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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/31/2026 has been entered.
Application Status
Amended claim 172-191, 195-197 and new claim 202 and 203 are under examination.
Claim 1-171 are cancelled.
Claim 192-194 and 198-201 are withdrawn from examination.
Claim 172-191, 195-197, 202 and 203 are rejected.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 08/12/2026 was filed after the mailing date of the Final Rejection on 06/15/2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 172-191, 195-197, 202 and 203 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Amended claim 172 recites new limitation of “…wherein the emulsifier solution has a pH greater than 7…” is not supported in the cited passages [0002], [0070] and example 2, Table 4 and 5. The instant specification [0018], [0069], [0070] denotes a strong base (emphasis) has a pH between 8 and 14; however the instant specification does not disclose the emulsifier solution having a pH greater than 7; hence the new limitation is new matter. A strong base is known to have a pH range from 7 to 14, depends upon concentrations of the strong base in the water, temperature of the solution, and the solution consisting of water. However the instant claim recites the transitional language of comprising, in other words, open-ended to contain different components other than the strong base and water, varying temperatures and concentrations that effects a pH of the emulsifier solution. Claim 173-191, 195-197, 202 and 203 are also rejected since the claims are dependent upon rejected claim 173.
New claim 202 recites new limitation of “…wherein the emulsifier solution has a pH greater than 8…” is not supported in the cited passages [0002], [0070] and example 2, Table 4 and 5. The instant specification [0018], [0069], [0070] denotes a strong base (emphasis) has a pH between 8 and 14; however the instant specification does not disclose the emulsifier solution having a pH greater than 8; hence the new limitation is new matter. A strong base is known to have a pH range from 7 to 14, depends upon concentrations of the strong base in the water, temperature of the solution, and the solution consisting of water. However the instant claim recites the transitional language of comprising, in other words, open-ended to contain different components other than the strong base and water, varying temperatures and concentrations that effects a pH of the emulsifier solution.
Applicant is required to remove new matter in response to this office action.
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 181 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.
Claim 181 recites the limitation "the at least one or more carriers" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 182-184 are also rejected since the claims are dependent upon rejected claim 181.
Claim Interpretation
Given the 112, first paragraph rejections as discussed above; for examination purpose the limitation in claim 172 reads on the emulsifier solution comprising a strong base which has pH range from 7 to 14, wherein the pH range of the strong base is an intermediate product of the emulsifier solution and the limitation in claim 202, reads on the emulsifier solution comprising a strong base which has pH range from 8 to 14, wherein the pH range of the strong base is an intermediate product of the emulsifier solution.
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.
Claim(s) 172-191, 195-197, 202 and 203 are rejected under 35 U.S.C. 103 as being unpatentable over Pimentel et al. (US 10,980,251 B2) in view of Burdock et al. (Ref. U, Toxicology and Pharmacology of Sodium Ricinoleate).
Regarding claim 172, 173, 174, 185, 186, 190, 191, 196, 197 and 202, Pimentel et al. (Pimentel) discloses a method of feeding animals including poultry (‘251, col. 2, ln. 46-53) with a diet (feed) (‘251, col. 4, ln. 29-39) wherein the feed comprises a stock solution (emulsifier solution) including ethoxylated castor oil (emulsifier) contains ricinoleic acid (’251, col 2, ln. 60-67; col. 3, ln. 1-13), propylene glycol (nutritional supplement) (‘251, col. 5, ln. 56-58) and organic acid (feed source), sodium hydroxide (‘251, col. 5, ln. 61-64). With respect to new limitations in claim 172 and new claim 202 as discussed under 112, first paragraph rejection and claim interpretation, Pimentel discloses the sodium hydroxide (‘251, col. 5, ln. 61-64), which is well known to have a pH range of 7 to 14, which overlaps the cited range.
Pimentel does not disclose the ethoxylated castor oil (emulsifier), ricinoleic acid as a structural formula of Formula (I) in claim 172 and further defined as in claim 173.
However, Burdock et al. (Burdock) discloses sodium salt of ricinoleic acid (Ref. U, Abstract, Introduction col.1, first paragraph) having a structural formula of Formula (I) in claim 172 and further defined as in claim 173 (Ref. U, pg. 1690, Fig. 1).
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Pimentel and Burdock are of the same field of endeavor of food additives with castor oil, ricinoleic acid (Ref. U, pg. 1690, col. 1, last paragraph – col. 2). It would have been obvious to one of ordinary skill in the art to be motivated to use Burdock’s sodium salt of ricinoleic acid (sodium ricinoleate) in Pimentel’s diet as Burdock teaches known safe food additive in animal feed (Ref. U, pg. 1697, col. 1, second paragraph).
With respect to recitation of “less than about 0.2 percent of the emulsifier by weight of the diet”, in claim 172, Pimentel discloses the composition comprising the stock solution (emulsifier solution) including ethoxylated castor oil (emulsifier) is applied to the feed in an amount of 0.25 to 20 wt.%, wherein the ethoxylated castor oil (emulsifier) is in an amount of 15-30% wt.% of the stock solution (‘251, col. 5, ln. 49-50; col. 5, ln. 65-66), which overlaps the cited range. 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).
With respect to claim 174, sodium salt (Ref. U, Fig.1).
With respect to claim 172 and 189, the limitation of “…calcium wherein an amount of calcium is less than the amount of calcium in a control feed source without the emulsifier or phosphorous wherein an amount of phosphorous is less than the amount of phosphorous in a control feed source without the emulsifier…”; first the recitation is alternative selection “or”, and second the amount of calcium or phosphorous is less than the amount(s) in a control feed, wherein a consideration is the amount of amount of calcium or phosphorous in the claimed invention encompass zero amount. Modified Pimental does not disclose the feed containing phosphorous, hence modified Pimental’s feed is expected to be a zero amount which is less phosphorous than a control feed.
Additionally, with respect claim 172, 190 and 197, the recitation of “…wherein the animal consuming the feed source comprising less calcium or phosphorous and the emulsifier solution displays the same or enhanced level of at least one nutrition indicator relative to the animal consuming the control feed source without the emulsifier solution…” in claim 172; the at least one nutrition indicator in claim 190; and claim 197, are considered functional limitations of the claimed product when the animal consumes the feed; hence it has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or substantially identical process, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitation that stem from the claimed structure (product). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spade, 15 USPQ2d 655,1658 (Fed. Cir. 1990).
Regarding claim 175, 176 and 188, modified Pimentel discloses the propylene glycol (nutritional supplement) (‘251, col. 5, ln. 56-58) in an amount of 0 to 50 wt.%, which overlaps the cite range. 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).
Regarding claim 177 and 178, modified Pimentel discloses the ethoxylated castor oil (emulsifier) contains ricinoleic acid (’251, col 2, ln. 60-67; col. 3, ln. 1-13) in an amount of 15-30 wt.% of the stock solution (emulsifier solution) (‘251, col. 5, ln. 49-50), and water in an amount of 0 to 50 wt.% (‘251, col. 5, ln. 40), which overlaps the cited ranges in claim 177 and 178. 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). Modified Pimentel is silent on the amount of the sodium hydroxide (‘251, col. 5, ln. 61-64). However, it would have been obvious to one of ordinary skill in the art to optimize concentrations of modified Pimentel’s sodium hydroxide (‘251, col. 5, ln. 61-64) since Pimentel clearly teaches it is well in the preview of one skill in the art to optimizes concentrations (amounts) of components is only routine experimentation (‘251, col. 5, ln. 11-17, 23-27).
Regarding claim 179 and 180, modified Pimentel discloses water in an amount of 0 to 50 wt.% (‘251, col. 5, ln. 40), which overlaps the cited ranges in claim 179 and 180. 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).
Modified Pimentel is silent on the amounts of the ethoxylated castor oil (emulsifier) contains ricinoleic acid and the sodium hydroxide. However, it would have been obvious to one of ordinary skill in the art to optimize concentrations of modified Pimentel’s amounts of the ethoxylated castor oil (emulsifier) and the sodium hydroxide (‘251, col. 5, ln. 61-64) since Pimentel clearly teaches it is well in the preview of one skill in the art to optimizes concentrations (amounts) of components is only routine experimentation (‘251, col. 5, ln. 11-17, 23-27), absent a showing evidence to the contrary.
Regarding claim 181, 182, 183, and 184, modified Pimentel discloses calcium hydroxide (‘251, col. 5, ln. 63-64), which is considered a source of calcium. With respect to claim 184, modified Pimental does not disclose an amount of calcium as cited. However, it would have been obvious to one of ordinary skill in the art to optimize concentrations of modified Pimentel’s calcium hydroxide (‘251, col. 5, ln. 63-64) since Pimentel clearly teaches it is well in the preview of one skill in the art to optimizes concentrations (amounts) of components is only routine experimentation (‘251, col. 5, ln. 11-17, 23-27), absent a showing evidence to the contrary. With respect to claim 183, the limitation is based upon alternative selection of silica, hence silica and cited amounts are not required in the claimed composition.
Regarding claim 187, Modified Pimentel is silent on a ratio of the propylene glycol (nutritional supplement) (‘251, col. 5, ln. 56-58) per the organic acid (feed source). However, it would have been obvious to one of ordinary skill in the art to optimize concentrations of modified Pimentel’s amounts of propylene glycol (nutritional supplement) (‘251, col. 5, ln. 56-58) per the organic acid since Pimentel clearly teaches it is well in the preview of one skill in the art to optimizes concentrations (amounts) of components is only routine experimentation (‘251, col. 5, ln. 11-17, 23-27), absent a showing evidence to the contrary.
Regarding claim 195, Modified Pimentel is silent on the amount of the feed (diet) per day. However it would have been obvious to one of ordinary skill in the art to provide a desired amount, including the cited amounts in modified Pimentel’s method to ensure proper nutritional benefits to the animal, absent a showing evidence to the contrary, absent a showing evidence to the contrary.
Regarding claim 203, modified Pimentel discloses calcium hydroxide (‘251, col. 5, ln. 63-64).
Response to Arguments
Applicant's arguments filed 07/21/2026 have been fully considered but they are not persuasive.
Applicant asserts “…Pimentel fails to teach, disclose, or suggest at least "wherein the emulsifier solution has a pH greater than 7" as recited in amended claim 172. (emphasis added). Rather, Pimentel teaches a composition comprising "20-50 wt %. of an organic acid". (Col 4:17, emphasis added). Further, Pimentel requires the presence of the organic acid "to dissolve the ethoxylated castor oil and keep it in solution" (Col 5:52-53) and discloses no component able to raise the pH over 7 while preserving the presence of the organic acid. Thus, Pimentel cannot teach an emulsifier solution with a pH greater than 7. Burdock fails to cure this deficiency…”.
Amended claim 172 recites new limitation of “…wherein the emulsifier solution has a pH greater than 7…” is not supported in the cited passages [0002], [0070] and example 2, Table 4 and 5. The instant specification [0018], [0069], [0070] denotes a strong base (emphasis) has a pH between 8 and 14; however the instant specification does not disclose the emulsifier solution having a pH greater than 7; hence the new limitation is new matter. A strong base is known to have a pH range from 7 to 14, depends upon concentrations of the strong base in the water, temperature of the solution, and the solution consisting of water. However the instant claim recites the transitional language of comprising, in other words, open-ended to contain different components other than the strong base and water, varying temperatures and concentrations that effects a pH of the emulsifier solution. Claim 173-191, 195-197, 202 and 203 are also rejected since the claims are dependent upon rejected claim 173.
New claim 202 recites new limitation of “…wherein the emulsifier solution has a pH greater than 8…” is not supported in the cited passages [0002], [0070] and example 2, Table 4 and 5. The instant specification [0018], [0069], [0070] denotes a strong base (emphasis) has a pH between 8 and 14; however the instant specification does not disclose the emulsifier solution having a pH greater than 8; hence the new limitation is new matter. A strong base is known to have a pH range from 7 to 14, depends upon concentrations of the strong base in the water, temperature of the solution, and the solution consisting of water. However the instant claim recites the transitional language of comprising, in other words, open-ended to contain different components other than the strong base and water, varying temperatures and concentrations that effects a pH of the emulsifier solution.
Given the 112, first paragraph rejections as discussed above; for examination purpose the limitation in claim 172 reads on the emulsifier solution comprising a strong base which has pH range from 7 to 14, wherein the pH range of the strong base is an intermediate product of the emulsifier solution and the limitation in claim 202, reads on the emulsifier solution comprising a strong base which has pH range from 8 to 14, wherein the pH range of the strong base is an intermediate product of the emulsifier solution. With respect to new limitations in claim 172 and new claim 202 as discussed under 112, first paragraph rejection and claim interpretation, Pimentel discloses the sodium hydroxide (‘251, col. 5, ln. 61-64), which is well known to have a pH range of 7 to 14, which overlaps the cited range.
Conclusion
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/HONG T YOO/Primary Examiner, Art Unit 1792
