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.