DETAILED ACTION
Status of Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections – 35 U.S.C. 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 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.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN106036140A Machine Translation).
Regarding claims 1-18, Wang is drawn to a piglet starter feed. The functional feed includes one or more of the following: feed powder, maltodextrin, whey powder, whey protein concentrate, glucose (sweetener), plant essential oils, sodium butyrate. The nutritional characteristics and palatability of creep feed are also fully expressed. The creep feed of this invention is nutritionally complete and balanced, palatable, and piglets like to eat it, resulting in high feed intake and low disease incidence (abstract).
Wang discloses a piglet starter feed, the components of which are calculated by weight as follows: 100 parts feed powder, 46 parts maltodextrin, 80 parts whey powder (comprises alpha-lactalbumin), 30 parts whey protein concentrate (comprises alpha-lactalbumin), 0.2 parts plant essential oil (flavoring), 4 parts sodium butyrate (Example 1; [0030]). Wang discloses crushed granules (powder) [0021].
Wang does not explicitly disclose the formulation as claimed together in one single embodiment.
However, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the teachings of Wang to arrive at the instant invention, with the motivation that Wang discloses each of the required components and amounts, and for the same purpose of a functional feed (abstract).
Further, one having ordinary still in the art would reasonably expect success in combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
The Supreme Court has acknowledged:
When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation... 103 likely bars its patentability...if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond that person’s skill. A court must ask whether the improvement is more than the predictable use of prior-art elements according to their established functions......the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results (see KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 U.S. 2007) (emphasis added).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Pertinent Art Not Relied Upon
Examiner has identified Kuang et al. (US 20180161292 A1) drawn to nutritional compositions containing dietary butyrate (abstract), the dietary butyric acid may also be provided in a coated form. For example, coating certain glycerol esters of butyric acids with fat derived materials, such as mono- and di-glycerides; sugar and acid esters of glycerides; phospholipids; plant, animal and microbial derived proteins and hydrocolloids, such as starches, maltodextrins [0067], alpha lactalbumin [0212], powdered nutritional formulation [0236], but has not directly relied upon the teachings from the reference in this action.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QUANGLONG N TRUONG whose telephone number is (571)270-0719. The examiner can normally be reached on 8:00 am-5:00 pm.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615
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