejection as set forth below are necessitated by applicants’ amendment and therefore, the following action is Final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 15-31 are pending in this office action.
Claims 15, 21, 22 have been amended.
Claims 1-14 are cancelled.
Claims 25-31 are new.
Claims 15-31 have been rejected.
Claim Rejections - 35 USC § 103
4. 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.
5. 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.
6. 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.
4. Claim(s) 15-26 are rejected under 35 U.S.C. 103 as being unpatentable over Herrero et al. US 2015/0250209 A1 in view of Brintrup et al. US 2018/0184699 A1.
5. Regarding claims 15-17, Herrero et al. discloses a feed composition for a livestock (at least in [0040], [0002], [0042], [0043]) that the amount of abscisic acid (ABA) in the commercial diet can vary in the range amount of 2.5 to 500 ppm (claim 16 of Herrero et al.) for birds (at least in claims 12, 16 of Herrero et al.). Herrero et al. also discloses that the feed composition includes abscisic acid which provides health and feed benefits for livestock animals ([0005], [0017], [0020]) when administered in an amount ranging from 2.5-7.5 ppm (narrow range) ([0066], Table 5) which meets claims 16 and 17. It is to be noted that if we consider the disclosed Table 5 of Herrero et al., the amount of ABA in ppm can vary based on sex, body weight etc. and optimizable within the disclosed range amount which meet claimed range amount of claim 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). It is also optimizable.
Absent showing of unexpected results, the specific amount of abscisic acid is not considered to confer patentability to the claims. As the amount at this low value of abscisic acid is at ppm and can have its effect in a range amount which are variables that can be modified, among others, by adjusting the method of extraction to get desired amount, therefore, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of abscisic acid in Brintop et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired effective growth of birds, animal etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding arginine, Herrero et al. also discloses that the animal feed comprises protein.
However, Herrero et al. is specifically silent about the amount of protein which provides the amount of arginine (amino acid) in the composition.
Brintrup et al. also discloses that the dietary supplement is feed supplement for birds and animals (at least in Abstract and [0066]). Brintrup et al. also discloses an animal feed composition comprising seaweed extract comprising abscisic acid and protein 8.4% by weight as supplement ([0066], Table 2) which contain arginine 5.01g/100 gm protein ([0066], Table 3). Therefore, 5.01/100x8.4= 0.40g/100 gm i.e. 4000 ppm (1g/100gm=10,000 ppm, google) feed.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Herrero et al. with the teaching of Brintrup who discloses that the protein supplement contains arginine which is included as protein supplement in the diet in order to have amino acid supplement an amino acid balance in the diet (Table 3, SEE Heading "e.g. Amino acidic balance").
Therefore, Herrero et al. in view of Brintrup et al. meets claims 15-17.
6. Regarding claims 18, 19, as discussed above, Brintrup et al. discloses that the dietary supplement contains arginine as an amino acid supplement in the diet (at least in Table 3, [0066]). Brintop et al. discloses an animal feed composition comprising seaweed extract comprising abscisic acid and protein 8.4% by weight as supplement ([0066]) which contain arginine 5.01g/100 gm protein ([0066], Table 3).
Brintrup et al. discloses that the dietary supplement contains arginine as an amino acid supplement in an amount of 5.01 g/100gm protein and protein is 8.4 gm (Table 2). Therefore, it is 5.01/100x8.4 = 0.40g/100 gm feed composition which is 4000 ppm (1g/100gm =10,000 ppm, google) in the diet (at least in Table 3, [0066]).
Therefore, if we consider the disclosed range amount of 2.5 to 500 ppm ABA containing dietary supplement (at least in claims 12, 16 of Herrero et al.) which is modified by the amount of protein contributing 4000 ppm of arginine as discussed above, then the ratio is e.g., considering one value e.g. 2.5 ppm ABA and 4000 ppm arginine, it will be about 1: 1600. If we consider that the modification will bring protein from seaweed extract supplement and it will carry additional hormone ABA in an amount of 0.05 mg/L i.e. 0.05 ppm (1mg/ml =1 ppm, Google) as disclosed by Brintrup, ([0066], Table 4), then also the ratio overlaps the claimed ratio of claims 18, 19.
It is also to be noted that the amounts of ABA, Arg as disclosed by Brintrup is considered as the laboratory analysis data from seaweed extract as disclosed by Bintrup et al. ([0065], [0066]). However, it is to be noted that the dietary supplement disclosed by Brintop et al. is extracted from seaweed ([0052]-0066]), it would have been obvious by one of ordinary skill in the art that the content of a hormone e.g. Abscisic acid is so small amount. Therefore, Herrero et al. is used as primary prior art to teach the range amount of ABA which is effective as supplement, to increase the health condition of the animal. Herrero et al. is modified with the teaching of Brintrup to include seaweed extract as a nutritional source to contribute proteins, minerals etc. where the disclosed protein concentration will contain amino acids including the disclosed amount of arginine as amino acid balance ([0066], Table 3).
Therefore, even if Brintrup et al. mentioned very little amount of Abscisic acid in the extract ([0066], Table 4), it can be used as secondary prior art to teach seaweed extract containing protein, mineral as supplement to meet supplementation of arginine because Brintrup et al. is used to modify Herrero to meet claimed amount of arginine and very small amount of ABA does not matter and may be included in the calculation, yet will meet the claimed ratio of claims 18, 19.
7. Regarding claim 20, Herrero et al. discloses a feed composition for a livestock, method of their preparation and administration (at least in [0002], [0042]). Therefore, Herrero et al. meet the claim limitation of "A method of feeding livestock" as claimed in claim 20.
8. Regarding claim 21, Herrero et al. discloses a feed composition for a livestock, method of their preparation and administration (at least in [0002], [0042]) and the method provides a weight gain of livestock animals (at least in [0008], [0029]) which reads on “A method of increasing body weight” as claimed in claim 21. It is to be noted that as the disclosed components containing feed comprising ABA and Arginine is identical to ABA and Arginine of the claimed components containing feed, therefore, the disclosed feed will have identical property of the claimed feed including the claimed property of increasing the body weight will be more compared to “where either abscisic acid or arginine is contained in a feed alone” as claimed in claim 21.
9. Regarding claim 22, Herrero et al. discloses a feed composition for a livestock, method of their preparation and administration (at least in [0002], [0042]) and the method provides an improved feed efficiency of livestock animals (at least in Abstract). It is to be noted that as the disclosed components containing feed comprising ABA and Arginine is identical to ABA and Arginine of the claimed components containing feed, therefore, the disclosed feed will have identical property of the claimed feed including the claimed property of increasing the feed efficiency will be more compared to “where either abscisic acid or arginine is contained in a feed alone” as claimed in claim 22.
10. Regarding claims 23, 24, Herrero et al. discloses that the livestock includes cattle ([0017]). It is known and as evidenced by applicants' specification that mammal includes broadly cows, buffaloes etc. (in PGPUB [0064]) and cattle (in PGPUB [0065]).
11. Regarding claims 25, 26, Herrero et al. discloses that the feed comprises wheat ([0033]).
12. Claims 27-29, 31 rejected under 35 U.S.C. 103 as being unpatentable
over Herrero et al. US 2015/0250209 A1 in view of Brintrup et al. US 2018/0184699 A1 as applied to claim 15 and further in view of Liu et al. CN 102599382 A.
13. Regarding claims 27-29, 31, Herrero et al. discloses that the animal feed can include fat, ascorbic acid (i.e. vitamin C), vitamins, minerals etc. ([0033], [0039]), and enzyme ([0043]).
However, Herrero et al. is not specifically teaching the specific component as claimed in claims 27-29, 31.
Liu et al. discloses that the animal feed composition contains vitamins including vitamin A to meet claim 27, mineral includes potassium chloride ([0010]) to meet claim 28, fatty acid ([0010], [0011]) to meet claim 29, protease enzyme ( [0011]) to meet claim 31.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Herrero et al. with the teaching of Liu et al. to include specifically vitamin A to meet claim 27, mineral includes potassium chloride ([0010]) to meet claim 28, fatty acid ([0010], [0011]) to meet claim 29, protease enzyme ( [0011]) to meet claim 31 in order to provide specific nutritional ingredient of choice as feed supplement.
14. Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Herrero et al. US 2015/0250209 A1 in view of Brintrup et al. US 2018/0184699 A1 as applied to claim 15 and further in view of Zhu et al. CN 108101862 A.
Regarding claim 30, Herrero et al. in view of Brintrup et al. are silent about the taste imparting agent in animal feed.
Zhu et al. discloses that saccharin sodium is used as feed additive to increase taste of the product (at least in page 2, paragraph 12).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Herrero et al. with the teaching of Zhu et al. who discloses that saccharin sodium is used as feed additive to increase taste of the product (at least in page 2, paragraph 12).
Pertinent Note(s)
15. It is highly probable that the content of abscisic acid in the feedstuff was added could have been 0.01-100 ppm or 0.1-10 ppm when the dietary supplement was prepared using the disclosed method of Brintop et al. It is also to be noted that the abscisic acid content can be configured as merely a design matter that is within the skill of one of ordinary skill in the art to address by optimization as required.
Response to arguments
16. Applicant’s argued on first page last paragraph in remarks, that “Although Herrero et al. does not disclose arginine amounts , the office action relies on Brintrup and Brintrup discloses that the dietary supplement contains arginine as an amino acid supplement”.
In response, it is to be noted that claim 15 claims abscisic acid (ABA) and Arginine which is addressed by Herrero in view of Bintrup et al. It is to be noted that Modified Herrero’s ABA is modified by Brintrup’s protein containing feed additive which contributes Arginine to comprise claimed feed which is “ABA mixture feed” (in PGPUB [0060]) and can also read on “A feed” of claim 15.
Applicant’s arguments are mainly based on the fact that “feed” to be considered as “feed composition” and not “feed additive”.
It is noted that independent claim 15 is interpreted as “A feed for livestock” comprising ABA and arginine. The broadest reasonable interpretation of “A feed for livestock” of claim 15 can include any feed composition comprising ABA and arginine.
It is evidenced by applicant’s specification that “An ABA mixture feed” of the present invention can be used as “A feed for livestock” to gain the body weight etc. of livestock (at least in PGPUB [0060]). Therefore, “ABA mixture feed” itself can be considered as ‘feed’ and can serve, by itself, as ‘feed for livestock’. As discussed above, Brintrup’s protein containing feed additive which contributes Arginine in combination with Herrero’s ABA can read on “ABA mixture feed” which is a feed for livestock.
17. Therefore, as claim 15 broadly claims “A feed”, therefore, the arguments as presented on page 2, last paragraph followed by third page first and second paragraph which is based on the calculation that “the feed composition includes only 1.5% of the dietary supplement (in bold, second page, last paragraph) as disclosed by Example 4 of Brintrup et al., while considered, is not found to be the only interpretation of the reference that is applicable given the current claim language, and as such applicants arguments have not been found persuasive.
Applicant’s do not have any further additional arguments.
Therefore, the rejection is maintained as final.
Conclusion
18. 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 extension fee 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 date of this final action.
Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792