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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 5/12/2026 has been entered.
Election/Restrictions
Newly submitted claim 43 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claim 43 is directed towards a method for treating, preventing, or ameliorating inflammatory bowel disease.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 43 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claims 35-44 are pending. Claim 43 is withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 41 and 42 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 41 recites a “high docosahexaenoate” fish oil. It is unclear what is intended to distinguish between a standard fish oil comprising docosahexaenoate and a “high docosahexaenoate” fish oil. For the purposes of examination, the limitation is interpreted as any fish oil containing docosahexaenoate.
Claim 42 recites a composition wherein the “active content” of the fish oil is from 0.5-2.5%. It is unclear whether this is intended to mean the DHA content of the fish oil, the fish oil content in the pet food composition, or some other interpretation. For the purposes of examination, the limitation is interpreted as the amount of fish oil in the pet food composition.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 35-38, and 41 are rejected under 35 U.S.C. 103 as being unpatentable over Altom (US 2007/0202154) in view of Perlman (US 2008/0044539 A1) and Josephson (US 2008/0299286), taken with evidentiary reference of MyFoodData (https://tools.myfooddata.com/protein-calculator/174491-167862-168627/wt1-wt1-wt1/1-1-1) and Furvor (https://furvorpet.com/blogs/dog-nutrition/feed-your-dog-right-understanding-the-10-essential-amino-acids)
Regarding Claims 35 and 36, Altom teaches a pet food composition.
Regarding the limitation of a controlled release matrix, Altom teaches both fermentable (i.e., soluble) fibers including tomato pomace, beet pulp and citrus pulp [0046] and poorly-fermentable (i.e., insoluble) fibers [0047] such as cellulose, hemicellulose and cellulose ethers (i.e., cellulosic material) [0047]. Note that where Altom teaches “combinations thereof” [0046] of fermentable fibers such as beet pulp and citrus pulp, Altom teaches the use of two or more of soluble fiber. Altom additionally teaches the use of 0.5 to 10% pecan nut shell [0038], a source of pecan fiber, which encompasses the claimed range. Regarding the ratio of soluble fiber to insoluble fiber, Altom et al. teach that the nut shell (i.e., insoluble fiber) is present at up to 20% by weight of the pet food composition [0038], while the supplemental fiber, which includes both soluble and insoluble fiber, is present from about 5 to 20% by weight of the pet food [0043]. Altom therefore teaches up to 1:1 of soluble:insoluble fiber, which encompasses the claimed range.
Regarding the fiber-bound polyphenol source, Altom teach that the pet food may comprise antioxidants [0058] but does not specifically address polyphenols.
Perlman et al. teach green tea extract, cranberry pomace and pomegranate extract as sources of polyphenolic antioxidants [0096, 0113] are appropriate in foods intended to be consumed by a dog or cat [0065].
Therefore, where Altom et al. teach that their pet food may comprise antioxidants, it would have been obvious to have included cranberry pomace, pomegranate extract and green tea extract as these three ingredients are known to be sources of polyphenolic antioxidants in pet food compositions as taught by Perlman et al. The presence of these components would have been expected to function as antioxidants, as is recognized in the art. Therefore, the inclusion of the claimed polyphenol sources is considered to be obvious over the prior art. Additionally, given that the combination of prior art teaches the same insoluble fiber sources and polyphenols as claimed, the combination of prior art is considered to provide a polyphenol source that is chemically or physically bound to the insoluble fiber source of the fiber component.
Note that where the combination of the prior art teaches the fiber component as claimed and the polyphenol source as claimed, the combination of the prior art is interpreted to provide the controlled release matrix that delivers the polyphenol source to the lower gastrointestinal tract, as claimed.
Altom teaches the use of animal protein [0054] but does not teach the use of hydrolyzed animal protein.
Josephson teaches a pet food composition comprising an animal protein, where the animal protein is a hydrolyzed chicken livers (p. 3 Formula 2). Josephson teaches that hydrolyzed liver is palatability enhancing [0009]. Note that animal protein, which encompasses chicken liver, provides a complete amino acid profile (See evidentiary reference of Myfood Data, Pages 3-4, Food #1 (Chicken liver), and Furvor, Page 4. Note that histidine, isoleucine, leucine, lysine, methionine, phenylalanine, threonine, tryptophan, valine, and arginine, which are the required amino acids for dogs, are present in chicken liver).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilized hydrolyzed chicken livers in the pet food of Altom. One would have been motivated to make such a modification to enhance palatability of the pet food.
Regarding Claim 37, Altom teaches the use of 20-50% animal protein [0054] but does not teach the use of hydrolyzed animal protein. Josephson teaches that hydrolyzed chicken livers present at 25% by weight of a pet food composition (p. 3 Formula 2) are palatability enhancing [0009].
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilized hydrolyzed chicken livers in the pet food of Altom in the amount as claimed. One would have been motivated to make such a modification to enhance palatability of the pet food.
Regarding Claim 38, Altom et al. teach that the pet food may comprise antioxidants [0058] (which includes polyphenols) but does not address the use of polyphenol sources as claimed.
Perlman et al. teach green tea extract, cranberry pomace and pomegranate extract as sources of polyphenolic antioxidants [0096, 0113] in foods that can be eaten by animals such as dogs or cats [0065]. Perlman teaches catechins (which are polyphenols) are present in green tea extract [0125].
Therefore, it would have been obvious to have included polyphenols as claimed in the pet food composition of claim 1 as polyphenols were known in the art to be included in pet food compositions, and further to include green tea extract (and thus catechins) as taught by Perlman, since Perlman teaches that green tea extract is a source of antioxidants.
Regarding Claim 41, Altom et al. teaches adding fish oils containing DHA for use in the pet food composition [0064]. Note that a “high docosahexaenoate” fish oil is interpreted as any fish oil containing docosahexaenoate.
Claim 39 is rejected under 35 U.S.C. 103 as being unpatentable over Altom in view of Perlman and Josephson taken with evidentiary reference of MyFoodData as applied to Claim 35, above, and further in view of view of Bishop (US 20050276882).
Regarding Claim 39, Altom teaches the use of additional ingredients in the pet food [0057] but does not address the use of flax seed.
Bishop teaches that flax seed in a pet food for dogs [0026] provides essential fatty acids, amino acids, and has an anti-inflammatory effect (Page 2, Table 1).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to modify the dog food of Altom to utilize flax seed as taught by Bishop. One would have been motivated to make such a modification since Bishop teaches that flax seed provides nutritional and anti-inflammatory benefits.
Claim 40 is rejected under 35 U.S.C. 103 as being unpatentable over Altom in view of Perlman and Josephson taken with evidentiary reference of MyFoodData as applied to Claim 35, above, and further in view of Pet Beastro (https://www.thepetbeastro.com/blogs/bits-bites-natural-pet-health-blog/useful-ways-to-incorporate-ginger-into-your-pets-d/, May 2014).
Regarding Claim 40, Altom teaches the use of additional ingredients in the pet food [0057] including vegetable matter [0058] but does not address the use of ginger.
Pet Beastro teaches that ginger is used in commercially available dog treats and support digestion (Pages 3-4).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize ginger root powder in a composition intended for consumption by dogs. One would have been motivated to make such a modification since Pet Beastro teaches that ginger is utilized in food intended for dogs. Note that it would have been obvious to have utilized ginger in any form, including in a dried powder. Note that the selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Claim 42 is rejected under 35 U.S.C. 103 as being unpatentable over Altom in view of Perlman and Josephson taken with evidentiary reference of MyFoodData as applied to Claim 35, above, and further in view of Yi (http://www.lipidworld.com/content/13/1/190, 2014).
Regarding Claim 42, Altom et al. teaches adding fish oils containing DHA for use in the pet food composition [0064] and additionally teaches that the DHA content of the food is at least 0.15%, but does not specifically address the amount of fish oil in the food.
Yi teaches that fish oil can range from 3.5-64.5% DHA (Abstract, Results).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize an amount greater than 0.23-4.3% (0.15/.035 to 0.15/0.645) of fish oil in the pet food composition of Altom. One would have been motivated to make such a modification to provide for the amount of DHA taught by Altom.
Claim 44 is rejected under 35 U.S.C. 103 as being unpatentable over Altom in view of Perlman and Josephson taken with evidentiary reference of MyFoodData as applied to Claim 35, above, and further in view of Hill’s Pet Nutrition (https://www.tcvet.net/sites/site-3731/documents/pet-nutrition-ref-manual-secured.pdf, 2010)
Regarding Claim 44, Altom teaches the use of vitamins [0050] but does not specifically address the use of Vitamin E.
Hill’s Pet Nutrition teaches that Vitamin E is required in the diets of dogs (Pages 6 and 8).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize Vitamin E in the pet food of Altom. One would have been motivated to make such a modification since Altom teaches the use of vitamins, and Hill’s Pet Nutrition teaches that Vitamin E is necessary in the diet of dogs.
Response to Arguments
Applicant’s Remarks filed 5/12/2026 have been considered. Applicant cancelled all previously pending claims and presented new claims, which are rejected as set forth above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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