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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/02/2023 has been considered by the examiner.
Claim Objections
In regard to claim 7, the use of the term “kamut”, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
Claim 6 is 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 6, the claim recites “wherein the protein ingredient is the meat meal” and claim 4 (from which claim 6 depends) recites “wherein the animal-based protein is […] meat meal” and claim 1 (from which claim 4 depends) recites “a protein ingredient that is […] an animal-based protein”. Claim 6 creates confusion by saying the “protein ingredient” is the meat meal and also defining the “animal-based” protein as the meat meal.
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 1-8 and 16-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kalmbach (US Patent Publication No. 2019/0062233 A1).
In regard to claim 1, Kalmbach teaches a soil amendment for use in an organic system (e.g. organic fertilizer/plant food) [0024], comprising:
a protein ingredient that is at least one of a plant-based protein and an animal-based protein (e.g. animal based ingredients such as blood meal, feather meal, fish meal) [para. 0026, last 2 tables]; and
a binder binding with the protein ingredient to form a pellet (e.g. the ingredients are mixed together then turned into pellets) [0026], the binder is a grain processing by-product (e.g. soybean meal, wheat midds, ground corn) [para. 0026, last 2 tables].
In regard to claims 2-3, Kalmbach teaches the soil amendment of claim 1, wherein the binder is a fibrous material including at least one of wheat middlings, corn gluten, and soybean hulls (e.g. soybean meal, wheat midds, ground corn) [para. 0026, last 2 tables].
In regard to claims 4-6, Kalmbach teaches the soil amendment of claim 1, wherein the animal-based protein is a production by-product or a meat meal, and is at least one of feather meal, blood meal, and poultry by-product meal and is at least one of meat and bone meal of one of a plurality of different types of animals, chicken meal, and fish meal (e.g. blood meal, feather meal, fish bone meal) [para. 0026, last 2 tables].
In regard to claim 7, Kalmbach teaches the soil amendment of claim 1, wherein the plant-based protein is at least one of corn germ, soybean meal, kamut, rice, millet, spelt, teff, quinoa, field peas, field pea splits, dry beans, okara, and alfalfa meal (e.g. soybean meal, alfalfa, ground corn) [para. 0022; 0026].
In regard to claim 8, Kalmbach teaches the soil amendment of claim 1, wherein the protein ingredient is 25-85% of the soil amendment by weight (e.g. 50-70% by weight animal based ingredients) and the binder is 15-75% of the soil amendment by weight (e.g. 30-50% by weight plant based ingredients) [para. 0026, Formula B, last 2 tables].
In regard to claim 16, Kalmbach teaches a process of manufacturing a soil amendment for use in an organic system, comprising:
mixing a protein ingredient and a binder into an input mixture (e.g. all ingredients are measured and mixed together with a binding agent ) [0026], the protein ingredient is at least one of a plant-based protein and an animal-based protein (e.g. animal based ingredients such as blood meal, feather meal, fish meal) [para. 0026, last 2 tables], the binder is a grain processing by-product (e.g. soybean meal, wheat midds, ground corn) [para. 0026, last 2 tables];
feeding the input mixture into a pellet mill (e.g. the ingredients are thoroughly mixed together to create a mash; the mash is then turned into pellets at a pellet-milling machine) [0026]; and
processing the input mixture with the pellet mill to output a pellet of the soil amendment that is formed of the protein ingredient and the binder (e.g. cooled pellets are then sent to a roller mill to acquire a desirable consistency and texture) [0026,] the binder binds with the protein ingredient to form the pellet (e.g. binding agent may be required depending on the desired constancy of the fertilizer) [0026].
In regard to claim 17, Kalmbach teaches the process of claim 16, further comprising cooling the pellet with an air flow from an air device (e.g. the pellet temperature is cooled down to a specified temperature range relative to the ambient temperature; e.g. cooled with ambient air) [0026].
Claims 1, 8 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cox (CN 85108435 A).
In regard to claims 1, 8 and 13, Cox teaches a composition comprising:
a protein ingredient from 25-85% of the soil amendment by weight, wherein the protein ingredient includes a plant-based protein as 25-50% of the soil amendment by weight (e.g. 15% soybean meal, 5% wheat flour, 10% wheat bran as a portion of the total wheat bran) and an animal-based protein as 10-35% of the soil amendment by weight (e.g. 20% fish meal, 10% dried blood meal) [pg. 9, Example 2], and;
a binder to form a pellet from 15-75% of the soil amendment by weight, wherein the binder is a grain processing by-product (e.g. 27% wheat bran as a portion of the total wheat bran) [pg. 9, Example 2].
While Cox does not describe the composition as 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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cenk (TR-201302105-A2).
In regard to claim 1, Cenk teaches a composition, comprising:
a protein ingredient that is at least one of a plant-based protein and an animal based protein (e.g. oilseed meals) [pg. 30, lines 6-7]; and
a binder binding with the protein ingredient to form a pellet [pg. 30, line 4], the binder is a grain processing by-product (e.g. corn industry by-products, milling by-products) [pg. 30, lines 8-10].
While Cenk does not describe the composition as 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.
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.
Claims 8 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cenk (TR-201302105-A2).
In regard to claims 8 and 15, Cenk teaches the composition of claim 1, comprising:
a protein ingredient that is at least one of a plant-based protein and an animal based protein, wherein the protein ingredient is 25-85% of the soil amendment by weight (e.g. 5-65% oilseed meals) [pg. 30, lines 6-7]; and
a binder to form a pellet from 15-75% of the soil amendment by weight, wherein the binder is a grain processing by-product, wherein the binder includes corn gluten as 15-25% of the soil amendment by weight (e.g. corn industry by-product such as corn gluten from 1-35%) [pg. 30, lines 7-8] and soybean hulls as 20-30% of the soil amendment by weight (e.g. 1-30%) [pg. 30, line 12] and in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) [MPEP 2144.05].
Claims 9-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Kalmbach (US Patent Publication No. 2019/0062233 A1).
In regard to claims 9-12 and 14, Kalmbach teaches the soil amendment of claim 8, wherein the plant based ingredient is wheat midds and therefore considered to constitute the binder, consistent with Applicant’s classification of wheat middlings [para. 0026, last table], with the remainder of the protein ingredient formed entirely of the animal based protein (e.g. animal based ingredients), the protein ingredient is therefore formed of animal based ingredients in the range of from 50-70 % by weight [para. 0026, Formula B] wherein the animal based ingredients can include blood meal, feather meal, and/or fish bone meal [para. 0026, last table], wherein the ingredients disclosed by Kalmbach are considered to overlap with the claimed ranges with regard to feather meal, blood meal, and fish meal, alone or in combination with one another. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) [See MPEP 2144.05].
In regard to claim 18, Kalmbach teaches the process of claim 16, wherein the ground-up pellets are screened to ensure the correct size and texture and sorted into large and small sizes [0026; fig. 3]. While the reference 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.
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kalmbach (US Patent Publication No. 2019/0062233 A1) in view of Bortone (Aquafeed pelleting mill construction, 2002).
In regard to claims 19-20, Kalmbach teaches 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).
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Bortone discloses a typical pellet mill [pg. 2, fig. 1] which is identical to Applicant’s pellet mill [Specification, Fig. 4]. 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 Kalmbach. One of ordinary skill in the art would have been motivated to do so because Kalmbach 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.
Conclusion
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/JENNIFER A SMITH/Primary Patent Examiner, Art Unit 1731 December 3, 2025