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 .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-3, 6, 9, 11-12, 16-20, 22, 38-40, 42 and 44-47 are rejected under 35 U.S.C. 103 as being unpatentable over Reiser et al. (US 2009/0208612 A1) in view of Fiber NPL, Yu et al. (US 2015/0327575 A1), Ray (US 2015/0320085 A1), Schlebusch et al. (US 7,651,708 B2), Christensen et al. (US 5,468,510), Hooss et al. (US 3,808,341) and Vincent et al. (US 2013/0029027 A1).
Regarding claim 1, Reiser et al. teaches a meat analog product comprising an animal protein (paragraphs 48-49 and 51), dried blood plasma (paragraph 53), pea protein (paragraph 50) and pea fiber (paragraph 52), where the product can have a moisture content as high as 65 wt% (paragraph 76).
Regarding the product being a “wet pet food product”, the term “wet” is interpreted to mean a water content of “at least about 50 wt%, by total weight of the reconstituted animal material,” as recited in the claim body and as defined in the instant specification paragraph 4.
Reiser et al. teaches the product is suitable for use as animal food (paragraph 19), and the moisture content can be above 50 wt% as stated above.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Reiser et al. to be a “wet pet food product” at least about 50 wt% water content since the reference indicates the product is a “high moisture food” (paragraph 19) and teaches a range overlapping that of the claimed range, see also MPEP 2144.05 I., since the evidence of record (paragraphs 73-96) does not indicate criticality or unexpected results associated with the claimed range, and since the values would have been used during the course of routine experimentation and optimization based on factors such as the type of meat being simulated, desired texture/mouthfeel, shelf stability, and nutritional density.
Regarding the product “comprising a reconstituted animal material”, Reiser et al. teaches the product comprises animal protein which has been formed into a dough and processed to resemble meat chunks (abstract; figure 1). The product therefore comprises 100 wt% of the “reconstituted animal material”.
Regarding the limitation “pea fiber product…comprises from about 45 to about 60 wt% pea fiber, by weight of the pea fiber product”, Reiser et al. teaches the meat analog product comprises pea fiber as stated above, but does not specify the source being a pea fiber product comprising the claimed range of pea fiber.
Fiber NPL teaches a commercially available pea fiber product for use in foods in which higher fiber content is desired having a fiber content of 58%, made from non-GMO pure de-hulled pea flour with no chemicals added to the process, having neutral taste and color, and high water-binding capacity for improved structure and extended shelf life (whole document). The product is well-suited for low calorie and carbohydrate foods.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the pea fiber source of Reiser et al. to be a pea fiber product having the claimed range of pea fiber since such fiber sources are known food additives, for the advantages taught by Fiber NPL, since there is no evidence of criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired texture/mouthfeel, structuring properties, and nutritional profile.
Regarding the limitation “pea protein product…comprises from about 25 to about 65 wt% pea protein, by weight of the pea protein product”, Reiser et al. teaches the meat analog product comprises pea protein as stated above, but does not specify the source being a pea protein product comprising the claimed range of pea protein, the pea protein product being selected from the group consisting of pea flour, pea protein concentrate, or a combination thereof. For the sake of examination, the limitation “pea protein concentrate” is chosen.
Yu et al. teaches an animal feed composition (paragraph 25), where the product can be a meat analog comprising both animal and vegetable proteins (paragraph 50) and having a moisture content of e.g., 60% (paragraph 56), where the vegetable protein includes pea protein concentrate formed by methods known in the art (paragraph 36). While the claimed range of pea protein is not explicitly taught, one of ordinary skill in the art would have reasonably expected known pea protein concentrates to have similar or overlapping pea protein content to that of the claimed pea protein product. Examiner notes Applicant’s specification recognizes pea protein concentrate as a commercially available component (paragraph 20).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the pea protein source of Reiser et al. to be pea protein concentrate having the claimed amount of pea protein since concentrates from vegetable proteins are well known in the art, since Reiser et al. does not specify the pea protein source and one of ordinary skill would have looked to the relevant prior art for guidance on such sources, since there is no evidence of criticality or unexpected results associated with the protein content of the pea protein product, and therefore to combine prior art elements according to known methods to yield predictable results, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired texture/mouthfeel, flavor, structuring properties, and nutritional profile.
Reiser et al. does not teach the binder comprises about 20-65 wt% animal blood plasma, about 10-25 wt% pea fiber, and about 2-15 wt% pea protein, by weight of the binder.
Ray teaches a pet food product (abstract), where the food product comprises meat (paragraph 55) and binding agents including dry blood plasma and pea protein (paragraph 56), where the pea protein can be present in an amount of about 1-10% of the food product, and the binder can be present in an amount less than 5% (paragraph 42). The percentages are based on weight (paragraph 29).
Schlebusch et al. teaches an animal food product (abstract) comprising animal blood plasma, vegetable fiber, and “meat and/or meat-like components” (column 3 lines 3, 8 and 10), where the food product comprises up to 8 parts by weight blood plasma in the core and up to 50 parts by weight blood plasma in the shell (column 2 lines 42 and 46).
Christensen et al. teaches a low-calorie meat product comprising dietary fiber and starch (abstract), where the product can be a pet food product (column 1 lines 14-17), where the dietary fiber includes pea fiber (column 15 lines 8-9). The fiber can be added with starch in a weight ratio of 1:32 to 1:1 as the fat replacement ingredient, said replacement ingredient comprising 5-80% by weight of the meat product (column 5 lines 1-18). Thus, the fiber can be present in the amount by weight recited by claim 1 e.g., a fiber to starch ratio of 1:10 to 1:4 (10-25%) by weight of the fat replacement ingredient. Christensen et al. further teaches adding dietary fiber vegetable ingredients is known (column 2 lines 52-54) and the fat replacement ingredient provides lowered calorie content and reduced negative health effects while maintaining texture and palatability (column 1 lines 22-39; column 3 lines 24-32).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Reiser et al. to include the animal blood plasma, pea fiber and pea protein in the claimed amounts since the prior art acknowledges blood plasma and pea proteins can be added in relatively small amounts as binding agents as taught by Ray and Schlebusch et al., since Reiser et al. further teaches carbohydrates such as pea fibers impart an increased tack or stickiness i.e., a binding effect, to a dough prepared therefrom (paragraph 52), to provide a fat replacement ingredient for lowered calorie content and reduced negative health effects while maintaining texture and palatability as taught by Christensen et al., since the evidence of record does not properly show the claimed amounts of binder ingredients and amounts are critical or yield unexpected results, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, and nutritional profile.
Examiner additionally notes the wet pet food product comprises the reconstituted animal, which in turn is recited to comprise the claimed amounts of respective components. However, the claim does not limit the amount of the reconstituted animal material within the wet pet food, and does not limit the composition so the recited component amounts are present in the final product. Thus, the claim is construed to only require that some of the claimed components are included in the overall wet pet food.
Furthermore, it is noted that the claims are directed to a product, where a particular ingredient added as a part of the binder is materially indistinguishable from a product having said ingredient generally mixed therein i.e., present in both the binder component and the overall feed component. There is no indication that the binder retains a distinguishing structure when combined with the overall product. Since the product of Reiser et al. includes the same materials that make up the claimed binder, where the prior art combination above teaches the respective ingredient sources and amounts, and since there is no indication that the recited ingredients cannot also be present outside of the binder, the product of the prior art combination is construed to read on the claimed features. See also MPEP 2112.01 II.
Regarding the wet pet food product comprising the binder in an amount of from about 4-10 wt% by total weight of the reconstituted animal material, Ray teaches the binder can be present in an amount less than 5% (paragraph 42), which overlaps the claimed range.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Reiser et al. to include “about 4 wt%” binder since the prior art recognizes the amount for use in animal foods, since the evidence of record (paragraph 79) does not indicate criticality or unexpected results associated with the claimed range, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, and nutritional profile.
Regarding the binder being heat-settable when heated above about 80oC, the combination above teaches and renders obvious the claimed binder composition. Since the components present in the product of the prior art combination appears to be the same as that of applicant’s claimed binder, one of ordinary skill in the art would have reasonably expected said substances to have similar or same heat-setting temperatures. Furthermore, a compound and its properties are inseparable, see In re Papesch, 137 USPQ 43 (CCPA 1963).
Reiser et al. does not teach “fines in an amount of greater than about 0 wt% and less than or equal to about 3 wt% wherein the fines are solid material having a longest dimension of no more than about 3 mm”.
Hooss et al. teaches a food product (abstract), where the product is extruded and “tumbled lightly to eliminate fines”, where the fines are recycled (column 3 lines 53-55).
Vincent et al. teaches a method of making a food product (abstract), where fines are known and can cause issues during manufacturing (paragraph 17), where it is desirable to form a product having less than about 1% fines (paragraph 31).
While the references do not explicitly recite the fines having “a longest dimension of no more than about 3 mm”, one of ordinary skill in the art would recognize “fines” as is known in the art to be less than 3 mm.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Reiser et al. such that the wet pet food product has “fines in an amount of greater than about 0 wt% and less than or equal to about 3 wt% wherein the fines are solid material having a longest dimension of no more than about 3 mm” since the prior art recognizes undesirable fines are formed during manufacture of reconstituted animal material, where the amount of fines can be reduced, to capture and recycle fines as taught by Hooss et al., thereby minimizing material cost and increasing process efficiency, and to prevent issues with manufacture as taught by Vincent et al.
Regarding claim 2, the combination applied to claim 1 teaches using blood plasma as a binder in relatively small amounts as taught by Ray (paragraphs 42 and 56) and Schlebusch (column 2 lines 42 and 46).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product to have the claimed amount of blood plasma in the binder since the substance is known to be added as a binding agent, and for the same reasons stated for claim 1 above.
Regarding claim 3, Reiser et al. teaches adding dried blood plasma as stated for claim 1.
Regarding claim 6, the combination applied to claim 1 teaches pea fiber, where the recited amount is obvious as stated for said claim. The same combination is applied to claim 6, and it would have been obvious to modify the product to have the claimed amount of pea fiber for the same reasons stated for claim 1.
Regarding claims 9 and 11, the combination applied to claim 1 teaches a food product comprising the same substances as applicant’s claimed binder, including pea protein. The same combination is applied to claims 9 and 11, and modification of the composition to have the amount of pea protein would have been obvious to one of ordinary skill in the art at the time of the invention for the same reasons stated for claim 1.
It is noted that the claims are directed to a product, where a particular ingredient added as a part of the binder is materially indistinguishable from a product having said ingredient generally mixed therein (e.g., present in both the binder component and the overall feed component). Since the combination applied to claim 1 teaches a pea protein content of 1% by weight of the entire food product, where the amount of binder in the product can vary, the food product of the combination is construed to read on and render obvious the claimed amount of pea protein in the binder.
Regarding claim 12, the combination applied to claim 1 teaches animal blood plasma, pea protein and pea fiber, where the values for each of the components is obvious as stated for said claim. The same combination is applied to claim 12, and it would have been obvious to modify the product to have the claimed component values for the same reasons stated for claim 1.
Regarding claim 16, Reiser et al. teaches dry components are ground to facilitate mixing (paragraph 54), the product can comprise dry sulfur protein from one or more meat protein sources in an amount of about 30-80 wt% of the protein in the dry component (paragraph 49) and dry meat protein sources in an amount of up to 70 wt% of the protein in the dry component (paragraph 51). The protein can comprise more than 50 wt% of the dry component dry component used to make the product (paragraph 55).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Reiser et al. to have the claimed amount of ground animal material since the reference already suggests that a significant portion of the product can be sourced from meat protein, since the product moisture content can be varied as stated for claim 1, since the evidence of record does not properly show the claimed amounts of binder ingredients are critical or yield unexpected results, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, and nutritional profile as taught by the prior art.
Regarding claim 17, Reiser et al. teaches the food product can further include additional ingredients such as a fat source, flavoring, vitamin, antioxidant, and salt (paragraph 53).
Regarding claim 18, Reiser et al. teaches the product can have about 25-40% protein by weight (paragraph 75).
Regarding claims 19 and 47, Reiser et al. teaches the product can have about 1.5-10% fat by weight (paragraph 76).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Reiser et al. to have the claimed amount of fat by weight since there is no evidence of criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as flavor, texture/mouthfeel, and nutritional profile.
Regarding claim 20, Reiser et al. teaches the product can have a water content of up to 65% by weight (paragraph 76).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Reiser et al. to have the claimed water content since there is no evidence of criticality or unexpected results associated with the claimed feature, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as type of product, texture/mouthfeel, and nutritional profile.
Regarding claim 22, Reiser et al. teaches the food product can be sized as desired (paragraph 77), but does not specify the length as claimed.
Ray et al. further teaches the food product can be cut into desired sizes, including sizes such as 10-50 mm (paragraph 36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the food product to have the claimed length since the prior art acknowledges the range for pet foods, since Reiser et al. does not specify a length and therefore one of ordinary skill would have looked to the relevant prior art for guidance, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such type of animal (size, breed, age, etc.), appearance, and texture/mouthfeel.
Regarding claim 38, the combination applied to claims 1 and 3 teaches dried blood plasma, but does not specify porcine and/or bovine plasma.
Schlebusch et al. further teaches the dried animal blood plasma is porcine plasma (column 4 line 61).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use porcine plasma since the prior art acknowledges pigs as a source of blood plasma used in animal foods, since there is no evidence of criticality or unexpected results, and therefore as a matter of manufacturing preference or availability.
Regarding claim 39, the combination applied to claims 1 and 6 above teaches the pea fiber in the binder as recited for said claims. The same combination is applied to claim 39 and modification to have the claimed amount of pea fiber in the binder would have been obvious for the same reasons stated for claim 1.
Regarding claim 40, the combination applied to claim 1 above teaches pea protein as recited for said claim. The same combination is applied to claim 40 and modification to have the claimed amount of pea protein in the binder would have been obvious for the same reasons stated for claim 1.
It is noted that the claims are directed to a product, where a particular ingredient added as a part of the binder is materially indistinguishable from a product having said ingredient generally mixed therein as stated for claims 9 and 11 above.
Regarding claim 42, the combination applied to claims 1 and 12 teaches dried blood plasma, pea protein and pea fiber, where the values for each of the components is obvious as stated for said claim. The same combination is applied to claims 42, and it would have been obvious to modify the product to have the claimed component values for the same reasons stated for claim 1.
Regarding claim 44, the combination applied to claim 1 teaches the claimed amount of binder. The same combination is applied to claim 44, and it would have been obvious to modify the product to have the claimed amount of binder for the same reasons stated for claim 1.
Regarding claim 45, the combination applied to claim 18 teaches the total protein content by total weight of the product. It would have been obvious to one of ordinary skill in the art at the time of the invention to use the claimed amount of total protein for the same reasons stated for claim 18.
Regarding claim 46, Reiser et al. teaches meat protein can be present in the product in an amount of greater than 50 wt% as stated for claim 18. The same modification is applied to claim 45 and would have been obvious for the same reasons.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Reiser et al. in view of Fiber NPL, Yu et al., Ray, Schlebusch et al., Christensen et al., Hooss et al. and Vincent et al. as applied to claims 1-3, 6, 9, 11-12, 16-20, 22, 38-40, 42 and 44-47 above, and further in view of Townsend et al. (US 2005/0181097 A1).
Regarding claim 21, Reiser et al. does not teach a density of 0.8-1.2 g/ml as claimed.
Townsend et al. teaches a pet food product (abstract), where the product can include both animal and vegetable protein (paragraph 105) and plant fiber (paragraph 106), where the density of pet foods is known to be within the range of 0.6-1.7 g/mL (paragraphs 8 and 59).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Reiser et al. to have the claimed density since the values were known for pet foods, since Reiser et al. teaches a variety of materials can be used in a range of amounts, where said parameters would naturally change the density, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as type of animal the product is intended for (e.g. size, breed, age, etc.), desired texture/mouthfeel, and caloric density.
Claim 48 is rejected under 35 U.S.C. 103 as being unpatentable over Reiser et al. in view of Fiber NPL, Yu et al., Ray, Schlebusch et al., Christensen et al., Hooss et al. and Vincent et al. as applied to claims 1-3, 6, 9, 11-12, 16-20, 22, 38-40, 42 and 44-47 above, and further in view of AOCS NPL.
Regarding claim 48, Reiser et al. does not teach the product comprises at least 50 wt% of triglycerides by total weight of the fat content.
AOCS NPL teaches medium-chain triglycerides (MCT) provide benefits to cognitive function in dogs by facilitating increase in blood ketone levels to serve as an alternate fuel for the brain (page 3 second full paragraph and last paragraph). MCT also increases energy expenditure and fat oxidation compared to long-chain triglycerides, which leads to decreased body fat (page 4 first and second full paragraphs). The reference is analogous since it is directed to fat sources for animal consumption, where Reiser et al. does not limit the types of fats used (paragraph 36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the composition of Reiser et al. to have the claimed amount of triglycerides (particularly MCT), in order to similarly increase cognitive function and energy expenditure, facilitate decrease in body fat for overweight animals, and since the claimed values would have been used during the course of normal experimentation and optimization procedures due to factors such as the particular type of animal being fed, dietary requirements (e.g. overweight), and desired nutritional profile.
Response to Arguments
Applicant's arguments filed 5/8/2026 have been fully considered but are not persuasive.
Applicant cites table 4 example 3 and comparative example 4 to show that small variations in blood plasma and pea fiber results in an inferior product, and argues the claimed amounts are critical for obtaining a competent binder.
This is not persuasive since one of ordinary skill in the art would have expected the results shown in table 4. Applicant compares the composition of example 3 containing 25 wt% blood plasma in the binder to comparative example 4 containing only 10 wt% plasma, the latter being considered inferior in performance. However, the reference for desired performance is a product comprising a binder made from 100 wt% blood plasma. One of ordinary skill in the art would have expected progressively reducing the amount of a desired component results in the product exhibiting less of the characteristics imparted by said component. Thus, a product comprising less blood plasma would have been expected to perform poorly, relative to the characteristics imparted by said plasma, compared to the performance of a product having more blood plasma. Additionally, multiple variables exist between the compared examples, and one of ordinary skill would not have been able to determine which of the variables actually contribute to the observed results.
Further, the data is not commensurate in scope with the claimed invention. Claim 1 requires the pea fiber in the binder to be from about 10-25 wt% and the pea protein to be about 2-15 wt%. The data only provides results for about 20 wt% pea fiber and 7.8 or 14.25 wt% for pea protein. The same issue applies to animal blood plasma. Likewise, the claimed water content is “at least about 50 wt%”, but the specification only provides data for values of 83.5 wt% and 83.37 wt% (tables 1 and 2). It is unclear if the argued results are observed at or near the lower and upper range bounds, as well as if the results are not observed just outside of said range bounds. See MPEP 716.02(d).
Applicant argues on pages 8-9 that Schlebusch teaches a range overlapping that of the claimed range, but the amounts of blood plasma that are outside of the claimed range surprisingly result in inferior structural integrity.
This is not persuasive since the data of table 4 is not commensurate in scope with the claimed range as stated above. While results for blood plasma in an amount of 25 wt% and 50 wt% of the binder are shown (examples 1 and 3), there is no indication that inferior structural integrity is observed at blood plasma values above 65 wt%. Further, the inferior integrity observed by comparative example 4 would have been expected as explained above.
Since the evidence of record does not indicate criticality or unexpected results, and since blood plasma, pea fiber, and pea protein are all recognized components in animal food products (particularly binders) and having an effect on the characteristics of the product, the claimed ranges of components would have been obvious through routine experimentation and optimization as stated for claim 1.
Applicant argues on pages 9-10 that the amount of pea fiber taught by Christensen does not overlap with the claimed range, comparative example 4 shows that using 27.25 wt% of [pea fiber] in the binder corresponding to 10.9 wt% in the total composition obtains an inferior product, and Christensen’s broad disclosure fails to indicate an amount of pea fiber that would result in an inferior product.
This is not persuasive since the reference is relied on to show that adding pea fiber provides advantages as stated for claim 1, and since the evidence of record is insufficient to establish criticality or unexpected results. Examples 1 and 2 show data for only about 20 wt% pea fiber in the binder, which is not commensurate in scope with the claim. Further, several parameters are changed between each of the examples in table 4, and one of ordinary skill would not be able to determine if the claimed amount of pea fiber has nexus to the observed results. While Christensen teaches a broad range, the claimed values would have been used during routine experimentation and optimization for the reasons stated for claim 1.
Applicant argues on page 10 that the amount of fines is a structural property at least partially achieved through the binder composition and on page 11 that Hooss simply teaches fines are removed from the composition via tumbling after formation of the product, whereas the claimed composition prevents fines from forming via the binder, Hooss is limited to dry or semi-moist food, and Examiner has failed to provide evidence that “fines” are considered to have a size of less than 3 mm.
This is not persuasive since the evidence of record does not indicate criticality or unexpected results as explained above. Figure 1 shows the distribution including fines for examples 1-2 and reference examples 1-2. However, the data only shows results for a small number of component amounts (paragraphs 79 and 87; tables 1 and 2), and one of ordinary skill would not be able to determine if the results are commensurate in scope with the claimed ranges.
Further, the claims are directed to a product, where one of ordinary skill would have expected the product of the prior art combination having fines removed therefrom to be structurally and materially indistinguishable from the claimed product which allegedly prevents formation of fines. The combination renders obvious the claimed composition, where Hooss and Vincent provide suggestion and motivation to reduce the fines content of the product to the claimed range. While Hooss may not recite “wet” products, the reference still teaches a method of removing fines from a food product for the benefits taught by Vincent.
Furthermore, Reiser teaches the product comprises materials which are ground to between 100-350 micron (paragraph 54), and one of ordinary skill would have expected a non-zero amount of said materials to form “fines” in/on the product.
Additionally, Dake et al. as cited below shows that food material can be “finely” granulated to have a particle size of less than 3 mm. Petfood NPL as cited below teaches particle size is critical if the final product is a delicate shape of the die orifices are small e.g., for orifices less than 3 mm in diameter, the grind should be fine enough to ensure the largest particles are no longer than one-third of the die opening (page 4).
Applicant argues on pages 11-12 that Vincent fails to teach wet pet foods and fails to provide motivation to arrive at the binder composition as claimed, and suggests one of ordinary skill to modify the amount of starch to reduce fines, rather than the binder composition.
This is not persuasive since the reference is not relied on to teach the binder composition, which is already rendered obvious by modified Reiser. Vincent is relied on to show that it is desirable to reduce fines content, in general, to less than 1% for the disclosed benefits. Therefore, one of ordinary skill would have been motivated to remove fines from the product of Reiser in order to obtain the same advantages.
Applicant argues on pages 12-13 that Townshend and AOCS NPL fail to teach or suggest the claimed amounts of blood plasma and pea fiber, as well as a wet pet food composition that has the claimed amount of fines.
This is not persuasive for the same reasons stated above, where one of ordinary skill would have been motivated by the teachings of the respective references to modify Reiser to have the claimed amounts of blood plasma, pea fiber, and fines. Townshend and AOCS NPL are not relied on to teach the argued features.
Applicant’s argument against the dependent claims is not persuasive for the same reasons stated above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Dake et al. (US 2015/0305369 A1) teaches a protein composition (abstract), which can be processed into a “finely granulated or a powder form…smaller than 500 microns” or “particle size ranges from 1-2 mm” (paragraph 20).
Petfood NPL teaches particle size is critical if the final product is a delicate shape of the die orifices are small e.g., for orifices less than 3 mm in diameter, the grind should be fine enough to ensure the largest particles are no longer than one-third of the die opening (page 4).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/B.K/Examiner, Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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