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 .
Status of the Claims
Acknowledgement is made of the response filed on August 15, 2025. In that response, claim 1 was amended. Claims 1, 2, 6, 9-11, 15, 31, and 36 are treated on the merits in this action. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The following rejection is maintained with modifications to address the claim amendment.
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, 2, 6, 9-11, 15, 16, 31, and, 36 are rejected under 35 U.S.C. 103 as being unpatentable over Fleuranges (US 2012/0129785) as evidenced by and in view of Donadelli (Donadelli, R.A. & Aldrich, C.G., The effects on nutrient utilization and stool quality of Beagle dogs fed diets with beet pulp, cellulose, and Miscanthus grass, J. of Animal Science, 2019, 4134-30; see IDS filed 04/21/2025).
Fleuranges teaches pet food compositions comprising “about 20 wt.% to about 40 wt.% of crude protein on a dry matter basis, about 5 wt.% to about 15 wt.% of crude fat on a dry matter basis, about 10 wt.% to about 30 wt.% of total dietary fiber on a dry matter basis, and about 10 wt.% to about 20 wt.% of crude fiber on a dry matter basis” (para.0035 (emphasis added) ; see title; abstract; claims 1-23). Fleuranges teaches using beet pulp, and anti-inflammatory ingredient including rosemary (paras.0044, 0053, 0062, 0064, 0068
Fleuranges’s concentration range of crude fat is “about 5 wt.% to about 15 wt.%” which includes the “10 wt.% to 14 wt.%” in claim 1. Fleuranges’s “about 10 wt.% to about 30 wt.%” for the total dietary fiber overlaps the “greater than 30 wt.%” in claim 1. Fleuranges’s concentration range of crude protein is “about 20 wt.% to about 40 wt.%” which overlaps the “15 wt.% to 20 wt.%” in claim 36. For result-effective variables, in the case where claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP § 2144.05 (citations omitted). Furthermore, optimization within prior art conditions or through routine experimentation does not support patentability absent comparative evidence of criticality of the claimed range. See MPEP § 2144.05 (II) (citations omitted).
Fleuranges does not specifically teach a fiber complex as recited in claims 1 and 2.
Donadelli studied the effects of different fiber sources on nutrient utilization in animal feed, including beet pulp (title; abstract). According to Donadelli beet pulp contains 18.7% crude fiber and 31.6% NDF which gives a ratio of 1.68, and 37% crude fiber in relation to the sum of crude fiber and NDF (Table 3).
It would have been prima facie obvious for one having ordinary skill in the art before the effective filing date to combine the teachings of Fleuranges and Donadelli and devise Fleuranges’s composition comprising both crude fiber and NDF as recited in the instant claims. The skilled person would have been taught to do so because (i) Fleuranges teaches using beet pulp which contains both crude fiber and NDF in the ratio recited in claim 1 as evidenced by Donadelli, and (ii) Donadelli further teaches that beet pulp “resulted in in better [dry matter] and organic matter digestibility compared to [cellulose]” and “[s]ince their soluble fiber content is much greater than [cellulose], short chain fatty acids (SCFA) are produced through fermentation and used as energy by the animal” (p.4135 left col.).
Regarding the claim phrase “wherein…” in claims 11, 15, and 16, the following is noted:
Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect:
(A) statements of intended use or field of use, including statements of purpose or intended use in the preamble,
(B) "adapted to" or "adapted for" clauses,
(C) "wherein" or "whereby" clauses,
(D) contingent limitations,
(E) printed matter, or
(F) terms with associated functional language.
This list of examples is not intended to be exhaustive... For more information about these types of claim language and how to determine whether they have a limiting effect on claim scope, see MPEP §§ 2111.02 through 2111.05.
MPEP §2103(I)(C) (emphases added). Here the phrase “wherein the fiber complex is present in an amount effective to induce satiety, reduce …” does not require the particular structure, e.g., a range of quantity of the fiber complex, to obtain the properties recited in the wherein clauses. Moreover “an amount effective to induce satiety” would depend on a pet’s fed or fasted state, its size, it’s state of health, etc. Thus the phrase does not limit the scope of the claim and is not afforded patentable weight.
Regarding claims 15 and 16, “wherein the fiber complex increases the anti-inflammatory cytokine… interlukin-1 receptor antagonist…” could depend on the nature of the fiber, e.g., the ratio of NDF to CF, the makeup of NDF, i.e., concentration of hemicellulose, cellulose, and lignin, etc., or it could be an inherent feature of NDF. Applicant’s disclosure does not appear to disclose any particulars regarding this aspect. The disclosure also does not disclose the source of the fiber complex in Table 1. The phrase merely describes the effect of the pet food composition rather than its structural limitations that confer those effects, and therefore does not limit the scope of the claim and is not afforded patentable weight.
Regarding claim 31, Fleuranges teaches administering the pet food composition, which would result in the recited increase in pancreatic peptide or decrease in ghrelin as the composition is metabolized. Moreover a clause that “simply expresses the intended result of a process step positively recited” in a method claim is not given weight. MPEP §2111.04(I)(citations omitted).
Response to Arguments
Applicant's arguments filed August 15, 2025 have been fully considered but they are not persuasive. Applicant argues that Fleuranges fails to teach a composition comprising more than 30% total dietary fiber and fails to mention neutral detergent fiber. (Remarks, 6 third para., August 15, 2025.)
However Fleuranges’s “about 10 wt.% to about 30 wt.%” for the total dietary fiber overlaps the “greater than 30 wt.%” in claim 1 as noted above. In the case where claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP § 2144.05 (citations omitted). Furthermore Fleuranges teaches “about 10 wt.% to about 20 wt.% of crude fiber”(para.0035), using beet pulp. Donadelli evidences prior art knowledge that beet pulp contains 18.7% crude fiber and 31.6% NDF. Therefore the skilled artisan would have known that Fleuranges’s pet food compositions comprising beet pulp, e.g., Examples 1, 3, 5-7 among others, contain NDF.
Applicant next argues Donadelli is a study on “the effects of different fiber sources on nutrient utilization and stool consistency by dogs” (Remarks, 6 last para), and in Table 2 teaches three food compositions comprising 10% each of Miscanthus grass, cellulose, or beet pulp. The last of which contains only 17.59% TDF, 7.89% crude fat, and less crude fiber which are all “significantly lower in all of the” recited concentrations. (Remarks, 6-7 (emphasis added).)
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Fleuranges teaches pet food compositions comprising beet pulp and TDF, fat, and protein in the concentrations overlapping those in claims 1 and 36. While Fleuranges does not expressly refer to NDF, Donadelli evidences that beet pulp comprises crude fiber and NDF, in the ratio which claim 1 reads on.
Applicant contends that Donadelli teaches “away from any modification that would increase any of the crude fat, crude fiber, or total dietary fiber content” because “CP and CFat digestibility declined slightly when BP was added to the diet”, and there is “a linear decrease in…digestibility as the [beet pulp] content …increased from 0% to 12.5% in 2.5% intervals”. (Remarks, 7 second para.)
The Office does not agree that the quoted phrases constitute a teaching away to the skilled person. Donadelli concludes its study by stating, “[d]ogs fed BP had softer stools and lower wet fecal weight and higher digestibility coefficients for DM, OM, GE, and TDF, whereas dogs fed CE and MG had harder stools and higher CP and CFat digestibility” (p. right col.). Therefore the skilled person would select BP as the fiber source when “softer stools and lower wet fecal weight and higher digestibility coefficients for DM, OM, GE, and TDF” is desired in the resulting pet food composition, and select CE or MG when “harder stools and higher CP and CFat digestibility” is desired.
CONCLUSION
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to H. S. PARK whose telephone number is (571)270-5258. The examiner can normally be reached on weekdays.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ali Soroush can be reached at (571)272-9925. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/H. SARAH PARK/ Primary Examiner, Art Unit 1614