DETAILED ACTION
Status
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/12/2026 has been entered.
Claim Objections
Claims 9, 15, 24 and 28 are objected to because of the following informalities:
Claims 9 and 28 recite “wherein the at least one synthetic emulsifier is selected from the group consisting of wherein the at least one synthetic emulsifier is…”. It is suggested that the claim recite
“where wherein the at least one synthetic emulsifier is selected from the group consisting of…”.
For claim 15, line 2, add “of” between “weight” and “the” at the end of the line.
Claim 24, line 2, add “of” between “weight” and “the” for the monoglyceride.
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 13, 18-20, 24 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.
Claim 13 recites the limitation "the animal feed supplement" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claims 18-20 depend from claim 13 but also reference an “animal feed composition”.
It is unclear whether the animal feed composition and animal feed supplement are the same or not. The claims are interpreted as the animal feed composition and animal feed supplement are referencing the same.
Claim 22 recites a method for preparing an animal feed supplement comprising adding a composition to the animal feed. The composition comprises lysolecithin, monoglyceride and at least one synthetic emulsifier. Claim 24 recites the term the “animal feed supplement” comprises 84.5% lysolecithin, 14.1% monoglyceride and 1.4% emulsifier, which is 100% by weight. However, claim 24 depends on claim 22. It is unclear whether the animal feed composition and animal feed supplement are the same or not. The claims are interpreted as the animal feed composition and animal feed supplement are referencing the same.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 9-13, 15-22 and 24-28 are rejected under 35 U.S.C. 103 as being unpatentable over CN104839508. Applicants have provided a translation of CN104839508 (see IDS of 7/11/2024) and this is relied upon in the rejection.
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CN104839508 teaches a composite emulsifier composition that can be added to animal feed. At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs.
The composite emulsifier comprises 2-15% of monoglycerides, 5-15% lysolecithin, and 2-20% of a synthetic emulsifier such as Span-80 (i.e., sorbitan monolaurate) (pg. 3, fourth paragraph of translation). Given sorbitan monooleate and sorbitan monolaurate are both surfactants derived from sorbitol and ethylene oxide, it would have been obvious to use sorbitan monolaurate in CN104839508.
As to the amount of each ingredient, it would have been obvious to vary the amount of each ingredient based on the dietary needs of the subject in which the feed is administered. As noted above, CN104839508 teaches that the claimed ingredients can be used to form a composition that more easily digested and results in an absorption and utilization of fat to meet special energy and fatty acid needs (pg. 1, first paragraph of translation).
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As to claim 10, Example 6 shows administering in batches over a 4 week period (see page 10, Example 6).
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As to claim 11, CN104839508 teaches the product can be a powder (pg. 3, fourth paragraph of translation) or in emulsion form in the fourth paragraph on page 4. Given the emulsion form, it would have bene obvious that the product can also be liquid. Thus, CN104839508 teaches that the composition can be administered in a liquid form.
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As to claim 12, Example 1 provides a dry powder formulation (see page 7, Example 1).
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CN104839508 teaches a composite emulsifier composition that can be added to animal feed. At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs.
The composite emulsifier comprises 2-15% of monoglycerides, 5-15% lysolecithin, and 2-20% of a synthetic emulsifier such as Span-80 (i.e., sorbitan monooleate) (pg. 3, fourth paragraph of translation). Given sorbitan monooleate and sorbitan monolaurate are both surfactants derived from sorbitol and ethylene oxide, it would have been obvious to use sorbitan monolaurate in CN104839508.
As to the amount of each ingredient, it would have been obvious to vary the amount of each ingredient based on the dietary needs of the subject in which the feed is administered. As noted above, CN104839508 teaches that the claimed ingredients can be used to form a composition that more easily digested and results in an absorption and utilization of fat to meet special energy and fatty acid needs (pg. 1, first paragraph of translation).
The administration of the composite emulsifier would naturally increase absorption and utilization of feeds as compared with animal fat alone or animal fat with only lysolecithin.
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At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs. CN104839508 teaches that the composite emulsifier comprises 2-15% of monoglycerides, 5-15% lysolecithin, and 2-20% of a synthetic emulsifier such as Span-80 (i.e., sorbitan monooleate) (pg. 3, fourth paragraph of translation). However, it would have been obvious to vary the amount of ingredients based on the level of absorption needed and utilization rate of feeds met.
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As to claims 16-17, CN104839508 teaches a composite emulsifier composition that can be added to animal feed. At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs. However, given the same ingredients are administered, the administration of the composite emulsifier would naturally increase as compared with animal fat alone or animal fat with only lysolecithin and replace the energy deficiency, as claimed.
Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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As to claims 18-20, Examples 5 and 6 show that the composition is in the form or powder preparation (i.e., premix) and applied as dry mix. However, in Examples 5 and 6 (starting at the bottom of page 9 of the translation), the composition is added to the overall feed. It would have been obvious to prepare the composition in liquid or dry powder form depending on the type of feed the composition is added.
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The composite emulsifier comprises a synthetic emulsifier such as Span-80 (i.e., sorbitan monooleate) (pg. 3, fourth paragraph of translation). Given sorbitan monooleate and sorbitan monolaurate are both surfactants derived from sorbitol and ethylene oxide, it would have been obvious to use sorbitan monolaurate in CN104839508.
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CN104839508 teaches a composite emulsifier composition that can be added to animal feed. At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs.
The composite emulsifier comprises 2-15% of monoglycerides, 5-15% lysolecithin, and 2-20% of a synthetic emulsifier such as Span-80 (i.e., sorbitan monooleate) (pg. 3, fourth paragraph of translation). Given sorbitan monooleate and sorbitan monolaurate are both surfactants derived from sorbitol and ethylene oxide, it would have been obvious to use sorbitan monooleate in CN104839508.
As to the amount of each ingredient, it would have been obvious to vary the amount of each ingredient based on the dietary needs of the subject in which the feed is administered. As noted above, CN104839508 teaches that the claimed ingredients can be used to form a composition that more easily digested and results in an absorption and utilization of fat to meet special energy and fatty acid needs (pg. 1, first paragraph of translation).
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At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs. CN104839508 teaches that the composite emulsifier comprises 2-15% of monoglycerides, 5-15% lysolecithin, and 2-20% of a synthetic emulsifier such as Span-80 (i.e., sorbitan monooleate) (pg. 3, fourth paragraph of translation). However, it would have been obvious to vary the amount of ingredients based on the level of absorption needed and utilization rate of feeds met.
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As to claims 25-26, CN104839508 teaches a composite emulsifier composition that can be added to animal feed. At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs. However, the given the same ingredients are administered, the administration of the composite emulsifier would naturally increase as compared with animal fat alone or animal fat with only lysolecithin and replace the energy deficiency, as claimed.
Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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CN104839508 teaches a composite emulsifier composition that can be added to animal feed.
In a test group of broilers, the composite emulsifier is added at an amount of 300g/ton.
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The composite emulsifier comprises 2-15% of monoglycerides, 5-15% lysolecithin, and 2-20% of a synthetic emulsifier such as Span-80 (i.e., sorbitan monooleate) (pg. 3, fourth paragraph of translation). Given sorbitan monooleate and sorbitan monolaurate are both surfactants derived from sorbitol and ethylene oxide, it would have been obvious to use sorbitan monolaurate in CN104839508.
Claims 14 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over CN104839508 as applied to claims 13 or 22 above, and further in view of Bregniet al., Some Considerations about the hydrophilic-lipophilic balance system, International Journal of Pharmaceutics 356 (2008) 44—51 (BREGNI) (See IDS of 7/11/2014).
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CN104839508 teaches a composite emulsifier composition that can be added to animal feed. At the bottom of page 1 of the translation, it is taught that the composition improves absorption and utilization of feeds to meet special energy and fatty acid needs.
CN104839508 does not teach the use of monoglyceride selected from glycerol monooleate or glycerol monostearate.
However, BREGNI teaches that the HLB value of Span-80 falls somewhere between 4.3 and 6.8 (see Table 5 on page 49). BREGNI explains that the HLB system is a surfactant classification system (abstract). BREGNI also teaches that glycerol monostearate also functions as an emulsifier and has an HLB of 4.15 (see pg. 47, tight column, last paragraph).
It would have been obvious to modify CN104839508 to include glyceryl monostearate, as BREGNI teaches that glycerol monostearate is an emulsifier with similar properties to the SPAN -80 emulsifier of CN10439508 (i.e., low HLB, a lower HLB values indicate a more lipophilic emulsifier, whereas higher values indicate a more hydrophilic emulsifier).
Response to Arguments
Applicant's arguments filed 1/20/2026 have been fully considered but they are not persuasive.
The applicant argues that CN104839508 does not disclose the amount of individual ingredients in the formulation.
However, CN104839508 teaches that the claimed ingredients can be used to form a composition that more easily digested and results in an absorption and utilization of fat to meet special energy and fatty acid needs (pg. 1, first paragraph of translation).
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc.v.Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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