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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/30/2026 has been entered.
Election/Restriction
Newly submitted claim 22 directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
The claims under examination and new claim 22 are directed to related products. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed (e.g. a soil amendment pellet and a soil) exhibit fundamentally different structures. Soil is a structural bulk medium designed to support root growth while soil amendments are designed to deliver essential nutrients to plants. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
--the inventions have acquired a separate status in the art in view of their different classification;
--the inventions have acquired a separate status in the art due to their recognized divergent subject matter; and/or
--the inventions require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries)
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 22 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Objections
Claim 21 objected to because of the following informalities: the claim term “lingosulfonate” appears to be a misspelling of “lignosulfonate”. Appropriate correction is required.
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 1-2, 4-6, 8, 10-12 and 14-22 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.
In regard to claim 1, the transitional phrase “consisting of” used by the claim excludes any element, step, or ingredient not specified in the claim [See MPEP 2111.03]. However, the phrase “one or more of […]” is an open-ended, alternative selection.
In regard to claim 1, the claim consists of a protein ingredient formed “entirely of animal-based protein” and a binder that includes wheat middlings, corn gluten, and soybean hulls. Wheat middlings inherently contain between 14-18% crude protein, corn gluten contains 60-65% crude protein, and soybean hulls contain 10-13% crude protein. Because the claim is “closed” (e.g. using the transitional phrase consisting of), the presence of plant-based protein directly contradicts the limitation that the protein ingredient is “entirely” animal-based. It is unclear whether the claim excludes plant proteins (thereby making the use of the binder components impossible) or permits plant proteins as part of the binder (thereby contracting the ‘entirely animal-based’ limitation).
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “soybean hulls” in claim 1 is used by the claim to mean “a grain processing by-product,” while the accepted meaning is “an legume-processing byproduct .” The term is indefinite because the specification does not clearly redefine the term.
Because claim 1 is indefinite and internally contradictory for the recited reasons, in the interest of compact prosecution, the interpretation of the body of claim 1 below is being relied upon for the purposes of applying prior art:
at least one animal based protein ingredient; and
a binder, wherein the binder is a food processing by-product, comprising one or more of wheat middlings, corn gluten, and soybean hulls.
The above is not a suggested draft of the claim to overcome the 112(b) rejections, but is necessary to allow for examination.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2, 4-6 and 8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Beattie et al. (US Patent Publication No. 2002/0088407 A1).
In regard to claims 1-2 and 4-6, Beattie et al. teach a pellet consisting of:
an animal-based protein ingredient (e.g. feather meal, blood meal, poultry meal, fish meal) [para. 0014]; and
a binder binding with the protein ingredient to form a pellet (e.g. the ingredients are mixed, extruded and cut into pellets) [0014], the binder is a fibrous food processing by-product (e.g. whole wheat meal, wheat gluten, soybean meal), comprising corn gluten [0014].
While Beattie does not describe the composition as a soil amendment for use in an organic system, this represents an intended use of the claimed invention in the preamble and generally does not limit the claims [MPEP 2111.02 & 2111.02(II)] because the body of the claim following the preamble is a self-contained description of the structure and does not depend on the preamble for completeness.
In regard to claim 8, Beattie et al. disclose the composition of claim 1, wherein the composition consists of entirely animal-based protein in 42% and binder in 58% based on the total composition by weight [0014], as elucidated in the Table below:
ingredient
claim component
kg
whole wheat meal
binder
50
feather meal
animal-based protein
50
blood meal
animal-based protein
12.5
wheat gluten
binder
50
poultry meal
animal-based protein
50
soybean meal
binder
50
corn gluten
binder
50
fish meal
animal-based protein
34
Total
346.5
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Beattie et al. (US Patent Publication No. 2002/0088407 A1) in view of Reynolds et al. (Patent Publication No. 2008/0171297 A1).
In regard to claim 14, Beattie et al. teaches the composition of claim 8, wherein the binder is formed of, for example, whole wheat meal, wheat gluten, and corn gluten. The reference does not explicitly disclose wherein the binder is formed entirely of wheat middlings.
Reynolds et al. is directed to pellets including agricultural biomass. The pellet may be formed by pelleting a mixture comprising agricultural biomass which includes whole corn, corn cobs, corn stover, wheat, wheat middlings, wheat straw, soy beans, soy bean hulls, soy cotyledon fiber, alfalfa, dried distillers grain, oats, oat straw, sugar beet pulp and/or sunflower hulls [para. 0004]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to perform simple substitution of the agricultural biomass binder disclosed by Beattie for wheat middlings which are described by Reynolds as suitable pelleting biomass. One of ordinary skill in the art would have had a reasonable expectation of success in obtaining predictable results by performing this substitution.
Claims 10-12 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Beattie et al. (US Patent Publication No. 2002/0088407 A1).
In regard to claim 10, Beattie et al. disclose a composition comprising a protein ingredient including feather meal and poultry by-product meal (e.g. blood meal and poultry meal) as 32.5% of the composition by weight [0014]. While this value does not lie inside the claimed range, the proportions are so close that prima facie one skilled in the art would have expected the pellet of Beattie to have the same properties as the claimed composition [See MPEP 2144.05].
In regard to claim 11, Beattie et al. disclose the composition of claim 10, wherein the protein ingredient includes blood meal as 3.6% of the composition by weight but does not explicitly disclose blood meal within 10-35%. Beattie et al. teach blood meal to be a “long life ingredient” which remains viable for a much longer time in water [0016; clm. 13]. It would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the composition of Beattie [0014] to include blood meal in an amount within the claimed range to ensure a longer life when subjected to a water environment. Alternatively, it would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges through process optimization, since it has been held that there the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
In regard to claim 12, Beattie et al. disclose a composition comprising chicken meal and fish meal as 24.2% of the composition by weight [0014]. While this value does not lie inside the claimed range, the proportions are so close that prima facie one skilled in the art would have expected the pellet of Beattie to have the same properties as the claimed composition [See MPEP 2144.05].
In regard to claim 15, Beattie et al. disclose the composition of claim 8, including 14.4% corn gluten and 14.4% soybean-based component [0014]. While these values do not lie inside the claimed range, the proportions are so close that prima facie one skilled in the art would have expected the pellet of Beattie to have the same properties as the claimed composition [See MPEP 2144.05].
Claims 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Bortone (Aquafeed pelleting mill construction, 2002) in view of Beattie et al. (US Patent Publication No. 2002/0088407 A1).
In regard to claim 16, Bortone discloses a process for manufacturing a pellet composition, comprising:
PNG
media_image1.png
600
441
media_image1.png
Greyscale
mixing a meal as an input mixture (e.g. from the feeder, meal passes to the inlet chute) [pg. 3, 1st para.];
feeding the input mixture into a pellet mill (e.g. the feed cone catches meal and feeds it to the deflectors which distribute the meal evenly to the roller in a pellet mill) [pg. 3]; and
processing the input mixture with the pellet mill to output a pellet (e.g. the die shapes the conditioned meal into pellets) [pg. 3, last section].
The Bortone reference teaches a pelleting mill and its construction but does not explicitly teach the pellet ingredients (e.g. a protein ingredient and a binder). Beattie et al. teach a pellet consisting of:
a protein ingredient that is at least one of a plant-based protein (e.g. whole wheat meal, wheat gluten, soybean meal) and an animal-based protein (e.g. feather meal, blood meal, poultry meal, fish meal) [para. 0014]; and
a binder binding with the protein ingredient to form a pellet (e.g. the ingredients are mixed, extruded and cut into pellets) [0014], the binder is a grain processing by-product (e.g. the fibrous material, corn gluten meal) [0014].
Beattie describes their product as produced by mixing the ingredients, extruding and cutting into pellets as is well known to those skilled in the art of pelletizing feed [0014].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the typical pellet mill taught by Bortone for the process disclosed by Beattie. One of ordinary skill in the art would have been motivated to do so because Beattie discloses the general teaching of a pellet mill operation, one of skill would look to the Bortone prior art for a description of a typical pelletizing mill.
In regard to claim 17, Bortone demonstrates [Fig. 1] where the pellet falls from the die and is therefore considered contacted with ambient air.
In regard to claim 18, Bortone does not explicitly disclose a shaking (e.g. vibrating screen), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a known screening technique to yield predictable results. One of ordinary skill in the art would have been motivated to choose from a finite number of predictable solutions (e.g. vibratory or non-vibratory screen) with a reasonable expectation of success.
In regard to claims 19-20, Bortone and Beattie disclose the process of claim 16 performed in a pellet milling machine (314) [fig. 3] but does not explicitly disclose wherein the pellet mill has a conditioner in which the input mixture is heated and/or steamed and formed into a conditioned mixture (claim 19) or wherein a die of the pellet mill extrudes the conditioned mixture into the pellet (claim 20).
Bortone discloses a typical pellet mill [pg. 2, fig. 1]. Bortone discloses a preconditioner section, wherein meal is conditioned through moisture and heat [pg. 1, 1st para.] and a die by which the pellet mill extrudes the conditioned meal into a pellet [pg. 3, die].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the typical pellet mill taught by Bortone for the process disclosed by Beattie. One of ordinary skill in the art would have been motivated to do so because Beattie discloses the general teaching of a pellet mill operation, one of skill would look to the Bortone prior art for a description of a typical pellet mill.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Bortone (Aquafeed pelleting mill construction, 2002) in view of Beattie et al. (US Patent Publication No. 2002/0088407 A1) as applied to claim 16 above, and further in view of Green Agrochem (2016).
In regard to claim 21, Borton in view of Beattie disclose the process of claim 16, but do not explicitly teach wherein the mixing step further comprises mixing an organic pelleting aid consisting of lingosulfonate with the protein ingredient and the binder.
Green Agrochem is directed to the use of lignosulfonate in pelleting processing including animal feed pellets and fertilizer pellets [pgs. 2-3]. It would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to mix a lignosulfonate pelleting aid as part of the pelleting process of Borton. One of ordinary skill in the art would have been motivated to do so because lignosulfonate enhances pellet quality, ensuring consistent nutrient delivery and minimizing waste during handling and improves granule integrity [pgs. 2-3, section 2 and 3].
Response to Arguments
Applicant's arguments filed 06/10/2026 have been fully considered but they are not persuasive.
Applicant’s arguments (pgs. 6-7) with respect to the rejection of the claim(s) based on the teachings of the Boyles and Cenk references have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action
Applicant argues (pgs. 6, 8) the Beattie reference does not disclose a protein ingredient formed entirely of animal-based proteins. In response to this argument, it is noted the present claims require plant-based protein components (e.g. wheat middlings, corn gluten and soybean hulls). Beattie is cited for teaching the animal-based proteins feather meal, blood meal, poultry meal and fish meal [0014].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer A Smith whose telephone number is (571)270-3599. The examiner can normally be reached Monday - Friday 9:30am-6pm EST.
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 July 16, 2026
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