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 .
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 1-15 is 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, this claim has no transitional phrase such as “comprising”, “consisting essentially of”, and “consisting of” define the scope of a claim. Therefore, the metes and bounds of the claim cannot be readily ascertained (See MPEP 2111.03).
Regarding claim 1, the claim that recites “a use” but fails to recite steps render the scope of indefiniteness.
Claim 10 recites the limitation " the volatile organic compound (VOC) emissions" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the supplementation" in line 2. There is insufficient antecedent basis for this limitation in the claim.
The dependent claims 2-9 and 11-15 are rejected as being indefinite since they inherit the deficiencies of claims 1 and 10 which depend from.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-9 are directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim recites “a use” but fails to recite steps which render the scope of indefiniteness.
Claims 1-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1:
According to the first part of the analysis, in the instant case, claims 1-9 is directed to using a methane inhibitor to perform a method, claim 10-15 is directed to a method. Thus, each of the claims falls within one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter).
Regarding claim 10:
A method to increase the volatile organic compound (VOC) emissions of one or more ruminants, said method comprising
the supplementation of a methane inhibitor to said ruminants and monitoring said VOC emission increase,
wherein the volatile organic compounds comprise at least two hydrocarbons with two or more carbon atoms, preferably selected from the group consisting of propane, propene, isobutane, butane, 1,3-pentadiene, benzene, hexane, heptane and octane.
Step 2A Prong 1:
“A method to increase the volatile organic compound (VOC) emissions of one or more ruminants” is directed to math because primarily through quantitative measurements, modeling, and statistical analysis to understand, predict, and manage these emissions, often using complex equations (like partial differential equations) for heat/mass transfer and chemical reactions, as well as calculating percentage reductions in methane (a VOC) by measuring other VOC changes.
“the supplementation of a methane inhibitor to said ruminants and monitoring said VOC emission increase” is directed to mental step of data gathering.
Each limitation recites in the claim is a process that, under BRI covers performance of the limitation in the mind but for the recitation of a generic “VOC emission increase” which is a mere indication of the field of use. Nothing in the claim elements precludes the steps from practically being performed in the mind. Thus, the claim recites a mental process.
Further, the claim recites the step of "increase the volatile organic compound (VOC) emissions of one or more ruminants” which as drafted, under BRI recites a mathematical calculation. The grouping of "mathematical concepts” in the 2019 PED includes "mathematical calculations" as an exemplar of an abstract idea. 2019 PEG Section |, 84 Fed. Reg. at 52. Thus, the recited limitation falls into the "mathematical concept" grouping of abstract ideas. This limitation also falls into the “mental process” group of abstract ideas, because the recited mathematical calculation is simple enough that it can be practically performed in the human mind, e.g., scientists and engineers have been solving the Arrhenius equation in their minds since it was first proposed in 1889.
Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited calculation, the use of such physical aid does not negate the mental nature of this limitation. See October Update at Section I(C)(i) and (iii).
Additional Elements:
Step 2A Prong 2:
“A method to increase the volatile organic compound (VOC) emissions of one or more ruminants” recited in the preamble does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“the supplementation of a methane inhibitor to said ruminants and monitoring said VOC emission increase” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“wherein the volatile organic compounds comprise at least two hydrocarbons with two or more carbon atoms, preferably selected from the group consisting of propane, propene, isobutane, butane, 1,3-pentadiene, benzene, hexane, heptane and octane” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
The claim is merely collecting data, manipulating or analyzing the data using math and mental process, and selecting the results.
This is similar to electric power: MPEP 2106.05(h) vi. Limiting the abstract idea of collecting information, analyzing it, and displaying certain results of the collection and analysis to data related to the electric power grid, because limiting application of the abstract idea to power-grid monitoring is simply an attempt to limit the use of the abstract idea to a particular technological environment, Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016).
Whether the claim invokes computers or other machinery merely as a tool to perform an existing process. Use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Similarly, "claiming the improved speed or efficiency inherent with applying the abstract idea on a computer" does not integrate a judicial exception into a practical application or provide an inventive concept. Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015). In contrast, a claim that purports to improve computer capabilities or to improve an existing technology may integrate a judicial exception into a practical application or provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). See MPEP §§ 2106.04(d)(1) and 2106.05(a) for a discussion of improvements to the functioning of a computer or to another technology or technical field.
The claim as a whole does not meet any of the following criteria to integrate the judicial exception into a practical application:
An additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
Step 2B:
“A method to increase the volatile organic compound (VOC) emissions of one or more ruminants” recited in the preamble does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“the supplementation of a methane inhibitor to said ruminants and monitoring said VOC emission increase” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“wherein the volatile organic compounds comprise at least two hydrocarbons with two or more carbon atoms, preferably selected from the group consisting of propane, propene, isobutane, butane, 1,3-pentadiene, benzene, hexane, heptane and octane” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
The claim is therefore ineligible under 35 USC 101.
Claim 1 is similar to claim 10 but recites use of a methane inhibitor to increase volatile organic compound (VOC) emissions of one or more ruminants, which is set up to implement a method to increase the volatile organic compound (VOC) emissions of one or more ruminants. These additional elements fail to integrate the abstract idea into a practical application. These limitations are recited at a high level of generality and do not add significantly more to the judicial exception. These elements are generic computing devices that perform generic functions. Using generic computer elements to perform an abstract idea does not integrate an abstract idea into a practical application. See 2019 Guidance, 84 Fed. Reg. at 55. Moreover, “the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 223; see also FairWarninglP, LLCv. latric SysInc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (citation omitted) (“[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter”).
On the record before us, we are not persuaded that the hardware of claim 1 integrates the abstract idea into a practical application. Nor are we persuaded that the additional elements are anything more than well-understood, routine, and conventional so as to impart subject matter eligibility to claim 1.
Dependent claims 2-9 and 11-15 when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitation(s) fail(s) to establish that the claim(s) is/are not directed to an abstract idea, as detailed below: there is no additional element(s) in the dependent claims that adds a meaningful limitation to the abstract idea to make the claim significantly more than the judicial exception (abstract idea).
Hence the claims 1-15 are treated as ineligible subject matter under 35 U.S.C. § 101.
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.
Claim(s) 1-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lopes et al. (“Effect of 3-nitrooxypropanol on methane and hydrogen emissions, methane isotopic signature, and ruminal fermentation in dairy cows") in view of Zimmerman et al. (US 2011/0192213 A1).
Regarding claim 1, Lopes et al. disclose the use of a methane inhibitor (3-nitrooxypropanol) as an oral supplementation to ruminants, and monitoring emissions of CH₄, CO₂ and H₂ from said ruminants after that (p. 5336- p. 5344).
Lopes et al. fail to disclose the methane inhibitor is used to increased VOC emissions, wherein the increased VOC emissions are used to monitor
the supplementation of the methane inhibitor to the ruminant.
Zimmerman et al. disclose a method of managing methane emissions from ruminants, which specifically discloses (see paragraphs 12, 18 of the specification) that methane emissions from bovine sources, most of which are by burping, can be significantly reduced by altering cattle diets and other management actions. Attempts to reduce methane emissions typically involve the use of nutrient blocks or other feed supplements. For example, in one exemplary but non-limiting embodiment of the invention, the ruminant's gaseous emissions are monitored, methane emissions are determined, and the ruminant's feed supply is adjusted or supplemented or otherwise treated to reduce methane emissions. As can be seen, Zimmerman et al. teach the determination of methane emissions by monitoring gaseous emissions of ruminants for use in regulating nutrient blocks or other feed supplements. Whereas Lopes et al. discloses that rumen methane production and propionic acid (i.e. Volatile organics) concentration are inversely correlated, it is motivated by those skilled in the art to monitor ruminants for methane inhibitor supplementation based on increased propionic acid volatile organics emissions. Therefore, it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine the teaching of Zimmerman et al. with the teaching of Lopes et al. in order to provide a method and system for reducing methane emissions by ruminants (Zimmerman et al., abstract).
Regarding claims 2 and 14, Lopes et al. teach that rumen methane production and propionic acid (i.e. Volatile organic matter) concentration are inversely correlated. Thus, by increased VOC emissions is used to quantify the reduction in methane emissions affected by supplementation of said methane inhibitor to said ruminant, as will readily occur to those skilled in the art.
Regarding claim 3, based on the principle of inhibiting the methanogenic pathway by the methane inhibitor disclosed in Lopes et al., that is "there is hydrogen competition between the two, production of propionic acid can to some extent serve as an alternative pathway for hydrogen deposition, with more hydrogen being utilized when methane production is reduced" on the basis of this principle, in combination with the actual choice of methane inhibitor species, the other volatile organic compound species it emits are expected.
Regarding claim 4, Lopes et al. teach the ruminant is beef cattle. On this basis, cows or lactating cows are conventional choices.
Regarding claim 5-8 and 11, the increase in volatile organic compound emissions is measured with an ethylene oxide sensor and/or a digital VOC sensor, the digital VOC sensor is a digital VOC sensor using Pd dopants, and the increase in volatile organic compound emissions is measured in a ruminant farmhouse environment, all selected by means of routine skill in the art.
Regarding claim 9, on the basis of Lopes et al., the methane reduction affected by the methane inhibitor supplementation is automatically and efficiently determined, as would be expected by a person skilled in the art.
Regarding claim 10, the combination of Lopes et al. and Zimmerman et al. disclose a method to increase the volatile organic compound (VOC) emissions of one or more ruminants, said method comprising the supplementation of a methane inhibitor to said ruminants and monitoring said VOC emission increase, wherein the volatile organic compounds comprise at least two hydrocarbons with two or more carbon atoms, preferably selected from the group consisting of propane, propene, isobutane, butane, 1,3-pentadiene, benzene, hexane, heptane and octane as discussed in claims 1 and 3 above.
Regarding claims 12-13, and 15, Zimmerman et al. disclose wherein the ruminant farm house setting houses at least 5, preferably at least 10, more preferably at least 50, even more preferably at least 100, most preferably at least 150 ruminants; wherein said method comprises the steps of: a. providing a VOC sensor in the farm house setting, b. determining the baseline VOC emission of said farm house setting over a defined time period (t), c. determining the VOC content in said farm house setting over the same time period (t) during which time period the methane inhibitor is supplemented to the ruminants, followed by d. determining the VOC emission increase over baseline; wherein the VOC sensor is incorporated into a monitoring unit connected to a remote computing device ((see paragraph 34 of the specification) that, in practice, stations may be strategically placed in a field near a collection point, such as a water source, with a typical feeding station serving a relatively large number of animals, such as stations serving 40 to 100 animals. The system can be loaded with placebo mineral blocks to record baseline methane emissions in herds and pastures. On this basis, in combination with the foregoing regarding monitoring methane inhibitor supplementation by volatile organics, providing a VOC sensor in said farmhouse environment is readily conceivable to the person skilled in the art, determining a baseline VOC emission for the farmhouse environment over a defined period of time (t), determining a VOC content in the farmhouse environment over a same time period (t), supplementing the ruminant with the methane inhibitor during the time period, then determining an increase in VOC emissions relative to a baseline, and a ruminant farmhouse environment containment number as an expectedly selectable setting. In addition, Zimmerman et al. also discloses (see paragraph 23 of the specification) that a person can access an animal metabolic gas monitor via a remote video link and observe its operation, and in one example access a particular unit via the internet to remotely operate the unit. With this teaching, those skilled in the art readily envision the provision of a VOC sensor incorporated into a monitoring unit connected to a remote computing device).
Other Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Duval et al. (US 2014/0134282 A1) disclose a method for reducing the production of methane emanating from the digestive activities of a ruminant and or for improving ruminant animal performance by using, as active compound at least one nitrooxy alkanoic acid and/or derivative thereof, which is administrated to the animal together with the feed. The invention also relates to the use of these compounds in feed and feed additives such as premix, concentrates and total mixed ration (TMR) or in the form of a bolus.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN H LE whose telephone number is (571)272-2275. The examiner can normally be reached on Monday-Friday from 7:00am – 3:30pm Eastern Time.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelby A. Turner can be reached on (571) 272-6334. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN H LE/Primary Examiner, Art Unit 2857