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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-3 in the reply filed on 10/29/25 is acknowledged. Claims 4-6 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 line 19 recites “said fragments from lysed or partially lysed cells of Saccharomyces cerevisiae”. In order to improve the form of the claim, the claim should be changed to recite “said cell wall fragments from lysed or partially lysed cells of Saccharomyces cerevisiae”. 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 1-3 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.
Regarding claim 1, claim 1 recites “the cell wall food products” in line 4. There is insufficient antecedent basis for this limitation in the claim. It is unclear what “the cell wall food products” is referring to.
Regarding claim 1, claim 1 recites “prebiotic material selected from the group consisting of: inulin; glucose oligosaccharides derived from corn starch; psyllium fibre; xanthan gum and maltodextrin; soluble fibers; insoluble fibers; vegetable starches; glucose; di-calcium phosphate; vitamin C;…”. It is unclear what of the listed components are considered part of the group of “prebiotic material selected from the group consisting of group consisting of:”, if it is only the inulin it is unclear how inulin is considered a group. It is noted that A “Markush” claim recites a list of alternatively useable members, see MPEP 2117.
Regarding claim 1, claim 1 in line 20 recites “prebiotic materials”. It is noted that line 7 recites “prebiotic material selected from the group consisting of”…”. It is unclear if the “prebiotic materials” recited in line 20 is the same as or different from that recited in line 7. If it is the same as that recited in line 7, it is unclear what of the listed components are considered part of the group of “prebiotic material selected from the group consisting of group consisting of:” and therefore unclear what materials “prebiotic materials” in line 20 encompasses.
Regarding claim 1, claim 1 recites “wherein the mass ratio of fragments from lysed or partially lysed cells of Saccharomyces cerevisiae…”. It is unclear if “fragments from lysed or partially lysed cells of Saccharomyces cerevisiae” is the same as or different from the “cell wall fragments from lysed or partially lysed cells of Saccharomyces cerevisiae” recited in lines 3-4. Additionally, there is insufficient antecedent basis for “the mass ratio”.
Regarding claim 3, claim 3 recites “said Saccharomyces cerevisiae culture”. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 is rejected by virtue of its dependence on a rejected base claim.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Broomhead US 2014/0099373 in view of Dikovskiy US 2012/0196811 in view of Zhu CN103243028A (Espacenet Translation) in view of Dierking US 2006/0067985 in view of Flickinger et al. in view of Stillmann US 2007/0009576.
Regarding claim 1, Broomhead discloses a pet food additive (animal food additive), said pet food additive comprising cell wall fragments from lysed cells of Saccharomyces cerevisiae ([0060], claim 1, 17). It is noted the Broomhead discloses that the yeast component can be a yeast fragment and a component of the yeast cell (such as yeast cell wall) ([0060]), therefore Broomhead suggests the use of cell wall fragments obviously obtained from lysed cells, and Broomhead discloses that the yeast can be Saccharomyces cerevisiae (claim 1, 17).
It is noted that as discussed in the 112b above it is unclear what “the cell wall food products” is referring to. Broomhead discloses that the additive includes mannans, beta-glucans ([0220])
Broomhead discloses that the pet food additive includes montmorillonite clay (claim 1, 11).
It is noted that as discussed above it is unclear what of the listed components are considered part of the group of “prebiotic material selected from the group consisting of group consisting of:”.
Broomhead discloses that the pet food additive can include a prebiotic material ([0075], [0220]).
Broomhead discloses that the additive can comprise oligosaccharides ([0075]).
Broomhead discloses that the additive can comprise fiber ([0057], [0075]).
Broomhead discloses that the additive can include xanthan gum ([0089])
Broomhead discloses that the additive can comprise vegetable starch ([0089])
Broomhead discloses that the additive can comprise glucose ([0089])
Broomhead discloses that the additive can comprise di-calcium phosphate ([0089]).
Claim 1 differs from Broomhead in the recitation that the prebiotic material specifically is selected from inulin.
Dikovskiy discloses that known prebiotic material for inclusion in animal food preparations includes inulin (abstract). It would have been obvious to modify the pet food additive of Broomhead to include inulin as taught by Dikovskiy in order to enhance the nutrition provided by the pet food additive. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Claim 1 differs from Broomhead in the recitation that the mass ratio of fragments from the mass ratio of fragments from lysed cells of Saccharomyces cerevisiae to montimorillonite clay is in the range of 6:1 to 4:1.
Zhu discloses a composition comprising yeast cell walls (comprising mannans, beta-glucan, B Vitamins) (Abstract) and montmorillonite clay where the ratio of yeast cell wall to montmorillonite is 1:9-9:1, encompassing the claimed range (Espacenet Translation, [0036], [0036]). Zhu discloses that a purpose of the composition includes to adsorb mycotoxins (Espacenet Translation [0062]). It would have been obvious to one of ordinary skill in the art to modify Broomhead such that the mass ratio of fragments from lysed cells of Saccharomyces cerevisiae is within the claimed range as taught by Zhu, in order to suitably control mycotoxins (Espacenet Translation [0062]).
Claim 1 differs from Broomhead in the recitation that the additive includes B-group vitamins, vitamin C and insoluble fiber and glucose oligosaccharides derived from corn starch.
Dierking discloses that common nutritional supplements for animal food compositions include B-group vitamins, and vitamin C, and grains (grains are insoluble fiber sources) and oligosaccharides ([0027]).
Flickinger discloses known oligosaccharides to feed to animals includes glucose oligosaccharides derived from corn starch (Pg. 1267)
It would have been obvious to modify the pet food additive of Broomhead to include B-group vitamins, vitamin C, insoluble fiber and oligosaccharides as taught by Dierking and Flickinger in order to enhance the nutrition provided by the pet food additive. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Claim 1 differs from Modified Broomhead in the recitation that the pet food additive comprises soluble fiber and psyllium fiber.
Stillmann discloses that known ingredients for nutritional composition for animals includes soluble fiber and psyllium (Abstract, [0439], [0443]).
It would have been obvious to modify the pet food additive of Broomhead to include soluble fiber and psyllium fiber as taught by Stillmann in order to enhance the nutrition provided by the pet food additive. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding the remaining limitation that a mass ratio of said fragments from lysed or partially lysed cells of Saccharomyces cerevisiae to prebiotic materials is in the range of 20:1 to 4:1, it is noted that as discussed in the 112b rejection above, it is unclear what “prebiotic materials” is referring to, already recited elements of the claim or different prebiotic materials. However, since the claimed ingredients obviously provide their own nutritional benefit, it would have been obvious to one of ordinary skill in the art to routinely optimize ratio of said fragments to prebiotic material based on the desired nutritional benefit from each individual ingredient (MPEP 2144.05.II).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Broomhead US 2014/0099373 in view of Dikovskiy US 2012/0196811 in view of Zhu CN103243028A (Espacenet Translation) in view of Dierking US 2006/0067985 in view of Flickinger et al. in view of Stillmann US 2007/0009576 in view of Sedmak US 2006/0263415.
Regarding claim 2, claim 2 differs from Modified Broomhead in the recitation that the cell wall fragments specifically have a protein content of 40% or greater.
Sedmak discloses that products obtained from yeast cell autolysis can have 40-45% protein ([0034], Fig. 1, [0024]). Sedmak discloses that the products can be used in animal feeds ([0015]). It would have been obvious to one of ordinary skill in the art to modify the cell wall fragments of Modified Broomhead to specifically have a protein content of 40% or greater as taught by Sedmak in order to increase the nutrition of the supplement of Modified Broomhead.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Broomhead US 20140099373 in view of Dikovskiy US 2012/0196811 in view of Zhu CN103243028A (Espacenet Translation) in view of Dierking US 2006/0067985 in view of Flickinger et al. in view of Stillmann US 2007/0009576 in view of Ridgway US 3,865,691.
Regarding claim 3, Broomhead does not explicitly disclose how the Saccharomyces cerevisiae was grown, however Ridgway discloses that it was conventional in the art to grow yeasts under aerobic conditions (abstract). Therefore, it would have been obvious to one of ordinary skill in the art to modify Broomhead such that the Saccharomyces cerevisiae is grown under aerobic conditions. It has been held that “Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results” supports a conclusion of obviousness.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792