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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/29/2025 has been entered.
Status of the Claim
Claims 1-3 and 5-24 are pending and are under examination; Claims 4 and 25-34 are cancelled. Any objections or rejections not repeated below have been withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 5-11, 13-15, 18-20 and 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 20160302449 in view of Pater et al. WO 2018124880.
Regarding claims 1, 13, 14 and 15 Kobayashi teaches a pet treat comprising an inner portion (core 11; Abstract, Fig. 1), the inner portion having a first density and comprising a grain-based composition (cereals; [0102] (Abstract), as required by claim 1. Kobayashi further teaches the grain-based composition comprises wheat (core comprises wheat; [0102]), as required by claim 13; and where the grain-based composition comprises a flour selected from wheat flour (raw ingredients of core has wheat flour; [0137]), as required by claim 14.
Kobayashi teaches the inner portion having a plurality of cavities (the core contains voids; [0009]).
The pet treat of Kobayashi does not state that the cavities (voids) are filled with a gas. However, the reference would have necessarily taught the cavities being filled with a gas, since they are cavities and air would fill a cavity that is not a vacuum. See MPEP 2112. "In relying upon the theory of inherency, the examiner must provide a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art." Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat. App. & Inter. 1990).
Kobayashi teaches a substantial portion of the cavities are fully encapsulated by the grain-based composition (the core contains voids uniformly distributed in the entire core; [0009], [0087]).
Kobayashi discloses an outer portion (covering portion 12; Abstract, Fig. 1) circumferentially wrapped around the inner portion (Abstract, Fig. 1), the outer portion having a second density and comprising a meat-based composition, as required by claim 1, and where the meat base composition has chicken (covering contains ingredient selected from chicken [0021]), as required by claim 15.
Claim 1 of the invention differs from Kobayashi in specifically reciting wherein the first density is less than the second density.
Pater, in the same field of endeavor, teaches a pet treat comprising an inner portion (core) and an outer portion (skin) circumferentially wrapped around the inner portion (Figure 4B; Claim 1; Abstract). Pater discloses the first density, which is the density of the inner portion, is less than the second density, which is the density of the outer portion (core having a lower density than the skin; Claim 1; Abstract). Pater states that this difference in density has a strong mechanical interaction with the surface of the pet’s teeth when chewed, being effective for removing plaque from the teeth of an animal (pg. 6 lines 1-8).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater to have the density of the inner portion be less than the density of the outer portion because the pet treat will have a strong mechanical interaction with the surface of the pet’s teeth when chewed, being effective for removing plaque from the teeth of an animal, when it has a stratification in density in that it combines a high density outer layer body portion with a low density inner core portion, as recognized by Pater (pg. 6 lines 1-8).
Regarding claim 5, Kobayashi teaches the pet treat is substantially straight through a length thereof (Fig. 1).
Regarding claim 6, Kobayashi teaches the pet treat has a substantially cylindrical configuration and a substantially uniform cross-section through a length thereof (Fig. 1; [0034]).
Regarding claim 7, Kobayashi teaches the pet treat, wherein the inner portion has a substantially circular cross-section (Fig. 1, [0037]).
Regarding claim 8, Kobayashi teaches the inner portion is not substantially covered by the outer portion at a first side and second side of the pet treat (Fig. 1; [0033]).
Regarding claim 9, Kobayashi teaches the inner portion is substantially covered by the outer portion at a first side and second side (the covering portion of the pet food may cover the entire core; the entire core may be completely covered by the covering portion; [0033]).
Regarding claim 10, it is noted the term “aspect ratio” is defined in the specification, pg. 6 lines 14-15, as the ratio of the length or height of a three-dimensional object to the cross-section width thereof.
Regarding claims 10 and 11, Kobayashi teaches the width and length of the pet treat which is used to calculate the aspect ratio of the pet treat [0037-0038]. The width of the pet treat is calculated by adding the width of the inner portion (core) to the width of the outer portion (covering), where the inner portion (core) has a diameter range of 3mm to 15mm [0037] and the outer portion (covering) has a thickness range of 1mm to 15mm [0038]. Therefore, the overall width is a range from 3mm + 1mm = 4 mm; to a width of 15mm +15mm = 30mm. This is a total width range of the pet treat from about 0.4 cm to 3 cm. Kobayashi teaches the length of the inner portion (core), which goes the full length of the pet treat, is a range of 1 cm to 20 cm (Fig. 1, [0037]). This is within the claimed range from about 1 cm to about 50 cm, as required by claim 11.
When using the length divided by the width to calculate the aspect ratio, Kobayashi has a large variety of aspect ratios which includes the aspect ratios from about 1 to about 20. For example, when the length is at 3 cm and dividing by the width, which may also be at 3 cm, this equals an aspect ratio of 1. As a further example, when the length is 20 cm and dividing by the width, which is 1 cm, this equals an aspect ratio of 20. Thus, Kobayashi teaches at least the aspect ratio range of about 1 to about 20. Additionally, as shown by the length ranges and width ranges above, Kobayashi also teaches smaller and larger aspect ratios from about 1 to about 20. Therefore, the aspect ratios of Kobayashi encompass the claimed aspect ratio range from about 1 to about 20, as required by claim 10.
Regarding claim 18, Kobayashi teaches the pet treat comprises a food additive selected from the group consisting of preservative (optional components such as preservatives; [0127]).
Regarding claim 19, Kobayashi teaches the pet treat comprises one or more auxiliary ingredients which comprises a plant material selected from beans [0102].
Regarding claim 20, Kobayashi teaches the pet treat comprises an ingredient selected from the group consisting of a salt (appropriate seasonings such as salt; [0110]).
Regarding claims 23 and 24, Kobayashi teaches the ratio of the outer portion (covering) to the entirety of the pet food is 50 wt% or greater, based on the total weight of the pet treat [0098]. This overlaps the claimed range wherein the outer portion is about 20 wt% to about 95 wt%, based on the total weight of the pet treat, as required by claim 24.
The ratio of the inner portion (core) is the remaining weight percent of the pet treat of Kobayahsi, since the pet treat only comprises the inner portion (core) and outer portion (covering; Fig. 1). Therefore, the inner portion (core) is 50 wt% or less, based on the total weight of the pet treat [0098]. This overlaps the claimed range wherein the inner portion is about 5 wt% to about 80 wt%, based on the total weight of the pet treat, as required by claim 23.
Claims 2-3 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 20160302449, in view of Pater et al. WO 2018124880 and in further view of Hague US 20180235179 (Cited on IDS dated 5/12/2023).
Regarding claim 2, Kobayashi teaches an inner portion (core 11) around a central axis of the pet treat (Abstract, Fig. 1, [0034]), but does not teach the pet treat comprises a hollowed space.
Hague teaches a pet treat that is cylindrical in shape (Abstract; [0008], [0056]). While the preferred embodiment in Hague discloses the pet treat has a single layer [0056], there are alternative embodiments where the pet treat has an outer portion (layer or strip 27) and an inner portion (shank 25; Fig. 3, [0059]). Therefore, Hague discloses a pet treat with an inner portion (shank 25) and an outer portion (layer or strip 27; Fig. 3 [0059]). Hague teaches the pet treat comprises a hollowed space around a central axis of the pet treat (shape of a cylindrical hollow tube 11; Fig. 1, [0056]). The hollow tube adds to the overall chewability of the product and is more apt to “give” as an animal bites down, increasing the life of the chew and allows for cleaning of the animal’s teeth, as recognized by Hague [0043].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater, to incorporate the teachings of Hague to have a hollow space confined by the inner portion and around a central axis of the pet treat because the hollow tube adds to the overall chewability of the product and is more apt to “give” as an animal bites down, increasing the life of the chew and allows for cleaning of the animal’s teeth, as recognized by Hague [0043].
Regarding claim 3, Hague teaches the hollowed space is through an entire length of the pet chew (the tube has an interior cavity 15 extending along the length from end to end 13; Fig. 1, [0056]).
Regarding claim 17, Kobayashi teaches starch is used but does not state what one or more plants the starch composition is derived from [0019], [0103].
Hague teaches the pet treat contains a starch composition derived from one or more plants consisting of corn (plant material comprises corn starch; [0046]), which gives an increase in nutritional value to the pet treat because of the use of plant material [0007].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater, to incorporate the teachings of Hague to have the starch composition be derived from corn (corn starch), which gives an increase in nutritional value to the pet treat because of the use of plant material, as recognized by Hague [0007], [0046].
Claims 12, 16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 20160302449, in view of Pater et al. WO 2018124880 and in further view of Pet Botanics, Training Rewards.
Regarding claim 12, Kobayashi teaches the pet treat can vary is diameter and length, or overall size but does not teach the weight of the pet treat [0037-0038].
Pet Botanics teaches a pet treat (pg. 1 [0001]). Pet Botanics discloses the approximate size of each individual pet treat, which is calculated by taking the overall weight of all the pet treats in one container and dividing by the amount of pet treats in one container, which is 567 grams divided by about 500 treats, equaling about 1.13 grams per individual pet treat (pg. 7 Fig. 1). This small pet treat size is ideal for repetitive rewards required during training, as recognized by Pet Botanics (pg. 6 [0001]). The weight of the pet treat of Pet Botanics is within the claimed range of pet treat weight from about 1 gram to about 50 grams.
Kobayashi and Pet Botanics are considered analogous to the claimed invention because they are in the same field of a pet treat composition. It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater, to incorporate the teachings of Pet Botanics to have the pet treat be the small weight of Pet Botanics because small pet treat size is ideal for repetitive rewards required during training, as recognized by Pet Botanics (pg. 6 [0001]).
Regarding claims 16 and 21, Kobayashi teaches a pet treat where the outer portion (covering) may contain anti-oxidants (optional components such as antioxidants) but does not state what ingredient the anti-oxidant rich material is selected from, as required by claim 16 [0127].
Kobayashi also teaches that various other health ingredients can be added like vitamins and minerals but does not state specific types of health ingredients, as required by claim 21 [0116-0117].
Pet Botanics teaches a pet treat that further comprises an anti-oxidant rich material and health ingredient of flax seed, which supports health and nutrition in a pet, as required by claims 16 and 21 (pg. 6 [0003-0004]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater, to incorporate the teachings of Pet Botanics to have the pet treat contain flax seed because flax seed helps supports health and nutrition in a pet, as recognized by Pet Botanics (pg. 6 [0003]).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi et al. US 20160302449, in view of Pater et al. WO 2018124880 and in further view of Mattie’s Treats, Special Treats for Special Dogs.
Regarding claim 22, Kobayashi teaches the pet treat has a at least 22% protein (soybean protein; pg. 7 Table 3). This is within the claimed range of at least about 15 wt% of protein.
Kobayashi teaches the pet treat has at least 0.4% fats (safflower oil; pg. 7 Table 3). This is within the claimed range of at least about 0.05 wt% of fat.
The pet treat of Kobayashi has a final moisture content of the entirety of the pet food of 17.0% weight [0140]. This is within the claimed range of less than about 20 wt% moisture.
Kobayashi does not teach the weight percent of fiber or ash within the pet treat. Mattie’s Treats teaches a pet treat (pg. 1 [0001]). Mattie’s Treats discloses the pet treat contains a minimum of 0.75% fiber content and a minimum of 0.9% ash content (pg. 5 [0005]). The low fiber and ash content in the treat help maintain health and is compatible for pets diagnosed with a kidney condition, as recognized by Mattie’s Treats (pg. 3 [0001], [0003]). The fiber and ash content of Mattie’s Treats overlap with the claimed range of less than about 3% of fiber and less than about 10% of ash.
Kobayashi and Mattie’s Treats are considered analogous to the claimed invention because they are in the same field of a pet treat composition. It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater, to have the pet treat have a low ash content and fiber content as taught by Mattie’s Treats because the low fiber and ash content in the treat help maintain health and is compatible for pets diagnosed with a kidney condition, as recognized by Mattie’s Treats (pg. 3 [0001], [0003]).
Response to Arguments
Applicant's arguments filed 04/29/2025 have been fully considered but they are not persuasive.
Applicant argues, on pg. 6 of their remarks, that Pater fails to teach or suggest cavities that are fully encapsulated by the grain-based composition. Applicant states that Pater teaches a foamed or cellular core body and the cellular structure in Pater is interconnected rather than having discrete, fully encapsulated cavities as claimed. However, the Office disagrees for the following reasons.
Claim 1 states, “a substantial portion of the cavities being fully encapsulated by the grain-based composition.” However, the claim language says nothing about “interconnection” vs “discrete” encapsulated cavities. The claim only requires the cavities be encapsulated by the grain-based composition. Regardless, as shown in the rejection above, Kobayashi does teach discrete cavities as it discusses voids uniformly distributed in the entire core [0009], [0087] and not an interconnected foam.
Regarding applicant’s argument that Pater doesn’t disclose the cavities being fully encapsulated by the grain-based composition, the Office did not rely on Pater to disclose these elements, rendering these arguments moot. Nevertheless, Pater does teach discrete cavities as it discloses an inner core comprising a foamed or cellular material (pg. 9 L24-25) and not an interconnected foam since it has discrete cells in the material and doesn’t describe any tunneling or interconnection between the cells or foam material.
Applicant argues, on pg. 6 of their remarks, that the motivation to combine Kobayashi and Pater is improper. The applicant states the reasoning to combine the references appears to be based on improper hindsight rather than any teaching in the references themselves. Applicant argues that Kobayashi is focused on providing different chewy textures while Pater requires a hard high density outer layer for mechanical cleaning. However, the Office disagrees for the following reasons.
The motivation to combine Kobayashi and Pater is not improper and the reasoning to combine the references is based on reasoning from the references themselves. As shown by the rejection above, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Kobayashi in view of Pater to have the density of the inner portion be less than the density of the outer portion because the pet treat will have a strong mechanical interaction with the surface of the pet’s teeth when chewed, being effective for removing plaque from the teeth of an animal, when it has a stratification in density in that it combines a high density outer layer body portion with a low density inner core portion, as recognized by Pater (pg. 6 lines 1-8). Thus, the motivation to combine Kobayashi and Pater is viewed as being proper.
Regarding applicant’s argument that Pater requires a hard high density outer layer for mechanical cleaning, which the applicant views as a texture that would not provide the different chewy textures focused on in Kobayashi; both Kobayashi and Pater provide a pet chew with different chewy textures having a harder outer covering or layer and a softer core. Kobayashi teaches a pet food having two different types of chewy textures, a harder covering portion and a softer core [0006-0008].
The invention of Pater combines a hard high density outer layer with a soft low density inner core portion, providing a stratification in density (pg. 6 L 1-8), which would necessarily have a difference in chewiness between the textures. Additionally, Pater discusses how molded products that are glassy in nature have a tendency to shatter into sharp, hard fragments when bitten, which is dangerous to the animal, so products must not be too brittle (pg. 3 L3-7). Pater discloses that chewable pet treats are flexible in nature and discusses the use of thermoplastic starch to make these pet treats (pg. 3 L5-10, pg. 19 L12-15) as well as the addition of plasticizers in the outer layer of the pet treat, which leads to a very flexible product (pg. 22 L1-13). Thus, the hard high density outer layer of Pater is viewed as a chewy texture even though it has greater resistance to indentation than the “soft” low density inner core, providing different chewy textures for the pet.
Additionally, in response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759