DETAILED ACTION
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, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02 March 2026 has been entered.
Status of Application
Claims 11, 12, 17 and 18 are pending. Claims 1-10, 13-16 and 19 have been cancelled. The previous 112(b) rejections have been withdrawn in view of applicant’s amendments to the claims. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
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.
Claims 11-12 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Sunvold (US 2010/0303978 A1).
Regarding claims 11-12 and 17, Sunvold discloses a process of making a pet food comprising extruding a mixture to form a core pellet, providing a coating, wherein the coating comprises a vitamin; and applying the coating to the core pellet to form a coated kibble (Abstract). Sunvold discloses the pet may be a dog [0020]. Sunvold discloses the coating is applied to increase animal preference of the food (a palatable dog food/obtaining a palatable dog food) [0039].
Sunvold discloses the kibble can be coated with a vitamin coating [0104] and the vitamin can be ascorbic acid (PECa) [0051]. Sunvold discloses the vitamin coating can include a palatant component [0104]. Sunvold does not require ascorbyl palmitate in the composition, therefore the process of Sunvold meets the claim limitation of ascorbyl palmitate is excluded as a derivative of ascorbic acid.
Sunvold discloses the coating can comprise several coating components including 1-10 wt% a palatant component and the palatant can be liquid digest derived from chicken livers (a palatability enhancer in liquid form) [0058]. Sunvold discloses brewers dried yeast as an optional ingredient [0037] and yeast is therefore not a required ingredient.
Sunvold does not disclose a specific embodiment with a coating comprising ascorbic acid and the palatant component of liquid digest derived from chicken livers, however, since Sunvold discloses the coating can comprise several components [0040] and the kibble can have more than one coating and each of these coatings can be comprised of any of the coating components described in the document [0041], it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make a coating of ascorbic acid and the palatant component because Sunvold discloses making multiple coatings comprised of mixtures of the coating components disclosed.
Sunvold’s disclosure of 1-10 wt% of the palatant component in the coating results in greater than 90-99 wt% of the coating comprising the ascorbic acid, which falls within the claimed range of 0.01-99.99 wt % of the PECa (ascorbic acid) in the PECb.
Sunvold discloses the kibble can have more than one coating and each of these coatings can be comprised of any of the coating components described in the document [0041]. Sunvold discloses the coating can be a binder and the binder can be lipids and lipid derivatives such as plant and animal fats [0048].
Sunvold discloses the finished coated kibble comprises less than 0.2 wt% of the vitamin component [0110], which falls within the claimed range of 0.0016-0.3 wt%.
Additionally, Sunvold discloses the coating from 10-20 wt% of the finished coated kibble and the coating can comprise 1-10 wt% palatant (animal digest) [0058], which results in a finished coated kibble comprising 0.1-2 wt% palatant (animal digest). When combined with the disclosure that the finished coated kibble comprises less than 0.2 wt% of the vitamin component, the finished coated kibble of Sunvold comprises 0.1-2.2 wt% of palatant and vitamin component combined (PECb), which falls within the claimed range of 0.001-5 wt%.
Regarding the claim language “palatable dog food” this language is deemed to be an intended use of the composition prepared by the claimed method. In method claims, a claimed intended use must result in a manipulative difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. MPEP 2111.02. Given that the pet food of Sunvold is identical to that of the presently claimed in terms of process, it meets the intended use of the claimed method.
Additionally, Sunvold discloses the coating is applied to increase animal preference of the food which is considered to provide a palatable dog food [0039].
Regarding the order of steps, Sunvold does not disclose the order of coating with the fat, palatant and vitamin component. However, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. MPEP 2144.04 IV. C.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Sunvold (US 2010/0303978 A1) as applied to claim 11 above, and further in view of Yamka (US 2012/0289598 A1).
Regarding claim 18, Sunvold discloses the dog food of claim 11, including the coating comprising animal digest and ascorbic acid.
Sunvold does not disclose the ascorbic acid salts.
Yamka, in the field of enhancing palatability of edible food compositions for companion animals (Abstract), discloses the companion animal may be a dog [0027]. Yamka discloses the food may comprise antioxidants to stabilize the food and increase shelf life [0105] and the antioxidant may be vitamin C, ascorbic acid, or can be administered as ascorbic acid phosphate salts and cholesteryl salt which will function in a vitamin C like activity after ingestion by the pet [0107].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substituted the ascorbic acid phosphate salts or cholestryl salt of Yamka for the ascorbic acid of Sunvold because Yamka discloses the ascorbic acid salts will function with vitamin C (ascorbic acid) like activity after ingestion by the pet and the substitution of equivalents known for the same purpose (here to provide vitamin C activity) is obvious. MPEP 2144.06 II.
Response to Arguments
Applicant's arguments filed 02 March 2026 have been fully considered but they are not persuasive.
Applicant requests a reconsideration of the Rule 132 Declaration filed 26 September 2025 since the claims have been amended to be commensurate in scope with the experimental data presented with arguments towards unexpected results. Remarks p4.
The argument as to unexpected results is not persuasive. The Declaration filed 26 September 2025 has been reconsidered. The arguments therein are not considered persuasive. The declaration argues, with respect to the previous arguments for unexpected results when ascorbic acid is included at rates higher than 0.0016% in the final feed, the experiment designed for the specification was chosen as to be the most scientifically valid by not changing the amount of the total palatability enhancer in the experimental test food vs the control test food. Declaration p2.
The design choice for the experiment for consistency is appreciated, however regardless of the choice of experimental design, the data in the specification is not sufficient to show unexpected results to overcome the current art rejection. Applicant has not demonstrated unexpected results relative to the disclosure of Sunvold. Sunvold discloses the process of making the palatable dog food of claim 11, including all the recited method steps and quantities of ascorbic acid and palatants.
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
Applicant’s remaining arguments with respect to claims 11-12 and 17-18 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Remarks pp5-7.
Conclusion
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
/C.L.G./Examiner, Art Unit 1793