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                   DECISION OF THE COMMISSIONER

 

STATUTORY: Feeding Animals Discovery.

 

Feeding animals many times in succession for a period of each

day, each time offering more feed than can be eaten but withdrawing

it before an animal is satisfied, is a statutory process which

improves a vendible product within the rules of Morton, S. in

G.E.C.'s Appln (1943) 60 R.P.C. ~ 4 and within the meaning of

# manufacture# in Lawson v. Commissioner (1970) 62 C.P.R. 101.

The subject matter appears to denote "discovery" and invention

per Continental Soya v. J.R. Short (1942) 2 C.P.R. 1.

 

FINAL ACTION: Reversed.

 

IN THE MATTER OF a request for a review by the

Commissioner of Patents of the Examiner's Final

Action under Section 46 of the Patent Rules.

 

                           AND

 

IN THE MATTER OF a patent application serial

number 954,851 filed March 16, 1966 for an invention

entitled:

 

                METHOD FOR FEEDING DOMESTIC ANIMALS

 

   Patent Agent for Applicant:  Messrs. R.K. McFadden & Co.,

                                   Ottawa, Ontario.

 

   This decision deals with a request for review by the

Commissioner of Patents of the Examiner's Final Action dated

May 13, 1970 refusing to allow application 954,851.

 

   The refusal of the examiner to allow the application eras

based on the grounds that the method claimed and described is

not within the ambit of Section 2(d) of the Patent Act.

 

   The Patent Appeal Board conducted a hearing on February

9,1971. Mr. R.K. McFadden and Mr.I.Fincham represented the

applicant. The facts are as follows:

 

   Application 954,851 was filed on March 16, 1966 in the

name of H. Biehl and refers to Method For Feeding Domestic

Animals.

 

   In the prosecution terminated by the Final Action dated

May 13, 1970 the examiner refused the application on the grounds

that the method claimed and described is not within the abmit

of Section 2(d) of the Patent Act.

 

The examined Stated:

 

Farmers and scientists have been experimenting with

a varying number of feeds per day, the length of time

of feeding and the amount of feed supplied being varied,

also. The choice of the optimum amount and length of

time during and time for feeding depends largely

on the exercise of normal skills of observation of

those concerned with animal husbandry and depends,

also,on the physiology and nature of the animal. It

is well known to control the quantity of food and type

of food in the case of humans who are dieting. In

most cases their appetites are not completely satisfied.

 

As stated in the previous Office Action, the results

of the method are not constantly reproducible. Increase

in weight, meat to fat ratio and speed of increase in

weight appear to be dependent upon the physiology of

the animal and the metabolism rate of the individual

animal. It would appear to be a matter of human

judgement as to when the appetite of the animal is

or is not satisfied completely. Certainly all animals'

appetites are not the same and an essential limitation

of the method claimed is the removal of the feed before

the animals' appetites are completely satisfied.

 

Not every process or art falls within Section 2(d)

of the Patent Act. The word art cannot be taken in

its broadest meaning for there are arts which are

excluded from patentability, some by statutes, such

as Section 28(3), others by well known and accepted

court rulings, such as business systems, methods of

accounting, etc., still others by other statutes such

as the Design Act. There may be processes which are

not manners of manufacture although they produce a

useful result,for instance methods or processes of

treating diseases in human beings. The Patent Act

is designed to protect inventions in the field of

industry and commerce. Method of feeding is not

within the scope of trade or commerce envisaged for

protection under the Patent Act. The existing laws

of nature govern the results of feeding and the

discovery of an existing law of nature is not grounds

for a valid patent. Optimizing conditions governing

the method of feeding is ordinary agricultural

knowledge and practice and not subject matter under

Section 2(d). The patenting of these methods would

constitute an unfair restraint on the normal exercise

of the skilled person in the art.

 

In applicant's response of November 13 ,1970 he stated:

 

Section 2(d) of the Act defines invention as "any

new and useful art, process, machine, manufacture

or composition of matter or any new and useful improve-

ment in any art, process, machine, manufacture of

composition of matter", and it is submitted that the

method claimed does represent a new and useful art

or process within the meaning of Section 2(d) and

actually does result in a reproducible result which

can be predicated and one which improves a vendible

product, namely livestock and the resulting meat.

 

The applicant, now, has unexpectedly found that the

exploitation of the feed may be influenced quite

substantially if the feed is allowed to the animals

in quite a special and inventive manner. What is

essential to the invention is that the animals are

offered feed many times in succession during the day

for a certain period of time. This period of time

is measured to be such that the animals cannot fully

satisfy their hunger. In this manner, the animals

are offered more feed at each feeding time than it

is possible for them to eat: the feed being then

withdrawn before they are satisfied. It is believed

that sticking to these measures by which saturation is

not fully reached, will cause a continuous stimulation

of the digestive system which thus keeps the gastric

juices in readiness so that the feed actually taken

will be completely converted. In addition as the

feed is offered at time intervals distributed over

the entire day a uniform working of the peptic system

is guaranteed.

 

Adhering to the method of the application brings about

an improved process, namely a shortening of the fat-

tening time with low feed consumption as compared with

previously used feeding methods. Another improvement

consists in that in the last portion of the fattening

period the protein is not converted into fat as is

the case withconventional feeding methods but into

animal albumen which is of greatest importance from

an economical standpoint (please refer to the last

paragraph of the disclosure of the application).

 

Accordingly, the proposed method is new and brings

about a useful and essential improvement. It gives

an exact teaching for technical operation and does

result in a physical phenomenon, namely an improved

and foreseeable conversion of feed into animal

albumen.

 

After reviewing the grounds for rejection set forth by

the examiner, as well as the arguments both written and oral

set forth by the applicant I am not satisfied that the rejection

is well founded.

 

At the hearing a brief was submitted and many points raised

during prosecution were expanded and re-emphasized.

 

Claim 1 of this application reads as follows:

 

A method for the timed controlled feeding of domestic

animals to provide improved efficiency of conversion

of a feed ration into useable animal weight wherein

said feed is presented to the animals for consumption

during a series of daily timed feeding intervals and

removed from the animals for timed non-feeding

intervals separating the said timed feeding intervals

of the series, comprising daily presenting all of the

said feed ration that is to be fed to the animals

each day during at least six spaced feeding intervals,

said feeding intervals of each daily series each being

of appriximately equal duration of time and separated

by non-feeding intervals which are each of approximately

equal duration of time,the number and duration of

said feeding intervals being sufficient to present

to the animals a quantity of said feed ration sufficient

to increase the weight of the animals and said

feeding intervals being regulated such that said

non-feeding intervals occur prior to the animals having

consumed all of the feed and having their appetites

completely satisfied.

 

   The consideration which must be decided in this application

is whether the subject matter of the claims fall within the

ambit of Section 2(d) of the Patent Act.

 

   I note the rules for defining when a method may constitute

patentable subject matter are recited in G.E.C.'s application

(1943) 60 R.P.C.. 1 at 4, per Morton.J. These rules, quoted

below, are recited from Canadian Patent Law and Practice, Harold

G. Fox,. Fourth Edition, 1969, pages 33 and 34.

 

It appears that a method or process is a manner of

new manufacture if it (a) results in the production

of some vendible product, or (b) improves or restroes

to its former condition a vendible product. or (c)

has the effect of preserving from deterioration some

vendible product to which it is applied.

 

   Applying Rule (b) it is held that a method of improving

the yield of a vendible product does in fact "improve ......a

vendible product", and hence is a manner of manufacture and

within the ambit of invention as defined by Section 2(d).

 

 In a recent Exchequer Court decision, Lawson v. The

Commissioner of Patents (1970) 62 C.P.R 101, the Judge discussed

the term "manner of manufacture", which is used in the English,

Australian and New Zealand statutes, in relation to the words

"act, process, machine, manufacture or composition of matter"

which appear in Section 2(d) of the Patent Act and concluded

that both groups of words are simply different ways of expressing

the same idea. He went on to express the view that:

"Manufacture", connotes the making of something.

Thus it is seldom that there can be a process of

manufacture unless there is a vendible product of

the process. It must accomplish some chance in

the character of conditions of material objects.

 

   In the circumstance I am satisfied beyond reasonable doubt

that the subject matter of the claims is within the ambit of

Section 2(d).

 

   While it is not necessary for me, in this consideration,

to further comment on the application I find claim 1 is not

clear and distinct. I also find that the subject matter of the

application appears to denote a discovery . The court has

held, Continental Soya v. J.R. Short (1942) 2 C.P.R. 1, "the

difference between discovery and invention has been frequently

emphasized, and it has been laid down that a patent cannot be

obtained for a discovery in the strict sense. If, however,

the patented article or process has not actually been anticipated,

so that the effect of the claims is not to prevent anything

being done which has been done or proposed previously, the

discovery which led to the patentee devising a process or

apparatus may well supply the necessary elements of invention

required to support a patent".

 

   I recommend that the rejection of the examiner, refusing

the claims, be withdrawn based on the grounds set forth.

 

                                                 R.E.Thomas,

                                            Chairman, Patent Appeal Board.

 

   I concur with the finding of the Patent Appeal Board and

I am therefore setting aside the Final Action and returning

the application to the examiner for resumption of prosecution.

 

                                       Decision accordingly,

 

                                      A . M.Laidlaw,

                                      Commissioner of Patents.

 

Dated at Ottawa, Ontario,

this 13th day of April 1971.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.