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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/20/2026 has been entered.
Applicant’s amendments and remarks, filed on 02/20/2026, are acknowledged. Applicant’s arguments have been fully considered. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. Rejections and/or objections not reiterated from the previous office actions are hereby withdrawn.
Status of Claims
Claims 1, 3-11, 13, 15-16, 18-20, 23, 24 are presently under examination.
Claims 2, 12, 14, 17, 21, 22 are cancelled.
Priority
The present application claims priority to United States Provisional Patent Application Serial No. 63/060,793, filed August 4, 2020.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 3-11, 13, 15-16, 18-20, 23, 24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
The United States Patent and Trademark Office published revised guidance on the application of 35 U.S.C. § 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance (“Guidance”). Under the Guidance, in determining what concept the claim is “directed to,” we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (Guidance Step 2A, Prong 1); and
(2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)) (Guidance Step 2A, Prong 2).
Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim contains an “‘inventive concept’ sufficient to ‘transform’” the claimed judicial exception into a patent-eligible application of the judicial exception. Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 82). In so doing, we thus consider whether the claim:
(3) adds a specific limitation beyond the judicial exception that are not “well-understood, routine and conventional in the field” (see MPEP § 2106.05(d)); or 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50-57 (January 7, 2019).
(4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.(Guidance Step 2B). See Guidance, 84 Fed. Reg. at 54-56.
Step 1
The instantly claimed invention (claims 1 and 13 being representative) is directed to a method/system for determining a caloric requirement for an animal. As such, the claims fall into one of the four statutory categories.
A. Guidance Step 2A, Prong 1
The Revised Guidance instructs us first to determine whether any judicial exception to patent eligibility is recited in the claim. The Revised Guidance identifies three judicially-excepted groupings identified by the courts as abstract ideas: (1) mathematical concepts, (2) certain methods of organizing human behavior such as fundamental economic practices, and (3) mental processes. In this case, the following limitations constitute the abstract idea for the following reasons:
determining, via one or more processors, a caloric requirement of the animal during a second predetermined time period, the caloric requirement of the animal being based on the animal characteristic data of the animal, the sleep characteristics of the animal…., and the durational parameters of the animal during the first predetermined time period;
Mental Processes
Under the broadest reasonable interpretation, the above steps are not limited to any particular acts or operations and amount to analyzing data and making a decision based on said analysis. In addition, the specification provides sufficient evidence that the claims are directed to an abstract idea since the specific descriptions provided for accomplishing these tasks include only data analysis methods [0019, 0020]. Accordingly, but for the recitation of processors, the above steps clearly fall within the mental process groupings of abstract ideas because they cover concepts performed in the human mind, including observation, evaluation, judgment, and opinion. See MPEP 2106.04(a)(2), subsection III.
Mathematical Concept
In addition, the above steps recite at least one mathematical concept. In particular, the “determining” step requires determining a “caloric requirement” based on animal characteristic data and durational parameters (which amounts to a mathematical calculation expressed in prose equivalent). While no specific equation is being claimed, this still amounts to a mathematical calculation and/or mathematical relationship (i.e. calculating a value for a parameter). As discussed above, the specification teaches specific equations for making the above determination [0019]. Applicant is reminded that there is no particular word or set of words that indicates a claim recites a mathematical calculation. See MPEP 2106.04(a)(2). Therefore, when read in light of the specification, the claimed predicting step also encompasses a mathematical concept.
B. Guidance Step 2A, Prong 2
This part of the eligibility analysis evaluates whether the claim includes any additional steps/elements that integrate the recited judicial exception into a practical application of the exception. In this case, the additional steps/elements that are not part of the abstract idea are as follows:
receiving, via one or more processors, animal characteristic data comprising a breed of an animal or a condition of the animal; receiving, via one or more of an accelerometer, a gyroscope…, durational parameters of the animal for a first predetermined time duration, wherein the durational parameters comprise at least one of an activity level of the animal during the first predetermined time period, a weight of the animal during the first predetermined time period, or an amount of calories consumed by the animal during the first predetermined time period;
receiving, via the one or more processors, a sleep characteristic of the animal during the first predetermined time period, the sleep characteristic comprising at least one of: a lack of sleep during the first predetermined time period, an overabundance of sleep during the first predetermined time period, and a number of sleep disturbances during the first predetermined time period;
causing the caloric requirement of the animal during the second predetermined time period to be displayed via a display device.
In this case, the “receiving” steps are not limited to any particular techniques or devices and generally require obtaining data for use by the abstract idea. Therefore, these steps amount to insignificant extra-solution activity and are not indicative of an integration into a practical application. See MPEP 2106.05(g). With regards to the “causing” step, under the BRI, this step generally results in displaying data. Accordingly, this step also amounts to insignificant extra-solution activity and is not indicative of an integration into a practical application. See MPEP 2106.05(g).
With regards to the newly recited elements directed to an accelerometer, gyroscope, etc., these are recited at a high level of generality and can be viewed as nothing more than generic elements for obtaining data for use by the abstract idea. MPEP 2106.05(g). With regards to additionally recited processor, display device, and “elements”, these are recited at a high level of generality and thus can be viewed as nothing more than generic elements for displaying data for use by the abstract idea and/or an attempt to generally link the use of the judicial exception to the technological environment of a computer. In addition, the processors, elements, display are used as a tool to perform the aforementioned steps and generic computer components do not satisfy the inventive concept requirement. See MPEP 2106.05(f) and 2106.05(h). Accordingly, the claims as a whole do not integrate the recited judicial exception into a practical application and the claims are directed to the judicial exception. [Step 2A, Prong 2: NO]
C. Guidance Step 2B:
Under the 2019 PEG, a conclusion that an additional element is insignificant extra-solution activity in Step 2A should be re-evaluated in Step 2B. In this case, the claims do not include additional steps and/or elements appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception(s) for the following reasons:
As discussed above, the non-abstract steps/elements amount to nothing more than insignificant extra-solution activity or field of use. In addition, a review of the prior art of Kates et al. (US2006/0201433; Pub. Date: Sep. 14, 2006) teaches that methods/system for receiving the various types of animal data being claimed (including sleep data) as well as GPS receiver, accelerometers or gyroscopes were routine and conventional [ref. claims 1-7, para. 0012, 0031, 0187, 0195, Figure 1, and see also rejection under 35 USC 103 below]. Moreover, a review of the instant specification teaches a laundry list of various elements for performing the above functions [0025, 0026, 0027, 0034, 0035, 0036, 0037, 0038] and therefore provides evidence that there is nothing unconventional with regards to the claimed elements and devices. Accordingly, it is the examiner’s position that the additionally recited steps/elements appending to the judicial exception were well understood, routine, and conventional in the art. See MPEP 2106.05(d)(Part II). Thus, the independent claims as a whole do not amount to significantly more than the exception itself. Therefore, the claim(s) is/are not patent eligible.
Dependent Claims
Dependent claims 3-11, 15-16, 18-20, 23, 24 have also been considered under the two-part analysis but do not include additional steps/elements appended to the judicial exception that are sufficient to amount to significantly more than the judicial exception(s) for the following reasons. Regarding claim(s) 4-11, 16, 18-20, 23, these claims further limit the abstract idea (by adding additional functional limitations) or the nature of the data being used by the abstract idea. Accordingly, these claims are also abstract ideas that are not patent eligible for reasons discussed above (Step 2A, analysis). Regarding claim(s) 3, 15, 24, these claims are all directed to nominally recited elements and are recited at a high level of generality. In addition, a review of the specification provides a laundry list of such elements [0025, 0026, 0027, 0034, 0035, 0036, 0037, 0038] and therefore provides evidence that these elements were routine and conventional in the art. Accordingly, these steps/elements be viewed as nothing more than generic elements for receiving or displaying data and/or an attempt to generally link the use of the judicial exception to the technological environment of a computer. In addition, the processors, elements, display are used as a tool to perform the aforementioned steps and generic computer components do not satisfy the inventive concept requirement. See MPEP 2106.05(f) and 2106.05(h). Therefore, the instantly rejected claims are not drawn to eligible subject matter as they are directed to an abstract idea without significantly more.
Response to Arguments
Applicant’s arguments, filed 02/20/2026, have been fully considered but are not persuasive for the following reasons.
Applicant argues that the invention does not recite a mental process but integrates physical hardware (accelerometer, gyroscope, magnetometer, GPS,…) to solve a specific technological application. As set forth above, the examiner has explained that the newly recited hardware elements amount to mere data gathering (Step 2A, prong 2). See also MPEP 2106.05(g). Below are examples of activities that the courts have found to be insignificant extra-solution activity:
i. Performing clinical tests on individuals to obtain input for an equation, In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989);
ii. Testing a system for a response, the response being used to determine system malfunction, In re Meyers, 688 F.2d 789, 794; 215 USPQ 193, 196-97 (CCPA 1982);
iii. Presenting offers to potential customers and gathering statistics generated based on the testing about how potential customers responded to the offers; the statistics are then used to calculate an optimized price, OIP Technologies, 788 F.3d at 1363, 115 USPQ2d at 1092-93;
iv. Obtaining information about transactions using the Internet to verify credit card transactions, CyberSource v. Retail Decisions, Inc., 654 F.3d 1366, 1375, 99 USPQ2d 1690, 1694 (Fed. Cir. 2011);
v. Consulting and updating an activity log, Ultramercial, 772 F.3d at 715, 112 USPQ2d at 1754; and
vi. Determining the level of a biomarker in blood, Mayo, 566 U.S. at 79, 101 USPQ2d at 1968. See also PerkinElmer, Inc. v. Intema Ltd., 496 Fed. App'x 65, 73, 105 USPQ2d 1960, 1966 (Fed. Cir. 2012) (assessing or measuring data derived from an ultrasound scan, to be used in a diagnosis).
In addition, as set forth above in the Step 2B analysis, a review of the prior art of Kates et al. (US2006/0201433; Pub. Date: Sep. 14, 2006) teaches that the newly recited elements were routine and conventional in the art (Step 2B) and this position is also supported by applicant’s own specification [0025, 0026, 0027, 0034, 0035, 0036, 0037, 0038]. Accordingly, it is the examiner’s position that the additionally recited steps/elements appended to the judicial exception were all well understood, routine, and conventional in the art. See MPEP 2106.05(d)(Part II).
Applicant additionally argues that the claimed invention provides a technical solution to a real-world problem in animal health management (by providing a ‘best guess’ to the feeding problem). In response, the improvement analysis at Step 2A Prong Two differs in some respects from the improvements analysis at Step 2B. Specifically, the “improvements” analysis in Step 2A determines whether the claim pertains to an improvement to the functioning of a computer or to another technology without reference to what is well-understood, routine, conventional activity. As set forth above, the hardware elements directed to an accelerometer, gyroscope, etc., are recited at a high level of generality and can be viewed as nothing more than generic elements for obtaining data for use by the abstract idea. MPEP 2106.05(g). As set forth above (Step 2A analysis), the recitation of a processor does not negate the mental nature of the “determining” step because the claim merely uses it as a tool to perform the otherwise mental processes. It is noted that Applicant has not challenged the examiner’s position that the claims recite a mental process. Applicant also does not contend that it invented any of the processor or elements or that there were unknown in the art as of time of the invention. Accordingly, the claimed processor and data collection hardware do not result in an improvement to the functioning of a computer or another technology as there is nothing unconventional with regards to the combination of claimed steps. The claimed invention merely manipulates existing information to generate additional information, which, without more, is not patent eligible. See Digitech Image Techs., LLC v. Elecs. For Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (“Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible.”); see also CyberSource, 654 F.3d at 1375 (“The mere manipulation or reorganization of data . . . does not satisfy the transformation prong.”). Accordingly, these positions are maintained for reasons set forth above. For at least these reasons, the rejection is maintained.
Claim rejections - 35 USC § 112, 2nd Paragraph
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 1, 3-11, 13, 15-16, 18-20, 23, 24 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 pre-AIA the applicant regards as the invention. Claims that depend directly or indirectly from claim(s) 1 and 13 is/are also rejected due to said dependency.
Claims 1 and 13 recite “determining…a caloric requirement…during a second predetermined time period ” In this case, all of the three parameters being used to determine the caloric requirement were only obtained during a “first predetermined time period” (and not a second predetermined time period). A review of the specification does not provide any equations that account for all of the claimed parameters and at best shows determining a caloric requirement based on the first data and/or second data” [Figure 7 and para. 0072] and a single equation that does not account for sleep characteristics [0019]. Therefore, it is unclear in what way the ‘caloric requirement’ is being determining “during a second predetermined time period” since no data relating to animal characteristic data, sleep characteristics, and durational parameters has been previously obtained during a ‘second predetermined time period’. Clarification is requested via amendment.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims under 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of 35 U.S.C. 103(c) and potential 35 U.S.C. 102(e), (f) or (g) prior art under 35 U.S.C. 103(a).
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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, 3-11, 13, 15-16, 18-20, 23, 24 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Kates et al. (US2006/0201433; Pub. Date: Sep. 14, 2006) in view of Shmalberg ("Calculating calories: a guide to energy expenditure", CABI Database July 2013, pp.1-7) and Hills Vet (Estimated Energy Requirements, 2011, page 1).
Regarding claim(s) 1 and 13, Kates teaches a computer-controlled pet feeding system. In particular, the feeding system includes sensors configured to receive data related to: calories consumed by an animal; activity level of the animal; identification data to distinguish an animal from a plurality of animals (i.e. condition data); health and condition of the dog [ref. claims 1-7, para. 0031, 0187, 0195, Figure 1]; and data from one or more accelerometers and/or gyroscopes to sense motion of the collar [0140, 0012]; and data relating to dog breed for from a list of breeds [0228], which broadly reads on receiving animal characteristic data and durational parameter data as claimed.
Kates teaches functionality for receiving data relating to various activity characteristics for the dog [0144, 0195, 0203, 0238] and sensors for monitoring ambient conditions around the dogs [0176]. Kates does not specifically teach sleep data relating to lack of sleep, overabundance of sleep, or a number of sleep disturbances. However, Kates makes obvious such data since the activity data being collected includes sleep period, time spent asleep, or time spent inactive [0144, 0195, 0203, 0238] and since a lack of (or overabundance) of sleep would be readily apparent to one of ordinary skill in the art based on the activity data provided.
Kates additionally teaches a computer system configured to calculate consumed calories and calculated caloric needs of the animal based on the above data; modify said feeding schedule according to said calorie needs; and dispense food according to feeding schedule [ref. claims 1-8]. Additionally, the computer can provide modified recommendations based on breed and condition data (health data, training data, etc.) [0228].
Kates does not specifically teach determining a caloric requirement of the animal (during a second predetermined time period) based on animal characteristic data, sleep characteristics, and durational parameters obtained during a first time period, as claimed. However, Kates suggests this limitation because their system includes functionality for calculating caloric needs of an animal, functionality for modifying those needs to account for real-time temporal changes in consumption patterns as well as changes based on breed and health conditions, and sensors that take measurements periodically [ref. claims 1-8, para. 0187, 0191-0194, 0202, 0228], and since one of ordinary skill in the art would recognize that an animals sleep schedule is necessarily associated with activity levels and caloric requirements.
In addition, Shmalberg teaches standard linear equations for calculating the energy expenditure for dogs and cats based on the Resting Energy Requirement and a plurality of additional parameters including animal characteristic data, e.g. BW, size, activity level [pages 2-6 and Figure 1]. Alternatively, Hills Vet teaches a lookup table and equations for calculating energy requirements for cats and dogs, including equations for DER based on activity levels [page 1].
Furthermore, absent any limiting definition to the contrary, the choice of a predetermined time period for determining a caloric requirement is nothing more than a design choice that does not change the function of the claimed process steps, as claimed, and Applicant has not disclosed that this particular feature provides an advantage, is used for a particular purpose, or solves a stated problem.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the teachings of Kates by determining caloric requirements of the animal based on animal characteristic data, sleep characteristics, and durational parameters obtained during a first time period, as claimed, since Shmalberg and Hills Vet provide specific equations for calculating caloric requirements for dogs and cats based on animal activity and characteristic data, since Kates suggests sleep data relating to a lack of (or overabundance) of sleep, as discussed above, and since one of ordinary skill in the art would recognize that an animal sleep schedule is necessarily associated with activity levels and caloric requirements. One of ordinary skill in the art would have been able to perform this modification with a reasonable expectation of success since manipulating known equations to account for additional parameters would have been well within the capabilities of the artisan. The motivation would have been to improve animal health by accounting for temporal changes in consumption patterns as well as changes based on breed and health conditions.
Regarding dependent claim(s) 3-11, 15, 16, 18-20, 23, 24, all aspects of these claims are taught or fully encompassed by Kates, Shmalberg and Hills Vet. Regarding claim(s) 3, 15, Kates teaches they system includes an animal collar comprising at least one of, an acoustic input device, an acoustic output device, a vibrator device, an odor output device an infrared receiver, an infrared transmitter, an RFID tag reader, a GPS receiver, an inertial motion unit (e.g., accelerometers or gyroscopes) [0012].
Regarding claim(s) 4-8 and 16, 18, 19, 20, it is the examiner’s position that the time period is considered a results-effective variable that is routinely optimizable. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the teachings of Kates by using first and second time periods that are similar, different, longer, shorter, or 24-hours in duration, with a reasonable expectation of success, since Kates already provides computational methods for determining caloric needs based on animal condition and durational data in real-time, as set forth above, and since one of skill in the art would recognize that such time periods are variable and could easily be optimized based on the health needs of the animal. Regarding claim(s) 23, Kates teaches determining caloric needs based on animal consumption data over time, as set forth above. Regarding claim(s) 24, Kates does not specifically teach processors located at a server. However, Kates suggests this limitation since their system includes a network connection (i.e. server) that allows for Internet connection, local area network connection, wide area network connection [0034]. For these reasons, the claimed invention as a whole does not recite any new element, new function, or unpredictable result, and would have been prima facie obvious at the time it was made.
Response to Arguments
Applicant’s arguments, filed 02/20/2026, have been fully considered but are not persuasive for the following reasons.
Applicant argues that Kates focuses on ensuring an animal is not "overeating or under-eating" relative to static schedules and contains no mechanism for predictive modeling based on physiological stressors like sleep quality, which is different from sleep duration. Furthermore, Applicant emphasizes that the claimed invention requires a specific predictive relationship where data from a first predetermined time period is used to dynamically determine caloric requirements for a future second time period.
In response, the instant claims are not limited to any particular predictive models or specific equations for determining a caloric requirement as claimed, i.e. the determining of a caloric requirement is merely “based on” animal characteristic data, sleep characteristics, and durational parameters. Furthermore, it is noted that that prior art is not limited to the four corners of the documentary prior art being applied. Prior art includes both the specialized understanding of one of ordinary skill in the art, and the common understanding of the layman. KSR at 1396. Suggestion, teaching or motivation does not have to be explicit and “may be found in any number of sources, including common knowledge, the prior art as a whole or the nature of the problem itself” Pfizer, Inc. v. Apotex, Inc. 480 F.3d 1348, 82 USPQ2d 1321 (Fed. Cir. 2007) citing Dystar Textilfarben GMBH v. C. H. Patrick Co., 464 F.3d 1356 (Fed. Cir. 2006).
That being said, the examiner has acknowledged that Kates does not specifically teach determining caloric requirements of the animal based on animal characteristic data, sleep characteristics, and durational parameters, as claimed. Kates suggests this limitation because their system includes functionality for calculating caloric needs of an animal, functionality for modifying those needs to account for real-time temporal changes in consumption patterns, breed, and health conditions, and sensors that take measurements periodically [ref. claims 1-8, para. 0187, 0191-0194, 0202, 0228]. Furthermore, the choice of a predetermined time period for determining a caloric requirement is nothing more than a design choice that does not change the function of the claimed process steps, as claimed, and Applicant has not disclosed that this particular feature provides an advantage, is used for a particular purpose, or solves a stated problem. In addition, Shmalberg and Hills Vet provide equations for calculating caloric requirements for dogs and cats based on animal activity and characteristic data, as set forth above. Therefore, absent any evidence to the contrary and given the breadth of the claims, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the teachings of Kates by determining caloric requirements of the animal based on animal characteristic data, sleep characteristics, and durational parameters obtained during a first time period, as claimed, since Shmalberg and Hills Vet provide specific equations for calculating caloric requirements for dogs and cats based on animal activity and characteristic data, since Kates suggests sleep data relating to a lack of (or overabundance) of sleep, as discussed above, and since one of ordinary skill in the art would recognize that an animal sleep schedule is necessarily associated with activity levels and caloric requirements. One of ordinary skill in the art would have been able to perform this modification with a reasonable expectation of success since manipulating known equations to account for additional parameters would have been well within the capabilities of the artisan. The motivation would have been to improve animal health by accounting for temporal changes in consumption patterns as well as changes based on breed and health conditions. For at least these reasons, the rejection is maintained.
Double Patenting
Claims 1, 3-11, 13, 15-16, 18-20, 23, 24 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-25 of application 17/388393. The differences between the inventions defined by the conflicting claims are as follows: Reference claim(s) 1 of the ‘393 application is a species of the genus recited in instant claim(s) 1 and 13 of the instant patent application, because the cited reference claim(s) teach all of the limitations of instant claim(s) 1 and 13, plus additional features and/or limitations. Therefore, instant claim(s) 1 and 13 is/are anticipated by the narrower claims (i.e. species anticipates the genus). Moreover, dependent reference claims 2-12 teach or suggest all aspects of instant claims 2-11, 14-16, 18-20, 23, 24. Therefore, instant claims 3-11, 15-16, 18-20, 23, 24 are made obvious over the COMBINATION of reference claims 2-12 because it would have been obvious to COMBINE all limitations taught in the reference claims. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Response to Arguments
Applicant’s request that the double patenting rejection be held in abeyance is denied, as applicant has not argued the merits of these rejections and no terminal disclaimer(s) in compliance with 37 C.F.R. 1.321 (c) have been filed to overcome these rejections, as required by 37 C.F.R. 1.130(b).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PABLO S WHALEY whose telephone number is (571)272-4425. The examiner can normally be reached between 1pm-9pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Anita Coope can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PABLO S WHALEY/Primary Examiner, Art Unit 3619