DETAILED ACTION
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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 6, 18, and 19 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 6 recites the limitation "the sugar" in line 2. There is insufficient antecedent basis for this limitation in the claim. Because the claims uses “reactive sugars” and “reducing sugars” to be clear the claim should states “the reactive sugars”.
Claim 6 recites the limitation "the reducing sugar" in line 5. There is insufficient antecedent basis for this limitation in the claim.
With regard to Claim 18, it is unclear if the claim requires all the listed processing aids or if it only requires one or more. The claim states “comprises”, and does not list the following processing aids in the alternatives but then further states “and combinations thereof” at the end of the list. By using “comprises” the limitation reads such that all the listed processing aids are required but by finishing the list with “combinations thereof” the limitation of what/which processing aids are required becomes unclear, since if all are required then combinations thereof would inherently be present. Further the examiner would like to point out that if applicant is trying to use a Markush group that the Markush group should use “consisting of” language not “comprising” language. See MPEP 2117 which further defines Markush groups.
Claim 19 is rejected due to its dependency on rejected claim 18 above.
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.
Claims 1-2, 4-6, 12, 14, 15, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein et al. (herein referred to as Klopfenstein US 5064665) in view of Meyer ( US 4664905 A) and Drouillard et al (herein referred to as Drouillard, US 20020122846 A1)
With regard to Claims 1 and 2, Klopfenstein teaches a method comprising mixing select protein sources (abstract). Klopfenstein teaches the protein sources are selected from oil seeds, grains, pulses, legumes, animal proteins, and grain processing coproducts such as soybean meal (Col 2, lines 57-65). Because Klopfenstein teaches using substantially identical proteins as disclosed in claim 2 and specifically soybean meal as disclosed in applicants instant specification under exemplary examples of oil seed meals on page 6, one with ordinary skill in the art would deduce the amino acid pattern would be about equal to ruminant lean tissue, milk protein, or both. See MPEP 2112.01(II) which states "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Klopfenstein teaches adding a solvent to the mixture to form a solvent protein mixture (Col 10, lines 43, Example 1 Col 11 lines 28-32 Klopfenstein reads such that distilled deionized water is added to soybean meal dry matter to form hydrated samples). Klopfenstein teaches agitating the solvent protein mixture (Col 10, lines 45-46, Klopfenstein read such that hydrated samples were homogenized for 2 minutes at moderate speed with a blender). Klopfenstein teaches heating the solvent protein mixture to a temperature from about 20℃ to about 150℃ (Claim 1, Col 3 lines 32-34). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Klopfenstein teaches drying the solvent protein mixture to form a dried protein mixture and processing the dried protein mixture to produce a final dry mixture having a particle size which passes through a 2mm screen (Col 11, lines 35-40). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions, “A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.” In addition, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claim invention to modify the screen size to obtain the desired particle size. See MPEP 2144.05 (II) Routine Optimization.
Klopfenstein teaches adding at least two processing aids to the protein mixture to facilitate non-enzymatic browning of proteins provided by the protein source (Claim 1, Klopfenstein reads such that a reducing carbohydrate is added the product containing protein wherein an early reaction product of the Maillard reaction is formed and the conversion of early-stage products to intermediate and final products of the Maillard reaction are avoided Col 8, lines 29-42) One with ordinary skill in the art would recognize that advanced and final Maillard reaction products cause non-enzymatic browning. Thus, controlling the amount of intermediate, advanced, and final Maillard reaction products will facilitate non-enzymatic browning. Klopfenstein teaches the processing aids are reactive sugars such as molasses and can be used in a mixture. (Col 5 lines 23-28) A “mixture” reads such that there is more than one processing aid.
However, Klopfenstein is silent to the specific additional processing aids.
Meyer teaches using Zn2+ as a processing aid (Abstract, Meyer reads such the meals (soybean and other oil seed proteinaceous meals) are treated with a water-soluble zinc salt to provide zinc ions (Zn2+) for reaction with the protein). Meyer teaches zinc salts, such as zinc chloride and zinc sulfate can be used as chemical reagents for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). Meyer teaches this desirable reaction occurs between the zinc ions and the protein (Col 5. Lines 1-2).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Meyer to use zinc ions (Zn2+) as the processing aid to reduce the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). In addition, because Meyer teaches the claimed Zinc ion processing aid as instantly claimed it must necessarily facilitate non-enzymatic browning. See MPEP 2112.01 (II) A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Continuing, Klopfenstein is silent to one of the processing aids being inactivated dry brewer’s yeast.
Drouillard teaches a feedstuff with reduced ruminal protein degradability (abstract). Drouillard teaches the composition can comprise a microorganism the form of a by-product from another industrial process such as brewer's yeast discarded from the brewing process ([0009], [0021]). Drouillard teaches the carbohydrase enzyme (i.e., the discarded brewer’s yeast) is effective in inducing non-enzymatic browning ([0008], [0026]-[0028]).
Therefore, Drouillard imparts reasoning for obviousness because the teaching shows that the claimed inactivated brewer’s yeast (i.e., discarded brewer’s yeast) was known to be successfully used for non-enzymatic browning and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select inactivated brewer’s yeast, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 4, Klopfenstein teaches the solvent is water. Klopfenstein teaches 100 ml of water is added to 10 g of soybean meal which equates to the solvent being approximately 9 wt% (Col 10 lines 41-45). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
With regard to Claim 5, Klopfenstein teaches the composition contains a reducing carbohydrate in an amount of 0.5% to about 40% by weight wherein the reducing carbohydrate is molasses (Col 2 lines 52-54, Col 3 lines 1-2)
With regard to Claim 6, Klopfenstein teaches an embodiment in which the reducing sugar is glucose (Col 21 lines 31-37 and table 6).
With regard to Claims 7 and 8, Klopfenstein is silent to the metal ion.
Meyer teaches improvement in the nutritive value of soybean meal and other oil seed proteinaceous meals for feeding cattle (abstract). Meyer teaches treating the meals with a water-soluble zinc salt to provide zinc ions for reaction with the protein. (abstract). Meyer teaches zinc salts, such as zinc chloride and zinc sulfate (ZnSO4) can be used as chemical reagents for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). Meyer teaches the contacting of the zinc reagents with the meal may be carried out so that the meal contains an aqueous solution of the zinc salt and the zinc ions (Col 3. Lines 60-62). Meyer teaches it is preferred to use an amount of solution which provides good distribution for the zinc salt while at the same time avoiding an excess amount over that which can be readily absorbed by the feed material (Col 4. Lines 15-18).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Meyer to incorporate divalent zinc, in the form of zinc sulfate, to reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61) in a concentration which provides good distribution for the zinc salt while at the same time avoiding an excess amount over that which can be readily absorbed by the feed material (Col 4. Lines 15-18). This amount can be optimized through routine optimization, See MPEP 2144.05(II)(A) Optimization Within Prior Art Conditions or Through Routine Experimentation.
With regard to Claim 9, Meyer teaches drying the solvent protein mixture to provide a moisture content of 10.64% (Col 6, line 47-55 Meyer reads such that the solvent protein mixture is water and soybean meal). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions Meyer teaches The moist heat-treated meals were dried to achieve a stable moisture content for adequate storage (Col 6. Lines 59-62).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Meyer to dry the solvent protein mixture to a moisture content of 10.64% for adequate storage (Col 6. Lines 47-55, 59-62).
With regard to Claim 12, Klopfenstein teaches the protein source cited in claim 2 (Col 2, lines 57-65). Because the protein source taught by Klopfenstein is identical to the instant claims and the REAAi is an index unique to an ingredient, it would have been obvious to one with ordinary skill in the art that the protein source would have a complimentary REAAii. See MPEP 2112.01(II) which states "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to Claim 13, Klopfenstein teaches the composition contains a reducing carbohydrate as a processing aid in an amount of 0.5% to about 40% by weight wherein the reducing carbohydrate is molasses (Col 2 lines 52-54, Col 3 lines 1-2). In addition Klopfenstein teaches the composition further contains a protease enzyme (col 3 lines 13-16). Klopfenstein teaches the protease enzyme degrades protein in the feedstock, so therefore it would have been obvious to one with ordinary skill in the art to include the protease in an amount effective to achieve the desired protein degradation. See MPEP 2144.05(II) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Meyer teaches zinc salts, such as zinc chloride and zinc sulfate (ZnSO4) can be used as chemical reagents for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). Meyer teaches the contacting of the zinc reagents with the meal may be carried out so that the meal contains an aqueous solution of the zinc salt and the zinc ions (Col 3. Lines 60-62). Meyer teaches it is preferred to use an amount of solution which provides good distribution for the zinc salt while at the same time avoiding an excess amount over that which can be readily absorbed by the feed material (Col 4. Lines 15-18).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Meyer to incorporate divalent zinc, in the form of zinc sulfate, to reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61) in a concentration which provides good distribution for the zinc salt while at the same time avoiding an excess amount over that which can be readily absorbed by the feed material (Col 4. Lines 15-18). This amount can be optimized through routine optimization, See MPEP 2144.05(II) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Drouillard teaches a feedstuff with reduced ruminal protein degradability (abstract). Drouillard teaches the composition can comprise a microorganism the form of a by-product from another industrial process such as brewer's yeast discarded from the brewing process ([0009], [0021]). Drouillard teaches the carbohydrase enzyme (i.e., the discarded brewer’s yeast) is effective in inducing non-enzymatic browning ([0008], [0026]-[0028]). Drouillard teaches the yeast may be added to a suitable feed at a level of 200,000 colony forming units (cfu) to 100 billion cfu per 100 g of soybean meal, depending on, among other factors, the amount and source of substrates (carbohydrates), amount of reducing sugars desired, steeping time and temperature, water activity, and pH ([0021]). It would have been obvious to one with ordinary skill in the art to modify the amount of yeast depending on, among other factors, the amount and source of substrates (carbohydrates), amount of reducing sugars desired, steeping time and temperature, water activity, and pH. See MPEP 2144.05(II) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Therefore, Drouillard imparts reasoning for obviousness because the teaching shows that the claimed inactivated brewer’s yeast (i.e., discarded brewer’s yeast) was known to be successfully used for non-enzymatic browning and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select inactivated brewer’s yeast, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 14, Klopfenstein teaches a substantially identical method as presented in instant claim 1. Therefore, the method would inherently improve the rumen undegradable protein (RUP) % of the protein mixture because the use (i.e., improving the RUP %) is directed to a result or property of the composition. See MPEP 2112.02(II) In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978) .
In addition, because Klopfenstein teaches a substantially identical method the method would inherently be improved compared to the unprocessed mixtures because the use is directed to a result or property of the composition. See MPEP 2112.02(II) In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978)
With regard to Claims 15 and 16, Klopfenstein teaches in the initial embodiment the initial protein source is cottonseed meal (Col 2. Lines 57-60).
Klopfenstein teaches a substantially identical method as presented in instant claim 1. Therefore, the method would inherently improve the rumen undegradable protein (RUP) % of the protein mixture because the use (i.e., improving the RUP %) is directed to a result or property of the composition. See MPEP 2112.02(II) In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978).
With regard to Claim 20, Klopfenstein teaches a substantially identical method as presented in instant claim 1. Therefore, the method would inherently improve the rumen undegradable protein (RUP) % of the protein mixture because the use (i.e., improving the RUP %) is directed to a result or property of the composition. See MPEP 2112.02(II) In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978) .
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein (US 5064665) in view of Meyer ( US 4664905 A), Drouillard (US 20020122846 A1) and Endres et al. (herein referred to as Endres, WO 9404041)
With regard to Claim 3, Klopfenstein is silent to the meal being heated by a prior process.
Endres teaches vegetable meal compositions having high-rumen bypass potentials for use in the feeding of ruminant animals (abstract). Endres teaches the best rumen protection is obtained when this invention is applied to defatted, toasted high-protein vegetable meals, especially toasted soybean meal. In general, toasting refers to the heating of protein feed meals after defatting (page 10, lines 10-14, Claim 11).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Endres to heat the meal in a prior process (i.e., toast) to have the best rumen protection. The temperature of the heating can be explored through routine optimization. See MPEP 2144.05(II) which states "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein (US 5064665) in view of Meyer ( US 4664905 A), Drouillard (US 20020122846 A1) and Nocek et al. (herein referred to as Nocek, US 20160183558 A1)
With regard to Claim 10, Nocek teaches dietary particle compositions for ruminant feed, as well as methods for their preparation and use (abstract). Nocek teaches adding glycerin, liquid molasses, calcium oxide, or combinations thereof, to the initial protein mixture as a nutritive compound to provide nutrition to the dietary particle composition ([0054]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Nocek to include glycerin, liquid molasses, calcium oxide to provide nutrition to the composition ([0054]).
With regard to Claim 11, the claim is rejected based on its dependence to claim 10 because while claim 11 further limits claim 10 as a whole, claim 11 does not positively select amino acids as being added but rather, only limits the particular type of amino acids that could be added. That is, the claim does not recite, the method comprises adding the amino acid and the amino acids comprise lysine, methionine, or a combinations thereof.
Claim 17 are rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein. (Klopfenstein US 5064665) in view of Meyer ( US 4664905 A), Drouillard (US 20020122846 A1), and Baricco et al. (herein referred to as Baricco, US 7318943)
With regard to Claim 17, Baricco teaches a feed supplement for increasing the plasma amino acid level of animals (abstract). Baricco teaches supplementing the diet of ruminants, especially bovines, with high levels of amino acids, particularly lysine, allows specific productive results to be obtained. For example, supplementation in dairy cattle or brood cows increases both the liters of milk produced per day and the protein content in the milk produced. This also improves the overall health of the animals as a result of a better balanced feeding by producing a reduction in ketosis, lowering of somatic cells, providing better immune status, and more efficient reproductive performances (Col 2. Lines 21-30).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Baricco to include lysine increases both the liters of milk produced per day and the protein content in the milk produced and improve the overall health of the animals as a result of a better balanced feeding by producing a reduction in ketosis, lowering of somatic cells, providing better immune status, and more efficient reproductive performances (Col 2. Lines 21-30).
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein (US 5064665) in view of Meyer ( US 4664905 A), Drouillard (US 20020122846 A1), and Nocek (US 20160183558 A1) as evidenced by Covington (“Omega-3 Fatty Acids”)
With regard to Claim 18, Klopfenstein teaches the protein source comprises soybean meal (Col 2, lines 57-60). However, Klopfenstein is silent to canola oil.
Nocek teaches in various embodiments, the core may include the omega-3 fatty acid may include an omega-3 fatty acid in particular amounts that are sufficient to provide beneficial nutritional and dietary needs of the ruminant that is to consume the dietary composition ([0035]) Nocek teaches in various embodiments, the omega-3 fatty acid may include one or more of fish oil, algal oil, egg oil, squid oil, krill oil, sea buckthorn seed oil, berry oil, flaxseed oil, Sacha Inchi oil, Echium oil, hemp oil, and/or the like ([0039]).
In addition to the oils taught by Nocek, other like oils include canola oil. This is evidenced by Covington who teaches omega-3 fatty acids are predominant in oils such as Canola oil, fish oil, flaxseed oil, soybean oil, and walnut oil (page 135, table 2).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Nocek to include omega-3 fatty acids, such as canola oil evidenced by Covington, to provide beneficial nutritional and dietary needs of the ruminant that is to consume the dietary composition (Nocek [0035])
Klopfenstein is also silent to the processing aids.
Meyer teaches using Zn2+ as a processing aid (Abstract, Meyer reads such the meals (soybean and other oil seed proteinaceous meals) are treated with a water-soluble zinc salt to provide zinc ions (Zn2+) for reaction with the protein). Meyer teaches zinc salts, such as zinc chloride and zinc sulfate (ZnSO4) can be used as chemical reagents for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). Meyer teaches this desirable reaction occurs between the zinc ions and the protein (Col 5. Lines 1-2).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Meyer to use zinc salts, such as zinc sulfate (ZnSO4) as a processing aid for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal.
With regard to Claim 19, Klopfenstein, Nocek, and Meyer teach a substantially identical method as presented in instant claim 1. Therefore, the method would inherently improve the rumen undegradable protein (RUP) % of the protein mixture because the use (i.e., improving the RUP %) is directed to a result or property of the composition. See MPEP 2112.02(II) In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978) .
Claims 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein (Klopfenstein US 5064665) in view of Meyer ( US 4664905 A), Drouillard (US 20020122846 A1), and Zinn et al. (herein referred to as Zinn, “Influence of tempering on the feeding value of rolled corn in finishing diets for feedlot”).
With regard to Claim 22, Klopfenstein teaches a method comprising mixing select protein sources (abstract). Wherein said protein sources are selected from oil seeds, grains, pulses, legumes, animal proteins, and grain processing coproducts (Col 2, lines 57-65). Because Klopfenstein teaches using substantially identical proteins as disclosed in claim 2 and specifically soybean meal as disclosed in applicants instant specification under exemplary examples of oil seed meals on page 6, one with ordinary skill in the art would deduce the amino acid pattern would align with ruminant lean tissue, milk protein, or both. See MPEP 2112.01(II) which states "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Klopfenstein teaches adding processing aids to the protein mixture to facilitate non-enzymatic browning of proteins provided by the protein source (Claim 1, Klopfenstein reads such that a reducing carbohydrate is added the product containing protein wherein an early reaction product of the Maillard reaction is formed and the conversion of early-stage products to intermediate and final products of the Maillard reaction are avoided (Col 8, lines 29-42) Advanced and final Maillard reaction products cause non-enzymatic browning. Thus, controlling the amount of intermediate, advanced, and final Maillard reaction products will facilitate non-enzymatic browning). Klopfenstein teaches the composition contains a reducing carbohydrate as a processing aid in an amount of 0.5% to about 40% by weight wherein the reducing carbohydrate is molasses (Col 2 lines 52-54, Col 3 lines 1-2). A “mixture” reads such that there is more than one processing aid. Further Klopfenstein teaches the composition further contains a protease enzyme (col 3 lines 13-16). Klopfenstein teaches the protease enzyme degrades protein in the feedstock, so therefore it would have been obvious to one with ordinary skill in the art to include the protease in an amount effective to achieve the desired protein degradation. See MPEP 2144.05(II) which states "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
But Klopfenstein is silent to the divalent zinc ion.
Meyer teaches using Zn2+ as a processing aid (Abstract, Meyer reads such the meals (soybean and other oil seed proteinaceous meals) are treated with a water-soluble zinc salt to provide zinc ions (Zn2+) for reaction with the protein). Meyer teaches zinc salts, such as zinc chloride and zinc sulfate (ZnSO4) can be used as chemical reagents for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). Meyer teaches this desirable reaction occurs between the zinc ions and the protein (Col 5. Lines 1-2). The concentration of the divalent zinc ion can be determined through routine optimization. See MPEP 2144.05(II) which states "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Meyer to use zinc ions (Zn2+) as the processing aid to reduce the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61).
Continuing, Klopfenstein is silent to one of the processing aids being inactivated saccharomyces yeast.
Drouillard teaches a feedstuff with reduced ruminal protein degradability (abstract). Drouillard teaches the composition can comprise a microorganism the form of a by-product from another industrial process such as brewer's yeast discarded from the brewing process ([0009], [0021]). Drouillard teaches the carbohydrase enzyme (i.e., the discarded brewer’s yeast) is effective in inducing non-enzymatic browning ([0008], [0026]-[0028]). Drouillard teaches the carbonhydrase enzyme, which is effective in inducing non-enzymatic browning, can be supplied by Saccharomyces species of yeast ([0021]). The concentration of the yeast can be determined through routine optimization to achieve the desired amount of browning. See MPEP 2144.05(II) which states "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Therefore, Drouillard imparts reasoning for obviousness because the teaching shows that the claimed inactivated saccharomyces yeast was known to be successfully used for non-enzymatic browning and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select inactivated saccharomyces yeast because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Klopfenstein teaches adding a solvent to the protein mixture to form a solvent protein mixture (Col 10, lines 43). Klopfenstein taches the solvent is water (Example 1 Col 11 lines 28-32). Klopfenstein teaches Distilled water was added so that each sample contained 83 percent dry matter. One with ordinary skill in the art could reasonably deduce that that would equate to approximately 17% solvent. See MPEP 2144.05(I) which states a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.
Klopfenstein teaches agitating the solvent protein mixture (Col 10, lines 45-46) Klopfenstein teaches heating the solvent protein mixture at a temperature, time and pH sufficient to cause a reversible reaction between the reducing carbohydrate and the protein wherein an early reaction product of the Maillard reaction is formed, and wherein the temperature and time are controlled to prevent the conversion of glycosylamine to a l-amino-l-deoxy-2-ketose so as to avoid conversion of substantial portions of the early reaction product of the Maillard reaction from being converted to intermediate and final products of the Maillard reaction (Claim 1). It would have been obvious to one with ordinary skill in the art the temperature could be modified through routine experimentation to achieved the desired result as described above. See MPEP 2144.05(II) which states "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Klopfenstein teaches drying the solvent protein mixture to form a dried protein mixture (Col 11, lines 35-40). Klopfenstein teaches moisture is necessary for nonenzymatic browning reactions to occur since water serves as the medium through which reactants interact. However, excessive moisture content in reaction mixtures can slow the rate of nonenzymatic browning through simple dilution of reactants (Col 15, lines 39-44). It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that the desired moisture content can be achieved through routine experimentation to achieve the desired nonenzymatic browning reaction. See MPEP 2144.05(II) which states "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Klopfenstein teaches processing the dried protein mixture to produce a final dry mixture having a particle size which passes through a 2mm screen (Col 11, lines 35-40). See MPEP 2144.05 Obviousness of similar and overlapping ranges, amounts, and proportions, “A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close.” In addition, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claim invention to modify the screen size to obtain the desired particle size. See MPEP 2144.05 (II) Routine Optimization.
However, Klopfenstein is silent to tempering the final feed mix.
Zinn teaches the primary objective with tempering is to lower energy costs and reduce the number of fine particles produced during grain processing (Introduction). In addition Zinn teaches tempering may also enhance digestive function and the feeding value of corn (Introduction). Although Zinn teaches tempering dry rolling corn and rolling corn prior to feed to cattle (Experimental procedures).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Zinn to incorporate tempering the final feed mixture to lower energy costs and reduce the number of fine particles produced during grain processing (Introduction).
With regard to Claim 23, Klopfenstein teaches the protein source comprises soybean meal, cottonseed meal, and canola meal (Col 2, lines 57-65).
With regard to Claim 24, Klopfenstein teaches agitating the solvent protein mixture such that the mixture was homogenized for 2 minutes at moderate speed with a blender (Col 10, lines 45-46) One with ordinary skill in the art would recognize that the agitating taught by Klopfenstein in the blender would be continuous.
Response to Arguments
Applicant's arguments filed 08 May 2026 have been fully considered but they are not persuasive.
Applicant argues that Klopfenstein does not disclose or suggest requiring inactivated dry brewer’s yeast together with a divalent zinc ion and further requiring molasses, protease enzyme, reactive calcium oxide, or a combination thereof. As stated by applicant, Klopfenstein teaches using molasses as a processing aid but is not relied upon to teach the other processing aids as claimed. As stated by applicant, Meyer is relied upon to teach the use of a divalent zinc ion as a processing aid and now Drouillard is relied upon to teach the use of inactivated dry brewer’s yeast as a processing aid. Applicants argument is not found to be persuasive.
Next, applicant argues that Klopfenstein, nor Meyer, teaches increasing the mixing temperature to 160℉ (~ 71℃ ) to 250℉ (~121℃). However, Klopfenstein teaches heating the solvent protein mixture to a temperature from about 20℃ (68℉ ) to about 150℃ (302℉) (Claim 1, Col 3 lines 32-34). which overlaps with the claimed range. Thus, applicants argument is not found to be persuasive.
With regard to claim 3, applicant argues that Klopfenstein is silent regarding any meal component that has been separately heated in a prior process and subsequently mixed with the treated protein mixture. However, Klopfenstein is not relied upon to teach the meal but in this case Endres teaches vegetable meal compositions having high-rumen bypass potentials for use in the feeding of ruminant animals (abstract). Endres specifically teaches the best rumen protection is obtained when this invention is applied to defatted, toasted (emphasis added) high-protein vegetable meals, especially toasted soybean meal. (page 10, lines 10-14, Claim 11). Endres is thus relied upon to teach the meal and provides ample motivation to combine with Klopfenstein because the heated meal taught by Endres has high-rumen bypass potentials for use in the feeding of ruminant animals. With regard to the temperature, Endres teaches “toasting” the meal as the prior heating processing. Endres does not disclose a specific temperature for the heating but the optimum temperature can be explored through routine optimization. See MPEP 2144.05(II) which states Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Applicants argument is not found to be persuasive.
With regard to Claims 7-9 see above for the arguments with regard to amended claim 1. With regard to Claim 13, the applicant has amended to further recite particular processing-aid combinations and amounts to narrow the processing-aid framework of amended claim 1. However the combination of Klopfenstein, Meyer, and Drouillard teach the claimed processing aids in the amounts limited in the claim. Klopfenstein teaches the molasses and protease enzyme, Meyer teaches ZnSO4 and Drouillard teaches the inactivated dry brewer’s yeast. Thus, applicants arguments are not found to be persuasive.
With regard to Claims 10 and 11, applicant argues that Nocek describes the materials as “nutritive compounds” in the feed particles and not as part of the specific processing-aid framework and process sequence as recited in amended claim 1. This is not found to be persuasive because the limitations of claim 1 are not in reference to the processing aids as stated in claim 1. In claim 10 bullet (i) the limitation is merely “adding additional liquids”. Same case for bullet (ii) which just states the limitation of “adding”. Lastly, bullet (iii) is not in reference to adding any addition components and further states “tempering the final dry mixture”. Thus Claim 10 does not positively recite any limitation which would further limit the processing aids as taught in amended claim 1. But Nocek does provide ample motivation to add glycerin, liquid molasses, calcium oxide, or combinations because those components are nutritive compounds that provide nutrition to the d composition (Nocek, [0054]). Therefore applicants argument is not found to be persuasive.
With regard to Claim 17 applicant argues that although Baricco describes lysine as a nutritional supplement provided to improve animal performance, Barrico does not disclose or suggest the presently claimed method of producing an animal feed mixture, or the specific processing-aid framework and simultaneous agitation and increase in temperature now required by amended claim 1. See above for the arguments with regard to amended claim 1. In this case, Baricco is merely relied upon to teach the claimed use of lysine. Baricco provides ample motivation to combine to improve the overall health of the animals as a result of a better balanced feeding. Baricco addition is analogous art because the reference is in the field of the inventor’s endeavor and is reasonably pertinent to the particular problem in which the inventor was concern. Therefore, applicants argument is not found to be persuasive.
With regard to Claims 18 and 19, see above for the arguments with regard to amended claim 1.Continuing, applicant argues that Covington merely evidences that canola oil is associated with omega-3 fatty acids and does not teach the claimed processing method or the claimed combination of processing aids. Similar to the discussion above with claim 17, Covington is merely relied upon as evidence to show the canola oil taught by Nocek would contain omega-3 fatty acids (Covington, page 135, table 2). And as a result it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Klopfenstein in view of Nocek to include omega-3 fatty acids, such as canola oil evidenced by Covington, to provide beneficial nutritional and dietary needs of the ruminant that is to consume the dietary composition (Nocek [0035]). Therefore applicant’s argument is not found to be persuasive.
With regard to Claims 22 and 23, applicant argues that neither Klopfenstein nor Meyer discloses or suggest the now-required combination of inactivated saccharomyces yeast in the recited amount, reducing sugars associated with molasses in the recited amount, and a divalent ion in the recited amount. This argument is not found to be persuasive Klopfenstein teaches the composition contains a reducing carbohydrate as a processing aid in an amount of 0.5% to about 40% by weight wherein the reducing carbohydrate is molasses (Col 2 lines 52-54, Col 3 lines 1-2) and the composition further contains a protease enzyme (col 3 lines 13-16) wherein the protease enzyme degrades protein in the feedstock, so therefore it would have been obvious to one with ordinary skill in the art to include the protease in an amount effective to achieve the desired protein degradation. Next Meyer teaches divalent zinc ions (Zn2+) as the processing aid to reduce the rumen digestibility of proteinaceous defatted vegetable seed meal such as soybean meal (Col 2. Lines 57-61). With regard to the amount of divalent zinc ions, the concentration of the divalent zinc ion can be determined through routine optimization, see MPEP 2144.05(II). Lastly, Drouillard is relied upon to teach the inactivated saccharomyces yeast. Specifically Drouillard teaches the carbonhydrase enzyme, which is effective in inducing non-enzymatic browning, can be supplied by Saccharomyces species of yeast ([0021]). The concentration of the yeast can be determined through routine optimization to achieve the desired amount of browning. Therefore applicants argument is not found to be persuasive.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
Prosecution Insights