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 .
Receipt is acknowledged of the Request for Continued Examination (RCE) under 1.114, the Amendment and Response, all filed 5/6/26.
Claims 9-13, 15, 16, 24, and 25 are pending and have been examined on the merits. Claims 14, 17-23 have been cancelled. Claims 1-8 were previously cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/6/26 has been entered.
Withdrawn Rejections
The 103(a) rejection of claim 14 has been withdrawn due to the cancellation of the claim.
The 103(a) rejections of claims 17-23 have been withdrawn due to the cancellations of the claims.
The 103(a) rejection of claims 9-13, and 24 over Yu et al. (US 2020/0323239) in view of Wang et al. (CN 106260517) Machine Translation 01/2017 and Li et al. (CN 105639186) Machine Translation June 2016 have been withdrawn due to the amendments to the claims.
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 9-13, 15, 16, 24, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Yu et al. (US 2020/0323239) in view of Wang et al. (CN 106260517) Machine Translation 01/2017, Li et al. (CN 105639186) Machine Translation June 2016, Pei et al. CN 107568421 Machine Translation 2018, and Wang “Wang 2” CN 105010809 Machine Translation 2015.
Regarding Claim 9: Yu discloses a method of making fermented porcine blood composition containing Lactobacillus sp. and Saccharomyces cerevisiae [abstract; 0011]. Yu discloses that the fermented porcine blood is in the form of fermented stock solutions, concentrated liquid or powder, or in the form of an extract [0019]. Yu discloses that the fermented porcine blood contains an anticoagulant and proteolytic enzyme [0013]. Yu discloses fermenting 15 to 45°C [0015]. Yu discloses that the fermentation period is 3 days or more [0016]. Yu discloses that the feed is a fish feed [0057]. Yu discloses that starch and protein and fat can be added to the fermented porcine blood [0057; 0058].
Regarding the recitation of a method for promoting the growth, claim 9 is a recitation of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim.
Yu does not disclose that the Lactobacillus sp. is L. johnsonii.
Yu does not explicitly disclose feeding to Paralichthys olivaceus.
Yu does not specifically disclose adding rice bran, soybean meal, or a combination.
Yu does not disclose a secondary fermentation after the addition of rice bran, soybean meal, or a combination.
Wang discloses a method of making a feed containing L. johnsonii [abstract]. Wang discloses that the feed is fermented with the L. johnsonii [abstract]. Wang discloses that the fermented feed promotes animal growth and improved disease resistance in animals [abstract].
Li discloses fish feed containing blood powder [abstract]. Li discloses feeding Paralichthys olivaceus fish feed [abstract].
Pei discloses mixing fermented blood meal with rice bran and soybean meal [pg. 2 “Equivalent Abstract”]. Pei discloses fermenting the mixture [pg. 2 “Equivalent Abstract”]. The fermented blood meal of Pei has already gone through a first fermentation and therefore the fermentation after further mixture with rice bran and soybean meal is considered to be a secondary fermentation.
“Wang 2” discloses a feed containing pig blood that undergoes primary and secondary fermentation [abstract; pg. 2; claims 1 and 2].
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 Yu to include L. johnsonii as in Wang since Yu discloses including Lactobacillus species for providing the antibacterial effect of the blood composition and since the L. johnsonii helps resistance to disease.
Further it would have been obvious to modify the fish of Yu to include Paralichthys olivaceus as in Li since Yu discloses the feed as applicable to farmed fish and since the feed of Yu does incorporate a blood component as in found in Yu. It would have been obvious the one of ordinary skill that Paralichthys olivaceus was compatible with the feed of Yu especially where Yu does not limit the genus and species of fish to which it is administered.
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 Yu to include further fermenting the fermented blood of Yu in the presence of rice bran and soybean meal as in Pei in order to provide a nutritionally balanced feed product.
Further it would have been obvious to further ferment after primary fermentation as in “Wang 2” in order to ferment the soybean or rice bran added after the primary fermentation.
Regarding the number of days for culturing, although Yu does not explicitly disclose 3 to 30 days one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yu overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding the culturing temperature, although Yu does not explicitly disclose 30 to 50°C, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yu overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 10: Yu as modified discloses as discussed above in claim 9. Yu discloses that the fermented porcine blood is mixed with 6% (v/v) of the fermentation strains [0081].
Regarding Claim 11: Yu as modified discloses as discussed above in claim 9. Yu discloses that the fermented porcine blood contains .1% to 10% or 6% of a carbon source [0014; 0017].
Regarding Claim 12: Yu as modified discloses as discussed above in claim 11. Yu discloses that the carbon source can be lactose, glucose, fructose, sugar, molasses, dextrose and combinations [0014].
Regarding Claim 13: Yu as modified discloses as discussed above in claim 12. Yu discloses that the culturing step is performed at 15 to 45°C [0015] with stirring at 50-70 rpm [0081].
Regarding the culturing temperature, although Yu does not explicitly disclose 40°C, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yu overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claims 15 and 16: Yu as modified discloses as discussed above in claim 9. Yu does not disclose that based on 100 parts by weight fermented porcine blood, 25 to 75 parts by weight of rice bran and 25 to 75 parts by weight soybean meal.
Pei discloses soybean meal at 9-11 pts, and rice bran at 5-7 pts [pg. 2 “Equivalent 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 Yu to include rice bran and soybean meal as in Pei in order to provide a nutritionally balanced feed product.
Although Pei does not disclose the amounts of rice bran and soybean meal relative to fermented blood, it would have been obvious to modify the amounts in order to achieve the desired nutritional profile of the composition while retaining the probiotic effect of the Lactobacilli and since it has been held that the provision of adjustability, where needed, involves only routine skill in the art, In re Stevens, 101 USPQ 284 (CCPA 1954).
Regarding the level of Brix at 30, given the sugar content and the levels of solids in the composition it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the Brix for the fermented final product to prepare for further processing and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Regarding Claim 24: Yu as modified discloses as discussed above in claim 9. Yu discloses a proteolytic enzyme added at 1% to 3% [0013]. Yu discloses that the fermented porcine blood contains .1% to 10% or 6% of a carbon source and discloses that the carbon source can be lactose, glucose, fructose, sugar, molasses, dextrose and combinations [0014; 0017]. Yu discloses that the fermented porcine blood is mixed with 6% (v/v) of the fermentation strains [0081]. Yu disclose a pH of 4 [0016; 0017]. Yu discloses that the culturing step is performed at 15 to 45°C [0015] with stirring at 50-70 rpm [0081].
Regarding the culturing temperature, although Yu does not explicitly disclose 40°C, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yu overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding the level of Brix at 20, given the sugar content and the levels of solids in the composition it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the Brix for the ease of the second fermentation step, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Regarding Claim 25: Yu as modified discloses as discussed above in claim 24.
Yu does not disclose wherein further comprising: mixing the fermented porcine blood at a 1:1 weight ratio with a mixture of rice bran powder and soybean meal powder to prepare a secondary fermentation product; and drying the secondary fermentation product, wherein the rice bran powder and the soybean meal powder are mixed at a 1:1 weight ratio.
Pei discloses mixing fermented blood meal with rice bran and soybean meal [pg. 2 “Equivalent Abstract”]. Pei discloses fermenting the mixture [pg. 2 “Equivalent Abstract”]. Pei discloses soybean meal at 9-11 pts, and rice bran at 5-7 pts, fermented blood meal at 2.5-3.5 pts [pg. 2 “Equivalent Abstract”]. Pei discloses a step of drying the composition after fermenting [pg. 2 “Equivalent 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 Yu to include fermented blood meal, rice bran and soybean meal as in Pei in order to provide a nutritionally balanced feed product.
Further it would have been obvious to further dry the composition as in Pei in order to provide it in a more stable and transportable form.
Although Pei does not disclose the amounts of rice bran and soybean meal relative to fermented blood, it would have been obvious to modify the amounts in order to achieve the desired nutritional profile of the composition while retaining the probiotic effect of the Lactobacilli and since it has been held that the provision of adjustability, where needed, involves only routine skill in the art, In re Stevens, 101 USPQ 284 (CCPA 1954).
Response to Arguments
The 103(a) rejection of claim 14 has been withdrawn due to the cancellation of the claim.
The 103(a) rejections of claims 17-23 have been withdrawn due to the cancellations of the claims.
The 103(a) rejection of claims 9-13, and 24 over Yu et al. (US 2020/0323239) in view of Wang et al. (CN 106260517) Machine Translation 01/2017 and Li et al. (CN 105639186) Machine Translation June 2016 have been withdrawn due to the amendments to the claims.
Conclusion
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.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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