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 status
Claims 1-23 are currently pending in the application.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In this case, Claim 4 is dependent on Claim 1. Claim 1 states “adding at least two processing aids to the protein mixture to facilitate non-enzymatic browning of protein provided by the protein sources, wherein the processing aids are selected from at least two of baker's yeast, inactivated dry brewer's yeast, molasses, protease enzyme, a divalent zinc ion, lysine, calcium oxide, and combinations thereof” while claim 4 states “the processing aids are selected from yeast, reactive sugars, protease enzymes, metal ions, and combinations thereof”. Therefore, the list of processing aids in Claim 4 is broader and does not further limit the processing aids listed in Claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 5 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In this case, Claim 5 is dependent on Claim 1. Claim 1 states “wherein the processing aids are selected from at least two of baker's yeast, inactivated dry brewer's yeast, molasses, protease enzyme, a divalent zinc ion, lysine, calcium oxide, and combinations thereof” while claim 5 states “the processing aids are selected from yeast, reactive sugars, protease enzymes, metal ions, and combinations thereof”. Claim 1 states the processing aids can be a divalent zinc ion while claim 5 states the processing aid is just a metal ion. Thus, the list of processing aids in Claim 5 is broader and does not further limit the processing aids listed in Claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 7 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In this case, Claim 7 is dependent on Claim 5 (wherein claim 5 is dependent on claim 1). Claim 1 states “wherein the processing aids are selected from at least two of baker's yeast, inactivated dry brewer's yeast, molasses, protease enzyme, a divalent zinc ion, lysine, calcium oxide, and combinations thereof” while claim 5 states “the processing aids are selected from yeast, reactive sugars, protease enzymes, metal ions, and combinations thereof” and lastly claim 7 states “a soluble metal ion”. Claim 1 states the processing aids can be a divalent zinc ion while claims 5 and 7 state the processing aid is just a metal ion. Thus, the soluble metal in Claim 7 is broader and does not further limit the processing aids listed in Claim 5. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 8 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In this case, Claim 8 is dependent on Claim 7 (wherein claim 7 is dependent on claim 5 and claim 5 is dependent on claim 1). Claim 1 states “wherein the processing aids are selected from at least two of baker's yeast, inactivated dry brewer's yeast, molasses, protease enzyme, a divalent zinc ion, lysine, calcium oxide, and combinations thereof” while claim 5 states “the processing aids are selected from yeast, reactive sugars, protease enzymes, metal ions, and combinations thereof”, claim 7 states “a soluble metal ion” and lastly claim 8 states “a divalent metal ion selected from Zn, Cu, or Fe”. Claim 1 states the processing aids can be a divalent zinc ion while claims 5 and 7 state the processing aid is just a metal ion. Claim 8 then further broadens the disclosure by limiting the divalent metal to Zn, Cu, or, Fe when only Zn is listed in claim 1 and because the divalent ion is not required until claim 8. Thus, the divalent metal ions in Claim 8 is broader and does not further limit Claim 7. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claims 6 is also rejected due to its dependency on a rejected claim.
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).
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 (Claim 1) and 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) 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 thus reading on the claims limitation of “at least two”. But is silent to the second processing aid being selected from the group of baker's yeast, inactivated dry brewer's yeast, molasses, protease enzyme, a divalent zinc ion, lysine, calcium oxide, and combinations thereof.
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.
With regard to Claim 4, Klopfenstein teaches the processing aids are reactive sugars (Col 5 lines 23-28 Klopfenstein reads such that sugar sources are selected from the reducing sugars xylose, glucose, fructose, mannose, lactose, ribose; hemicellulose extracts and their hydrolysates).
With regard to Claims 5 and 6, Klopfenstein teaches an embodiment in which the reducing sugar, more specifically glucose, is included at 0.81% of diet dry matter (Col 21 lines 31-37 and table 6). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and proportions.
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 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 a soluble metal ion, in the form of Zn, 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, 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).
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) .
With regard to Claim 21, Klopfenstein teaches heating the 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 to optimize the temperature in which the mixture is heated to in order to cause a reversible reaction between the reducing carbohydrate and the protein and 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. 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).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein (US 5064665) in view of Meyer ( US 4664905 A) 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) 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) 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) 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 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Klopfenstein (Klopfenstein US 5064665) in view of Meyer ( US 4664905 A) 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). The processing aids are reactive sugars selected from xylose, glucose, fructose, mannose, lactose, ribose; hemicellulose extracts and their hydrolysates (Col 5 lines 23-28). A “mixture” reads such that there is more than one processing aid thus reading on the claims limitation of “at least two”. The concentration of the processing aid 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).
But Klopfenstein is silent to the second processing aid being selected from the group of baker's yeast, inactivated dry brewer's yeast, molasses, protease enzyme, a divalent zinc ion, lysine, calcium oxide, and combinations thereof.
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). The concentration of the second processing aid 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).
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).
Response to Arguments
Applicant's arguments filed 22 October 2025 have been fully considered but they are not persuasive.
Applicant argues that Klopfenstein does not disclose, teach, or suggest the use of multiple distinct processing aids of the types recited in amended claim 1 and as a result Klopfenstein fails to teach or render obvious the presently claimed combination of processing aids or the resulting improvements in nutritional profile. There is no teaching, motivation, or reasonable expectation of success that would have led one of ordinary skill in the art to combine the specific processing aids recited in amended claim 1 in view of Klopfenstein. This is not found to be convincing because Klopfenstein teaches the processing aid can be molasses and because Klopfenstein states “mixtures thereof” after listing processing aids, the reference reads such that there can be more than 1 processing aid reading on the limitation “at least two” in claim 1 (Col 5 lines 23-28). Continuing, Meyer teaches using Zn2+ as a processing aid and provides ample motivation to combine because Zn2+ as a processing aid reduces the rumen digestibility of proteinaceous defatted vegetable seed meal. In addition, as discussed in the rejection above, it is well established in the art that Zn2+ influences the Maillard reaction by affecting the intensity of the browning (Abstract). Thus, applicants arguments are not found to be persuasive.
Applicant argues that with regard to claim 3, Endres reference to "toasting" merely describes the conventional preparation of soybean meal as a starting material for its zinc treatment. It does not teach or suggest re-heating, pre- toasting, or otherwise thermally conditioning a separate meal for later combination with a carbohydrate-protein reaction mixture of the type described by Klopfenstein. Nor does Endres disclose or contemplate combining a prior-heated meal with a processed protein mixture that already contains multiple processing aids selected from different functional classes as required by amended claim 1. This is not found to be persuasive because the claim merely states the meal is from a prior process that has to be heated and Endres clearly teaches heating the meal via a toasting method and then using it in further processing meaning that it reads on the claim limitations. Endres also provides ample motivation because the heating process provides the best rumen protection. Thus, applicants argument is not found to be persuasive.
Continuing, with regard to Claim 7-9, applicant argues Meyer discloses treating soybean meal with aqueous zinc salts as a single reagent but does not suggest combining zinc ions with other processing aids such as yeast, molasses, protease enzyme, lysine, or calcium oxide. The cited combination therefore fails to teach or suggest the claimed process or provide any motivation or reasonable expectation of success to achieve the improved RUP and amino-acid profile shown in the specification. First, applicant argues that the claimed process has an improved RUP and amino-acid profile. However, applicant does not provided data or information showing the amino-acid profile. With regard to the improved RUP, per the applicants specification, Examples 2 and 3 with Tables 4 and 5 show the effect of processing aids on the RUP with multiple distinct processing aids. The data presented in these tables is not sufficient to show the improved RUP because the RUP improved regardless of using one or multiple of the claimed processing aids and when using one processing aid compared to multiple processing aids the RUP improved approximately the same amount. This is not enough evidence to show the result would be unexpected or significant because it does not appear to show an unexpected and unobvious difference of a statistical significance. For example, compared to the control, all the groups using one or multiple processing aids showed an improved RUP. But, for example in table 4, treatments 2 and 3, both used baker’s yeast and treatment 3 used baker’s yeast and Zn. Both treatments 2 and 3 showed improved RUPs that would be statistically almost identical. Therefore, it can not be concluded that Zn in the addition with other processing aids shows an unexpected result because the RUP improvement between treatment 2 and 3 was almost identically regardless of treatment 3 having Zn and treatment 2 not having Zn. See MPEP 716.02(b)(I) The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319. Continuing, applicant argues Klopfenstein does not disclose or suggest the use of multiple distinct processing aids, this is not found to be persuasive because Klopfenstein states “mixtures thereof” after listing processing aids, the reference reads such that there can be more than 1 processing aid reading on the limitation “at least two” in claim 1 (Klopfenstein Col 5 lines 23-28). Thus Klopfenstein clearly teaches the use of multiple processing aids and does not limit which processing aids can be used together.
Lastly, Meyer is not relied upon to teach the use of multiple processing aids. Klopfenstein is the closest prior art which teaches the limitation of multiple processing aids. However, Meyer provides ample motivation that divalent zinc ions can be used as chemical reagents for reducing the rumen digestibility of proteinaceous defatted vegetable seed meal. Therefore, since Meyer provides ample motivation to include zinc divalent ions than one with ordinary skill in the art would recognize that adding zinc divalent ions would have a reasonable expectation of success. Thus, applicants arguments are not found to be persuasive.
Applicant argues that, with regard to claim 11, that further limits the amino-acid processing aid to lysine, methionine, or combinations thereof, which neither Klopfenstein nor Nocek et. al. teaches or suggests in the claimed context. This is not found to be persuasive because the claim merely states the composition further comprises lysine, methionine, or combinations thereof and does not limit the lysine, methionine, or combination to being a processing aid. In addition, claim 11 is dependent on claim 10 and Nocek teaches in claim 10 the composition comprises adding glycerin, liquid molasses, calcium oxide, or combinations thereof. Further, claim 11 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. Thus, applicants arguments are not found to be persuasive.
Applicant argues, with regard to claim 17, Baricco does not teach or suggest adding lysine as a processing aid. This is not found to be persuasive because the claim merely states the composition further comprises lysine and does not limit the lysine to being a processing aid. Baricco provides ample motivation to be combined with Klopfenstein by improving the overall health of the animals. Thus, applicants arguments are not found to be persuasive.
Applicant argues, with regard to Claims 18, that the omega-3 oils taught by Nocek are discussed in the context of a nutritive core not a processing aid. This is not found to be convincing because the canola oil is not limited as a processing aid in the claim and the claim merely states that the protein sources comprising canola oil and not that it is a processing aid. Nocek teaches this claimed limitation, with ample motivation to be combined with Klopfenstein, thus, applicants argument is not found to be persuasive.
Applicant argues, with regard to claim 19, that the examiners inherency theory “fails” because the cited prior art does not practice the same methods. This is not found to be persuasive because Klopfenstein teaches the claimed method.
With regard to Claims 22 and 23, please see the above argument discussing on pages 17-18 of the current action which discusses the inclusion of two processing aids. Applicants arguments are not found to be persuasive.
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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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792