DETAILED ACTION
Amendments made April 7, 2026 and May 8, 2026 have been entered.
Claims 15-28 are pending;
Claims 22-24 have been withdrawn.
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 .
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.
Claim Objections
Claims 18 and 19 objected to because of the following informalities: the claims recite “relative to 100 parts pf the basal feed”. This is considered to be a typographical error meant to recite “relative to 100 parts of the basal feed”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 18 and 19 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made April 7, 2026 which specify the claimed amount is relative to 100 parts of the basal feed.
Claims 26-28 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 25, from which claims 26-28 depend recites “wherein the microbial-derived material comprises at least one selected from the group consisting of Streptococcus, spore-forming bacteria, Bifidobacteria…”. Claim 26, which depends from claim 25 recites “wherein the Streptococcus includes Enterococcus faecalis, and Enterococcus faecium”. It is unclear as to if claim 26 would require both types of Streptococcus if the Streptococcus was the selected element from the Markush group, or as to if claim 26 is limiting the Streptococcus to only the types listed, or as to if claim 26 is simply providing further selections within the Markush group recited in claim 25, such that the recited Streptococcus or others would encompass the claimed limitations. Claims 27-28 are rejected to for substantially the same reasons. For the purpose of prior art comparison the claims will be considered in the broadest reasonable sense as requiring only one or more of the listed components of the Markush grouping.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 15, 18, and 19 under 35 U.S.C. 102(a)(1) as being anticipated by Che et al (CN 105661028A machine translation), as evidenced by Romero et al (“A sweet orange mutant impaired in carotenoid biosynthesis and reduced ABA levels results in altered molecular responses along peel ripening” Scientific Reports 2019 pages 1-16) has been withdrawn in light of applicant’s amendments made April 7, 2026.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claims 15-21 and 25-28 are rejected under 35 U.S.C. 103 as being unpatentable over Min et al (CN 102524534A machine translation) in view of Herrero et al (EP 2616058).
Regarding claims 15-17 and 20-21, Min et al (Min) teaches a microbial feed additive, i.e. microbial derived material, for pigs with several benefits including increasing weight gain, improving feed conversion, improving immunity, and providing disease resistance (abstract, paragraphs 74-76, and claims 1, 4, and 5). As Min teaches that the viable bacteria count is “high”, such as more than 94.3% which encompasses below 100% (abstract and paragraphs 45), wherein temperature, digestion, and storage were shown to produce a decrease in survival rates (paragraphs 42-45 and 51-58 and Tables 2-4), the inclusion of killed, i.e. dead bacteria, within the microbial derived material would have been encompassed in the product of Min. It is noted that the process of isolation and killing are considered product by process limitations, and thus are only considered as they affect the claimed product. In the instant case, the process would result in the product comprising dead bacteria which is encompassed, or alternatively obvious over the teachings of the Min when the feed was treated at higher temperatures and/or stored before use; and it would result in the product comprising abscisic acid which is obvious over the teachings of the Herrero discussed below.
Min is silent to isolated abscisic acid and/or salt thereof in the feed as recited in claim 15, preferably from 0.01-100ppm as recited in claim 16, or from 0.1-10ppm as recited in claim 17, wherein the ratio of abscisic acid and/or salt thereof to microbial derived material is about 1: 0.01-1,000,000 as recited in claim 20, or about 1:1-10,000 as recited in claim 21.
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 that the abscisic acid may be a salt or is preferably in isolated form as S-Abscisic Acid (paragraph 13). Additionally, it is noted that as abscisic acid was disclosed it would have been in either an isolated or non-isolated form, and thus the use of an isolated form of abscisic acid would have been obvious as a limited number of options when practicing the invention disclosed by Herrero. 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 isolated abscisic acid and/or salt thereof in the feed as recited in claim 15, preferably from 0.01-100ppm as recited in claim 16, or from 0.1-10ppm as recited in claim 17, wherein the ratio of abscisic acid and/or salt thereof to microbial derived material is about 1: 0.01-1,000,000 as recited in claim 20, or about 1:1-10,000 as recited in claim 21, it would have been obvious for the feed of Min to include about 1-2000ppm, preferably 5-500ppm isolated abscisic acid and/or salt thereof for weight gain in view of Herrero. As Min teaches the feed comprises 0.01% microbial derived material, this would result in a ratio of abscisic acid to microbial derived material of about 1: 0.05 (0.01:0.2) to 1: 100 (0.01:0.0001).
Regarding the claimed ranges, 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.
Regarding claims 18 and 19, Min teaches that the microbial additive is included in the basal feed for the pig, i.e. livestock, at 0.01% (0.01 per 100 parts of basal feed) (paragraph 64), which is considered to encompass or at least make obvious a feed for livestock with the ranges of microbial derived material recited in claims 18 and 19.
Regarding claims 25-28, Min teaches that the microbial derived material comprises bacillus subtilis and bacillus licheniformis (abstract), which are spore-forming bacteria recited in claims 25 and 27. It is noted that claims 26 and 28, do not necessarily further limit the invention of claim 25, in that the claims do not require that the Streptococcus or Bifidobacteria be included in the feed. Rather, claims 26 and 28 simply provide a further selection of the choices within claim 25, and still may be satisfied by a reference meeting the limitation of “or spore-forming bacteria”, and thus the teachings of the reference encompass the claims.
Double Patenting
The text of those sections of Double Patenting not included in this action can be found in a prior Office action.
Claims 15-21 and 25-28 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15 and 17 of copending Application No. 18277407 (‘407) as amended March 18, 2026 or claims 13 and 15 of copending Application No. 18277365 (‘365) as amended March 18, 2026 or claim 2 of copending Application No. 18267519 (‘519) as amended March 3, 2026 or claims 15-17 of copending Application No. 18277408 (‘408) as amended June 2, 2026 or claim 6 of copending Application No. 18037993 (‘993) as amended January 6, 2026, each respectively in view of Min et al (CN 102524534A machine translation).
Each of the copending applications claims a feed for livestock comprising abscisic acid from 0.01-100ppm and/or 0.1-10ppm (‘407 claims 15 and 17; ‘365 claims 13 and 15; ‘519 claim 2; ‘408 claims 16 and 17; ‘993 claim 6), which encompasses the claimed ranges recited in instant claims 16-17. As abscisic acid was claimed by each of the copending applications it would have been in either an isolated or non-isolated form, and thus the use of an isolated form of abscisic acid would have been obvious as a limited number of options when practicing the claims of each of the copending applications.
Each of the copending applications is silent to the livestock feed as comprising microbial derived material comprising killed bacteria as recited in claim 15, wherein the microbial material is from 0.0001-1 part relative to 100 parts of basal feed as recited in claim 18 or 0.001-0.1 part relative to 100 parts of basal feed as recited in claim 19, the ratio of abscisic acid and/or salt thereof to microbial derived material is about 1: 0.01-1,000,000 as recited in claim 20 or about 1:1-10,000 as recited in claim 21, and to the specific microbial derived bacteria as recited in claims 25-28.
Min et al (Min) teaches a microbial feed additive, i.e. microbial derived material, comprising bacillus subtilis and bacillus licheniformis for pigs with several benefits including increasing weight gain, improving feed conversion, improving immunity, and providing disease resistance (abstract, paragraphs 74-76, and claims 1, 4, and 5). Min teaches that the microbial additive is included in the basal feed at 0.01% (paragraph 64), which is considered to encompass or at least make obvious the ranges recited in claims 18 and 19.
It would have been obvious for the livestock feed claimed by each of the copending applications to contain 0.01parts microbial derived material per 100 parts basal feed (0.01%) comprising bacillus subtilis and bacillus licheniformis in order to provide for the benefits taught by Min, including increasing weight gain, improving feed conversion, improving immunity, and providing disease resistance. Thus, the product of each respective application would contain a ratio of abscisic acid and/or salt thereof to microbial derived material of 1:1 (0.01:0.01) to 1:10,000 (0.000001:0.01) or 1: 10 (0.001: 0.01) to 1:1,000 (0.00001:0.01) respectively. Furthermore, as Min teaches that the viable bacteria count is “high”, such as more than 94.3% which encompasses below 100% (abstract and paragraphs 45), wherein temperature, digestion, and storage were shown to produce a decrease in survival rates (paragraphs 42-45 and 51-58 and Tables 2-4), the inclusion of killed, i.e. dead bacteria, within the microbial derived material would have been encompassed in the combination of the claims of each respective copending application in view of Min, or alternatively obvious when the material and/or feed was treated at higher temperatures and/or stored before use.
It is noted that claims 26 and 28, do not necessarily further limit the invention of claim 25, in that the claims do not require that the Streptococcus or Bifidobacteria be included in the feed. Rather, claims 26 and 28 simply provide a further selection of the choices within claim 25, and still may be satisfied by a reference meeting the limitation of “or spore-forming bacteria”, and thus the claims of each copending application in view of Min encompass the claims.
These are provisional nonstatutory double patenting rejections.
Response to Arguments
Applicant's arguments filed April 7, 2026 have been fully considered but they are not persuasive.
Applicant argues that the claimed product of a livestock feed comprising abscisic acid and/or a salt thereof in combination with a microbial derived material comprising killed bacteria produces a synergistic effect of weight gain as seen in Tables 1-4 of the present specification, and which is unexpected in view of Exhibits 1-3. This argument it not convincing.
First, the evidence provided in the specification is not convincing for at least the following reasons:
The evidence is not commensurate in scope with the claims. For example, the evidence is limited to 0.1 and 10ppm abscisic acid, and claim 15 is not limited to any range, nor are the claims limited to only the acid, but also encompass salt forms thereof. Similarly, the claims encompass any microbial derived material in any amount (at least for claim 15) comprising killed bacteria, while the evidence is limited to 0.1ppm microbial derived bacteria comprising both live and dead bacteria only of Clostridium butyricum.
No synergistic effect is seen. As shown in Tables 2 and 4, the tests with both abscisic acid and Clostridium butyricum (1-4 and 2-4 respectively) do not have more than the additive difference from the control of weight gain of the abscisic acid or Clostridium butyricum additively (1-2 plus 1-3; or 2-2 plus 2-3).
The argued evidence is only shown for rats and there is no reasoning or explanation as to why this result would occur for any livestock.
The Exhibits (articles) do not provide further details which cause the evidence to be convincing. While the articles discuss the effects of microbial derived materials, there is nothing to show that the use of abscisic acid with a microbial derived material that would suggest the argued result was unexpected.
Furthermore, the argued result (increased weight gain) does not appear unexpected in view of the prior art. As discussed above, Min teaches a microbial feed additive, i.e. microbial derived material, for pigs with several benefits including increasing weight gain, improving feed conversion, improving immunity, and providing disease resistance (abstract, paragraphs 74-76, and claims 1, 4, and 5); and 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). Thus, to have a composition with two ingredients known and taught to provide for increased weight gain, and to have an increased weight gain, more than one component individually appears only additive in nature, and a natural result which is suggested by 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.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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