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 with traverse of Group I, claims 1-12 drawn to a feed ingredient in the reply filed on November 7, 2025 is acknowledged. The traversal is on the ground(s) that Hanson does not teach the soluble NSP content as required in the linking feature, and that said linking element was found allowable in the international search report. This is not found persuasive because the argued feature is considered at least obvious over the teachings of the prior art for the reasons stated below. The claimed inventions are not linked by a special technical feature. Thus, the requirement is still deemed proper and is therefore made FINAL. Claims 13 and 15-17 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
In the instant case, claim 4 does not further limit claim 1 from which it depends. Claim 4 recites the starting biomass comprises 50-100% dehulled and defatted soybean meal. As claim 1 already requires the starting biomass comprise 50% or more dehulled and defatted soybean meal, a range of 50-100% dehulled and defatted soybean meal is already encompassed by claim 1, and thus claim 4 is not further limiting.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Hansen (WI 2006/102907), as evidenced by Kim et al (Digestible and metabolize energy in soybean meal and soybean hulls when fed to growing pigs or sows pages 1-10).
Regarding claims 1-8, Hansen teaches of a fermented feed ingredient derived from spent brewer’s yeast and a starting biomass of proteinaceous plant parts including dehulled and defatted soybean meal (abstract, page 1 lines 5-12, page 6 lines 25-31, page 9 lines 4-6, page 12 lines 5-6, page 18 lines 26, page 19 lines 13-15, Examples, and claims 11, 12, and 24). Hansen teaches that the fermented feed ingredient has 25-80% protein on a dry mater basis, wherein about 1-35% is derived from yeast (page 7 lines 11-14, page 8 lines 6-9, page 13 lines 3-7, page 23 lines 5-9, Examples, and claims 1 and 16).
Regarding the starting biomass as 50% or more dehulled and defatted soybean meal as recited in claim 1, or at least 55% as recited in claim 33, or from 50-100% as recited in claim 4, with 50% or less other proteinaceous plant parts as recited in claim 2, as Hansen teaches the yeast is mixed with one or more proteinaceous pulse sources, wherein the starting plant material includes material from soya beans, wherein the plant material may be milled, pulverized or otherwise divided, and may have varying amounts of lipids (abstract, page 19 lines 13-16, and page 6 lines 25-31), wherein dehulled and defatted soybean meal is exemplified, and no other biomass is required (all), the teachings of Hansen encompass or alternately make obvious a product formed from the starting biomass composition as claimed, including 50-100% dehulled and defatted soybean meal. To form the product of the prior art as disclosed, with only required ingredients, is a clear and obvious suggestion of the prior art. Furthermore, it is noted that the claimed limitation is a product by process limitation and thus is considered as it affects the final product. As the product is not limited to comprising only the claimed starting biomass, or even having the starting biomass in a specific amount, and may have additional biomass or soybean oil or soybean hulls added to the starting material, so long as the product of the prior art contain soybean meal derivatives, it would encompass the product as claimed.
Regarding the starting biomass comprising dehulled and defatted soybean meal comprising insoluble non-starch polysaccharides (NSP) and soluble NSP as recited in claim 1, as discussed above, the teachings of Hansen encompass or make obvious a product produced from dehulled and defatted soybean meal as claimed. As Hansen teaches of the same component, it would comprise the same elements of insoluble and soluble NSP as claimed. The position is further supported as evidenced by Kim et al (Kim) which shows soybean meal, such as taught by Hansen, contains soluble NSP and insoluble NSP (Table 1).
Regarding the fermented feed as having a soluble NSP content of at least 10% higher than that of the starting mass as recited in claim 1, or at least 15% higher as recited in claim 7, or from 10-50% higher as recited in claim 8, Hansen is not specific to the limitation as claimed. However, as Hansen teaches that the fermented feed is formed from the same starting material, i.e. dehulled and defatted soybean meal and brewers spent yeast, through an overlapping process as disclosed, including fermentation of biomass and yeast in a ratio of 1:2-100 dry mater, under conditions where the water content does not exceed 80% for 1-12 hours at a temperature of about 25-60C, and drying under 10% moisture (Hansen page 9 lines 16-23, page 10 lines 19-24, page 15 lines 5-12, page 16 lines 6-14, page 19 lines 13-29, page 20 lines 1-2 and 25-26, and Examples; and instant specification page 2 line 32 through page 3 line 11, page 7 lines 35-40, and Example 1), the same result in the fermented product compared to the starting mass would be expected or at least considered obvious over the teachings of the prior art. The position is further supported as Hansen teaches the use of the yeast provides for valuable trace components including glucans (page 19 lines 1-3) which are soluble NSP that would increase the amount of soluble NSP in the final product compared to the starting biomass composition. In an alternative position, it would have been obvious to include an increased amount of soluble NSPs, such as beta- glucans in the final product compared to the starting biomass as Hansen teaches that they are of value, wherein the increased amount would depend on the desired value added.
Regarding the fermented feed as having an increased amount of metabolizable energy of at least 2% compared to that of said starting biomass as recited in claim 9, or from 1.5-10% as recited in claim 10, Hansen is not specific to the limitation as claimed. However, as Hansen teaches that the fermented feed is formed from the same starting material, i.e. dehulled and defatted soybean meal and brewers spent yeast, through an overlapping process as disclosed, including fermentation of biomass and yeast in a ratio of 1:2-100 dry mater, under conditions where the water content does not exceed 80% for 1-12 hours at a temperature of about 25-60C, and drying under 10% moisture (Hansen page 9 lines 16-23, page 10 lines 19-24, page 15 lines 5-12, page 16 lines 6-14, page 19 lines 13-29, page 20 lines 1-2 and 25-26, and Examples; and instant specification page 2 line 32 through page 3 line 11, page 7 lines 35-40, and Example 1), the same result in the fermented product compared to the starting mass would be expected or at least considered obvious over the teachings of the prior art. The position is further supported as Hansen teaches that the resulting product has ileal digestibility of 90%, preferably 92% or greater (page 21 lines 12-19).
Regarding the fermented feed as having an insoluble NSP that is at least 5% lower than that of the starting biomass as recited in claim 11 or the fermented feed as having a higher fraction of soluble peptides below 20kDa as compared to the starting biomass as recited in claim 12, Hansen is not specific to the limitations as claimed. However, as Hansen teaches that the fermented feed is formed from the same starting material, i.e. dehulled and defatted soybean meal and brewers spent yeast, through an overlapping process as disclosed, including fermentation of biomass and yeast in a ratio of 1:2-100 dry mater, under conditions where the water content does not exceed 80% for 1-12 hours at a temperature of about 25-60C, and drying under 10% moisture (Hansen page 9 lines 16-23, page 10 lines 19-24, page 15 lines 5-12, page 16 lines 6-14, page 19 lines 13-29, page 20 lines 1-2 and 25-26, and Examples; and instant specification page 2 line 32 through page 3 line 11, page 7 lines 35-40, and Example 1), the same result in the fermented product compared to the starting mass would be expected or at least considered obvious over the teachings of the prior art.
Applicant has chosen to use an equation with 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 facie case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Admin (“Beta-glucan” Beta-Glucan - Laboratory Notes June 2025, pages 1-2) teaches beta-glucan is derived from yeasts and considered a soluble dietary fiber.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792