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 .
This office action was written in response to the Applicant’s Remarks filed 10/8/25. Claims 1-20 are pending and have been examined on the merits.
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, 3, 8-16, 18, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Ahlnaes (WO 2009/101261) in view of Bender et al. (US 4,136,207) and Bauer et al. (CA 2,747,569).
Regarding Claims 1, 2, and 12: Ahlnaes discloses a method for making a composition for animals comprising pulverized wood [abstract; pg. 4, lines 13-23; pg. 6, lines 27 and 28]. Ahlnaes discloses wood from the family Pinaceae (Pinus, Larix, Tsuga, Abies, Picea, Spruce) and an Aspen Tree (populus) [pg. 56; pg. 60 Table 5A and pg. 62 Table 5C]. Ahlnaes discloses the composition as anti-micro-organistic [pg. 4, lines 13-17; pg. 14, lines 1-11]. Ahlnaes does not the incorporate antibiotics. Ahlnaes discloses animal feed but does not explicitly disclose farm animals or pets. It would have been obvious that the animals of Ahlnaes would have encompassed farm animals and pets as these are the sort of animals for which animal feeds and foods are usually made. Ahlnaes discloses wood that pulverized and in ground powder from [pg. 7, lines 13-19] and therefore renders obvious a fibrillated wood particles.
Ahlnaes does not disclose at least 90 wt% of fibrillated wood particles having a particle size between 50 and 500 micrometers.
Bender discloses forming fibrillated wood particles and using the fibrillated wood for animal feed [col. 8, lines 1-17].
Bauer discloses wood particles for animal feed and that at least 95% of the wood has a particle size of less than 3mm; or at least 95% of the wood has a particle size of .5mm to 1.5 mm (500 um to 1500 um); or at least 95% of the wood has a particle size of .05mm to .5 mm (50 um to 500 um) depending on the type of feed to which the wood will be incorporated into or for which it would be used [pg. 7, paragraphs 3-5]. Bauer discloses larch wood which is a member of the Family: Pinaceae and Genus: Larix [Abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to include fibrillated wood particles as in Bender as the particles would have been usable in animal feed.
Further it would have been obvious to modify the particle size of the wood particles of modified Ahlnaes as recited in Bauer in order to keep the wood organoleptically acceptable to the type of feed the wood will be used for or in.
Regarding Claim 3: Ahlnaes discloses that the composition comprises 0.1 to 5% of the additive [pg. 67, 34 and 35; claim 1].
Regarding Claim 8: Ahlnaes as modified discloses as discussed above in claim 1. Ahlnaes does not explicitly disclose wherein the fibrillated wood particles inhibit pathogenic bacterial quorum sensing.
However, “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Since Ahlnaes as modified discloses the same method, it would have been obvious that the fibrillated wood would have the same mode or effect on pathogenic bacteria.
Regarding Claims 9 and 10: Ahlnaes as modified discloses as discussed above in claim 1.
Ahlnaes does not disclose wherein the farm animal or pet is under conditions of environmental heat stress (claim 9); wherein the fibrillated wood particles reduce an elevated body temperature of the farm animal or pet (claim 10).
Bauer discloses that the animals are under environmental stress [pg. 6, last paragraph].
However, “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Since Ahlnaes as modified discloses the same method, it would have been obvious that the method would have been effective for animals under heat stress.
Regarding Claim 11: Ahlnaes as modified discloses as discussed above as in claim 1. Ahlnaes discloses the composition as being effective against gram negative and gram positive bacteria [pg. 14; pg. 28, lines 11-18]. Ahlnaes does not explicitly disclose that the composition treats diarrhea.
Bauer discloses that wood from the pine family is used to treat diarrhea [pg. 6, 4th full paragraph].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to utilize the composition to treat diarrhea as Bauer since Ahlnaes discloses that the composition is anti-microbial and can specifically inhibit E. coli, since E.coli is a known causative agent of diarrhea, and since Bauer discloses that wood from the pine family can treat diarrhea.
Regarding Claim 13: Ahlnaes as modified discloses as discussed above in claim 13. Ahlnaes discloses that the feed includes vitamins, and fat [pg. 2, lines 7-21; pg. 24, lines 17-22].
Regarding Claim 14: Ahlnaes as modified discloses as discussed above as in claim 1. Ahlnaes discloses the composition as being effective against gram negative and gram positive bacteria [pg. 14; pg. 28, lines 11-18]. Ahlnaes discloses the feed as being effective against E. coli, and S. aureus [pg. 14, lines 1-11].
Regarding Claims 15 and 16: Ahlnaes discloses a method for making a composition for animals comprising pulverized wood [abstract; pg. 4, lines 13-23; pg. 6, lines 27 and 28]. Ahlnaes discloses wood from the family Pinaceae (Pinus, Larix, Tsuga, Abies, Picea, Spruce) and an Aspen Tree (populus) [pg. 56; pg. 60 Table 5A and pg. 62 Table 5C]. Ahlnaes discloses the composition as anti-micro-organistic [pg. 4, lines 13-17; pg. 14, lines 1-11]. Ahlnaes does not the incorporate antibiotics. Ahlnaes discloses animal feed but does not explicitly disclose farm animals or pets. It would have been obvious that the animals of Ahlnaes would have encompassed farm animals and pets as these are the sort of animals for which animal feeds and foods are usually made. Ahlnaes discloses wood that pulverized and in ground powder from [pg. 7, lines 13-19] and therefore renders obvious a fibrillated wood particles.
Ahlnaes does not disclose at least 90 wt% of fibrillated wood particles having a particle size between 50 and 500 micrometers.
Bender discloses forming fibrillated wood particles and using the fibrillated wood for animal feed [col. 8, lines 1-17].
Bauer discloses wood particles for animal feed and that at least 95% of the wood has a particle size of less than 3mm; or at least 95% of the wood has a particle size of .5mm to 1.5 mm (500 um to 1500 um); or at least 95% of the wood has a particle size of .05mm to .5 mm (50 um to 500 um) depending on the type of feed to which the wood will be incorporated into or for which it would be used [pg. 7, paragraphs 3-5]. Bauer discloses larch wood which is a member of the Family: Pinaceae and Genus: Larix [Abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to include fibrillated wood particles as in Bender as the particles would have been usable in animal feed.
Further it would have been obvious to modify the particle size of the wood particles of modified Ahlnaes as recited in Bauer in order to keep the wood organoleptically acceptable to the type of feed the wood will be used for or in.
Regarding the recitation of a method for inhibiting quorum sensing communication via one or more pathogenicity factors among pathogenic bacteria in a farm animal or pet, the Examiner notes that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA1951). In the instant case, the examiner has given weight to the body of the claim.
Further, “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claims 18 and 19: Ahlnaes discloses a method for making a composition for animals comprising pulverized wood [abstract; pg. 4, lines 13-23; pg. 6, lines 27 and 28]. Ahlnaes discloses wood from the family Pinaceae (Pinus, Larix, Tsuga, Abies, Picea, Spruce) and an Aspen Tree (populus) [pg. 56; pg. 60 Table 5A and pg. 62 Table 5C]. Ahlnaes discloses the composition as anti-micro-organistic [pg. 4, lines 13-17; pg. 14, lines 1-11]. Ahlnaes does not the incorporate antibiotics. Ahlnaes discloses animal feed but does not explicitly disclose farm animals or pets. It would have been obvious that the animals of Ahlnaes would have encompassed farm animals and pets as these are the sort of animals for which animal feeds and foods are usually made. Ahlnaes discloses wood that pulverized and in ground powder from [pg. 7, lines 13-19] and therefore renders obvious a fibrillated wood particles.
Ahlnaes does not disclose at least 90 wt% of fibrillated wood particles having a particle size between 50 and 500 micrometers.
Bender discloses forming fibrillated wood particles and using the fibrillated wood for animal feed [col. 8, lines 1-17].
Bauer discloses wood particles for animal feed and that at least 95% of the wood has a particle size of less than 3mm; or at least 95% of the wood has a particle size of .5mm to 1.5 mm (500 um to 1500 um); or at least 95% of the wood has a particle size of .05mm to .5 mm (50 um to 500 um) depending on the type of feed to which the wood will be incorporated into or for which it would be used [pg. 7, paragraphs 3-5]. Bauer discloses larch wood which is a member of the Family: Pinaceae and Genus: Larix [Abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to include fibrillated wood particles as in Bender as the particles would have been usable in animal feed.
Further it would have been obvious to modify the particle size of the wood particles of modified Ahlnaes as recited in Bauer in order to keep the wood organoleptically acceptable to the type of feed the wood will be used for or in.
Regarding the recitation of a method for modulating body temperature in a farm animal or pet, the Examiner notes that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA1951). In the instant case, the examiner has given weight to the body of the claim.
Further, “Products of identical chemical composition cannot have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Claims 4-6, 17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Ahlnaes (WO 2009/101261) in view of Bender et al. (US 4,136,207) and Bauer et al. (CA 2,747,569) as applied to claims 1, 15, and 18 above and in further view of Neufeld (US 2015/0208692).
Regarding 4-6: Ahlnaes as modified discloses as discussed above in claim 13. Ahlnaes discloses a composition for animals comprising pulverized wood [abstract; pg. 4, lines 13-23]. Ahlnaes further discloses oligomers of flavonoids were the similar units are more than 2 but lower than a polymer [pg. 25, lines 26-30].
Ahlnaes does not disclose further comprising an oligomeric procyanidin (claim 4); wherein the oligomeric procyanidin comprises four to eight catechin units (claim 5); wherein the oligomeric procyanidin comprises more than eight catechin units (claim 6).
Neufeld discloses oligomeric procyanidins in an animal feed additive for treatment of animal [abstract]. Neufeld discloses the oligomeric procyanidins in an animal feed in the form of ground pine bark or pine bark extract [0012; 0030].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to include oligomeric procyanidins as in Neufeld or alternatively that Ahlnaes would have contained oligomeric procyanidins since Neufeld discloses pine bark containing the component.
Regarding Claims 5-6, it would have been obvious that the oligomeric procyanidin would have contained 4-8 or more than 8 catechin units since procyanidins are composed of catechins and calling it oligomeric implies that there are at least more than two catechins.
One having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range (oligomer) taught by Neufeld overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Regarding 17: Ahlnaes as modified discloses as discussed above in claim 15. Ahlnaes discloses a composition for animals comprising pulverized wood [abstract; pg. 4, lines 13-23]. Ahlnaes further discloses oligomers of flavonoids were the similar units are more than 2 but lower than a polymer [pg. 25, lines 26-30].
Ahlnaes does not disclose further comprising an oligomeric procyanidin.
Neufeld discloses oligomeric procyanidins in an animal feed additive for treatment of animal [abstract]. Neufeld discloses the oligomeric procyanidins in an animal feed in the form of ground pine bark or pine bark extract [0012; 0030].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to include oligomeric procyanidins as in Neufeld or alternatively that Ahlnaes would have contained oligomeric procyanidins since Neufeld discloses pine bark containing the component.
One having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range (oligomer) taught by Neufeld overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Regarding 20: Ahlnaes as modified discloses as discussed above in claim 18. Ahlnaes discloses a composition for animals comprising pulverized wood [abstract; pg. 4, lines 13-23]. Ahlnaes further discloses oligomers of flavonoids were the similar units are more than 2 but lower than a polymer [pg. 25, lines 26-30].
Ahlnaes does not disclose further comprising an oligomeric procyanidin.
Neufeld discloses oligomeric procyanidins in an animal feed additive for treatment of animal [abstract]. Neufeld discloses the oligomeric procyanidins in an animal feed in the form of ground pine bark or pine bark extract [0012; 0030].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ahlnaes to include oligomeric procyanidins as in Neufeld or alternatively that Ahlnaes would have contained oligomeric procyanidins since Neufeld discloses pine bark containing the component.
One having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range (oligomer) taught by Neufeld overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Ahlnaes (WO 2009/101261) in view of Bender et al. (US 4,136,207) and Bauer et al. (CA 2,747,569) as applied to claim 1 above and in further view of Osawa (JP 2015092880) Machine Translation.
Regarding Claim 7: Ahlnaes as modified discloses as discussed above in claim 1. Ahlnaes discloses wherein the lignifying grass is of the family of Bambusoideae.
Osawa discloses including bamboo in animal feed [abstract]. Osawa discloses that the bamboo promotes health, increased immunity, and promotes growth [pg. 6, 1st para; pg. 7, para 4 and 6].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Ahlnaes to include bamboo as in Osawa to increase the health benefits of the animal feed by its ability to increase immunity and to promote growth.
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Ahlnaes (WO 2009/101261) in view of Bender et al. (US 4,136,207) and Bauer et al. (CA 2,747,569) as applied to claim 1 above and in further view of Ma et al. (CN 103931928) Machine Translation 2014.
Regarding Claim 9: Ahlnaes as modified discloses as discussed above in claim 1.
Ahlnaes does not disclose wherein the farm animal or pet is under conditions of environmental heat stress (claim 9); wherein the fibrillated wood particles reduce an elevated body temperature of the farm animal or pet (claim 10).
Bauer discloses that the animals are under environmental stress [pg. 6, last paragraph].
Ma discloses an animal feed containing pine needles and that the animal feed can improve the immunity and “effectively preventing heat stress” [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill art that the method of modified Ahlnaes would have had a heat soothing effect as in Ma since Ma like Ahlnaes also includes derivatives of pine.
Response to Arguments
8. Applicant's arguments filed 10/8/25 have been fully considered but they are not persuasive.
9. Applicants assert that Ahlnaes is directed to reducing cytotoxicity of an agent in a composition. The Applicants assert that the wood derived mixture of Ahlnaes is for reducing the cytotoxicity of an agent in the recited composition. The Applicants assert that Ahlnaes does not disclose that the wood is for protecting against disease and that it would not have been obvious to do so. The Applicants assert it would be counterproductive to separate the wood from the agent because thy work synergistically.
The Examiner disagrees. Ahlnaes is not trying to reduce the cytotoxicity of an agent within the composition but is stating that the cytotoxicity of its composition is at least 10 times lower than that of one containing BHT which is a known synthetic antioxidant/preservative used in food, medicine, etc.…[abstract]. Ahlnaes explicitly discloses that invention relates to a mixture that is used in a composition or a semi-finished composition [abstract]. Ahlnaes discloses that this mixture refers to or is pulverized wood or plant material [abstract]. Ahlnaes discloses the anti-microbial effect of provided by the phenolic compounds and other compounds contained in plants and wood [pg. 27, lines 4-31; pg. 28, lines 1-18; Ex. 22].
10. The Applicants also assert that claims 1 and 15 are limited to “providing prophylactic benefits using wood alone”.
The Examiner disagrees because there is no consisting of language recited in the claim and there is no language limiting the benefits as coming from the wood alone. The claim does recite being anti-biotic free but even this does not limit the claims to being dependent on wood particles alone.
Further, the Examiner maintains that Ahlnaes as modified meets the asserted claim limitation although Applicants arguments are not commensurate with the scope of the claims.
11. The Applicants also assert that there is no teaching that the wood particles would have a reasonable expectation of success in the prevention of disease. The Applicants assert that the instant method provides quorum sensing inhibition and that the wood from spruce and pine tree significantly controlled diarrhea and outperformed Neomycin.
The Examiner notes that the Applicants arguments are not commensurate with the scope of the claims.
Conclusion
12. THIS ACTION IS MADE FINAL. 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.
13. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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