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 .
Specification
The abstract of the disclosure is objected to because:
Line 2, replace “comprising:” with “including:”. Legalese style language is not permitted within the abstract. See MPEP 608.01 (b).
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The disclosure is objected to because of the following informalities:
In the section title “Brief Description of the Drawings”, Line 5 under this section title, replace “data;” with data.”
Appropriate correction is required.
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 9, 11-16, and 18 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 9 includes a process limitation in the form of “a hybrid product manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations”. However, the examiner notes that claim 1 appears to be in the form of a food product and package combination (a “product”). The examiner noting that the above noted recitation appears to be in the form of a process limitation/a product by process limitation for the “hybrid food product” as claimed. As such, it is indefinite and unclear as to whether the applicant is attempting to recite a manufacturing process as part of the claimed invention or whether this manufacturing step is just meant to a product by process limitation? The examiner noting that a product prepared under regulations does not accurately describe what the product is and/or the manner in which it was prepared. Consideration of how something is manufactured (i.e. a process of manufacturing) is a separate consideration for patentability purposes and is considered different statutory subject matter than a product manufactured by process steps; see MPEP 2106.03 A novel food product is required to be defined by what it is, not according to who might consume it or how it is marketed. If the preparation of the product materially affects the resulting product then the procedure should be specifically defined.
Claim 9 recites “a hybrid food product manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet.” However, the examiner notes that it is indefinite and unclear as to what constitutes “GMP regulations” in this instance as it is well known for standards and regulations to change over time. Additionally, it is indefinite and unclear to how the process of manufacture regarding GMP regulations actually makes a unique “hybrid food product” having unique properties beyond the product being “for consumption by both human and pet” as appears to have been previously argued by applicant?
Claim 16 recites “provided in a packaged snack form”. However, how does the limitation “packaged snack form” relate to the previously recited “package”? Additionally, it is indefinite and unclear as to what constitutes “snack form” over any type of previously designed package containing dog food?
Claim 18 recites “guaranteed safe for shared human-pet consumption.” However, it is indefinite and unclear as to what is being recited within this limitation? I.e., is this some sort of printed matter placed on the invention being claimed or is this just a general statement? Additionally, if this is just a general statement, it is indefinite and unclear as to how any food product can be “guaranteed safe” as all humans and/or pets have a plurality of issues which could result in any food product being unsafe for their consumption.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 11-16, and 18 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Nutritional information tables as claimed are considered nonfunctional printed matter and not limiting of the product and package combination. Identifying potential consumer information (human, pet, dog or cat) and food product identified as a snack does not further limit the scope of the invention. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 9, 11-16 and 11-18 are rejected under 35 U.S.C. 103 as being unpatentable over Lam (See References Cited, NPL section) in view of U.S. Patent No. 3,965,268 (Stocker) and “Current Good Manufacturing Practice Requirements for Food for Animals”.
Regarding Claims 9, 11-16 and 11-18, Lam teaches: Claim 9 - a hybrid food product and package comprising: a hybrid food product (dog food located inside package (AA)); and a package (AA) including one or more nutrition labels (BB and CC), (Annotated Figure Below); Claim 14 – wherein said one or more nutrition tables (CC) differentiate the nutrition values based on the dog’s weight, (Annotated Figure Below); Claim 16 – provided in a packaged snack form (AA), (Annotated Figure Below).
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Lam does not teach:
(A) The hybrid food product being targeted for both human and pet consumption (Claim 9); wherein each pet is a dog/cat (Claims 12 and 13); and wherein the same product is configured for consumption by humans, dogs and cats altogether (Claim 15).
(B) The hybrid food product being manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet (Claim 9); and wherein consumption of the product is guaranteed safe for shared human-pet consumption (Claim 18).
(C) An indication that the product is made and configured for shared eating by both human and pet; and the package also includes one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human (Claim 9); and wherein said one or more nutrition tables compare relative nutrition values of the product's ingredients for human and pet (Claim 11).
In regards to (A), Stocker teaches: Claims 9, 12, 13 and 15 - a hybrid food product being targeted for both human and pet consumption (Column 2, Lines 43-49), and wherein the product is configured for consumption by humans, dogs and cats altogether (Column 2, Lines 43-49; and the examples of the ingredients as described through Column 5, Line 30 - Column 8, Line 65 all contain ingredients edible by humans, cats and dogs). Therefore, it would have been obvious to one of ordinary skill in the art to modify the package of Lam to have the hybrid food product being targeted for both human and pet consumption (Claim 9); wherein each pet is a dog/cat (Claims 12 and 13); and wherein the same product is configured for consumption by humans, dogs and cats altogether (Claim 15) as taught by Stocker for the purposes of providing a hybrid food product which edible by both humans and pets alike.
In regards to (B), claim 9 is a product by process claim and the “hybrid food product” does not depend on the process of making it. The product-by-process limitation "manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet" would not be expected to impart distinctive structural characteristics to the “hybrid food product”. Therefore, the claimed “hybrid food product” is not a different and unobvious “hybrid food product” from the hybrid product of Lam as modified by Stocker. Alternatively, “Current Good Manufacturing Practice Requirements for Food for Animals” teaches: Claims 9 and 18 - food products being manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet (Pages 8 and 9), wherein consumption of the product is guaranteed safe for shared human-pet consumption. Therefore, it would have been obvious to one of ordinary skill in the art to modify the package of Lam as modified by Stocker to have the hybrid food product being manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet (Claim 9); and wherein consumption of the product is guaranteed safe for shared human-pet consumption (Claim 18) as taught by “Current Good Manufacturing Practice Requirements for Food for Animals” for the purposes of making sure the hybrid food product is safe for consumption by both humans and animals alike.
In regards to (C), the limitations of “An indication that the product is made and configured for shared eating by both human and pet; and the package also includes one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human (Claim 9); wherein said one or more nutrition tables compare relative nutrition values of the product's ingredients for human and pet (Claim 11)” are all considered to constitute nonfunctional printed matter that does not distinguish the claim product from otherwise identical prior art products as taught by Lam as modified by Stocker and “Current Good Manufacturing Practice Requirements for Food for Animals” as described above (See MPEP section 2112.01, section III. PRODUCT CLAIMS – NONFUNCTIONAL PRINTED MATTER DOES NOT DISTINGUISH CLAIMED PRODUCT FROM OTHERWISE IDENTICAL PRIOR ART PRODUCT). Specifically, the printed matter limitations of claims 9 and 11 fail the two-part printed matter test. First, the limitations of “An indication that the product is made and configured for shared eating by both human and pet; and the package also includes one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human (Claim 9); wherein said one or more nutrition tables compare relative nutrition values of the product's ingredients for human and pet (Claim 11)”; qualify as printed matter as they are both “printed lines or characters, useful and intelligible only to the human mind” and “indicia whose primary purpose is the conveying of intelligence to a reader”. Secondly, the printed matter does not distinguish the invention from the prior in terms of patentability as there does not exist any new and unobvious functional relationship between the printed matter and the physical invention constituting the package and the hybrid food product. Specifically, the prior art invention of Lam teaches printed matter showing nutritional values of the food product; while also showing the nutritional values based on the user of the product. Thus, the printed matter of the current invention would not be expected to impart any information beyond what already exists in terms of presenting nutritional information to the user of a product including a package containing food products. In other words, package labelling including nutritional tables and product information including a serving size is common practice in marketing consumable products. It would have been obvious to one of ordinary skill in the art to include product information as claimed including nutritional tables and information considerations, i.e. a serving size according to averages, etc., of a marketed consumer. Furthermore, note that regulations exist for compliance in industries and are well known considerations prior to, during and after the regulations are passed into law/agreed upon etc. One of ordinary skill in the art would be aware of any regulations governing a food product preparation and packaging.
Response to Arguments
Applicant's arguments filed on both 08/08/24 and 09/22/25 have been fully considered but they are not persuasive. The examiner notes that applicant has incorporated arguments presented in the previously filed appeal brief of 08/08/25 in their arguments as presented on 09/22/25; as noted on page 5, section (a) of the applicant’s arguments as filed on 09/22/25. Thus, the response to the arguments below present responses to the arguments provided in the appeal brief on 08/08/24, and then respond to the arguments submitted on 09/22/5 which are in repose to examiner’s arguments presented in the Examiner’s Answer to the Appeal Brief as filed on 03/19/25.
To begin, in the Appeal Brief as filed on 08/08/24, the applicant argued with regards to the 112 rejections noted in the Non-Final Rejection filed 07/31/23:
“The Office Action argues that "Claim 9 includes a process limitation "manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations”, however is directed to a food product and package combination. Note again that a product prepared under regulations does not accurately describe what the product is and/or the manner in which it was prepared. Consideration of how something is manufactured (ie. a process of manufacturing) is a separate consideration for patentability purposes and is considered different statutory subject matter than a product manufactured by process steps; see MPEP 2106.03."
Applicant, however, believes that this 112 rejection is wrong. While MPEP 2106.03 indeed defines four different categories of patentable subject matter, namely, (a) a machine, (b) a manufacture, (c) a composition of matter, and (d) a process (or method), MPEP 2106.03 clearly indicates that “It is not necessary to identify a single category into which a claim falls, so long as it is clear that the claim falls into at least one category... It is also not necessary to identify a “correct” category into which the claim falls, because although in many instances it is clear within which category a claimed invention falls, a claim may satisfy the requirements of more than one category”. MPEP 2106.03 provides several valid claim cases spanning at least two categories. Therefore, whether or not claim 9 refers to two categories is irrelevant, as this allegation cannot form a reason to invalidate the claim. (See Page 10 of the Appellant’s Arguments filed in the Appeal Brief of 08/08/24)”
However, the examiner disagreed with Appellant’s analysis. First, the examiner noted that the limitation in question is the limitation of “a hybrid food product manufactured in a single production line under strict GMP Good Manufacturing Practice) regulations required for consumption by both human and pet” from claim 9. This limitation can be broken down into two components, with the first component being a product in the form of “a hybrid food product”, and the second component being a process of manufacture in the form of “manufactured in a single production line under strict GMP Good Manufacturing Practice) regulations required for consumption by both human and pet.” The 112b rejection in this instance arises because it is indefinite and unclear as to whether the process of manufacture limitation for making the product limitation needs to be considered in terms of patentability or as to whether the process of manufacture limitation only amounts to a product-by-process limitation within a product claim. Specifically, it has been held that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. (See MPEP section 2113)”. In this instance, when the process of manufacture limitation regarding GMP regulations is considered to constitute a product by process limitation, the limitation noted in claim 9 only appears to imply that the “hybrid food product” must be capable of “consumption by human and pet.” I.e., a prior art product only needs to teach a “hybrid food product… for consumption by human and pet.” In order for the process of manufacture limitation regarding GMP regulations to hold weight the applicant must come forward with evidence establishing a nonobvious difference between the claimed product and the prior art product (MPEP section 2113). As noted in the previous Non-Final Rejection dated 07/31/23, the examiner notes that it is indefinite and unclear as to how the process of manufacture regarding GMP regulations actually makes a unique “hybrid food product” having unique properties beyond the product being “for consumption by both human and pet” as appears to have been previously argued by Appellant? While Appellant appears to have argued that the process of manufacture using GMP regulations does indeed create unique properties for the “hybrid food product”, the examiner notes that Appellant’s own arguments and additional factors have made it clear that not enough evidence has been provided to indicate that the process of manufacture using GMP regulations actually provides unique properties to the hybrid product to take the process of manufacture beyond just a simple product by process limitation. This reasoning for this is further explained below.
Within claim 9, the examiner additionally first noted that Appellant appears to referring to a process of manufacture in the limitation of “GMP (Goof Manufacturing Practice) regulations” which does not appear to actually exist. Specifically, claim 9 recites “manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations…” However, as per Appellant’s own admission, GMP regulations require the use of separate production lines for humans and pets. The Appellant states on page 6 of the Appeal Brief “Note that the FDA enforces GMP regulations for manufacturing and packaging of human food products, and the FDA enforces different GMP regulations for manufacturing and packaging of pet food products, and these two GMP regulation sets are not identical. Therefore, meeting both at the same production line requires awareness to both human and pet sets of GMP regulations, and taking the necessary steps to meet each of them.” This appears to actually imply that official GMP regulations do NOT explicitly explain regulations for using a “single production line” for both humans and pets as recited in claim 9. Therefore, the “GMP regulations” as recited in claim 9 appear to be the Appellant’s own combination of existing GMP regulations. A review of Appellant’s disclosure and the FDA website which explains Good Manufacturing Practice does not appear to explicitly show regulations for using a “single production line” for both humans and pets. Therefore, as there does not appear to be any explanation as to what “GMP regulations” are and are not applied in a “single production line”, it is indefinite and unclear as to how the process of manufacture limitation as noted in claim 9 would actually affect the “hybrid food product” beyond claim 9 stating that it must be safe for “consumption by both human and pet.” Additionally, Appellant has not provided any nexus between actual GMP regulations and the claimed hybrid food product which would explain why the GMP regulations create any unique aspect to the “hybrid food product” as claimed. Additionally, a review of FDA website for a “hybrid food product” in the context of both a human and a pet appears to be non-existent. Finally, the examiner additionally notes that the declaration of NISSAN fails to provide any additional information regarding a nexus between the GMP regulations under a single production line and the limitations as recited and is thus not convincing in overcoming the 112b rejections noted in the Non-Final Rejection.
In response to the arguments provided by the examiner as noted above, the applicant argued on 09/22/25, the following with regards to an affidavit filed on 09/22/25:
“(c) In brief, Rosenblatt's declaration concludes that: "Given all the above, I believe that there is no problem in applying both the GMP standards of humans and the GMP standards of pets to a single-unified production line, thereby producing a "hybrid product" as described in the Application. In fact, any production line on which the GMP standards for humans are strictly applied, also meets the GMP standards for pets, when two adaptations are made: (a) exclusion of harmful or toxic material detailed in the GMP standards for pets; and (b) meeting the packaging requirements, particularly indicating on the package nutrition tables and doses for both human and pets. An existing production line for humans is therefore a suitable starting point for producing the hybrid product, as suggested by the Application. I see no significant obstacles or challenges for a food technologist in obtaining such a unified production line strictly meeting GMP regulations for both humans and pets." Rosenblatt's conclusion shows that the alleged non-existence of a unified set of GMP regulations for both humans and pets does not introduce any significant challenge or problem to a food technologist in producing the product of claim 9 (See Pages 6 and 7 of the arguments filed on 09/22/5).”
However, the examiner notes that Rosenblatt’s declaration states “there is no problem applying both the GMP standards of humans and the GMP standards of pets to a single unified production line…” The key phrase being “there is no problem applying…”, in which the expert appears to state that it would have been obvious to combine two separate regulations in the form of (1) human GMP standards, and (2) pet GMP standards. I.e., the expert does NOT state that at the time the invention was created, a GMP standard actually existed for manufacturing the hybrid product for both humans and pets in a single production line under strict GMP (Good Manufacturing Practice). I.e., the expert appears to be stating that one of ordinary skill in the art could pick and choose between the human GMP standards and pet GMP standards to create their own standard. However, there is no evidence that this would comply with the origination responsible for GMP standards.
In response to the arguments provided by the examiner as noted above, the applicant additionally argued on 09/22/25, the following with regards to an affidavit filed on 09/22/25:
“In response, and as noted above, Rosenblatt's declaration clearly indicates that there are no significant challenges or obstacles in applying the two (humans and pets) GMP regulations in one production line (see section (c) above). In addition, Rosenblatt's declaration clearly supports the fact that the simultaneous enforcement of the two GMP regulations (for humans and pets) within a single production line does affect the ingredients included in the product and those excluded. It therefore provides a healthier product that is suitable for human-pet food sharing. Therefore, this answers the Examiner's arguments in the Answer, stating that "If the preparation of the product materially affects the resulting product, then the procedure should be specifically defined." Applicant believes that claim 9 fully defines a procedure of that affects the product. New claim 18 emphasizes that the food product of claim 9 is "guaranteed safe for shared human-pet consumption", given that it meets the GMP regulations for both humans and pets.
Therefore, Applicant believes that the 112b requirements are met by claim 9, and that the rejection 112b should be withdrawn. As noted, the Director has already recognized that the alleged non-existence of a unified set of GMP regulations was a "basic thrust" of the 112b rejection, and Rosenblatt's declaration effectively addresses this basic thrust. (See Page 8 of the Applicant’s Arguments noted on 09/22/5).”
AND
“The Answer again bases its alleged 112b rejection solely on the alleged non- existence of common GMP regulations for both humans and pets. However, again, Rosenblatt's declaration, items 7-12, shows that there is no problem in applying both (humans and pets) GMP regulations within a single food production line to produce the hybrid product of claim 9. The Specification teaches a skilled person all the required elements for applying both GMP regulations on a single food production line (in terms of ingredients, packaging, nutrition tables, etc). Therefore, claim 9 meets the 112b requirements for this reason as well. (See Page 9 of the Applicant’s Arguments noted on 09/22/5)”
However, the examiner again notes the expert does NOT state that at the time the invention was created, a GMP standard actually existed for manufacturing the hybrid product for both humans and pets in a single production line under strict GMP (Good Manufacturing Practice). I.e., the expert appears to be stating that one of ordinary skill in the art could pick and choose between the human GMP standards and pet GMP standards to create their own standard. However, there is no evidence that this would comply with the origination responsible for GMP standards.
In response to the arguments provided by the examiner as noted above, the applicant additionally argued on 09/22/25, the following with regards to an affidavit filed on 09/22/25:
“(f) Nissan's declaration emphasizes the significant advantages of the hybrid food product of the invention, as follows: "Given all the above, it is my opinion that there is a necessity for processed food products that are purposely produced under strict Good Manufacturing Practice (GMP) for humans and pets. Such products guarantee the health of both the human and the pet, enable a human to safely share food with his pet, and could significantly broaden my toolbox for successfully treating my patients. Providing appropriate indications and nutritional tables simultaneously for humans and pets on the package are expected to improve health and enable safe food sharing to intensify the bonds between humans and their pets. [section 10 of Nissan's declaration]" Nissan provides examples of how people who currently share food with their pets are unaware that they may be damaging the pets' health, which could even result in the pet death [Nissan's declaration, section 9]. Moreover, the application pages 3+ and Nissan's declaration provide examples of how the hybrid food product can improve the bond between humans and their pets, and may also safely assist in medical treatments [Nissan's declaration, section 7]. It seems that the Answer does not refer to, nor consider any of these advantages. Finally, the above advantages are also supported by Rosenblatt declaration, item 13, stating: "I also believe that the production of a hybrid food product meeting the GMP standards of both humans and pets is very unique and valuable. Such a hybrid product can allow people to safely share the hybrid food with their pets without any concern for their pets' health, as it is guaranteed to be safe for both humans and pets. This is in clear contrast to the current situation, where many people are unaware that they are jeopardizing their pets' health by giving them human food that may include harmful, even toxic, ingredients for the pets." (See Page 10 of the Applicant’s Arguments)”
However, the examiner notes that the affidavit along with applicant arguments has not successfully addressed how the resulting food product would be different from food products noted in the prior art. Specifically, at best the affidavit (items 6-15) and the applicant arguments only point to generic concepts of GMP creating food products which are safe for consumption by humans and pets alike without pointing to any specific regulations. It being noted by the examiner that food products are well known to be manufactured to be edible and safe for consumption. I.e., production of foods which are unsafe for consumption is NOT the normal state of the art. Thus, is not clear as to how a GMP standard, which would be made up by one of ordinary skill in the art as noted above, would actually result in a food product which is unique form what is commonly found in the art. Finally, as noted in the rejections above, the examiner has introduced new prior art reference, noted as “Current Good Manufacturing Practice Requirements for Food for Animals”, which teaches human and pet food products being subject to GMP regulations. The examiner noting that if the expert and the applicant are conjecturing that one of ordinary skill in the art could have combined the human and pet GMP standards as noted in applicant’s arguments; this necessarily means that one of ordinary skill in the art also would have been capable of combining the human and pet GMP standards as noted in the prior art reference of “Current Good Manufacturing Practice Requirements for Food for Animals”.
In the Appeal Brief as filed on 08/08/24, the applicant argued with regards to the obviousness rejections noted in the Non-Final Rejection filed 07/31/23:
“The Office Action practically admits that Stocker lacks the teaching of "a hybrid food product manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet" as in claim 9.
The Office Action merely indicates that "Stocker discloses a nutritional food product made of ingredients fit for both human and animal consumption considered a proper snack food; see column 1, lines 20+ [item 7, Office action dated 7/31/2023]". However, while the basic ingredients of Stocker's product could be suitable for humans and pets, Stocker clearly differentiates between specific production lines for humans and others for pets. For example, in examples I, Ill, IV, V, VI, VII, VIII, IX, X, and XI of Stocker, pets are not at all mentioned, and it is assumed that the respective product is intended for humans only, and they are not "... manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet" as in present claim 9. Only in examples II, XII, and XIII are pets and respective pet food cans mentioned, but humans are entirely ignored. For example, in col. 5, Example II Stocker suggests: "The product of Example I may be used as a partial replacement for meat in a canned pet food as follows:..." and in Col. 6 line 17: "... The canned pet food product is retorted for 60 minutes...". More specifically, by clearly indicating that the food's can is intended for a pet (not human and pet), Stocker teaches away from the single production line and from the subjection to both human pet GMP regulations as in claim 9. Moreover, in these later examples of Stocker's pet food, the nutrition tables clearly refer to pets only. Therefore, Stocker clearly suggests two separate GMP production lines (most probably also in two different factories), one for humans and another for pets. Stocker's invention is about an edible protein product which is a meat-like substitute. While some of Stocker examples refer to human food implementation, and other refer to pet food implementation, Stocker does not refer, nor implies, whatsoever, to a hybrid implementation as in present claim 9. Obviously, countless food products (whether patented or not) are suitable for human's food and for pet's food. This obvious fact has nothing to do with the current invention. Therefore, each of Stocker's production lines is just like any existing (traditional) food production line in the industry. By making such a separation and distinction, namely, avoiding a pet-human mutual production line strictly meeting GMP regulations for both humans and pets, and by avoiding a mutual package meeting GMP human-pet regulations (including labeling and nutrition values for both humans and pets), Stocker teaches away from the invention. It is clear that the scope of the present invention has nothing to do with Stocker and that Stocker does not refer (nor intends to refer) to anything related to the scope of present claim 9. (See Page 11 and 12 of the Appellant’s Arguments in the Appeal Brief Filed 08/08/24)”
However, the examiner disagreed. The examiner first noted that as discussed above, the process of manufacture limitation “manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations” appears to constitute a product-by-process limitation which does not affect the actual product of the “hybrid food product.” Specifically, claim 9 is a product by process claim and the “hybrid food product” does not depend on the process of making it. The product-by-process limitation "manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations" would not be expected to impart distinctive structural characteristics to the hybrid food product. Therefore, the claimed hybrid food product is not a different and unobvious hybrid food product from the hybrid food product of Stocker. Stocker thus only being required to teach “a hybrid food product… for consumption by human and pet.”
In response to the arguments provided by the examiner as noted above, the applicant additionally argued on 09/22/25, the following with regards to an affidavit filed on 09/22/25:
“Applicant disagrees. As noted above, and confirmed by Rosenblatt's declaration item 6(b), each of the two GMP (human and pet) regulations defines ingredients that are allowed to be included, and those that must be excluded from the product. Therefore, the simultaneous enforcement of both regulations within a single production line (which is feasible - see Rosenblatt's declaration) does affect the product's ingredients in a manner that is not obvious in view of Stocker (which always suggests two distinguished production lines), and with no doubt, advantageous (see above discussion of Nissan's declaration). (See Page 12 of the Applicant’s Arguments)”
However, the examiner now notes that the previous rejection which the applicant argued against has been replaced with the rejections noted above. Thus, most of applicant’s previous arguments against the obviousness rejection presented in the Non-Final Rejection of 07/31/23 is now moot. The examiner noting that a new prior art reference has been introduced, noted as “Current Good Manufacturing Practice Requirements for Food for Animals”, which teaches human and pet food products being subject to GMP regulations. The examiner noting that if the expert and the applicant are conjecturing that one of ordinary skill in the art could have combined the human and pet GMP standards as noted in applicant’s arguments; this necessarily means that one of ordinary skill in the art also would have been capable of combining the human and pet GMP standards as noted in the prior art reference of “Current Good Manufacturing Practice Requirements for Food for Animals”.
In the Appeal Brief as filed on 08/08/24, the applicant additionally argued with regards to the obviousness rejections noted in the Non-Final Rejection filed 07/31/23:
“Therefore, Stocker's product is potentially unhealthy, even dangerous for human-pet sharing, not only because mutual tables are not included on his package, but mainly because it has been produced under a single (human OR pet) GMP set of regulations, not simultaneously under both. Therefore, like any other prior art food product, Stocker's product cannot resolve the significant prior art drawbacks relating to a shared consumption indicated in the description (for example, page 4,4th paragraph) nor those indicated in the Nissan's declaration. (See Page 12 of the Appellant’s Arguments in the Appeal Brief filed 08/08/24)”
However, the examiner noted that these arguments failed to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. The statements regarding the hybrid food product of Stocker being unhealthy or dangerous are mere allegations based on no evidence.
In response to the arguments provided by the examiner as noted above, the applicant additionally argued on 09/22/25, the following with regards to an affidavit filed on 09/22/25:
“Applicant disagrees. Stocker's product is not a "hybrid food." As suggested by Stocker, it may be applied to human food products as well as to pet food products. Therefore, the assertion that "Stocker's product is potentially unhealthy, even dangerous, for human-pet sharing" is not merely an allegation. It reflects the factual reality that any food intended for human consumption may be unsafe for pets, and vice versa. The Applicant already showed several issues by which the wording of claim 9 distinguishes over the cited reference, at least as follows: Neither Stocker nor any other publication teaches (a) " a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet"; likewise, (b) " a package including an indication that the product is made and configured for shared eating by both human and pet..." and (c) " the package also includes one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human.
Moreover, Applicant indicated that Stocker's product is potentially unhealthy. Applicant has already provided many examples indicating that providing the pet with food that is GMP guaranteed for humans only, is not necessarily health- guaranteed for the pets. Surely, providing humans with Stocker's canned pet food that was subjected to GMP for pets only is not recommended for humans. Even though this fact does not require proof, the mere existence of two distinct GMP regulations demonstrates that a food product subjected to only one of the GMPs cannot be considered safe for both humans and pets. The invention, however, provides a hybrid product that is guaranteed safe for consumption for both humans and pets, assuming that the consumer follows the instructions given on the package, as detailed by claim 9.
As indicated by claim 9, the invention relates to a combination of " A food product and package thereof targeted for both human and pet " The Applicant has already showed above why claim 9 is consumption novel and inventive over Stocker (or any known prior art), at least given the fact that "a hybrid food product manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet;" has never been suggested. Not only that, the prior art has never suggested the combining of said single production line with the additional features of " a package including an indication that the product is made and configured for shared eating by both human and pet; and the package also includes one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human." (See Pages 13 and 14 of the Applicant’s Arguments)”
However, the examiner disagrees. The examiner first notes that applicant has not clearly defined what constitutes a “hybrid” food product. Therefore, applicant stating that the food product of “Stocker” is not a “hybrid”, food product, is a mere allegation of patentability as there is no clearly defined definition for “hybrid”. Additionally, there is nothing within GMP regulation suggesting a definition of a “hybrid” food product. Even if applicant posited that a “hybrid” food product is one that complies with GMP regulations as defined in claim 9; the examiner again notes that the GMP regulation within claim 9 has been indicated to be one that one of ordinary skill in the would have created at the time of the invention, and did not explicitly exist. Finally, the examiner again noting that a new prior art reference has been introduced, noted as “Current Good Manufacturing Practice Requirements for Food for Animals”, which teaches human and pet food products being subject to GMP regulations. The examiner noting that if the expert and the applicant are conjecturing that one of ordinary skill in the art could have combined the human and pet GMP standards as noted in applicant’s arguments; this necessarily means that one of ordinary skill in the art also would have been capable of combining the human and pet GMP standards as noted in the prior art reference of “Current Good Manufacturing Practice Requirements for Food for Animals”. The examiner noting that the food products as taught by reference “Current Good Manufacturing Practice Requirements for Food for Animals”, would clearly be safe for consumption.
In the Appeal Brief as filed on 08/08/24, the applicant additionally argued with regards to the printed matter rejections noted in the Non-Final Rejection filed 07/31/23:
“Neither Stocker nor any other known or cited publication suggests that "the package also includes one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human" as in claim 9. Not only does this deficiency in Stocker provide additional proof that the food of Stocker is not configured for shared human-pet consumption, but these mutual human-pet tables enable the consumer to plan the ratios of human-pet sharing. Moreover, the lack of mutual nutrient tables in Stocker is by itself a proof that the food of Stocker is not configured for shared human-pet consumption. This element is also entirely missing from Stocker. While the Office Action is right in stating that nutritional tables and product information, including a serving size, is common practice in marketing consumable products, the art has never suggested the inclusion of mutual human-pet serving tables on the package. The inclusion of the mutual table on the package is not merely informative but, in contrast, has a functional purpose. First, and as stated above, including the mutual table is not the only factor (standing alone) providing novelty to claim 9. In contrast, novelty and inventiveness come from a combination of several factors. Moreover, the scale-like indications on the package are, in the Applicant's opinion, functional, allowing the consumer to plan a healthy and proportional consumption rate suitable for the human and pet food sharing. Even if the Trial and Appeal Board will determine that the inclusion on the package of "...nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human...[claim 9]", or that "one or more nutrition tables compare relative nutrition values of the product's ingredients for human and pet... [claim 11]" do not, by themselves, add to the claim patentable values, it is well established that "a claim must be read as a whole, USPTO personnel may not disregard claim limitations that include printed matter" [MPEP 2111.05]. Applicant believes that the inclusion on the package of simultaneous human-pet tables are by themselves at least novel, as the prosecution has failed to show any of such prior art disclosure. In any case, these aspects should not be evaluated alone, but to the contrary with the whole context of the claim. Claim 9, and likewise claim 11 provide a novel and patentable hybrid product which is "...manufactured in a single production line under strict GMP (Good Manufacturing Practice) regulations required for consumption by both human and pet..". The indications on the package (a) certify the safety of using the hybrid product; (b) reduce the natural fear of using the packaged hybrid food product; and (c) provide simultaneous details required for safe use, such as those indicated on page 7 last two paragraphs of the description, for the human and the pet (such as, serving size, calories, nutrition values for serving, etc.). By including all the aspects of claim 9, the claim provides a complete solution for the novel and inventive hybrid product and its package. (See Pages 12 and 13 of the Appellant’s Arguments)”
However, the examiner noted that the “indication” and the “one or more nutrition labels” as recited in claim 9 amount to printed matter (MPEP section 2111.05). The determination as to whether a limitation constitutes printed matter involves two steps. First step, the examiner determines as to whether the involved limitations involve printed matter. In this instance, both the “indication” and the “one or more nutrition labels” appear to contain information for display and are thus considered to constitute printed matter. This first step does not appear to be argued by Appellant. The second step is to determine whether the printed matter is functionally or structurally related to the associated physical substrate. This second step does appear to be argued by the Appellant who argues that the printed matter in the form of the “indication” and the “one or more nutrition labels” allows the consumer to plan a healthy and proportional consumption rate suitable for the human and pet food sharing. However, the examiner disagrees and notes that the printed matter of the “indication” and the “one or more nutrition labels” do not pertain to the actual structure of the apparatus as claimed (the hybrid food product and the packaging), but rather a method of applying a diet or a nutrition plan of a user of the product. The user not being required to follow any such diet or nutrition plan. As such, the examiner asserts that the “indication” and the “one or more nutrition labels” qualify as printed matter. Contrary to the Appellant’s above noted argument that "a claim must be read as a whole, USPTO personnel may not disregard claim limitations that include printed matter" [MPEP 2111.05]”; MPEP 2111.05 states that upon determination that limitations constitute printed matter based upon the two steps as noted above, the printed matter may be given no patentable weight. MPEP 2111.05 stating "[O]nce it is determined that the limitation is directed to printed matter, [the examiner] must then determine if the matter is functionally or structurally related to the associated physical substrate, and only if the answer is ‘no’ is the printed matter owed no patentable weight." Therefore, Appellant’s arguments regarding both the “indication” and the “one or more nutrition labels” are moot as they are considered printed matter and are given no patentable weight.
In response to the arguments provided by the examiner as noted above, the applicant additionally argued on 09/22/25, the following with regards to printed matter:
“However, the above argument isolates the features of the "indication" and the " one or more nutrition tables" on the package from the " hybrid food product manufactured in a single production line..." feature. Applicant believe that the "hybrid product and package", and their related features as drafted in claim 9 are inseparable and should be examined as a combination. The Applicant believes that all the claim features should be considered in combination. Isolating features and considering each one alone is inappropriate in this specific case. While the Applicant showed that novelty and inventiveness exists with respect to the " hybrid food product manufactured in a single production line", at least given the declarations of Nissan and Rosenblatt, the "indication" and the "one or more nutrition tables detailing both human nutrition values and pet nutrition values, as required by GMP regulations for both pet and human" add aspects that are at least novel. The combination of claim 9 is absolutely novel and inventive, given that, for centuries, the art has always distinguished between the two production lines, and kept remotely such a combination. The applicant also retains all his arguments relating to printed matter issues that were previously included in the Appeal's Brief. (see Page 15 of the Applicant’s Arguments)”
However, the examiner notes that this appears to a mere allegation of patentability. The above noted arguments for the limitations in question constituting printed matter has not been directly addressed. See section MPEP 2111.05 of the MPEP which discusses printed matter. Specifically, applicant should address the two parts of the printed matter rejection presented in the rejection above.
The applicant additionally argued on 09/22/25, the following with regards to OFFICIAL NOTICE:
“Applicant disagrees. The Office Action dated May 2, 2023, states: "However the examiner takes OFFICIAL NOTICE that package labelling including nutritional tables and product information including a serving size is common practice in marketing consumable products. It would have been obvious to one of ordinary skill in the art in the invention to Stocker to include product information as claimed including nutritional tables and information considerations ie. a serving size according to averages, etc. of a marketed consumer." [Page 4, 1st par. of the Office Action] (See Page 16 of the Applicant’s Arguments)”
However, the examiner notes that the rejection with regards to OFFICIAL NOTICE is now moot, as the OFFICIAL NOTICE has been removed from any rejection noted above.
Finally, the applicant additionally argued on 09/22/25, the following with regards to claim 18:
“(j) New claim 18 is novel and inventive, as a hybrid product which is "guaranteed safe for shared human-pet consumption" has never been proposed, particularly in conjunction with all features of claim 9, on which claim 18 depends. (See Page 16 of the Applicant’s Arguments)”
However, claim 18 has been rejected in view of newly presented reference, “Current Good Manufacturing Practice Requirements for Food for Animals”, as provided above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Josh Rodden whose telephone number is (303) 297-4258. The examiner can normally be reached on M-F, 8-5 MST.
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/JOSHUA E RODDEN/Primary Examiner, Art Unit 3642