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
Continued Examination under 37 CFR 1.114
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/02/2026 has been entered.
Status of the application
3. Claims 15-17, 19-31 are pending in this office action.
Claims 15, 21, 22 have been amended.
Claims 1-14 and 18 are cancelled.
Claims 15-17, 19-31 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.
7. Claim(s) 15-17, 19-26 are rejected under 35 U.S.C. 103 as being unpatentable over Herrero et al. US 2015/0250209 A1 in view of Lanter et al. US 2005 0271788 and further in view of Chevaux et al. US 2004 0166142.
8. 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 broadly disclosed preferred 5 to 500 grams ABA per metric ton ( i.e. 5-500 ppm) in the premix soybean meal animal feed composition ([0033]) which includes animals e.g. livestock and fish ([0007]). 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 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.
Lanter et al. discloses an animal feed composition comprising the feed mixture includes about 25 to 90% water, about 2 to 25% protein, about 3-40% carbohydrate, about 0-10% fat, and less than about 2% fiber (at least in claims 14, 25). Lanter et al. also discloses that the protein source can include broadly plant- based protein includes alfalfa meal, canola seed meal, rice protein, coconut meal (copra), wheat gluten, potato protein, cotton seed meal, linseed meal (flax), peanut meal, safflower meal, sesame meal, soybean meal, soybean proteins and sunflower meal and other oil seed meals (at least in [0015]).
Chevaux et al. discloses that the plant -based protein source contains at least essential amino acid L-arginine-containing ingredient when the protein source is a seed, a seed paste, and/or a seed flour and suitable seeds include soy bean, sunflower seeds, pumpkin seeds, and sesame seeds respectively contain about 1.5-3.0 g, of L-arginine per 100 g and it depends on type of seed used ([0024], [0025], [0073]).
Regarding the claimed ratio of abscisic acid (ABA) and Arginine, it is to be noted that Herrero et al. broadly discloses preferred 5 to 500 grams ABA per metric ton ( i.e. 5-500 ppm) in the premix soybean meal animal feed composition (Herrero et al. [0033]) which includes animals e.g. livestock and fish (Herrero et al. [0007]).
Lanter et al. discloses 25% protein.
Chevaux et al. discloses 2-3 gm/100 gm arginine, (i.e. 0.5-0.75gm /25 gm protein in 100 gm feed composition) is 5000 ppm -7,500 ppm arginine (google search provides the calculation to convert to ppm from percent).
Therefore, if we consider the above disclosures, by considering one number e.g. 5 ppm ABSA and at least 5000 ppm Arginine, the ratio is 1:1000 which meets claimed ratio of claims 15, 19. If we consider broad range amounts of ABA and arginine from the disclosures above, the disclosed ratio overlaps claimed range ratio of claims 15, 19.
It is also optimizable. The reason is, it is to be noted that Herrero et al. discloses broadly an animal feed composition to feed domestic livestock ([0025]) in combination with an effective amount of ABA ( [0028]- [0030]) and an effective can be readily determined by one of ordinary skill in this art ( [0033]). If we consider the broad range disclosure of ABA in the animal feed composition ([0033]) and also disclosed Table 5 of Herrero et al., the amount of ABA in ppm can vary based on sex, body weight etc. and it is optimizable within the disclosed range amount to meet claimed range amount of ABA as claimed in claim 16 and also ratio of ABA : Arginine as claimed in claims 15, 19.
Also, it is applicable for arginine from the disclosures by Lanter et al. and Chevaux et al. as discussed above . Therefore, one of ordinary skill in the art would have been motivated to optimize the amounts from the disclosed range amounts which will meet the claimed range amounts with a reasonable expectation of success to achieve the desired amount of nutritionally enriched amino acid arginine containing protein in combination with desired amount of ABA which provides an increased amount of feed efficiency (in Herrero et al. [0007]) and increasing body weight and reducing mortality of livestock (in Herrero et al. [0028], [0029]).
One of ordinary skill in the art before the effective filling date of the claimed invention to modify Herrero et al. ([0025], [0028], [0029], 0033]) to include the teaching of Lanter et al. to consider 25% by weight of protein from plant origin ( [0015], claims 14, 25 of Lanter et al.) which is the source of protein and also is the preferred enriched source of at least one essential amino acid arginine as disclosed by Chevaux et al. ([0024], [0025], [0073]).
Absent showing of unexpected results, the specific amount of abscisic acid and arginine and the ratio are 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).
9. 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.
10. 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.
11. 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.
12. 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]).
13. Regarding claims 25, 26, Herrero et al. discloses that the feed comprises wheat ([0033]).
14. 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 Lanter et al. US 2005 0271788 and further in view of Chevaux et al. US 2004 0166142 as applied to claim 15 and further in view of Liu et al. CN 102599382 A.
15. 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.
16. Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Herrero et al. US 2015/0250209 A1 in view of Lanter et al. US 2005 0271788 and further in view of Chevaux et al. US 2004 0166142 as applied to claim 15 and further in view of Zhu et al. CN 108101862 A.
17. Regarding claim 30, Herrero et al. is
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).
Response to arguments
18. Applicant’s arguments and amendments have been considered. Applicants arguments and amendments overcome the rejections of record. Examiner is not considering the prior secondary prior arts by Brintrup et al. Therefore, the arguments made for Brintrup et al. is considered as moot. Applicants arguments related to Herrero et al. is primarily based on the consideration of the amounts of ABA which does not provide the claimed ratio of ABA : arginine if we consider the amended animal feed composition as claimed in amended claim 1. In order to consider and address the amended animal feed composition as claimed in amended claim 1, the disclosed Example 4 of Brintrup ([0067]) should be considered in the calculation because it contains claimed basal feed with bran, cereal etc. It is agreed that this does not meet the claimed ratio of ABA : Arginine as argued by the applicants (in Remarks, page 1 last paragraph).
Therefore, examiner has considered two secondary prior arts by Lanter et al. US 2005 0271788 and Chevaux et al. US 2004 0166142 to modify the primary prior art by Herrero et al. to meet claimed invention. Herrero et al. discloses broadly an animal feed composition to feed domestic livestock ([0025]) in combination with an effective amount of ABA ( [0028]- [0030]) and an effective can be readily determined by one of ordinary skill in this art ( [0033]). Therefore, Herrero et al. is combinable and proper primary prior art to be modified by supplementing with the arginine containing protein as disclosed by Lanter et al. US 2005 0271788 and Chevaux et al. and discussed in detail in this office action.
The rejection is made as non-final.
Conclusion
19. 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
Prosecution Insights