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.
Claim 4 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 4, the recitation “wherein the portion of canola meal is at least 98.5% of canola meal and the portion of pea solubles is at least 1.5% pea protein soluble renders the claim indefinite. It is not clear the basis of the canola meal or pea soluble content. That is, does the additive comprise at least 98.5% by weight canola meal and at least 1.5% pea protein soluble? In the alternative, does the additive comprise (a) a canola meal portion wherein the canola meal portion is at least 98% by weight canola meal; and (b) a pea solubles portion wherein the pea solubles comprise at least 1.5% by weight pea protein?
Regarding claim 5, the recitation “wherein the quality of the obtained meat is measured by meat grading parameters” renders the claim indefinite. It is not clear if the term “meat grading parameters” encompasses only U.S. standard meat grading parameters or any defined quality parameter. Note, meat grading parameters are not the same in every country.
Regarding claim 10, the recitation “wherein the additive is added to the animal feed in an amount of from 1 g to 50 g per kg of the total animal feed” renders the claim indefinite. The claimed amount of additive is at least 200 times less than in the as filed specification at page 13 in Table 1. Does Applicant intend to claim wherein the additive comprises only pea solubles? Clarification is requested.
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.
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, 3-9, 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over He et al. (“Effect of high dietary levels of canola meal on growth performance, carcass quality and meat fatty acid profiles of feedlot cattle”, Can. J. Anim. Sci., 93, (2013), pp. 269-280) in view of Delporte et al. (US 2022/007123 – IDS filed November 4, 2025).
Regarding claims 1, 3, 4 and 7-9, He et al. disclose a method of feeding cattle, the method comprising: (a) supplementing a barley grain based feed with canola meal (i.e., additive) to obtain a supplemented feed; (b) feeding the supplemented feed to cattle for a period of 212 days (growing + finishing – p. 271/Steers); and (c) slaughtering the cattle to obtain meet ((Abstract, p. 270-271/Materials and Methods/Canola Meal and Diets, p. 272/Data and Sample Collection at Slaughter). He et al. disclose measuring growth performance and carcass quality (p. 273/Results).
Given He et al. disclose a supplementing with an additive made up of only canola meal, the portion of canola meal would have 100% canola meal.
He et al. disclose wherein the cattle are steers (p. 271/Steers).
He et al. is silent with respect to pea solubles.
Delporte et al. teach an animal feed ingredient comprising pea soluble and pea pulp fractions (Abstract, [0080], Example 1/[0088]-[0091]). Delporte et al. teach the feed ingredient comprises a protein content of between 5 and 8% by weight and a lysine content of between 3 and 10% by weight ([0015], [0023]). Delporte et al. disclose the feed ingredient is a lysine-rich nutrient having a guaranteed content, a high content of digestible fibers, does not have a strong color and is stable towards heat treatment ([0081]).
He et al. and Delporte et al. are combinable because they are concerned with the same field of endeavor, namely animal feed additives. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added the animal feed ingredient of Delporte et al., comprising pea solubles, to the canola meal supplement of He et al. to obtain a supplement enriched with lysine.
Given the combination of He et al. and Delporte et al. disclose feeding an animal a feed composition as presently claimed, inherently the quality of the resulting meet would be improved.
Regarding claims 5 and 6, modified He et al. disclose all of the claim limitations as set forth above. He et al. disclose measuring grade fat, rib eye area (i.e., Longissimus thoracic area), USDA marbling score and lean yield (p 274/Table 5).
Regarding claim 12, modified He et al. disclose all of the claim limitations as set forth above. He et al. disclose a greater rib eye area (i.e., Longissimus thoracic area) and marbling score equate to improved quality (p. 274/Table 5, p. 276-278/Discussion).
Claims 13, 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Roquette (“Safety Data Sheet – Pea Solubles”, Revised October 25, 2021, pp. 1-6) .
Regarding claims 13, 17 and 19, Roquette discloses feeding pea solubles to an animal. Given Roquette discloses a pea solubles product intended for animal feed, the person of ordinary skill in the art would understand, in use, the product is fed to animals.
Given Roquette discloses animal feed, absent evidence to the contrary, the feed would be intended for any animal, including a ruminant animal.
Given Roquette discloses the claimed quality improvements would be observed in meat obtained from the animal.
Claims 14, 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Roquette (“Safety Data Sheet – Pea Solubles”, Revised October 25, 2021, pp. 1-6) as applied to claims 13, 17 and 19, and further in view of Lynch et al. He et al. (“Effect of high dietary levels of canola meal on growth performance, carcass quality and meat fatty acid profiles of feedlot cattle”, Can. J. Anim. Sci., 93, (2013), pp. 269-280).
Regarding claims 14, 18 and 20, Roquette discloses all of the claim limitations as set forth above. Roquette is silent with respect to an animal feed comprising canola meal.
He et al. disclose a method of feeding cattle, the method comprising: (a) supplementing a barley grain based feed with canola meal (i.e., additive) to obtain a supplemented feed; (b) feeding the supplemented feed to cattle for a period of 212 days (growing + finishing – p. 271/Steers); and (c) slaughtering the cattle to obtain meet ((Abstract, p. 270-271/Materials and Methods/Canola Meal and Diets, p. 272/Data and Sample Collection at Slaughter). He et al. disclose measuring growth performance and carcass quality (p. 273/Results).
Roquette and He et al. are combinable because they are concerned with the same field of endeavor, namely animal feed additives. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added canola meal, as taught by He et al., to the pea solubles of Roquette because it is prima facie obvious to combine two composition each of which is taught by the prior art to be useful for the same purpose in order to form a third composition to be used for the very same purpose (MPEP §2144.06 I).
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1, 3-14 and 17-20 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1, 3-14 and 17-20 of copending Application No. 18/744,499. This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
-Lynch et al. (“Canola meal as a supplement for grass-fed beef cattle: Effects on growth rates, carcass and meat quality, and consumer sensory evaluations” Meat Science, 207, (2024), pp. 1-8) teach a method of improving growth rate, carcass and meat quality, and consumer sensory evaluation of meat from beef cattle, the method comprising the steps of: (a) supplementing animal feed with a feed supplement (i.e., additive) comprising canola meal (i.e., a portion comprising 100% canola meal-Abstract, p. 2/2.2-Dietary treatments, p. 2/Table 1).; (b) feeding the supplement to beef cattle for a period of 6o days; and (c) slaughtering the fed beef cattle to obtain meat (p. 2/2.3-Slaughter and carcass sampling). Lynch et al. teach measuring liveweight before and after feeding, carcass weight, meat quality and consumer perception (p. 3-4/3. Results). Lynch et al. is silent with respect to pea solubles.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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