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 Status
Claims 15-23 are pending.
Claims 1-14 are canceled
Claims 15-23 examined on the merits herein.
Claims 15-23 are rejected.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. EP22193413.6, filed on 01-Sep-2022.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 19-Feb-2026 has been considered by the examiner.
Claim Objections
Claim 15-23 objected to because of the following informalities:
Claims 15 and 18 should start with the word “A”.
Claims 16, 17, and 19-23 should start with the word “The”
“lamas” of claim 22 should be llamas.
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.
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 19 and 22 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. Claims 19 and 22 recites the term “preferably.” This term implies an optional preference of boric acid and/or a water absorbing additive or cows, goats and sheep for claims 19 and 22, respectively and confuses the exact scope of the invention.
Claims 20 and 21 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. Claims 20 and 21 includes language that is indefinite such as “improving feed conversation rate” and “improving the milk quality” and “reducing the ecological impact of dairy livestock farming”. The language of these claim limitations does not make clear the metes and bounds of what the limitation actually encompasses.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 23 rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 23, depending on claim 15, recites the limitation “the method comprises the addition of the composition comprising bioavailable silicic acid compounds to the drinking water, feed and/or forage fed to the dairy livestock animals” while claim 15 already requires the same limitations. Claim 23 repeats the limitation already presented in claim 15 and does not further limit the subject matter. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claim(s) 15-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Berghe (US20100068294A1, Patent Published 18-Mar-2010, Filed 17-Sep-2009), and further in view of Bronder (US005922360A, Patent Published: 13-Jul-1999, Filed: 10-Aug-1995), Laane et al. (US009215890B2, Patent Published 22-Dec-2015, Filed: 13-Dec-2013) and Feoktistova et al. (Published 02-Aug-2022).
In regards to Claim 15 and 23, Berghe teaches a method of feeding lactating adult sows a feed pellet composition comprising ortho silicic acid in a carrier in Example G (Page 4, paragraph 50).
In regards to Claim 16-17, Berghe teaches that the ortho silicic acid is in a monomeric form by suppressing polymerization through acid (Page 1, paragraph 4), and the feed of Example G was prepared with hydrochloric acid (Page 3, paragraph 41 and Page 4, paragraph 50), resulting in a final product with between 1-5% elemental silicon (Page 3, paragraph 42). Because ortho silicic acid is bioavailable, and Berghe does not disclose the presence of other silicon containing species, at least 90 mol% of the silicon would be present in the form of bioavailable silicic acid.
In regards to Claim 18, Berghe teaches in Example G established practice for using the silicic acid composition, such as animal, dosage, delivery route, and specific feed windows (Page 4, paragraph 50). It is well known in the animal nutrition industry to package feed supplements in containers with clear instructions regarding dosing, route of administration, and feeding schedules. Regarding the limitation requiring “instructions printed on the container and/or instructions printed on a label,” this limitation is directed to printed matter. Under MPEP 2112.01 (III), where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art.
In regards to Claim 19, Berghe teaches that the composition of ortho silicic acid is prepared in an acidified aqueous stabilized by glycerol at a pH of 1-3 in Example G (Page 3, paragraph 41 and Page 4, paragraph 50).
In regards to Claim 20-21, Berghe teaches that the absorbed silicon is transferred between the lactating animal and offspring via either placenta or milk (Page 4, paragraph 50), and furthermore, notes that the composition has a positive effect on cell generation, stimulates the immune system, and inhibits degenerative processes (Page 2, paragraph 17).
In regards to Claim 22, Berghe teaches a method of administering the bioavailable ortho silicic acid to livestock animals via animal feed (Page 4, paragraph 50).
However, Berghe does not teach that the livestock animals are dairy livestock animals of claim 15. Berghe does not teach the characterization of the bioavailable silicic acid as subcolloidal with a size of 1-10 nm of claim 16 and 17. Berghe does not specifically teach that the composition increases milk yield, milk fat, or milk protein content, improves feed conversion rate or milk quality, and reduces ecological impact of claim 20-21. Berghe does not teach the administration of the composition to cows, buffaloes, camels, yaks, goats, sheep, horses, donkeys, alpacas, mithun, lamas, or zebus of claim 22. For this reason, Bronder, Laane, and Feoktistova are added.
Bronder teaches a composition comprising silicic acid which is substantially free of organic silicon compounds and polymerization, formulated for use as an oral dosage for cattle in Formulation Example B (Col. 3, line 52-58). Feoktistova teaches that silicon containing additives increase average dairy milk yields in dairy cows (Page 7). Laane teaches a silicic acid composition comprising of micro-colloidal spheres between 1-8 nm, corresponding to the subcolloidal particle size of 1-10 nm (Col 4, line 26-32).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Berghe, Bronder, Laane, and Feoktistova to arrive at the claimed method of farming dairy livestock animals by adding a bioavailable silicic acid composition to the feed. Berghe establishes that the bioavailable ortho silicic acid supplementation during lactation in adult mammals improves silicon bioavailability in offspring, translating into positive effects on nails, hair, skin, teeth, collagen, connective tissue, bones, encourages cell generation, stimulates the immune system, and inhibits degenerative processes. Bronder teaches that the same class of bioavailable silicic acid preparation is suitable to cattle via feed. Laane teaches the same class of bioavailable silicic acid in an aqueous solution with a particle size of 1-8 nm as determined by 29Si NMR. Lastly, Feoktistova teaches that silicon containing additives in dairy cows improves average dairy milk yields.
It would have been obvious to a person having ordinary skill in the art to apply the known benefits of bioavailable ortho silicic acid supplementation as taught by Berghe to dairy livestock species as taught by Bronder and Feoktistova, and the particle size taught by Laane. This combination represents the predictable application of a known technique to a known livestock species with a reason expectation of success. One would have been motivated to do so because of the well-recognized role of silicon in bone health, connective tissue integrity, and overall physiological function in mammals. For the forgoing reasons, Claims 15-23 are rendered obvious by the teachings of the prior art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WENHAN LI whose telephone number is (571)272-9143. The examiner can normally be reached Monday-Friday 7:30 am-5 pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at (571)272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/W.L./Examiner, Art Unit 1614
/ALI SOROUSH/Supervisory Patent Examiner, Art Unit 1614
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