What we need: To know what our data says so we can amend the claims to align with the data for a patent application which has been under review for the last 6 years. Over 7 summer seasons chick weight data was regularly collected over the chicks first month of life totaling 300+ chicks. The animals are included in the sample as they hatch, not all in all out. We can provide the patent application. The raw data is in Excel. The report is needed within a month, if possible.
We’ve spent the last 25 years working on the high mortality issues of the endangered bird, the Rhea americana, and its related species, the ostrich. This patent is important because it instructs how to successfully raise the chicks in artificial conditions, necessary in the propagation of endangered species.
In 2015 we submitted a METHOD patent application that solved the problems described with environmental, husbandry, and feed changes. After several rebuttals, the application is still being rejected. We have 2 prior patents, so this is not new for us.
Typically, method patents are broad, allowing ranges to be granted. This time, however, the examiner is treating this as a drug application and expecting double blind trials or an equivalent, which we cannot supply. The data is on-farm chick weights, gathered in natural conditions. In the early years, following animal husbandry standards, we were unaware of how sensitive the chicks were and how tightly the environment needed to be controlled.
We submitted the data labeled by year, which was a mistake. The examiner wanted to have the data from the missing years. Those years were not included because the data was corrupted by severe environmental contamination (usually illegal burning of tires or plastic) or extreme heat. Nor did we do biostatistics on the data. The patent attorney said it was usually not necessary for patents of this type.
However, the examiner says the data does not say what we think it says. The examiner is trying to get us to tighten parameters on the feed, which is important but only one part of the solutions. We did not do strict analyses on the feed because we do not feel it is necessary, anymore than we strictly analyze a 2-year-old child’s diet. The chicks can be fed the best diet and still die if exposed to burning trash.
Plus, feed standards classify plant and animal protein identically, and we think we are showing they cannot be interchanged freely, at least for ratites. This is not a new idea; it is now accepted for dogs and cats. But, it describing the feed components we deviated from industry standard procedure because it didn’t work for this. Knowing the quantity of protein never helped; knowing the source of the protein proved to be critical.
Our first patent Ratite Extracts as Therapeutic Agents, USPTO 5,989,594
, 1999, addressed the same problems and recognized the need for meat protein. However, it did not completely solve the problems.