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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55, which can be found in parent application 14/894, 176.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on February 6, 2026 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 14 - 23 and 32 – 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims
1 – 9 of U.S. Patent No 10369126; and
1 – 14 of U. S. Patent No. 11058658.
Although the claims at issue are not identical, they are not patentably distinct from each other because of the following each of the claim sets are drawn to an animal feed comprising a nutrient component including one or more of a carbohydrate, fat and protein; a phytase; and betaine, wherein the phytase and betaine are provided in the feed in a ratio of about 0.5 to 5 g BHCl per kg of feed:750 to 5000 phytase unit (FTU) per kg of feed; a starch content of not more than 270 g per kg of feed; protein content of the feed is from 150 to 250 g per kg of feed; the fat content of the feed is not more than 45 g per kg of feed; the feed is a poultry feed; the phytase is of bacterial origin and has an amino acid sequence of an E. coli phytase; and may not include the following micronutrients as an additive or synthetic component: methionine, choline, lysine, threonine and inorganic phosphate.
Claims 24 – 31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 18 of U.S. Patent No. 11974976. Although the claims at issue are not identical, they are not patentably distinct from each other because both claim sets are drawn to a method for making an animal feed comprising adding an animal feed premix comprising a non-nutrient component and optionally a micronutrient component to an animal feed; wherein the non-nutrient component includes betaine and phytase, and wherein betaine and phytase are provided in amounts such that when the animal feed premix is combined into the feed, the feed has a ratio of about 0.5 to 5 g betaine per kg of feed:100 to 5000 FTU per kg of feed; includes one or more of an enzyme, a pigment, a growth factor, an anti-microbial agent, and an anti-coccidial agent; the anti-microbial agent is an antibacterial compound in an amount effective to induce or enhance growth performance in an animal; includes a micronutrient component such as a vitamin, a mineral, and an amino acid; the phytase is of bacterial origin, specifically has an amino acid sequence of an E. coli phytase.
Claims 14 - 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims
1 – 23 of U.S. Patent No 12350248; and
1 – 23 of U.S. Patent No 12569462.
Although the claims at issue are not identical, they are not patentably distinct from each other because of the following each of the claim sets are drawn to an animal feed comprising a nutrient component including one or more of a carbohydrate, fat and protein; a phytase; and betaine, wherein the phytase and betaine are provided in the feed in a ratio of about 0.5 to 5 g BHCl per kg of feed:750 to 5000 phytase unit (FTU) per kg of feed; a starch content of not more than 270 g per kg of feed; protein content of the feed is from 150 to 250 g per kg of feed; the fat content of the feed is not more than 45 g per kg of feed; the feed is a poultry feed; the phytase is of bacterial origin and has an amino acid sequence of an E. coli phytase; and may not include the following micronutrients as an additive or synthetic component: methionine, choline, lysine, threonine and inorganic phosphate.
Further, both claim sets are drawn to a method for making an animal feed comprising adding an animal feed premix comprising a non-nutrient component and optionally a micronutrient component to an animal feed; wherein the non-nutrient component includes betaine and phytase, and wherein betaine and phytase are provided in amounts such that when the animal feed premix is combined into the feed, the feed has a ratio of about 0.5 to 5 g betaine per kg of feed:100 to 5000 FTU per kg of feed; includes one or more of an enzyme, a pigment, a growth factor, an anti-microbial agent, and an anti-coccidial agent; the anti-microbial agent is an antibacterial compound in an amount effective to induce or enhance growth performance in an animal; includes a micronutrient component such as a vitamin, a mineral, and an amino acid; the phytase is of bacterial origin, specifically has an amino acid sequence of an E. coli phytase.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUTH A DAVIS whose telephone number is (571)272-0915. The examiner can normally be reached Monday - Friday (8am - 4pm).
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/RUTH A DAVIS/ Primary Examiner, Art Unit 1699
