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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3, 7, and 9 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Miyakawa et al. (herein referred to as Miyakawa, US 3671261 A)
With regard to Claim 1, Miyakawa teaches a formulation for farming shrimp (abstract). Miyakawa teaches the formulation comprises corn steep liquor (col 2 line 70 – Col 3 line 4) and a source of protein (Col 2 lines 30-35).
With regard to Claim 2, Miyakawa teaches the source of protein is selected from the group consisting of an animal-based and a plant-based source of protein (col 2 line 70 – Col 3 line 4).
With regard to Claim 3, Miyakawa teaches the source of protein comprises fish meal (Col 3 line 2).
With regard to Claim 7, Miyakawa teaches the source of protein comprises a combination of fishmeal and another source of protein (Col 2 line 70 - Col 3 line 4).
With regard to Claim 9, Miyakawa teaches the source of protein comprises corn gluten (col 3 line 1).
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 4, 6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Miyakawa (US 3671261 A) in view of Meng (CN 102018115 A)
With regard to Claim 4, Miyakawa teaches soy can be used a protein source (Col 3 lines 6-9) but is silent to the soy being soybean meal.
Meng teaches fish and shrimp fodder and the preparation method thereof (abstract). Meng teaches utilizing soybean meal as a protein source of its high protein content, balanced amino acids, and good palatability ([0048]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Miyakawa in view of Meng to utilize soybean meal as a protein source because of its high protein content, balanced amino acids, and good palatability.
With regard to Claim 6, Miyakawa teaches the feed can have more than one protein source (Col 2 lines 70-72). Miyakawa teaches fish meal and soy can be used a protein sources (Col 3 lines 6-9) but is silent to the soy being soybean meal.
Meng teaches fish and shrimp fodder and the preparation method thereof (abstract). Meng teaches utilizing soybean meal as a protein source of its high protein content, balanced amino acids, and good palatability ([0048]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Miyakawa in view of Meng to utilize soybean meal in addition to fish meal as a protein source because soybean meal has a high protein content, balanced amino acids, and good palatability.
With regard to Claim 8, Miyakawa teaches the feed can have more than one protein source (Col 2 lines 70-72). Miyakawa teaches protein soy can be used as one of the protein sources (Col 3 lines 6-9) but is silent to the soy being soybean meal.
Meng teaches fish and shrimp fodder and the preparation method thereof (abstract). Meng teaches utilizing soybean meal as a protein source of its high protein content, balanced amino acids, and good palatability ([0048]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Miyakawa in view of Meng to utilize soybean meal in addition to another source of protein as a protein source because soybean meal has a high protein content, balanced amino acids, and good palatability.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Miyakawa (US 3671261 A) in view of Saitoh et al. (herein referred to as Saitoh, “The effects of extruded soybean meal on growth and digestibility of kuruma shrimp, Penaeus japonicus juveniles”).
With regard to Claim 5, Miyakawa teaches soy can be used a protein source (Col 3 lines 6-9) but is silent to the soy being extruded soy.
Saitoh teaches utilizing extruded soy as a protein source for kuruma shrimp (abstract). The result presented by Saitoh show that shrimps fed with an extruded soy protein diet resulted in good growth performance (“Discussion”).
It would have been obvious to one with ordinary skill in the art to modify Miyakawa to utilize extruded soy as a protein source as taught by Saitoh because shrimps fed extruded soy protein exhibit good growth performance.
Claims 10 and 11 is rejected under 35 U.S.C. 103 as being unpatentable over Miyakawa (US 3671261 A) in view of Smith et al. (herein referred to as Smith, EP 0282170 A2)
With regard to Claims 10 and 11, Miyakawa is silent to the protein source being a powdered animal by product.
Smith teaches a method of feeding shrimp and to the feed composition (page 2 line 4). Smith teaches nutrients can be prepared from finely divided animal or plant products. Such nutrients include fish meal, powdered fish (emphasis added), crab or other crustacea meal, meat scrap, milk solids, blood meal, grain flour (wheat flour, corn flour, etc.), soybean meal, algae meal, dried yeast, and numerous animal and plant by-products (emphasis added) which are well-known to the person skilled in the art (page 2 lines 42-45). One with ordinary skill in the art would recognize that because Smith teaches animal by-products and powdered fish, one with ordinary skill in the art would recognize the animal by-product may be in a form of powder such as a powdered fish.
Thus, Smith imparts reasoning for obviousness because the teaching shows that powdered fish and animal by-products were known to be successfully used in shrimp feed and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select a powdered animal by-product because it provides nutrients it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Claims 12-15 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Miyakawa et al. (herein referred to as Miyakawa, US 3671261 A).
With regard to Claims 12-14, Miyakawa teaches corn steep liquor in an amount of approximately 5% to approximately 28% (Col 3 Table III). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Similarly, with regard to claim 14, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). In this case, the approximately 28% taught by Miyakawa is so close to the about 30% limited in claim 14 that prima facie one skilled in the art would have expected them to have the same properties.
With regard to Claim 15, Miyakawa teaches corn steep liquor in an amount of approximately 5% to approximately 28% (Col 3 Table III). Miyakawa teaches using corn steep liquor as a protein source (col 3 lines 1-4). Miyakawa teaches utilizing a protein source dissolved in water, such as corn steep liquor, to make the feed mass pliable (col 3 lines 24-26).
Therefore, it would have been obvious to one with ordinary skill in the art to modify the amount of corn steep liquor used to achieved the desired protein content of the feed and the desired pliability of the feed mass.
With regard to Claims 19 and 20, “untreated source of protein” is define by applicant in the specification as a source of protein which has not been subjected to fermentation and/or enzyme treatment. In light of this definition, Miyakawa teaches the source of protein is untreated (Col 2 line 70 – Col 3 line 9) and teaches the protein source may be soy (Col 3 lines 6-9).
Claim 16, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Miyakawa (US 3671261 A) in view of Hartnell (US 20090202672 A1)
With regard to Claim 16 and 17, Miyakawa is silent to the feed composition comprising oil.
Hartnell teaches the enhancement of desirable characteristics in aquaculture or aquaculture products through the incorporation of beneficial fatty acids in aquaculture feed or feed supplements ([0002]). Hartnell teaches the feed can be for crustaceans such as shrimp ([0075], [0053]). Hartnell teaches the feed comprises soybean oil as a source of stearidonic acid ([0128]). Hartnell teaches that plant-based oils do not endanger marine ecosystems and remain, at least to some degree, scaleable ([0004]).
It would have been obvious to one with ordinary skill in the art to modify Miyakawa to use soybean oil as taught by Hartnell because soybean oil is a good source of stearidonic acid and plant-based oils advantageously do not endanger marine ecosystems and remain, at least to some degree, scaleable.
With regard to Claim 18, Miyakawa is silent to the feed composition comprising and animal base oil such as fish oil.
Hartnell teaches the feed can include additional feed components such as fish oil ([0067]). As discussed above, Hartnell teaches advantageously using plant-based oils such as soybean oil ([0128], [0004]). However, in addition Hartnell teaches it may be desirable to minimize the alteration of the fish diet when shifting from a marine-based omega three source to a land-based omega-3 source by using combinations of SDA (stearidonic acid)-supplemented feed with traditional feed sources containing fish oil and/or fish meal. Thus Hartnell still provides ample teaches on the utilizing of fish oil.
Thus, Hartnell imparts reasoning for obviousness because the teaching shows that fish oil was known to be successfully used in shrimp feed and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select fish oil as a component of the shrimp feed because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
Prosecution Insights