DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The status of the claims stands as follows:
Pending claims: 1-17
Claims currently under consideration: 1-17
Currently rejected claims: 1-17
Allowed claims: None
Claim Objections
Claims 2-17 are objected to because of the following informalities:
In claims 2-7 and 9-17, “A method” should be read as “The method”.
In claim 4, “wherein the growth stage is from zero to 49 days for chickens and zero to 20 weeks for turkeys” should be read as “wherein the growth stage is from zero to 49 days of age for chickens and zero to 20 weeks of age for turkeys”.
In claim 5, “the trace metals from hydroxy metal chloride sources” should be read as “the trace metals from hydroxy metal chloride mineral sources”.
In claim 6, “1-30ppm on total weight of feed” should be read as “1-30 ppm based on total weight of feed”.
In claim 7, “25ppm on total weight of feed” should be read as “25 ppm based on total weight of feed”.
In claim 8, “1-40ppm on total weight of feed” should be read as “1-40 ppm based on total weight of feed”.
In claim 9, “37.5ppm on total weight of feed” should be read as “37.5 ppm based on total weight of feed”.
Appropriate correction is required.
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.
Claims 1-17 are rejected under 35 U.S.C. 112(b) 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.
Claim 1 is directed to a method for feeding poultry. However, it is unclear as to what the actual method steps are. For at least this reason, the claim is indefinite.
For the purpose of this examination, the method will be interpreted as comprising a step of adding at least one trace metals from hydroxy metal chloride mineral sources to a poultry feed; and providing the poultry feed containing the at least one trace metals from hydroxy metal chloride mineral sources to poultry over the full course of the life of the poultry.
The term “low” in the phrase “low dose” and the term “major” in the phrase “major bulk ingredients” in claim 1 are relative terms which renders the claim indefinite. The terms “low” and “major” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
For the purpose of this examination, the phrase “low dose” will be interpreted as meaning a content of trace metals from hydroxy metal chloride mineral sources being from greater than 0 wt.% to 5 wt.% based on the total weight of the feed. The phrase “major bulk ingredients” will be interpreted as meaning a content of corn and soybean meal being at least 20 wt.% based on the total weight of the feed.
Claim 1 recites a 3% fixed inclusion rate for all phases of meat and bone meal in the feed. However, it is unclear as to what is meant by “fixed inclusion rate”. Also, the claim does not recite a unit of measurement with the percentage (e.g., 3 wt.%; 3 vol.%). For at least these reasons, the claim is indefinite.
For the purpose of this examination, the 3% fixed inclusion rate is interpreted as meaning that the feed contains 3 wt.% of all phases of meat and bone meal.
Claim 1 recites a “normal growth to harvest period”. However, it is unclear as to what is meant by “normal” as the period of time from birth of the poultry to harvest of the poultry varies according to the intended purpose of the poultry (e.g., poultry kept as a pet may have a growth period of several years while poultry used for food may have a growth period of several weeks). Therefore, the length of time implied by the term “normal” is unclear.
For the purpose of this examination, the phrase “normal growth to harvest period” will be interpreted as meaning any period of time from the birth to the harvesting of the poultry.
Claim 1 recites that at least one key industry process indicator is “substantially improved”. However, it is unclear as to what serves of the basis of comparison from which to determine if a key indicator is “substantially improved” (e.g., a key indicator is substantially improved in poultry which is fed a common basal diet comprising the trace metals from hydroxy metal chloride mineral sources when compared to poultry which is fed the same common basal diet not containing the trace metals from hydroxy metal chloride mineral sources). Also, the term “substantially” in the phrase “substantially improved” which is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For at least these reasons, the claim is indefinite.
For the purpose of this examination, the substantial improvement in at least one key industry process indicator will be interpreted as meaning a key indicator in poultry which is fed a common basal diet comprising the trace metals from hydroxy metal chloride mineral sources is improved to any degree when compared to the same key process indicator in poultry which is fed the same common basal diet not containing the trace metals from hydroxy metal chloride mineral sources.
Claim 2 recites that a key industry process indicator may be cost. However, it is unclear as to what cost the claim is referring (e.g., cost of feed; sell cost of harvested poultry). Therefore, the claim is indefinite.
For the purpose of the examination, cost will be interpreted as meaning cost of the feed.
Claim 4 recites that the growth stage is from 0-49 days for chickens and 0-20 weeks for turkeys. However, it is unclear as to whether claim 4 means that the poultry of claim 1 is required to be both chickens and turkeys or at least one of chickens and turkeys. Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the poultry of claim 1 is at least one of chickens and turkeys.
Claim 5 recites that the trace metals from hydroxy metal chloride mineral sources are copper, zinc, and manganese. However, it is unclear as to whether the claim requires the inclusion of one, two, or all three of these trace metals from hydroxy metal chloride mineral sources. Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as requiring at least one of the recited trace metals from hydroxy metal chloride mineral sources.
Claims 6 and 7 recite the limitation "the level of Zn" in line 1. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of this examination, the claims will be interpreted as meaning that the feed of claim 1 comprises zinc at the claimed ppm.
Claims 8 and 9 recite the limitation "the level of Mn" in line 1. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of this examination, the claims will be interpreted as meaning that the feed of claim 1 comprises manganese at the claimed ppm.
Claim 10 recites the limitation "the composition" in line 1. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of this examination, “the composition” will be interpreted as meaning the feed of claim 1.
Claim 11 recites the limitation "the level of copper" in line 1. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of this examination, the claims will be interpreted as meaning that the feed of claim 1 comprises copper at the claimed ppm.
Claim 12 recites the limitation "the level of phytase" in line 1. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of this examination, the claims will be interpreted as meaning that the feed of claim 1 comprises phytase at the claimed ppm.
Claim 13 recites that amino acid ratios followed the genetic and USA industry standards. However, it is unclear as to what amino acid ratios the claim is referring (e.g., amino acid ratios in the poultry; amino acid ratios in the feed). It is also unclear as to what genetic and USA industry standards the claim is referring. Furthermore, the claim does not recite a unit of measurement with the ratios (e.g., weight ratio; volume ratio). For at least these reasons, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the feed of claim 1 contains any amino acids in any weight ratio.
Claims 14, 15, and 16 recite that feed to gain, body weight gain, and tibia ash, respectively, was “improved” at 14 days of age. However, the claim does not recite a basis of comparison from which to determine whether there was improvement in these features. Therefore, the claims are indefinite.
For the purpose of this examination, the claims will be interpreted as meaning that feed to gain, body weight gain, and tibia ash in poultry which is fed a common basal diet comprising the trace metals from hydroxy metal chloride mineral sources is improved to any degree when compared to the same feed to gain, body weight gain, and tibia ash in poultry which is fed the same common basal diet not containing the trace metals from hydroxy metal chloride mineral sources.
Claim 17 recites that average feed cost was “reduced”. However, the claim does not recite a basis of comparison from which to determine whether there was reduction in feed cost. Therefore, the claim is indefinite.
For the purpose of the examination, the claim will be interpreted as meaning that the cost of a common basal diet comprising the trace metals from hydroxy metal chloride mineral sources is 0.1% less than the cost of the same common basal diet not comprising the trace metals from hydroxy metal chloride mineral sources.
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, 5-11, and 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Hub (“Feed Ingredients”, November 2023, Poultry Hub, https://www.poultryhub.org/all-about-poultry/nutrition/feed-ingredients) in view of Miles (Miles et al., “Using Meat and Bone Meal in Poultry Diets”, 2021, University of Florida IFAS Extension, https://ufdcimages.uflib.ufl.edu/IR/00/00/42/63/00001/PS02400.pdf) and Fry (US 2020/0146314).
Regarding claims 1 and 5, Hub teaches a method for feeding poultry comprised of a step of adding trace metal minerals in the form of copper, manganese, and zinc to poultry feed to prevent mineral deficiency which leads to serious health problems and death (page 7, 1st and 3rd paragraphs under “Minerals and Vitamins”). Living organisms require food from birth until death. Therefore, it would have been obvious for the method of feeding poultry to further comprise feeding the poultry the feed comprising the minerals copper, manganese, and zinc from birth of the poultry until harvest of the poultry, thereby rendering the claimed step of feeding the poultry the feed over the full course of a growth period until harvest obvious. Also, since Hub teaches that the inclusion of the minerals in the diet prevents serious health problems and death of the poultry, the inclusion of the minerals in the diet is considered to improve a key industry process indicator such as mortality rate when compared to a poultry not comprising the minerals.
Hub teaches that the poultry feed may further comprise cereal grains such as corn; and protein meals such as soybean meal and meat bone meal, wherein soybean meal is one of the main vegetable protein used in poultry diet and wherein meat and bone meal is one of the main animal protein sources in poultry diets (page 1, 1st paragraph under “Cereal Grains”; page 2, 1st picture in 1st row of photos at top of page; page 3, 2nd paragraph under “Vegetable Protein Sources”; page 5, 1st paragraph). Hub teaches that a practical issue in using meat and bone meal in poultry feed is the limit of incorporation of the meat and bone meal into the feed for nutritional balance, particularly with respect to calcium and phosphorus (page 7, 1st paragraph). Hub teaches that oilseed meal such as soybean meal makes up 20-30% of a poultry diet (page 3, 1st paragraph under “Vegetable Protein Sources”). Since Hub teaches an amount of 20-30% soybean meal in a poultry feed, the combined amounts of corn and soybean meal in poultry is greater than 20 wt.%, thereby rendering corn and soybean meal as being the major bulk ingredients in the poultry fed obvious.
Hub does not teach that the poultry feed comprises 3 wt.% meat and bone meal as recited in present claim 1; or that the poultry feed comprises a low dose of trace metals from hydroxy metal chloride mineral sources, wherein the trace metals from hydroxy metal chloride mineral sources are at least one of copper, zinc, and manganese as recited in present claims 1 and 5.
However, Miles teaches that the content of meat and bone meal in poultry feed is often restricted to less than 5% because of the high calcium and phosphorus contents in the meat and bone meal (page 2, 2nd column, 1st paragraph under “Inclusion Levels”). This range of less than 5% is considered to overlap the claimed content of 3 wt.% .It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the poultry feed of Hub to contain less than 5% meat and bone meal as taught by Miles. Since Hub teaches that meat and bone meal is one of the main animal protein sources in poultry diets and that a practical issue in using meat and bone meal in poultry feed is the limit of incorporation of the meat and bone meal into the feed for nutritional balance, particularly with respect to calcium and phosphorus (page 5, 1st paragraph; page 7, 1st paragraph), but does not disclose an amount of meat and bone meal for a poultry diet, a skilled practitioner would have been motivated to consult an additional reference such as Miles in order to determine a suitable amount of meat and bone meal to include in a poultry feed, thereby rendering the claimed amount of meat and bone meal obvious.
The combination of Hub and Miles does not teach that the poultry feed comprises trace metals from hydroxy metal chloride mineral sources, wherein the trace metals from hydroxy metal chloride mineral sources are at least one of copper, zinc, and manganese as recited in present claims 1 and 5.
However, Fry teaches a poultry feed comprising a common basal feed (corresponding to animal feed that is generally fed to animals) comprising trace metals in the form of dicopper chloride trihydroxide, manganese hydroxy chloride, and zinc hydroxychloride due to these forms having higher bioavailability than commonly used forms of trace minerals [0003]-[0004], [0019], [0030], [0036]. These forms of copper, manganese, and zinc are hydroxy metal chloride mineral sources of copper, manganese, and zinc as recited in present claims 1 and 6. Fry teaches that the amount of the trace metals from hydroxy metal chloride mineral sources in the feed may be from at least 1 ppm to at least 1000 ppm [0037], which is considered to fall within the range of “low dose supplementation” of the trace metals from hydroxy metal chloride mineral sources recited in present claim 1
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the zinc, copper, and manganese minerals in the poultry feed of Hub to be in the form of dicopper chloride trihydroxide, manganese hydroxy chloride, and zinc hydroxychloride as taught by Fry. Since Hub teaches that its poultry feed comprises trace metal minerals in the form of copper, manganese, and zinc to poultry feed to prevent mineral deficiency which leads to serious health problems and death (page 7, 1st and 3rd paragraphs under “Minerals and Vitamins”), but does not specify a form of copper, manganese, and zinc to include in poultry feed, a skilled practitioner would have been motivated to consult an additional reference such as Fry in order to determine a suitable form of copper, manganese, and zinc, thereby rendering the low dose supplementation of trace metals from hydroxy metal chloride mineral sources being at least one of copper, zinc, and manganese as recited in present claims 1 and 5 obvious.
Regarding claims 2, 6, 7, 8, 9, 11, 14, 15, 16, and 17, modified Hub teaches the invention as described above in claim 1, including the feed may comprise 1-80 ppm of the trace metals from hydroxy metal chloride mineral source zinc; 80-200 ppm of the trace metals from hydroxy metal chloride mineral source copper; and/or 1-80 ppm of the trace metals from hydroxy metal chloride mineral source manganese [0038]-[0040]. These ranges are considered to provide a level of zinc in the feed, a level of copper in the feed, and/or a level of manganese in the feed which at least overlap the amounts recited in present claims 6, 7, 8, 9, and 11. The selection of a value within the overlapping ranges renders the claimed amounts obvious. MPEP 2144.05.I.
Furthermore, since the combination of prior art teaches: (A) a method comprising the claimed method steps and amounts of the trace metals from hydroxy metal chloride mineral sources manganese, copper, and zinc; and (B) that the claimed forms of trace minerals have a higher bioavailability than commonly used forms of trace minerals (Fry [0004]), the method of the prior art is considered to encompass embodiments of the method which provide the claimed improvement in key industry process indicators recited in present claims 2, 14, 15, 16, and 17, particularly in light of such improvements in key indicators by trace metals from hydroxy metal chloride mineral sources being known in the art and in light of the advantages of higher bioavailability of mineral sources being known in the art (e.g., higher bioavailability of a mineral allows for a practitioner to use less of the mineral in a feed in order to obtain benefits in the animal from the mineral). Regarding method claims, when the steps recited in the prior art reference are substantially identical to those of the claims, claimed properties are presumed to be present. MPEP §2112.I. Therefore, these claims are considered obvious in view of the cited prior art.
Regarding claim 3, modified Hub teaches the invention as described above in claim 1, including the poultry may be selected from laying chickens (Hub, page 7, 1st paragraph under “Minerals and Vitamins) and broiler chickens (Fry [0047]).
Regarding claim 10, Hub teaches the invention as described above in claim 1, including the feed may further comprises at least one ingredient selected from the group consisting of proteins (corresponding to protein meals and protein in other ingredients such as roots and tubers), carbohydrates (corresponding to carbohydrates from cereal grains, starches, and other ingredients such as roots and tubers), fats, enzymes, vitamins, minerals, and amino acids (page 7, 3rd paragraph; page 2, 1st - 2nd paragraphs).
Regarding claim 13, Hub teaches the invention as described above in claim 1, including the feed comprises amino acids (page 2, 1st paragraph; page 6, 2nd paragraph), which is considered to meet the limitations recited in present claim 13 as described above in the 35 U.S.C. §112(b) rejection above.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Hub (“Feed Ingredients”, November 2023, Poultry Hub, https://www.poultryhub.org/all-about-poultry/nutrition/feed-ingredients) in view of Miles (Miles et al., “Using Meat and Bone Meal in Poultry Diets”, 2021, University of Florida IFAS Extension, https://ufdcimages.uflib.ufl.edu/IR/00/00/42/63/00001/PS02400.pdf) and Fry (US 2020/0146314) as applied to claim 1 above, and further in view of Gordon (Gordon, A., “Broiler Chicken Growth Charting”, February 2023, Backyard Poultry, https://backyardpoultry.iamcountryside.com/feed-health/broiler-chicken-growth-charting/).
Regarding claim 4, modified Hub teaches the invention as described above in claim 1, including that the feed may be fed to poultry such as broiler chickens throughout their lives (Fry [0041], [0045], [0047]).
The prior art does not teach that the growth stage for chickens is 0-49 days or that the growth stage of turkeys is 0-20 weeks.
However, Gordon teaches that a cost-efficient approach to raising broiler chickens involves providing a growth stage lasting from 0 days up to 42-49 days (page 1, paragraph under “Working Toward Self-Sufficiency” and paragraph under “And Cost Efficiency”), which overlaps the claimed range of 49 days. The selection of a value within the overlapping range renders the claimed range. MPEP 2144.05.I.
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the growth stage of the broiler chickens of modified Hub to last from 0 days until 42-49 days as taught by Gordon. Since modified Hub teaches that the feed may be fed to poultry such as broiler chickens throughout their lives (Fry [0041], [0045], [0047]), but does not disclose a length of time for the life of a broiler chicken, a skilled practitioner would have been motivated to consult an additional reference such as Gordon in order to determine a suitable length of time for growing a broiler chicken, thereby rendering the claim obvious.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Hub (“Feed Ingredients”, November 2023, Poultry Hub, https://www.poultryhub.org/all-about-poultry/nutrition/feed-ingredients) in view of Miles (Miles et al., “Using Meat and Bone Meal in Poultry Diets”, 2021, University of Florida IFAS Extension, https://ufdcimages.uflib.ufl.edu/IR/00/00/42/63/00001/PS02400.pdf) and Fry (US 2020/0146314) as applied to claim 1 above, and further in view of Walters (Walters et al., “Effects of Increasing Phytase Inclusion Levels on Broiler Performance, Nutrient Digestibility, and Bone Mineralization in Low-Phosphorus Diets”, 2019, Journal of Applied Poultry Research, Vol., 28, Issue 4, pages 1210-1225).
Regarding claim 12, Hub teaches the invention as described above in claim 1, including that the feed may further comprise an enzyme to improve digestibility of a diet, thereby significantly impacting the energy content of the diet (page 7, 3rd paragraph).
Modified Hub does not teach that the diet contains phytase in an amount from about 500 FTU/kg to about 1000 FTU/kg.
However, Walters teaches that the feed of monogastric animals such as poultry includes seeds from plants such as corn and soybean meal, wherein the majority of phosphorus of the plants is stored in the form of phytate (page 1210, 1st column- page 1211, 1st column 1st paragraph). Walters teaches that phytate has anti-nutritive properties which impedes nutrient digestion and adversely affects bird performance (page 1211, 1st column, 1st paragraph). Walters teaches that it is well-known that the enzyme phytase fed at conventional levels of up to 500 FTU/kg ameliorates the anti-nutritive properties of phytate. Walters teaches that amounts of phytase of 500, 750, and 1000 FTU/kg in the diet improves ileal digestibility of phosphorus when compared to diets not comprising phytase (page 1214, 1st column, 1st paragraph under “Nutrient Digestibility”; page 1215, Table 3). These values fall within the claimed concentration.
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the enzyme in the poultry feed of modified Hub to be phytase as taught by Walters. Since: (A) Hub teaches that the feed contains corn and soybean meal and that the feed may further comprise an enzyme to improve digestibility of a diet, thereby significantly impacting the energy content of the diet; and (B) corn and soybean meal contain phosphorus in the form of phytate, wherein in phytate has anti-nutritive properties, but Hub does not disclose an enzyme for improving digestibility, a skilled practitioner would have been motivated to consult Walters in order to determine a suitable enzyme, thereby rendering the inclusion of phytase in the poultry feed obvious.
Furthermore, since Walters teaches that it is well-known that the enzyme phytase fed at conventional levels of up to 500 FTU/kg ameliorates the anti-nutritive properties of phytate, it would be obvious for the practitioner to have added phytase to the diet to provide a concentration of phytase of up to 500 FTU/kg in order to ameliorate the anti-nutritive properties of phytate since such knowledge is known in the art. In consulting Walters, the skilled practitioner would find that amounts of phytase of 500, 750, and 1000 FTU/kg in the diet improves ileal digestibility of phosphorus when compared to diets not comprising phytase. Therefore, the claimed concentration of phytase is rendered obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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