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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 4/6/2026 has been entered.
Claims 1-3, 5, 6, 8, 10-13, 15, 16 and 18 are pending.
Response to Amendment
The Declaration of Adrian Watson, Ph.D. under 37 CFR 1.132 filed 4/6/2026 is insufficient to overcome the rejection of claims 1-3, 5, 6, 8, 10-13, 15 and 16 based upon 35 U.S.C. 112(a) and 35 U.S.C. 103 as set forth in the last Office action because: At the outset, the claim scope has been broadened by the removal of the trans-epidermal water loss (“TEWL”)requirement. However, this feature is understood to be the scientific/technical feature underpinning Applicant’s argument in favor of non-obviousness. Without the feature, the claims are directed to using a diet stuff comprising particular ingredients and amounts thereof that are obviousness in view of the prior art. Furthermore, in the absence of the TEWL feature, the evidence of the declaration is immaterial in overcoming the rejections because the claims recite “about 7 g/Mcal to about 9 g/Mcal” which would read on the evidence of Diets B and C in the Appendix B.
Response to Arguments
The rejections under 35 U.S.C. 112 are moot in light of the claim amendments.
Applicant’s argument with respect to the obviousness rejection are moot because the claims do not require any TEWL. Incidentally, Applicant’s suggestion to extrapolate the meaning of the term “about” to mean “± 10 percent” is not persuasive Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
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.
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.
Claim(s) 1-3, 5, 6, 8, 10-13, 15, 16 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Watson et al. (U.S. Patent No. 6,177,107) in view of Fray et al. (U.S. Patent No. 7,297,677) and Mizuuchi et al. (US 2013/0059057).
Regarding claims 1 and 10, Watson et al. teaches a foodstuff or a dietary supplement comprising “zinc and/or linoleic acid.” Col. 4, lines 43. Zinc may be preferably at a concentration of 20 mg/400 kcal (current claims 5 and 15). See col. 4, lines 43-46. Linoleic acid may be included “at a concentration of at least 1.1 g/400 kcal, preferably at least 2.0 g/400 kcal, more preferably at least 4 g/400 kcal, most preferably at least 6 g/400 kcal.” Col. 4., lines 48-51. This disclosed range of linoleic acid reads on “linoleic acid in an amount ranging from 7 g/Mcal to 9 g/Mcal” (current claims 2 and 12). Further, the composition may be used in “a method for enhancing and/or improving the skin and coat condition of an animal” (current claim 10). Col. 6, lines 21-23.
Watson et al. does not teach “at least one of arachidonic acid, EPA/DHA, or a combination thereof.”
Fray et al. teaches a composition preferably a pet food stuff for treating a skin disorder. See Abstract. “The foodstuff may optionally comprise one or more of pyridoxine, proline, one or more fatty acids or linoleic acid.” Col. 3, lines 41-42. Further, “[t]he foodstuff of the first aspect may comprise one or more polyunsaturated fatty acids. The polyunsaturated fatty acids
may include one or more omega-3 fatty acids (which include eicosapentaenoic acid (EPA), docasahexaenoic acid (DHA).” Col. 4, lines 15-18.
Fray et al. also does not teach arachidonic acid.
Mizuuchi et al. relates to “pet food which includes unsaturated fatty acid-containing oil and fat and has high storage stability and palatability.” Abstract. The unsaturated fatty acid is preferably α-linolenic acid, γ-linolenic acid, arachidonic acid, eicospentaenoic acid (EPA), or docosahexaenoic acid (DHA).” Para. [0022].
It would have been prima facie obvious to one of ordinary skill in the art to combine the teachings of Watson et al., Fray et al. and Mizuuchi et al. to arrive at the instantly claimed invention. In this instance, one of ordinary skill in the art would find motivation to combine at least the Watson et al. and Fray et al. references because they both teach pet foodstuffs for treating skin. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (“It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.”) Further, established precedent holds that it is generally obvious to add known ingredients to known compositions with the expectation of obtaining their known function. See, e.g., In re Linder, 457 F.2d 506, 507 (CCPA 1972); see also In re Dial, 326 F.2d 430,432 (CCPA 1964). In this instance, it would have been prima facie obvious to incorporate one or more fatty acids such as omega-3 fatty acids like EPA/DHA as taught by Fray et al. with the foodstuff of Watson et al. Additionally, it would have been prima facie obvious to incorporate arachidonic acid in addition to EPA/DHA in view of Mizuuchi et al.’s teaching of arachidonic acid, EPA and DHA are as an obvious preferred unsaturated fatty acid variants.
Regarding claims 3 and 13, “[p]referred linoleic acid sources include safflower oil, sunflower oil, soybean oil, other plant or animal oils/fats or a combination of two or more thereof.” Col. 4, lines 64-67.
Regarding claims 6 and 16, “[p]referred sources of zinc include zinc sulphate, zinc oxide, organic zinc complexes or a combination of two or more thereof.”
Regarding claims 8 and 18, Labrador retrievers were tested. See col. 9, lines 14-15.
Regarding claim 11, Watson et al. teaches a pet animal foodstuff comprising the claimed amounts of linoleic acid and zinc that provides a complete and balanced food for healthy animals while enhancing skin coat conditions. See col. 1, 58-61. Watson et al. also recognizes that “dietary deficiencies in zinc or linoleic acid produce deterioration in skin and coat conditions in dogs and cats.” Col. 1, lines 27-30. One of ordinary skill in the art would have readily envisioned that feeding a foodstuff comprising the claimed amounts of ingredients to a healthy pet and/or a pet in need of treatment for a skin disease or disorder would have improved the skin and hair conditions of both pets. See In re May, 574 F.2d 1082, 1090, 197 USPQ 601, 607 (CCPA 1978) (“when the claim recites using an old composition or structure and the “use” is directed to a result or property of that composition or structure, then the claim is anticipated.”)
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 ROBERT S CABRAL whose telephone number is (571)270-3769. The examiner can normally be reached M-F 8 am - 5 pm.
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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.
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/ROBERT S CABRAL/Primary Examiner, Art Unit 1614
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