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 .
Amended claims 1-3, 10-16 and withdrawn claims 4-9, and 17-20 are pending.
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.
Previously presented rejection of claim(s) 1-3, 10-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Calvo, Inorg. Chem. 1993, 32, 6016-6022, Mahmoud US7129375 and Voronin WO 2010074602 is maintained.
Response to Applicants Remarks are found at the end of the following previously presented rejection.
Calvo teaches page 6017, column B Fig 1, Cu(L-asp)(H20)2
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corresponds to the complex of claims 1-3 wherein n = 0.
The difference is that instant base claim 1, with amendment and recites the limitation with respect to
Calvo is silent with respect to the preamble of the dependent product claims 10-15.
Examination guidelines with respect to preamble is found in MPEP 2111.02 Effect of Preamble [R-07.2022] The determination of whether a preamble limits a claim is made on a case-by-case basis in light of the facts in each case; there is no litmus test defining when a preamble limits the scope of a claim.
The preamble relates to the feed composition containing the Copper complex.
The teachings of Mahmoud and Voronin are invoked to cure the deficiency of Calvo.
Mahmoud discloses a neutral complex of a trace element selected from zinc, copper, and manganese and an amino acid selected from aspartic acid and glutamic acid, wherein the neutral complex is combined with a suitable animal feed carrier, the trace element is selected from the group consisting of zinc, copper, and manganese, and an amino acid is glutamic acid; the metal ion and the amino acid form a 1:1 ligand; A
method for nutritional supplementation of animals by feeding the complex is provided, wherein the animal is a domesticated livestock or poultry animal (claims 1-14, and description, paragraphs 23 and 54-57).
At column 5 Mahmoud teaches
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Mahmoud teaches the complexes are hygroscopic (column 5 line 10-11) and thus relates specifically to the breadth of the limitation n as any value from 0 to 10. The term ‘trace’ in Mahmoud includes the instant fractional amount of water present outside the coordination sphere (of the complex of Calvo).
Voronin also teaches a bioavailable form of trace element additives in feed mixtures for animals and birds, comprising a complex of trace elements containing manganese, iron, copper, cobalt and zinc, or each of the above trace elements individually, wherein aspartic acid is used as a substance for forming a compound with a metal, and the molar ratio of the aspartic acid to the metal is 1: 1 to 2: 1 (Claim 1):
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Therefore, as highlighted above, the limitations of all claims (additional additives) are known in the prior art. As such nothing unobvious is seen in the claims.
Response to Remarks:
Applicants arguments focuses on the amendments to claims and the alleged ‘unexpected results’. As per the pointed out data (Table 3), the compounds of claims 3 for example show very similar activity rest of the compounds tested, even when compares to Asp itself, see % relative weigh gain rate. It is unclear what is deemed ‘unexpected’ given the overlapping ranges. Yes, the Calvo compound does not have additional (fractional) amount of water. Given the overlapping ranges of water and changes in color of the samples (indicative of perturbation of coordination around Cu), may be there is some changes in the data. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions [R-01.2024]: 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) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.
Given the compounds are hydroscopic in nature, with the small amounts of water making, difference if any, is not explicitly evident from the alleged unexpected results.
Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art.
Accordingly, the claims do not recite an unobvious distinction over the prior art. Further, a reference is relevant not only for what it expressly teaches, but also for what it would have conveyed to one of ordinary skill in the art. See In re Opprecht, 12 USPQ2d 1235, 1236 (Fed. Cir. 1989); In re Bode, 193 USPQ 12 (CCPA 1976). In light of the foregoing discussion, the Examiner finds that the claimed subject matter as a whole would have been obvious to one of ordinary skill in the art at the time the invention was made, in view of the cited references and the knowledge generally available in the art. Accordingly, the claims are rejected under 35 U.S.C. § 103.
The art made of record and not relied upon is considered pertinent to applicant's disclosure:
Kromm, Copper in ruminants: From essential to toxic, Feed Additive, 03/09/2022.
smartfertilisers.com.au/copper-the-importance-to-animal-health-and-its-relationships-with-other-nutrients/
Suggestion:
Place on record, pointing out and explaining fully how the results with compounds of claim 3 are superior compared to Calvo compound. Under (MPEP) § 716.02(b), unexpected results must show a significant and practical advantage, proving the difference is not just trivial or expected. Applicants carry the burden to provide concrete factual proof that results have real-world, statistical, and practical significance to overcome an obviousness rejection.
With that,
REPLACE Claim 10, line 2, “1” WITH –3--.
REPLACE Claim 14, line 2, “2” WITH –3--.
DELETE claims 1-2,
DELETE WITHDRAWN claims 4-9, 17-20
THIS ACTION IS MADE FINAL. 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 NIZAL S CHANDRAKUMAR whose telephone number is (571)272-6202. The examiner can normally be reached M-F 8-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Kosar can be reached at (571) 272-0913. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NIZAL S CHANDRAKUMAR/Primary Examiner, Art Unit 1625
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