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 .
Specification
The disclosure is objected to because of the following informalities: Paragraph [0154] states the following:
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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.
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 1-4, 6, 8, 10, 13, 17, 19, 42-44, 46, 47, 53, and 56 are rejected under 35 U.S.C. 103 as being unpatentable over Kinley, “Asparagopsis feedlot feeding trial”, May 31, 2018 (cited on IDS filed 12/20/2023) in view of Tomkins WO 2018/018062.
Regarding claims 1, 2, 42 and 43, Kinley discloses Asparagopsis taxiformis biomass was gathered and frozen to retain volatile bioactive compounds and was milled and prior to feeding was incorporated into a high grain total mixed ration (TMR) (3.1). As disclosed in Table 3, the bromoform content ranges from 6.31-25.2 mg/kg. The relatively low amount of water (11.5wt%) is considered disclosure of a crumble.
Kinley does not teach increasing the bromoform content. Tomkins discloses an animal is provided a feedlot ration twice per day amounting to a total daily amount of 10-12kgs, and amounting to about 200-600 g Asparagopsis taxiformis/day (page 13). Taking for example 10 kg total of feed and an expected delivery of 500 g red algae and if bromoform is taken as present only as a concentration of bromoform in Asparagopsis of 1-7mg/g (page 4 of Kinderman), the dosage of algae should be 500g/10kg resulting in 50-350 mg/kg of bromoform. While this is taken as an example from within the ranges of Tomkins, it is indicative that the range of Tomkins overlaps the claimed dosage of bromoform. It would have been obvious to one of ordinary skill to increase the amount of red macroalgae/bromoform in the feed of Kinley to levels disclosed by Tomkins with a reasonable expectation of increasing the effect of methane reduction as the effective range of Tomkins indicates the expectation that increased levels of bromoform would provide increased antimethanogenesis.
Further regarding claims 1 and 42, Kinley teaches freeze drying the red macroalgae which is expected to extend the storage life of bromoform, thus one would reasonably expect the feed/feedlot of Kinley to provide the storage stability cited in claims 1, 6, 42, and 56. No specific method for freeze drying the red algae is disclosed, thus the provision of freeze drying is taken to meet any required treatments of the red algae to confer the required stability of bromoform.
Regarding claims 1, 3, 42, and 44, the water content in the example of Kinley is 11.5 wt% moisture, or 88.5% dry matter.
Regarding claims 4 and 47, Tomkins teaches freeze drying the red algae.
Regarding claim 8, 11.5wt% water is considered “about” 10 wt%. Moreover, the 11.5wt% is taken as exemplary and adjusting the water content is considered within the purview of one of ordinary skill in the art since the moisture content affects the texture of the feed and can be readily adjusted to the desired texture and moisture contents.
Regarding claims 10 and 13, Kinley teaches molasses (considered a carbohydrate) in an amount of 8wt%.
Regarding claims 6, 17 and 53, Kinley teaches vitamins and minerals may be added.
Regarding claims 19 and 46, Kinley teaches molasses at 8wt%, water at 11.5wt% and oil at 3.2wt%. As noted above, the 11.5wt% water is taken as exemplary and adjusting the water content is considered within the purview of one of ordinary skill in the art since the moisture content affects the texture of the feed and can be readily adjusted to the desired texture and moisture contents.
Claims 14 is rejected under 35 U.S.C. 103 as being unpatentable over Kinley, “Asparagopsis feedlot feeding trial”, May 31, 2018 (cited on IDS filed 12/20/2023) in view of Tomkins and further in view of US 2022/0088110 (McNeff).
Regarding claim 14, Kinley teaches vegetable oil in an amount of 3.2 wt% but does not specify the type of vegetable oil. McNeff discloses and animal feed material including compositions for mitigating methanogenesis and discloses that the animal feed may include vegetable oils such as canola, sunflowers, safflower and soybean. It would have been obvious to use known vegetable oils such as those taught by McNeff in the animal feed of Kinley with a reasonable expectation of success based upon McNeff’s successfully use in forming animal feeds that are also comprised of methanogenesis mitigating components.
Claims 20 and 49 are rejected under 35 U.S.C. 103 as being unpatentable over Kinley, “Asparagopsis feedlot feeding trial”, May 31, 2018 (cited on IDS filed 12/20/2023) in view of Tomkins and further in view of US 4704287 (Meyer).
Kinley teaches the feed formulation above including molasses (8wt%) and grains, but does not teach the use of canola meal in combination with molasses. Meyer teaches a ruminant feed that is a mixture of oilseed meal, such as canola, where the oilseed meal may comprise the only feed ingredient in the admixture with zinc or it may be combined with other feed ingredients (col. 3, lines 16-32, and lines 50-53). In other words, the predominant substance may be the oilseed meal to provide high protein in the ruminant feed. It would have been obvious to one of ordinary skill to provide the oilseed meal in higher relative amounts to increase the amount of protein provided, depending upon the nutrition needs of the recipient animal. Example 1 of Meyer also indicated molasses used in combination with the oilseed meal.
Response to Arguments
At the outset, it is noted that the amendment to claims 1 and 42 regarding storage for up to 24 weeks and storage for up to 12 weeks is seen to find support in Figure 5.
Applicant’s amendments, filed 05/28/2026, have been fully considered and are persuasive. The rejection under 102 over Hay and the 103 rejections over Fennessy, Kindermann and Tomkins in view of Kindermann have been withdrawn.
Applicant’s amendments have overcome the 112(b) and claim objection.
Applicant's arguments filed 05/28/2026 regarding the 103 over Kinley in view of Tomkins have been fully considered but they are not persuasive.
Applicant argues that without appropriate formulation and storage conditions, bromoform in a feed formulation is quickly lost overtime and that applicant demonstrates that a critical challenge is to create a formulation that retains bromoform over the product’s shelf life, ensuring consistent methane reduction performance at the time of feeding. Applicant states that neither Kinley nor Tomkins or any combination addresses this problem, implies any solution to it, or provides any systematic shelf stability testing tending to show that a solution to the problem is needed, thereby providing no motivation to one of ordinary skill to find any solution to the problem.
Applicant argues that while Kinley teaches freeze-drying red algae, it is incorrect to assert that this would be expected to extend the storage life of bromoform and that loss is understood to be principally due to its volatility and that accordingly, freeze drying red algae will not extend the shelf life of the bromoform present in a freeze-dried preparation or any formulation formed from it since bromoform can still evaporate once a freeze-dried algae is applied to a feed formulation.
As explained in the rejections, Kinley in view of Tomkins discloses freeze-dried red alga which inherently contains bromoform. Applicant’s specification states that freeze-dried red algae (Asparagopsis spp.) can be incorporated into a crumble nutrient to make acceptable to livestock while maintaining a sufficient level of bromoform to facilitate the desired anti-methanogenesis activity [0075]. The specification also notes that the freeze drying is according to standard freeze-drying procedures [0097]. Likewise, Finley in view of Tomkins is freeze-dried and incorporated into a crumble nutrient as required by the claims. As Finley in view of Tomkins describes freeze-drying red algae in a manner similar to applicant, and incorporation of the freeze-dried red algae into a crumble as required by the claims and with the materials required by the claims, it is reasonable to expect the same outcome, i.e. the storage of bromoform.
Applicant’s argument regarding addressing the particular problem, "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985) (The prior art taught combustion fluid analyzers which used labyrinth heaters to maintain the samples at a uniform temperature. Although appellant showed that an unexpectedly shorter response time was obtained when a labyrinth heater was employed, the Board held this advantage would flow naturally from following the suggestion of the prior art.). See also Lantech Inc. v. Kaufman Co. of Ohio Inc., 878 F.2d 1446, 12 USPQ2d 1076, 1077 (Fed. Cir. 1989), cert. denied, 493 U.S. 1058 (1990) (unpublished — not citable as precedent) ("The recitation of an additional advantage associated with doing what the prior art suggests does not lend patentability to an otherwise unpatentable invention.") (MPEP 2145 (II)).
Regarding applicant’s argument that freeze-drying red algae will not extend the shelf life of the bromoform present in a freeze-dried preparation is not clearly understood as the instant specification indicates that freeze-fried red algae is one of two alternatives of the invention. Incorporation into a crumble as claimed is met by Kinley in view of Tomkins. There is no clear indication in the record as to why the combination of Kinley and Tomkins which meets the claim limitations would not result in a similar outcome.
Applicant argues that unlike Kinley and Tomkins, the instantly claimed formulations and methods obtain commercially viable feed formulations that maintain bromoform concentration. The combination of Kinley and Tomkins has met all the required materials and method steps. Applicant argues that the claims represent a technical and industrial advancement but has not explained what materials or methods set them apart from the prior art. No explanation is provided as to how applicant’s invention can possess the claimed storage properties but the same materials and methodology that meet the claims is unable to do so.
Applicant argues that neither Kinley nor Tomkins suggest enhanced shelf-life stability with the claimed dry matter content, let alone a shelf-life stability close to that achieved. As noted above, recognizing another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1723
/Jennifer McNeil/Primary Examiner, Art Unit 1723
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