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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 19 March 2026 has been entered.
Claim Status
Applicant’s claim amendments and arguments in the response filed 19 March 2026 are acknowledged.
Claims 23, 25, 26, 29 & 32-35 are pending.
Claim 23 is amended.
Claims 1-22, 24, 27, 28, 30 & 31 are cancelled.
Claims 25, 26, 32, 33 & 35 are withdrawn.
Claims 23, 29 & 34 are under consideration.
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied and constitute the complete set presently being applied to the instant application.
Examination is to the extent of the following species:
Size of Dog- Medium Breed; -and-
Purpose of modulation: Increasing the number of bacterial species.
Priority
Receipt is acknowledged of papers submitted under 35 U.S.C. 119(a)-(d), which papers have been placed of record in the file.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 19 March 2026 have been fully considered by the examiner. A signed and initialed copy of each IDS is included with the instant Office Action.
New Objections & Rejections
Specification
The disclosure is objected to because of the following informalities: the specification has the typographical error “D & P” instead of “S & P” interspersed throughout the disclosure. See, for example, pg. 20-21 & 38 of the specification. Applicant is required to check the entire specific for typographical errors.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 23, 29 & 34 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. This is a new matter rejection.
Independent claim 23 recites “the dog has received at least two scale and polish teeth cleanings and daily tooth brushing for at least 14 days prior to administering the oral chew” (emphasis added). The term “at least” set the lower limit of scale and polish cleanings and days of daily tooth brushings. The claim encompasses more than two scale and polish teeth cleanings and more than 14 days of tooth brushing prior to administering the oral chew. The reply filed 19 March 2026 states that support for this amendment is found in at least page 20, line 23 bridging page 21, line 7. This is not persuasive. This portion of the specification describes scientific testing in which a first scale and polish was performed, the teeth were then brushed for 14 days, and a second scale and polish was performed prior to offering the daily chew (specification-pg. 20 & 21). As such, pages 20-21 of the specification only support 2 scale and polish cleanings and 14 days of daily brushing. No support appears to be present for scale and polishing in excess of two and more than 14 days of daily brushings. Applicant is encouraged to point to page and line number where support may be found.
Claims 29 & 34 are rejected under 35 USC 112(a) because they depend from rejected claim 23.
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.
Claims 23, 29 & 34 are rejected under 35 U.S.C. 103 as being unpatentable over McGenity (US 2011/0300197; Published: 12/8/2011) in view of Let the Cat Out of the Bag [(Published: 11/14/2018; previously cited; PTO-892: 01/06/2025); and as evidenced by Ingredients of Dentastix
(https://www.petforums.co.uk/threads/ingredients-of-dentastix-dont-feed.170976/; Published: 06/10/2011; previously cited; PTO-892: 08/12/2025)].
With regard to claims 23 & 29, McGenity teaches a method of “alteration of the bacterial content of dental plaque” in an animal which include labrador retriever dogs (i.e. modulating an oral microbiota in a medium sized dog; abstract; Example 10-[0117]-[0120]). McGenity also teaches their method is for “prevention or treatment of gingivitis in an animal” (abstract). With regard to claims 23 & 34, McGenity teaches their food product, which is preferably a chew, “the food product improves or maintains the oral health of the animal by controlling or reducing dental plaque in the animal, by which it is meant that disease causing factors produced by the plaque and/or dental plaque are reduced or inhibited in the oral cavity of the animal” (i.e. a reduction in periodontal disease; [0047] & [0017]). With regard to claim 23, McGenity in Example 10 teaches “[i]n this clean tooth model, the dogs were given a dental scale and polish at day 1 and received a standard commercial dry kibble diet and daily tooth brushing for two weeks (baseline phase) to reduce gingivitis to baseline levels. Gingivitis scores and removal of any accumulated dental deposits was then undertaken through a second dental scale and polish, following which animals received the same commercial dry kibble base diet plus test product for a five week period prior to repeated gingivitis scoring as well as measurement of plaque and calculus deposits” (i.e. the dogs received at least two scale and polish teeth cleanings and daily tooth brushing for at least 14 days prior to administering the oral chew; [0119]). With regard to claim 23, McGenity in Example 10 teaches a “Group 2” of dogs in which “in addition to base diet received a daily standard dental chew” (i.e. the oral chew is administered to the dog daily; [0119]]).
McGenity does not teach the density of the standard dental chew, inclusion of a humectant in the standard dental chew, or the modulation by increasing the prevalence of at least one bacteria selected from the group consisting of “Prevotella sp…, Corynebacterium mustelae, and combinations thereof”.
With regard to claim 23, in the Pedigree Dentastix Daily Oral Care embodiment, Let the Cat Out of the Bag teaches Pedigree Dentastix Daily Oral Care stick is given daily (pg. 5). Let the Cat Out of the Bag teaches the dog chews it and slowly enjoys it (i.e. the stick is a chew; pg. 6). Let the Cat Out of the Bag teaches Pedigree Dentastix Daily Oral Care stick avoids “the formation of bacteria as well as the main cause of gingivitis (pg. 6). With regard to claim 23, as evidenced by Ingredients of Dentastix, Dentastix comprise glycerin which is a humectant (pg. 1). Let the Cat Out of the Bag teaches oral hygiene of their dog is essential because 4 out of 5 dogs over the age of 3 suffer from gum disease (pg. 8 & 9).
It would have been prima facie obvious to the ordinary skilled artisan before the effective filing date of the claimed invention to have modified McGenity‘s method of reducing plaque and preventing gingivitis in medium sized/labrador dogs through daily administration of a standard dental chew after the dog’s teeth have been scaled and polish cleaned, brushed daily for 2 weeks (i.e. 14 days) and subsequently scaled and polished a second time by substituting McGenity‘s standard dental chew with Let the Cat Out of the Bag’s Pedigree Dentastix because McGenity and Let the Cat Out of the Bag are both directed to reducing or controlling dental plaque and alteration of bacterial content of dental plaque to prevent or treat gingivitis in dogs. The ordinary skilled artisan would have been motivated to do so, with an expectation of success, in order to reduce or control dental plaque and alter bacterial content of dental plaque to prevent or treat gingivitis through use of Let the Cat Out of the Bag’s Pedigree Dentastix which is a commercially available dental chew which avoids the formation of bacteria which is the main cause of gingivitis. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983).
With respect to the limitation of claim 23, “wherein the oral microbiota is modulated by increasing the prevalence of at least one bacteria selected from the group consisting of Prevotella COT 282, Propionbacterium COT 296, Catonella COT 257, and Cornynebacterium mustelae, and combinations thereof; wherein the prevalence of the at least one bacteria is increased by at least 2-fold when compared to the oral microbiota in a dog that has not been administered the oral chew”, the recited method, composition, and study population (i.e. medium sized dogs) are suggested by the combined teachings of McGenity and Let the Cat Out of the Bag. In particular, McGenity teaches the recited study population of medium sized dogs and the recited method in which the medium sized dogs’ teeth were scaled and polished, brushed daily for two weeks, and scaled and polished before the study started and then the dental sticks were administered daily. The administered composition of the method suggested by the combined teachings of McGenity and Let the Cat Out of the Bag is identical in that it is Pedigree Dentastix. Since it would have been prima facie obvious to clean and polish a medium dog’s teeth, brush their teeth daily for 14 days, scale and polish the teeth a second time and then administer daily Pedigree Dentastix, the identical method of McGenity and Let the Cat Out of the Bag would necessarily provide a 2-fold or more increase in the proportion of at least one of Prevotella COT 282, Propionbacterium COT 296, Catonella COT 257, and Cornynebacterium mustelae compared to dogs not receiving the recited oral chew. “The claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable”. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).
With regard to the recited density and inclusion of a humectant, as evidenced by Example 1 of the instant specification, Pedigree Dentastix are the inventive “test product” and the humectant content of the inventive chew (i.e. Pedigree Dentastix) is 5 wt.% to 20 wt.% , including 10 wt%, and the density of the inventive chew is about 1.0 g/cm3 or less (instant specification pg. 4 & 20). The combined teachings of McGenity and Let the Cat Out of the Bag teaches daily administration of Pedigree Dentastix, which necessarily comprises the recited humectant content and density. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Response to Arguments
Applicant summarizes the rejection (reply, pg. 4-5). Applicant argues Trust Me in view of Cat Out fails to render the claimed invention obvious because applied prior art does not teach the method steps of the dog receiving at least two scale and polish teeth cleanings and daily tooth brushing for at least 14 days prior to administering the oral chew (reply, pg. 5-6). Applicant argues Trust Me is silent regarding multiple scale and polish cleanings (reply, pg. 7). Applicant argues Cat Out in its teachings of brushing a dog’s teeth as being the best way to keep a dog’s teeth free of plaque is in direct opposition to Trust Me ‘s teachings (reply, pg. 8).
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORI K MATTISON whose telephone number is (571)270-5866. The examiner can normally be reached 9-7 (M-F).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David J Blanchard can be reached at 5712720827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LORI K MATTISON/Examiner, Art Unit 1619
/NICOLE P BABSON/Primary Examiner, Art Unit 1619
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