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 § 112
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.
Claim 10 is 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.
Claim 10 recites the chew comprises a minimum of 25 wt.% partially hydrolysed collagen. However, claim 1 as currently amended recites the lower bound of the partially hydrolysed collagen to be “35 wt.%”. Therefore, the lower bound of claim 10 is outside that of claim 1.
Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
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.
Claims 1-4, 8, 10, 19-20, 23, 28-29, 31 and 50 are rejected under 35 U.S.C. 103 as being unpatentable over Garcia Martinez (US 2008/0003270 A1), hereon referred to as “Garcia”, in view of Liu et al. (US 7,722,911 B2), Xu (US 9,770,044 B2), Li et al. (US 2007/0154609 A1), Barnvos et al. (US 9,737,053 B2), Mahe et al. (US 2016/0143320 A1), Schuppner (US 3,557,016), Schoor (US 2013/0118055 A1) and Axelrod (US 2011/0081453 A1).
Regarding claim 1, Garcia teaches an edible animal chew (abstract) comprising partially hydrolyzed collagen (paragraph 51) and modified starches which serve as crosslinkers for the matrix of the chew (paragraph 58). The chew comprises 2-98 wt% of the collagen relative to the total weight of the matrix (paragraph 54), where the amount of said collagen can be varied based on the how soft or hard the chew is intended to be (paragraphs 55-56). Additionally, the collagen provides the product with a desired texture, such as “tough and hard”, based on water content (paragraphs 1 and 14), and after “‘coagulating or crosslinking’ has a strong consistency and very good mechanical properties” (paragraph 14).
While the claimed range of 35-60 wt% partially hydrolyzed collagen is not explicitly disclosed, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have the claimed amount of partially hydrolyzed collagen since the reference acknowledges varying the amount of said collagen based on desired properties of the chew, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired hardness and other texture characteristics.
It would have been further obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the water content of the chew since there is no evidence of criticality or unexpected results associated with the claimed feature, and since the claimed values would have been subjected to routine experimentation and optimization procedures due to factors such as texture as taught by Garcia.
Garcia does not teach the edible animal chew comprises 5-50 wt% unmodified starch.
Liu et al. teaches an edible animal chew (abstract) comprising both modified and native unmodified starches, where the native starch includes corn (maize) starch (column 2 lines 46-50). The reference states high levels of starch can cause processing difficulties as the result of the adhesive properties of the starch (column 1 lines 61-67), where a composition comprising native and modified starches exhibits improved processing properties in extrusion and injection molding, improved flexibility and resistance to formation of sharp edges upon breaking, and improved digestibility once consumed (column 2 lines 9-15). Starches are added based on amylose content provided to the composition (column 2 lines 58-63), where unmodified starch comprising amylose levels of 60-70% can be used along with unmodified potato starch (column 2 lines 49-54). A preferred composition includes e.g., 42.7 wt% native potato starch having an amylose content of 15% along with 10.2 wt% high amylose corn starch having an amylose content of 49% (column 5 lines 8-10).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to include the claimed amount of unmodified corn starch since the prior art acknowledges both modified and unmodified starches can be used to form animal chews, to improve processing properties, as a matter of manufacturing preference for the source of the unmodified starch, for the advantages taught by Liu et al, since there is no evidence of criticality or unexpected results associated with the claimed feature and range, and since the values would have been used during the course of routine experimentation and optimization procedures due to factors such as those taught by Liu et al.
Garcia does not teach the modified starch is alkyl succinate modified starch in an amount of 1-25 wt%, the chew has a tensile toughness of 200-800 MPa, and the chew has an internal cellular structure.
Regarding the modified starch, Xu teaches an edible pet chew (abstract), where the composition for the chew includes desired additives (column 13 lines 1-5) comprising alkyl succinate modified starch, such as sodium starch octenyl succinate (column 13 line 51). The modified starch can be used as an emulsifier (column 13 line 38).
Li et al. teaches an extruded pet food product comprising an alkenylsuccinate starch (abstract; paragraph 2), such as n-octenylsuccinated starch, in an amount of 0.01-25 wt% of the composition (paragraph 11). Compositions using octenylsuccinate starch exhibited a higher % torque, which indicates a higher mechanical energy dissipation (paragraph 22).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to include an alkyl succinate modified starch in an amount of 1-25 wt% since the reference already teaches including modified starch but does not specify the type, nor the amount of modified starch added, where the prior art acknowledges adding alkyl succinate modified starch to animal chew compositions in an amount within the claimed range and its use as an emulsifier, since there is no evidence of record indicating criticality or unexpected results associated with the claimed range, and therefore to combine prior art elements according to known methods to yield predictable results, and since the values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, physical properties such as % torque, and nutritional value.
Regarding the tensile toughness, Barnvos et al. teaches an edible animal chew that provides dental cleaning to the animal (abstract) where the composition forming the chew can include structural ingredients that confer a sufficient toughness to endure chewing by the animal for a desired amount of time (column 13 lines 36-42). The ingredients of the composition can be chosen and adjusted to obtain desired properties such as toughness, where the toughness can be varied based on factors such as the type of animal for which the chew is intended (column 42 lines 24-41; column 43 lines 3-8). While the reference does not explicitly disclose a range of “tensile toughness” values, it suggests to one of ordinary skill in the art that a sufficient amount of “toughness” is desirable for animal chews, and that the toughness can be varied. Furthermore, Li et al. teaches adding modified starch can also adjust mechanical properties, such as % torque, and Liu et al. teaches incorporating both unmodified potato starch and alkyl succinated starch into a pet chew composition as explained above.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have the claimed range of tensile toughness since the reference already suggests the toughness of the chew can be a “hard and tough texture” (paragraph 9), where modified starches can be used as crosslinkers to confer desired physicomechanical properties (paragraphs 57-58 and 67-68), since the prior art acknowledges wanting a sufficient amount of toughness to ensure use for a desired period of time, and therefore to combine prior art elements according to known methods to yield predictable results of prolonging chew time, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as the characteristics of the intended animal (species, age, activity level, etc.), desired amount of “work” required during chewing, and how long the chew lasts.
Regarding the internal cellular structure, Mahe et al. teaches an edible chew having an internal cellular matrix (figures 1-4, 8 and 11; abstract), where the cellular matrix provides sufficient bite depth to facilitate mechanical teeth cleaning (paragraph 2), as well as further advantages including reduced cost and calories per volume and improved chew properties, leading to increased interactions between the dog and the owner (paragraphs 31-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have an internal cellular structure since the reference states the chew can have any desired shape or design (paragraphs 37 and 44), since the prior art acknowledges chews formed with internal cellular structures and therefore to combine prior art elements according to known methods to yield predictable results, and for the advantages taught by Mahe et al.
The combination applied above does not teach the partially hydrolyzed collagen has a Bloom gel strength of at least 300g, as measured in accordance with ISO 9665.
Schuppner teaches that the Bloom test is known to be used for determining gel strength of a food product (column 4 lines 46-58), where higher values indicate more resistance to compression by a plunger and a higher strength of the product.
Schoor teaches an edible product (abstract) comprising collagen having a Bloom strength of 100-750g (paragraph 10).
The prior art therefore suggests to one of ordinary skill that edible products can include collagen having a Bloom strength overlapping the claimed range, where higher strengths indicate a collagen that is more resistant to deformation by external forces.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the partially hydrolyzed collagen of Garcia to have a Bloom strength of at least 300 as claimed since the prior art teaches collagen can have a Bloom strength of said value or greater, where a higher Bloom strength can be chosen based on the desired strength of the chew, since Garcia does not specify a Bloom strength and one of ordinary skill would have looked to the relevant prior art for guidance on available strengths, since there is no evidence of criticality or unexpected results associated with the claimed feature and values, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as strength, texture/mouthfeel, and other structural and/or mechanical properties of the chew.
With respect to the claimed method of determining the Bloom strength, it would have been obvious to measure in accordance with ISO 9665 as a preferred method of determining said strength from a variety of known methods.
Garcia does not teach the cross-sectional area of the edible animal chew is 4,000-5,500 mm2.
Axelrod teaches an edible chew (abstract), where the cross-sectional area of the chew can be varied by adjusting the cross-section dimension of the extrusion orifice when forming said chew (paragraph 5; figures 4-5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have the claimed cross-sectional area since the reference does not particularly limit the size, shape, and diameter of the chew (figures 1-18; paragraphs 12 and 126), since the prior art recognizes cross-sectional area can be controlled when shaping/forming the chew, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as size and breed of the intended animal, desired shape of the chew, texture/mouthfeel, and other structural and/or mechanical properties.
Regarding claim 2, Xu as stated in the combination applied to claim 1 teaches the alkyl succinate can be octenyl succinate i.e., C8 alkyl succinate (column 13 line 51).
Li et al. also teaches n-octenyl succinate starch as stated for claim 1.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to use a C8 succinate for the same reasons stated for claim 1.
Regarding claims 3-4, Xu as stated in the combination applied to claim 1 teaches a metal succinate such as sodium octenyl succinate.
Modification to use a specific type of octenyl succinate starch would have been obvious for the same reasons stated for claim 1.
Regarding claim 8, Garcia teaches the partially hydrolyzed collagen includes mixtures of soluble and insoluble fibrous collagen (paragraph 86). Further, the partially hydrolyzed collagen of the reference appears to be the same as that of the claimed invention, particularly since Garcia teaches the partial hydrolysis serves to open up the fiber structure of the collagen.
It would obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the partially hydrolyzed collagen of Garcia to comprise the range of water soluble and non-water soluble component ratios since there is no evidence of record indicating 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 procedures due to factors such as desired chew characteristics, flavor, texture and nutritional profile.
Regarding claim 10, Garcia teaches the chew comprises 2-98 wt% of the collagen relative to the total weight of the matrix (paragraph 54), where the amount of said collagen can be varied based on the how soft or hard the chew is intended to be (paragraphs 55-56), as stated for claim 1 above.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have the claimed amount of partially hydrolyzed collagen for the same reasons stated for claim 1.
Regarding claim 19, the combination applied to claim 1 teaches unmodified potato starch as taught by Liu et al. The same combination is applied to claim 19 and would have been obvious for the same reasons.
Regarding claim 20, the term “plasticizer” is interpreted in view of the specification to include any of the disclosed substances (page 20 lines 10-16). Garcia teaches the chew comprises plasticizers such as alkylene glycols (paragraph 71).
Regarding claim 23, Garcia does not teach the chew comprises less than 5 wt% fat.
Liu et al. teaches flavoring is present in the chew in an amount of 0.5-15 wt%, where the flavorings include fat (column 4 lines 29-34). Fat content affects the softness of the chew (column 5 lines 6-7).
Li et al. teaches use of alkenyl succinate starch as stated in the combination applied to claim 1, which provides the benefit of lower fat content and better fat control as compared to conventional extrusion aids (paragraph 18).
Barnvos et al. teaches the chew can have a fat content not treater than 5 wt% of the chewable matrix (column 16 lines 36-38).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have the claimed range of fat since the reference teaches the chew comprises fat to impart flavor and other properties (paragraphs 61 and 72) but does not recite an amount thereof, since the prior art recognizes animal chews having less than 5 wt% fat, since excess fat is generally understood to be undesirable due to high caloric density, health effects, and rancidity due to oxidation over time, since there is no evidence of criticality or unexpected results associated with the claimed range, and since the claimed values would have been used during the course of routine experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, chewing properties and nutritional value.
Regarding claims 28-29, Mahe et al. teaches the claimed structure as stated in the combination applied to claim 1. Regardless, the reference teaches the chew obtains a cellular matrix by aeration and thermal expansion (paragraphs 67-68 and 75).
Regarding claim 31, Barnvos et al. as stated in the combination applied to claim 1 teaches wanting a sufficient toughness to endure chewing by the animal for a desired amount of time where the toughness can be varied based on factors such as the type of animal for which the chew is intended.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have a tensile toughness of at least 300 MPa for the same reasons stated for claim 1, particularly since the respective prior art combination teaches the same materials as that of the claimed product, and since the collagen used can have a Bloom strength of greater than 300g.
Regarding claim 50, Garcia does not teach the chew comprises diacetyl tartaric acid esters of mono- and diglycerides.
Xu further teaches diacetyl tartaric acid ester of mono- and diglycerides can be added as a thickener or emulsifier (column 3 lines 6, 11, 38 and 42-43).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the chew of Garcia to have the claimed substance since the reference already contemplates additives to adjust the properties of the chew (paragraphs 66-69), since the prior art recognizes the substance can be used in chews to similarly adjust characteristics thereof, and therefore to combine prior art elements according to known methods to yield predictable results.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Garcia, in view of Liu et al., Xu, Li et al., Barnvos et al., Mahe et al., Schuppner, Schoor, and Axelrod as applied to claims 1-4, 8, 10, 19-20, 23, 28-29, 31 and 50 above, and further in view of Cioca et al. (US 4,285,986).
Regarding claim 9, Garcia teaches the chew can includes native (natural) collagen that has been partially hydrolyzed (paragraphs 49, 51 and 86), where the collagen is subjected to mechanical stripping to remove fat and non-collagenous protein, as well as defatting by physical, chemical or enzymatic processes (paragraphs 93 and 96). Since the natural collagen is partially hydrolyzed, absent evidence to the contrary, one of ordinary skill would have reasoned the product includes at least some native, unhydrolyzed collagen along with the partially hydrolyzed collagen.
However, Garcia does not specify the natural collagen is of “high purity” i.e., less than 8 wt% fat.
Cioca et al. teaches a method of preparing oligopeptides of collagen (abstract), comprising natural collagen (column 1 lines 8-15; column 2 lines 4-7) that has been treated to remove “substantially all of the hair and fat from the collagen”, followed by removing the non-collagenous material with an aqueous solution (column 1 lines 57-61). Care is taken to retain the native characteristics of the collagen and prevent denaturing (column 2 lines 37-47). Collagen having retained impurities such as fats is undesirable (column 2 lines 48-50). Thus, the reference indicates to one of ordinary skill that natural collagen can be subjected to “purification” treatment to remove substantially all fat and obtain a natural collagen having nearly 0% fat. The treated collagen is combined with micro- and macronutrients to facilitate “placing the micronutrients and bulk nutrients into the system of the animal” when consumed (column 3 lines 25-40).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the native collagen of Garcia to be “purified” to have less than 8 wt% fat since the reference already teaches defatting collagen which suggests wanting reduced fat content thereof, since the prior art teaches that natural collagen can be treated to remove substantially all fat and impurities, to facilitate “placing the micronutrients and bulk nutrients into the system of the animal” when consumed, since there is no evidence of criticality or unexpected results associated with the feature and ranges, since fat is known to oxidize over time causing rancidity, and therefore to minimize fat present in the chew, and since the claimed values would have used during the course of routine experimentation and optimization procedures due to factors such as desired flavor, texture/mouthfeel, and nutritional characteristics.
Response to Arguments
Applicant’s arguments filed 3/24/2026 have been fully considered, but are not persuasive.
Applicant argues the claimed amount of partially hydrolyzed collagen yields unexpected results with the recited cross-sectional area, citing example 2 and figures 3A-3B in support. Applicant states figures 3A-3B show the area increases until approximately 60-70% hydrolyzed collagen is added, at which point the cross-sectional area begins to decrease, where the optimal ranges of partially hydrolyzed collagen are obtained when adding 10% hydrolyzed sodium octenyl succinate starch, 30-50 wt% HV potato starch, and 35-60 wt% partially hydrolyzed collagen with the absence of maize starch.
This is not persuasive since the evidence is not commensurate in scope with the claim. One of ordinary skill would not be able to determine from the presented data if the argued results are obtained over the range of 5-50 wt% unmodified starch and 1-25 wt% alkyl succinate modified starch. Further, claim 1 as currently drafted does not specify “hydrolysed sodium octenyl succinate starch”, “HV potato starch”, and an absence of maize starch. Rather, the claim only recites generic “unmodified starch” and “alkyl succinate modified starch”, and does not indicate maize starch is excluded. See also MPEP 716.02(d) II.
Applicant argues that a soft chewable product of Garcia comprises 2-30% fibrous collagen, while a dry product having the moisture content within the scope of the instant claim 1 must have a collagen content of 75-98 wt% which is outside of the claimed range, and does not provide further examples or guidance with partially hydrolyzed collagen outside this range.
This is not persuasive since the cited portions of Garcia are all directed to preferred embodiments as stated in the previous Office Action. None of the portions cited by Applicant indicate that the respective ranges must be followed, and instead recite they are “preferred embodiments”. Garcia teaches including other substances that “change its texture” (paragraph 45), including coagulating or crosslinking substances which provide “a strong consistency and very good mechanical properties (paragraphs 14 and 57-58), where a “hard and tough texture” can be obtained based on the preference of the animal (paragraph 9). The reference as a whole suggests to one of ordinary skill in the art that animal chew compositions can include varying amounts of partially hydrolyzed collagen, starch, and other components based on desired texture and physical characteristics.
Further, the prior art combination applied to claim 1 includes both modified and unmodified starch, and recognizes alkyl succinate modified starch contributes to physical properties of the chew as taught by Li et al. (paragraph 22). Likewise, Barnvos et al. teaches the ingredients of the composition can be chosen and adjusted to obtain desired properties such as toughness, where the toughness can be varied based on factors such as the type of animal for which the chew is intended (column 42 lines 24-41; column 43 lines 3-8). Therefore, the prior art suggests to one of ordinary skill in the art that the claimed components contribute to the physical characteristics of an animal chew, where the claimed values would have been used during routine optimization based on desired characteristics of the final product for a particular application.
Applicant argues the expanded cross-sectional area, internal structure, and tensile strength of the claimed chew are achieved by thermal expansion used when forming the edible chew in combination with the recited range of partially hydrolyzed collagen.
This is not persuasive since the claims are directed to a product. While the argued process may indeed obtain the argued features, the prior art recognizes that cross-sectional area can be controlled by adjusting die size during extrusion as taught by Axelrod. Modification of Garcia to obtain the argued features would have been obvious for the reasons stated for claim 1, particularly since the reference does not particularly limit the size and shape of the chew. Further, it is not clear from the presented data if the argued features are observed over the claimed ranges, and if the argued results are obtained using generic “unmodified starch” and “alkyl succinate modified starch”.
Applicant argues that Liu relies on an amylose content of greater than 28% to achieve the desired properties, where a skilled artisan would have to decrease the unmodified starch content to arrive at the claimed amount of unmodified starch, and decreasing the amount of native potato starch and high amylose corn starch would decrease the amylose content of the product, which results in processing problems when forming the chew, and therefore one of ordinary skill would not have decreased the unmodified starch content since there is no expectation of success when making such a modification.
This is not persuasive since the cited portion of the reference is a preferred embodiment (column 5 line 8), where the starch component includes multiple types of unmodified starches, each starch having different amylose contents. For example, unmodified starch comprising amylose levels of 60-70% can be used along with unmodified potato starch (column 2 lines 49-54). One of ordinary skill would have understood the total amount of unmodified starch can be varied based on the amylose content thereof. The claimed amount of unmodified starch would have been used during the course of routine experimentation and optimization, where the desired amylose content can be achieved using a combination of unmodified potato starch and unmodified high amylose starch for a total starch content of less than 50%, such as 45% (column 3 line 6). Further, the reference still suggests to one of ordinary skill that a combination of modified and unmodified starch is desirable to facilitate extrusion, molding, and obtain desired characteristics of the chew as stated for claim 1. Additionally, Liu is not relied on to teach the amount of modified starch, nor is the reference modified in any way. Rather, Li et al. teaches 0.01-25 wt% alkyl succinate modified starch, and Garcia is modified to include the claimed amount of alkyl succinate modified starch.
Applicant argues Mahe teaches an extrusion die with dovetail grooves is integral to the formation of the internal cellular structure, whereas the claimed chew achieves the structure and cross-sectional area through the combination of thermal expansion and optimized range of partially hydrolyzed collagen, without the use of a specialized die.
This is not persuasive since the claims are directed to a product, where the argued method is a preferred method of making the claimed product, and it is unclear if the argued unexpected results are observed over the ranges of “unmodified starch” and “alkyl succinate modified starch” as stated above. The prior art teaches forming an internal cellular structure, and controlling cross-sectional area by controlling the size of the extrusion die. Absent evidence to the contrary, one of ordinary skill would have expected the prior art combination to be capable of forming the argued features by controlling extrusion of the chew in the manner explained for claim 1.
Applicant argues that Xu teaches alkyl succinate modified starch as an emulsifier, where Garcia fails to disclose an emulsifier.
This is not persuasive since Xu shows the claimed type of modified starch can be used in pet chews and is recognized to provide emulsification properties, where Garcia already teaches the chew can include modified starches. The teachings of Xu, in combination with Li teaching alkyl succinate starches impart mechanical energy dissipation to pet foods, suggests and motivates one of ordinary skill to incorporate the claimed modified starch into the chew of Garcia for similar benefits of emulsification and mechanical property.
Applicant argues Schuppner and Schoor are directed to methods of measuring gel strength and do not contemplate gel strength of an edible animal chew, a method of measuring bloom strength does not provide motivation to arrive at a specific bloom gel strength, Schoor generically provides a range of bloom strength of an unrelated product, and a skilled artisan would not combine the bait cake with the edible product of Garcia.
This is not persuasive since Schuppner is relied on to show that methods of measuring bloom strength are known, where the claimed measurement according to ISO 9665 would have been obvious for the reasons stated for claim 1. Likewise, the reference indicates that a higher bloom strength collagen results in more resistance to compression, which suggests to one of ordinary skill that collagen having a higher bloom strength would be desirable to form a chew having similarly increased resistance. Regarding Schoor, while the reference teaches a bait cake, the reference nonetheless teaches that collagen having a bloom strength overlapping the claimed range is used for edible products. In combination with the teachings of Schuppner, one of ordinary skill would have been motivated to use collagen having the claimed bloom strength based on desired resistance to compression in the final product of Garcia.
Applicant argues Cioca simply teaches a method of preparing an oligopeptide form collagen, where treatment to remove hair and fat from the collagen is simply the first step in preparing the oligopeptides, and the reference does not contemplate any application of the defatted collagen. Applicant argues Garcia does not contemplate the need for high-purity collagen, and therefore a skilled artisan would not be motivated to combine Garcia and Cioca.
This is not persuasive since Garcia already teaches the chew includes collagen that has been subjected to mechanical stripping to remove fat and non-collagenous protein, as well as defatting by physical, chemical or enzymatic means stated for claim 9. This suggests to one of ordinary skill in the art that Garcia contemplates a “high purity” collagen. Cioca is relied on to show that collagen can be treated to remove “substantially all of the hair and fat from the collagen”, followed by removing the non-collagenous material, where collagen having retained impurities such as fats is undesirable. Therefore, the reference suggests to one of ordinary skill in the art that the collagen of Garcia can be treated to reduce fat content to below 8 wt%.
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.
Chandler et al. (US 4,777,058) teaches an animal food composition that is extruded, where sufficient flashing occurs such that the ratio of the area of the product cross-section to the extrusion die is greater than about 2.5 (column 8 lines 25-36).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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/B.K/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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