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 Applicants Remarks filed 10/14/25. Claims 9-25 are pending and have been examined on the merits. Claims 1-8 were cancelled.
Withdrawn Rejections
The 112(b) rejections of claims 17-22 have been withdrawn due to the amendment of claim 17.
The 103(a) rejections 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 (CN 106260517) Machine Translation 01/2017 have been withdrawn due to the amendments to the claims.
The 103(a) rejections of claims 14-23 and 25 over Yu et al. (US 2020/0323239) in view of Wang et al. (CN 106260517) Machine Translation 01/2017 as applied to claim 9 above and in further view of Pei et al. CN 107568421 Machine Translation 2018.
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, and 24 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 and Li et al. (CN 105639186) Machine Translation June 2016.
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].
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.
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].
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.
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 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.
Claims 14-23 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 and Li et al. (CN 105639186) Machine Translation June 2016 as applied to claim 9 above and in further view of Pei et al. CN 107568421 Machine Translation 2018.
Regarding Claim 14: Yu as modified discloses as discussed above in claim 9. Yu discloses that starch and protein and fat can be added to the fermented porcine blood [0057; 0058].
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.
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”].
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.
Regarding Claims 15 and 16: Yu as modified discloses as discussed above in claim 14. 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 Claims 17, 18, 19: Yu as modified discloses as discussed above in claim 14.
Yu does not disclose further comprising mixing the secondary fermentation product with one or more of a plant components, animal components, and/or mineral components.
Pei discloses including 10-20pts fruit powder, and 10-20 pts vegetable powder, egg powder, lactose, vitamins and minerals [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 method of Yu to further include seaweed, fruit powder and vegetable powder as in Pei in order to increase the nutritional content of the feed.
Regarding the additional plant components being present from about 3 to about 80%, although Pei does not disclose it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of plant components for improving the balance of nutrition and palatability of the composition, 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 Claims 20 and 21: Yu as modified discloses as discussed above in claim 17.
Yu does not disclose wherein the one or more animal components are selected from the group consisting of dried poultry byproducts, dried fish, crab meal, egg powder, Neverita didyma powder, fish meal, bone meal, bone ash, fish bone meal, oyster shell powder, chicken oil, animal edible residual oil, pork fat, beef tallow, mealworm larva, dried crickets, dried grasshoppers, rotifers, mysis shrimp, daphnia, lactose, whole milk powder, cheese, skim milk powder, and combinations thereof.
Pei discloses including earthworm, 4-8 pts lactose, egg powder [abstract; 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 method of Yu to further include lactose, 20-50 pts whole egg powder as in Pei in order to increase the nutritional content of the feed.
Regarding the additional animal components being present from about 3 to about 80%, although Pei does not disclose it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of animal components for improving the balance of nutrition and palatability of the composition, 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 Claims 22 and 23: Yu as modified discloses as discussed above in claim 17.
Yu does not disclose wherein the one or more mineral components are selected from the group consisting of limestone powder, calcium carbonate, calcium sulfate, iron citrate, sodium molybdate, ammonium molybdate, sodium selenate, sodium selenite, chromium chloride, potassium iodate, calcium iodate, potassium iodide, manganese carbonate, copper sulfate, manganese sulfate, zinc sulfate, and combinations thereof; wherein the mineral components comprise between about 0.0001 to about 5 wt.% of the composition (claim 23).
Pei discloses including 0.1 to 0.3 pts calcium carbonate [abstract; 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 method of Yu to further include calcium carbonate as in Pei in order to increase the nutritional content of the feed.
Regarding the additional mineral components being present from between about 0.0001 to about 5 wt.%, although Pei does not disclose it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of mineral components for improving the balance of nutrition and palatability of the composition, 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 112(b) rejections of claims 17-22 have been withdrawn due to the amendment of claim 17.
The 103(a) rejections 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 have been withdrawn due to the amendments to the claims.
The 103(a) rejections of claims 14-23 and 25 over Yu et al. (US 2020/0323239) in view of Wang et al. (CN 106260517) Machine Translation 01/2017 as applied to claim 9 above and in further view of Pei et al. CN 107568421 Machine Translation 2018.
The Applicants Affidavit filed 10/14/15 has been acknowledged. The Applicants assert there was no growth promoting effect was seen in another type of flounder, a type of eel, and a type of shrimp.
The Examiner disagrees. Applicants have not shown data showing that there is absolutely no growth in other aquatic species namely fish, eel, or shrimp that are fed. Further, it is not clear how much of the named feed was fed to the newly claimed fish in comparison with how much was fed to the other aquatic species. Further it appears that the other argued aquatic species were supplemented with the named feed where the instant claims are drawn to the named composition as the primary feed.
Further, the arguments are not commensurate with the scope of the claims because amounts argued are not claimed. Further, it is not clear how much weight, length, etc Applicants are considering to be unexpected growth promotion.
Further, it is not clear how feeding the fish, eel, or shrimp would not result in growth. That is one of the purposes of food, even if the amount of growth is too much weight gain which may or may not be undesirable.
The Examiner also notes that the aim of the claims have been changed. The claims as originally recited were drawn to a method of making a feed. Applicants have amended the claims to recite a method of promoting growth using feed prepared by a method.
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.
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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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