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 .
Status of the Application
The claims filed 08 February 2024 have been entered. Claims 1-13 are pending.
Drawings
The drawings are objected to because:
Figure 2: Please label the both the x and y axes of the graphs
Figure 3: Please label the y-axis of the graph.
Figure 3: Please clarify the title of the graph. It is unclear how the quantity a daily food intake of 132 kg per kg BW (1.88 x RER) relates to the graph.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
There appear to errors in the equations presented in [0059], [0060], [0062] and [0063] of the specification. The equations are cited as common methods of determining the energy requirements, such as dogs [0057]. Both of the equations in [0059] and [0060] include the negative exponent of 0.75. Sanderson (Sherry L Sanderson, Nutritional Requirements of Small Animals, Merck Veterinary Manual, 2023, https://www.merckvetmanual.com/management-and-nutrition/nutrition-small-animals/nutritional-requirements-of-small-animals) discloses the formula for calculating RER (resting energy requirement) for dogs and cats is:
RER = 70*(Body Weight in kg)0.75 (p3, 2nd para)
and MER is a positive numerical factor multiplied by the RER (Table on last page).
Equations [0059], [0060], [0062] and [0063] have the incorrect exponent value.
There appears to be an error in the calculation provided in the specification for Examples 1 and 2 on pages 27-28.
Example 1: the final answer (0.195 mg CBD/day on p20) appears to have been divided by 1000 kcal/kg for the RME value as opposed to the recited 3000 kcal/kg. The result of the equation should be 0.065 mg CBD/day. Also the units are incorrect for the RME value: 3000 kcals should read 3000 kcal/kg feed.
Example 2: for an average five – kilogram household canine (p27, [0097] first equation and top of p 28): these appear as though they should be the same equation since the starting values for DMER, RME, PCI and CC and the mass of the canine are all the same, however the equations are not the same and they appear to be miscalculated. In [0097] the first equation, the result of the equation should be 0.217 mg CBD/day and 0.04347 mg CBD/kg BW/day. On p 28, just above [0098], the first portion of the equation is inverted – it should read 434.7 kcal/(3000 kcal/kg) and the outcome of the equation should be the same as in the first equation of [0097]: 0.217 mg CBD/day and 0.04347 mg CBD/kg BW/day.
Example 2: Example for computing CBD for an average one-kilogram canine (p27 bottom, and line 1 of p28): in the equation on the top of p28, the first portion of the equation should be inverted. It should read: 130 kcal/(3000 kcal/kg). The equation seems to have the same problem as Example 1, the final answer appears to have been divided by 1000 kcal/kg for the RME value as opposed to the recited 3000 kcal/kg. The result of the equation should be 0.065 mg CBD/day.
Appropriate correction is required.
Claim Objections
Claims 1, 5, 6 and 10 are objected to because of the following informalities:
Claim 1, line 7: “animal” should read “animals”
Claim 1, line 13: insert “animal” between “the” and “feed”
Claim 1, line 14: “2000 to 20000” should read “2,000 to 20,000”
Claim 1, line 19: include the units for RERMUL
Claim 1, line 25: include units for the maximum daily cannabinoid intake
Claim 1, line 32: include the units for CC
Claims 5 and 6, line 1: “in” should read “is”
Claim 10, line 1: “fee” should read “feed”
Appropriate correction is required.
Examiner’s Note/Claim Interpretation
Claim 1, line 2, recites “an animal endocannabinoid system.” As evidenced by Silver (Silver RJ. The Endocannabinoid System of Animals. Animals (Basel). 2019 Sep 16;9(9):686. doi: 10.3390/ani9090686. PMID: 31527410; PMCID: PMC6770351.) endocannabinoid systems are common to nearly all animals except the Phyla Protozoa and Insecta. Therefore the claims will be interpreted as applying to animals outside the Phyla Protozoa and Insecta.
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 1-13 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 1, lines 11-12, recites “said ratio of CBDA:CBD being at least 1:20” without specifying if the ration is w:w, v:v or w:v. For the purpose of examination, the ratio will be interpreted as w:w.
Claim 1, lines 13-14, recites “delivering, on a daily basis, the feed ration to the mammalian subject in an amount of 2,000-20,000 kcal/kg of the animal subject body weight.” There appears to be some error in the statement regarding how many calories to supply to the mammal. According to Dog Calorie Calculator (https://www.inchcalculator.com/dog-calorie-calculator/, 2025) dogs around 5 lbs (2.3 kg) require about 233 kcal per day, or about 101 kcal/kg of the animal subject BW per day. A 90 lbs dog (41kg) requires about 2035 kcal per day, or about 50 kcal/kg of the animal subject BW per day (p6). These values of 50-101 kcal/kg of the animal subject body weight per day differ by orders of magnitude from the claimed 2,000-20,000 kcal/kg of the animal subject body weight delivered on a daily basis. Since the claims are drawn to a method step of the “delivering” the 2,000-20,000 kcal/kg of the animal subject body weight on a daily basis, which appears to far exceed the caloric needs of the animal, the claims will be interpreted as the animal subject is delivered a feed ration in an amount up to 2,000-20,000 kcal/kg of the animal subject BW.
Claim 1 recites the limitation "the mammalian subject" in line 13. There is insufficient antecedent basis for this limitation in the claim. For the purpose of examination, the mammalian subject will be interpreted as the at least one animal in said class of animals (line 6).
Claim 1, lines 15-22 define the equation for determining the daily metabolized energy requirement (DMER). There appears to be an error in the equation presented in line 16. In line 16 the BW in kg is raised to a negative exponent, while Sanderson (Sherry L Sanderson, Nutritional Requirements of Small Animals, Merck Veterinary Manual, 2023, https://www.merckvetmanual.com/management-and-nutrition/nutrition-small-animals/nutritional-requirements-of-small-animals) discloses the formula for calculating RER (resting energy requirement) for dogs and cats is:
RER = 70*(Body Weight in kg)0.75 (p3, 2nd para)
and MER (equivalent to DMER of the instant claims) is a positive numerical factor multiplied by the RER (Table on last page).
It appears as though the exponent value of the equation in line 16 should be positive. If applicant wishes to define DMER in a manner contrary to its ordinary meaning in the art it must be clearly redefined in the written description. The patentee or applicant is free to be his or her own lexicographer, a patentee or applicant may use terms in a manner contrary to or inconsistent with one or more of their ordinary meanings if the written description clearly redefines the terms. MPEP 2173.05(a). In the instant case the specification recites the equation used is commonly known for calculating the calories needed by an animal, however no explanation or thorough description is given for the reason applicant has chosen to change the commonly known positive exponent of the equation to a negative exponent. For the purpose of examination, line 16 will be interpreted as the commonly used equation for calculating calorie needs of an animal: DMER=RERMUL * β(kg BW)α.
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Claim 1 recites two ways of determining the maximum amount of CBD and CBD-A in the animal ration:
OR
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It is unclear which one of these methods of determining the maximum CBD and CBD-A content takes precedent. For the purpose of examination, claim 1 will be interpreted as if either of the limitations as to the maximum amounts of CBD and CBD-A is met then the limitations of the claims are considered satisfied.
Claim 2 recites “wherein the combined CBD and CBDA concentration is greater than 0.1 mg/kg” without specifying kg of what? Is it kg body mass or kg of the feed ration? For the purpose of examination, claim 2 will be interpreted as combined CBD and CBDA concentration greater than 0.1 mg/ kg of the feed ration.
Claim 3 recites “wherein the animal feed ration includes hemp oil that causes the CBD and CBDA concentration to be greater than 0.1 mg/kg” without specifying kg of what? Is it kg body mass or kg of the feed ration? For the purpose of examination, claim 3 will be interpreted as combined CBD and CBDA concentration greater than 0.1 mg/ kg of the feed ration.
Claims 7-9 recite the feed ration “having an absorbable energy of” a certain number of kcal/kg. The absorbable energy of a feed is not reproducible from animal to animal, even when factors such as breed and age are accounted for. There is no method step presented as to how to determine the absorbable energy for an individual animal. For the purpose of examination, claims 7-9 will be interpreted as the animal ration itself provides the recited number of kcal/kg of feed ration.
Claim 8 recites a feed ration with absorbable energy from 10,000-15,000 kcal/kg. As evidenced by Bhupathiraju (Bhupathiraju et al., Carbohydrates, Proteins and Fats, Merck Manual, 2025, https://www.merckmanuals.com/home/disorders-of-nutrition/overview-of-nutrition/carbohydrates-proteins-and-fats) carbohydrates, proteins and fats supply 100% of the energy in food and carbohydrates and protein provide 4 calories/g and fat provides 9 calories/g (p1, top of page). Calories commonly refers to the units of kcal. Therefore a food consisting only of fat can provide a maximum of 9000 kcal/kg of food [calculation: (9 kcal/g of fat)*(1000 g of food/kg of food) =9000 kcal/kg of food]. Therefore it is unclear how one would obtain a feed with more than 9000 kcal/kg as instantly claimed. Since it is not possible for an equine feed to have the claimed quantity of calories per kg, for the purpose of examination, claim 8 will be interpreted as wherein the animal feed ration is equine feed ration with any amount of calories per kg of the ration.
Claims 4-6 and 10-13 are rejected here because they depend from claim 1.
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.
Claims 1-7, 10-11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over McGarrah (US 2019/0091144 A1) in view of Zicker (US 2002/0119182 A1).
Regarding claim 1, McGarrah discloses method comprising determining the Resting Energy Requirements of a intact adult dog (a class of animals) [0102]. McGarrah discloses a method for feeding a canine where the RER is calculated and it is determined the animal will require 0.332 kg/day of a food having 3500 kcal/kg. McGarrah discloses the providing feed ration to an a canine and that the canine weighs 20 kg (at least one of the animals having a body weight) [0102]. McGarrah discloses the pet food includes hemp oil which comprises acidic cannabinoids which include cannabidiolic acid (CBD-A) and cannabidiol (CBD) which are included in the composition in a ratio of CBD-A:CBD of at least 1:1 (Abstract). McGarrah’s ratio of CBD-A:CBD of at least 1:1 falls within the claimed range of at the ratio of at least 1:20.
McGarrah discloses in Example 1 [0102] a method of feeding a 20 kg canine, where the feed composition provides 6.64g of hemp oil per day. McGarrah discloses the hemp oil comprises CBD and CBD-A in a combined concentration of 10-50ppm (mg/kg) [0101]. McGarrah’s 6.64 g of hemp oil with 10-50ppm CBD and CBD-A combined provided to a 20 kg canine results in the animal receiving from 0.00332 mg CBD and CBD-A combined per kg BW per day up to 0.0166 mg CBD and CBD-A combined per kg BW per day. This range of CBD and CBD-A combined per kg BW per day falls within the claimed range of less than 1.0 mg/kg of the body weight. McGarrah uses the calculated RER of the animal to determine the amount of food the animal will receive and therefore the amount of hemp oil the animal will receive [0102], which meets the claim limitation of the CBD and CBD-A concentration being determined in part by the daily metabolized energy requirement.
As to the claim limitation “delivering on a daily basis the feed ration to the mammalian subject in an amount of 2000-20000 kcal/kg of the animal subject BW,” as interpreted in the 112(b) claim rejection above, McGarrah discloses feeding a 20 kg canine 1162 kcal per day, or 58.1 kcal/kg of BW which falls within the claimed range as interpreted in the 112(b) rejection above of up to 2000-20000 kcal/kg animal BW.
McGarrah discloses the RER but does not disclose the DMER of the instant claims.
Zicker, in the field of pet diets, discloses a method of calculating the maintenance energy requirements of an animal (MER, equivalent to the instantly claims DMER) where [0045]:
MER (kcal/day) =1.6*RER
Where: RER (kcal/day) = 70*(body weight in kg)0.75
Therefore: MER = (1.6)*(70)*(bodyweight in kg)0.75
The MER of Zicker is equivalent to the DMER equation of the instant claims where the 1.6 of Zicker is RERMUL of the instant claims, the 70 of Zicker is the β of the instant claims (a value between 65 and 6500) and the 0.75 of Zicker is the α of the instant claims (a value between 0.25 and 1.75) as interpreted in the 112(b) rejection above.
Zicker discloses the dogs were weighed (in kg) and their food doses were adjusted to their weights with the above formulas [0046], which meets the claim limitation of determining the daily metabolizable energy requirement for a class of animals and providing a feed ration meeting the DMER to at least one class of animals having a BW.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the method of McGarrah with the method of Zicker because both are drawn to methods of determining the appropriate amount of calories for an animal on a daily basis.
As to the claim limitation of:
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As discussed in the 112(b) rejection above, the claim limitations of the maximum amount of CBD and CBD-A in the composition has been satisfied by McGarrah’s disclosure of 6.64 g of hemp oil with 10-50ppm CBD and CBD-A combined provided to a 20 kg canine results in the animal receiving from 0.00332 mg CBD and CBD-A combined per kg BW per day up to 0.0166 mg CBD and CBD-A combined per kg BW per day.
As to the claim language “for using an animal feed ration to safely stimulate and animal endocannabinoid system” this language is deemed to be an intended use so far as the process is concerned. In process claims, a claimed intended use must result in a manipulative difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. MPEP 2111.02. Given that the method of McGarrah in view of Zicker is identical to that of the presently claimed in terms of process, it meets the intended use of the claimed method.
Regarding claim 2, McGarrah discloses the feed composition comprises 4-8% hemp oil and the hemp oil comprises 10-50 ppm CBD and CBD-A combined [0093] and [0101], which results in a feed with 0.4-4 mg CBD and CBD-A combined per kg of feed, which falls within the claimed range of greater than 0.1 mg/kg.
Regarding claim 3, McGarrah discloses the feed comprises hemp oil as a source of CBD and CBD-A [0093] and [0101] and as discussed in the claim 2 rejection above, the feed has between 0.4-4 mg CBD and CBD-A combined per kg of feed, which falls within the claimed range of greater than 0.1 mg/kg. This disclosure by McGarrah is considered to meet the claim limitation of: wherein the animal feed ration includes hemp oil that causes the CBD and CBDA concentration to be greater than 0.1 mg/kg.
Regarding claim 4, McGarrah discloses the feed includes 4-8% hemp oil [0093] which overlaps with the claimed range of no more than 6%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claims 5 and 6, McGarrah discloses the pet food includes hemp oil which comprises acidic cannabinoids which include cannabidiolic acid (CBD-A) and cannabidiol (CBD) which are included in the composition in a ratio of CBD-A:CBD of at least 1:1 (Abstract). McGarrah’s ratio of CBD-A:CBD of at least 1:1 falls within the claimed range of at the ratio of at least 1:20. McGarrah further discloses the feed may be an extruded or pelleted feed [0034].
Regarding claim 7, McGarrah discloses a canine feed with 3500 kcal/kg [0102], which falls within the claimed range of 2000-5000 kcal/kg.
Regarding claim 10, McGarrah discloses the pet food includes hemp oil which comprises acidic cannabinoids which include cannabidiolic acid (CBD-A) and cannabidiol (CBD) which are included in the composition in a ratio of CBD-A:CBD of at least 1:1 (Abstract). McGarrah’s ratio of CBD-A:CBD of at least 1:1 falls within the claimed range of at the ratio of at least 1:20.
As to the claim language “to inhibit hepatoxicity in the at least one animal,” this language is deemed to be an intended use so far as the process is concerned. In process claims, a claimed intended use must result in a manipulative difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. MPEP 2111.02. Given that the method of McGarrah in view of Zicker is identical to that of the presently claimed in terms of process, it meets the intended use of the claimed method.
Regarding claim 11, McGarrah discloses canines as a subject animal [0102].
Regarding claim 13, McGarrah discloses the canine subject is 20 kg [0102] which meets the claim limitation of the class of animals further defined by other factors.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over McGarrah (US 20190091144 A1) in view of Zicker (US 2002/0119182 A1) as applied to claim 1 above, and further in view of Hiney (Hiney et al. Rations for Horses: Nutrients, Feedstuffs and Safety, Oklahoma State University Extension, 2017, https://extension.okstate.edu/fact-sheets/rations-for-horses-nutrients-feedstuffs-and-safety.html).
Regarding claim 8, McGarrah discloses the feed composition can be used for livestock feed [0121].
McGarrah does not disclose horses as the livestock with a feed ration calorie density.
Hiney, in the field of horse nutrition, discloses horse feed formulated to contain 1.3-1.6 Mcal digestible energy (DE)/lb of feed, equivalent to 2,869 kcal/kg, which meets the claim limitations of claim 8 as interpreted in the above 112(b) rejection.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the calorie density of horse feed of Hiney with the feed for livestock of McGarrah because both are drawn to feeds for livestock which provide calories to the livestock animal.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over McGarrah (US 20190091144 A1) in view of Zicker (US 2002/0119182 A1) as applied to claim 1 above, and further in view of Rogue (2018/0213821 A1).
Regarding claim 9, McGarrah discloses the invention can be used in pet food for felines.
McGarrah does not disclose the energy density of the pet food for felines.
Rogue, in the field of pet food, discloses a cat food with metabolizable energy of 3563 kcal/kg [0211], which falls within the claimed range of 2000-5000 kcal/kg.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the pet food for cats of McGarrah and the calorie density of the cat food of Rogue since both are drawn to foods for cats.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over McGarrah (US 20190091144 A1) in view of Zicker (US 2002/0119182 A1) as applied to claim 1 above, and further in view of Lenox (Life Stage Nutrition for Pets, Texas Veterinary Medical Foundation, 2014, https://www.tvmf.org/articles/life-stage-nutrition-for-pets/).
Regarding claim 12, McGarrah discloses the invention can be used for pet foods including canine foods [0121] and McGarrah discloses an example for using the invention with dogs (a class of animals) [0102]. McGarrah disclose calculating the calories needed to meet a dogs energy requirements [0102].
McGarrah does not disclose further dividing the class by age.
Lenox, in the field of animal nutrition, discloses puppies need more calories than adult dogs, adult dogs require a moderate amount of calories (up to 5-7 years of age) (p2, paras 1 and 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the animal feed of McGarrah with the calorie needs disclosed by Lenox since both are drawn to methods of satisfying the caloric needs of animals.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to elected to subdivide the dogs of McGarrah by age given that McGarrah determines the calories needed for an animal and Lenox discloses calorie needs differ by age group.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 18/212,220 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1-13, the reference application (’220) recites claims nearly identical to the instant application. There are only small differences between the claims.
For example, claim 1 (lines 1-2) of the instant application recites “to safely stimulate an animal endocannabinoid system” while the reference application recites in claim 1 (lines 1-2) “to safely stimulate endocannabinoid system of an animal.”
In claim 1 (line 7) of the instant application the claims recite “a body weight (BW)” which the reference application recites in claim 1 (line 6) as “a body weight (BW) measurable in kilograms (kg).” Otherwise all 13 claims are nearly identical and encompass the same invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/C.L.G./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793