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 .
Application Status
Amended claim 172-191 and 195-197 are under examination.
Claim 1-171 are cancelled.
Claim 192-194 and 198-201 are withdrawn from examination.
Claim 172-191 and 195-197 are rejected. No claims are allowed.
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 and 195-197 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, 181, 182, 183, 184, 185, 186, 190, 191, 196 and 197, 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).
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, 181, 182, 183, 184 and 189, to the recitations of “optionally one or more carriers” and “optionally water”, wherein the claims do not require the components, carrier(s) and water; hence modified Pimentel meets the limitations of claims.
With respect to the new 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 the 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 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.
Response to Arguments
Applicant's arguments filed 06/01/2026 have been fully considered but they are not persuasive.
Applicant asserts “…claim 172 to clarify certain differences over the cited art. Applicant respectfully submits that claim 172 is non-obvious over the asserted combination of Pimentel and Burdock for at least the reason that these references, alone or in combination, do not meet all of the elements of this claim. For example, neither Pimentel nor Burdock teaches or discloses, "wherein the feed source comprises: 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" as amended in claim 172. (emphasis added). Thus, unlike Pimentel and Burdock, the claim as amended recites the presence of calcium and phosphorus in the feed source…”.
Applicant’s remarks have been considered but not convincing. With respect to the new 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 does not require both calcium and phosphorous. 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, 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).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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