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 .
Status of the Claim
Claims 1, 3, 5, 7-9, 14-22 and 24-25 are pending in this application. Claims 1, 3, 5 ,7-9, 16, 18-22 and 24-25 are under examination. Claims 14-15 and 17 are withdrawn. Any objections or rejections not repeated below have been withdrawn.
Claim Objections
Claim 9 is objected to because of the following informalities:
Claim 9 lines 3-4 recites, “the step of providing the animal-feed precursor provides of meat and animal by-products.” For matters of form, the “of” before the word “meat” should be removed. The limitation would then read as follows, “the step of providing the animal-feed precursor provides meat and animal by-products.” Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 22 and 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 22 recites, “wherein the visual impression of the semimoist animal feed corresponds to an appearance of fresh meat” and “wherein the appearance of fresh meat is maintained.” The term “appearance of fresh meat” is unclear. For the purpose of examination, as long as the method steps previously recited in claim 1 have been met, the preserved semimoist animal feed will be considered to have an appearance of fresh meat.
Claim 24 has been rejected because it depends from a rejected base claim.
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 1, 3, 5, 7-8, 16, 18, 20-22 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Deuerer (US 20170150742), in view of Mitchell et al. (US Patent No. 3982003).
Regarding claim 1, Deuerer teaches a method for producing and preserving a semimoist animal feed for improving shelf-life and visual impression comprising: providing an animal-feed precursor (a meat ingredient) that is put through a cutter, or is comminuted. The animal-feed precursor is shaped and the shaped feed precursor is dried. The moisture content of the shaped feed precursor is between 15% to 50% by weight. This encompasses the claimed range of >15% to <50% by weight [0008]-[0012], [0021], [0055] (Claim 1). Deuerer teaches packaging the semi-moist animal feed in a substantially gas-tight packaging unit (foil gas-tight package; [0048]).
Deuerer does not teach the packaged semimoist animal feed being treated by thermal treatment and pressure treatment, wherein the step of preserving includes steam sterilization.
Mitchell teaches processing pet food sealed in cans through a sterilization process. Mitchell discloses preserving the semimoist animal feed by thermal treatment and pressure treatment, wherein the step of preserving includes steam sterilization (a steam autoclave at 24 psi to achieve sterilization) and obtaining a non-perishable semimoist animal feed present in a packaging unit (C7 L30-33, C8 L20-24, C9 L60-65).
Mitchell is considered analogous to the claimed invention because it is in the same field of a method for producing and preserving an animal feed. 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 Deuerer in view of Mitchell by subjecting the packaged pet food to thermal treatment at an elevated pressure wherein the preserving includes steam sterilization because this is able to achieve sterilization of the product, as recognized by Mitchell (C8 L20-24).
Moreover, all the claimed elements were known in the prior art and one of ordinary skill in the art would have combined the elements as claimed by known methods, i.e., adding thermal and pressure treatments of the packaged pet food, with no change in the respective functions of the thermal and pressure treatments of the pet food that has been packaged, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, which is sterilization of a food. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395 – 97 (2007); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62-63, 163 USPQ 673, 675 (1969). See MPEP § 2143(I)(A).
Deuerer teaches providing an animal-feed precursor containing less than 1% by weight of salt, that is Deuerer does not teach the addition of salt to the animal feed [0009], [0010], [0016], [0028], [0030]. Deuerer encompasses that there is no salt, because the reference does not discuss the presence of salt but teaches other additives that can be included in the alternative as recited in [0030]. Therefore, the animal-feed precursor of Deuerer contains less than 1% by weight of salt. This is within the claimed range of less than 1% by weight of salt.
Deuerer teaches the animal-feed precursor provided in the providing step does not comprise a nitrite salt. Deuerer encompasses that there is no nitrite salt, because the reference does not discuss the presence of nitrite salt but teaches other additives that can be included in the alternative as recited in [0030]. That is, Deuerer does not teach the providing step comprising a nitrite salt, specifically the animal feed does not contain a nitrite salt [0009], [0010], [0016], [0028], [0030].
Regarding the limitation, “wherein a gray color of the animal feed is converted into a red tone,” this limitation is considered a property of the animal feed made by the method disclosed above. Since the method of Deuerer in view of Mitchell is a substantially identical method to the claimed method and produces a substantially identical animal feed, it is considered to possess the claimed property, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Regarding claim 3, Deuerer teaches the animal feed precursor is between 30% to 95% by weight of meat content, more preferably between 60% to 70% by weight of the feed precursor [0017]. This is within the claimed range at least 50% by weight of meat.
Regarding claim 5, Deuerer teaches drying the shaped animal-feed precursor to a moisture content from 15% to 50% weight, more preferably from 20% to 40% weight [0012]. The reference range of 15% to 50 % fully encompasses the claimed range of 30% to 50% by weight. See MPEP 2144.05(I).
Regarding claim 7, Deuerer discloses drying of the shaped feed precursor at a temperature range of 90° C to 200°C [0023]. This overlaps with the claimed range of 70°C to 95°C. See MPEP 2144.05(I).
Regarding claims 8 and 16, Mitchell teaches the steam sterilization as discussed above in claim 1. Mitchell discloses processing the animal feed (pet food) wherein the steam sterilization is performed in an autoclave under thermal treatment with elevated pressure, as required by claim 16 and where the autoclave at a pressure of 24 psi, or 1.65 bar (C9 L60-65). This is within the claimed range of 0.3 to 5 bar, as required by claim 8.
Regarding claim 18, Deuerer teaches the packaging unit is a tubular bag package [0048].
Regarding claim 20, Deuerer in view of Mitchell teaches the method steps for producing and preserving semimoist animal feed having improved shelf-live and visual impression according to claim 1. As discussed above in claim 1, the animal feed produced by the method steps of modified Deuerer are substantially identical to the claimed method steps of claim 1, resulting in an animal feed that is converted into a red tone. Thus, the preserved semimoist animal feed of modified Deuerer is considered to possess the property of an animal feed that is red, wherein the visual impression is a redness. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Regarding claim 21, Deuerer teaches a minimum shelf-life of at least 18 months [0049]. This overlaps with the claimed shelf-life of at least 20 months. See MPEP 2144.05(I). Additionally, the method steps of modified Deuerer are substantially identical to the claimed method steps, as shown by the rejection above. Therefore, the preserved semimoist animal feed of modified Deuerer is considered to possess the property of having an improved shelf life of at least 20 months. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Regarding claims 22 and 25, Deuerer in view of Mitchell teaches the method of claim 1, as discussed above. The method steps of modified Deuerer are substantially identical to the claimed method steps. Therefore, the preserved semimoist animal feed of modified Deuerer is considered to possess the properties outlined in claim 22 of the visual impression of the semimoist animal feed corresponding to an appearance of fresh meat wherein the appearance of fresh meat is maintained as a result of the steam sterilization method step of the semimoist animal feed packaged in the substantially gas-tight packaging unit prior to steam sterilization as discussed in claim 1. Additionally, the animal feed of modified Deuerer is considered to possess the property outlined in claims 22 and 25 wherein the color of the semimoist animal feed is converted from gray to red-brown, as required by claim 22 and wherein the red tone of claim 1 is a red-brown tone, as required by claim 25. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Claims 9 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Deuerer (US 20170150742), in view of Mitchell et al. (US Patent No. 3982003), as applied to claim 1 above, and further in view of Sundays for Dogs, Human-Grade Dog Food (hereinafter Sundays).
Regarding claim 9, Deuerer teaches the animal feed precursor is between 30% to 95% by weight of meat content, more preferably between 60% to 70% by weight of the feed precursor [0017]. It is noted that the meat refers to all meat parts and all products of processing of the bodies of land animals that are allowed in animal feed processing [0016], which would include meat and animal by-products. This is within the claimed range of at least 50% by weight of meat and animal by-products.
Deuerer teaches the animal-feed precursor does not have more than 1% by weight of salt. Specifically, Deuerer does not teach the addition of salt to the animal feed. Therefore, the animal-feed precursor of Deuerer contains not more than 1% by weight of salt. This is within the claimed range of less than 1% by weight of salt.
Deuerer teaches the precursor can contain one or a plurality of components such as vegetables, cereal, and potatoes, which contain starch [0028], [0055] (Claim 3). Therefore, the animal feed precursor contains starch.
Deuerer teaches the animal feed precursor can contain no preservatives [0030-0031], (Claim 4). Sundays discusses the quality of animal feed to help make the optimal dietary choices for your dog (pg. 1 [0001]). Sundays teaches selecting an animal feed (dog food) that contains no preservatives for a healthier dog food diet to improve the quality of your pet’s life (last sentence on pg. 2, pg. 3 [0001], pg. 4 [0003]).
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 Deuerer in view of Mitchell to have the animal feed precursor contain at least one additive other than preservatives, thus containing no preservatives to achieve a healthier dog food diet to improve the quality of the pet’s life as recognized by Sundays (last sentence on pg. 2, pg. 3 [0001], pg. 4 [0003]).
Deuerer discloses the animal feed precursor is put through a cutter, or is comminuted. The animal-feed precursor is shaped and the shaped feed precursor is dried. The moisture content of the shaped feed precursor is between 15% to 50% by weight. This encompasses the claimed range of >15% to <50% by weight [0008]-[0009], [0021], [0025], [0055] (Claim 1). Deuerer teaches packaging the semi-moist animal feed in a foil gas-tight package [0048].
Deuerer discloses the semimoist animal feed is packaged after it is dried. The moisture content, after the shaped animal feed product is dried and right before it is packaging, is between 15% to 50% weight, more preferably from 20% to 40% weight [0012], (Figure 1). The reference range of 15% to 50 % fully encompasses the claimed range of 30% to 45% by weight.
Deuerer does not teach the packaged semimoist animal feed being treated by steam sterilization.
Mitchell teaches steam autoclave sterilization, or steam sterilization, of the packaged product to achieve sterilization (C8 L18-24). 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 Deuerer in view of Mitchell, to have the preserving step include steam sterilization to achieve sterilization (C8 L20-24).
Regarding claim 19, Deuerer teaches the animal feed precursor can contain no preservatives [0030-0031], (Claim 4). Sundays discusses the quality of animal feed to help make the optimal dietary choices for your dog (pg. 1 [0001]). Sundays teaches selecting an animal feed (dog food) that contains no preservatives for a healthier dog food diet to improve the quality of your pet’s life (last sentence on pg. 2, pg. 3 [0001], pg. 4 [0003]).
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 Deuerer to have the animal feed precursor contain at least one additive other than preservatives, thus containing no preservatives to achieve a healthier dog food diet to improve the quality of the pet’s life as recognized by Sundays life (last sentence on pg. 2, pg. 3 [0001], pg. 4 [0003]).
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Deuerer (US 20170150742), in view of Mitchell et al. (US Patent No. 3982003), as applied to claim 1 above, and further in view of Phelps et al. (US 20090311390).
Regarding claim 24, Deuerer teaches the air within the substantially gas-tight packaging unit is substantially replaced with a protective gas selected from the group consisting of N2, CO2 and mixtures thereof (the semi-moist animal feed product can be packaged or sealed under a protective atmosphere, for example in a nitrogen and/or carbon dioxide atmosphere), which helps extend the shelf life and ensure a minimum shelf life is achieved [0049].
Deuerer is silent as to the percentage of the protective gas. Phelps teaches a process for making pet food treats with a meat base, where the pet food is packaged while reducing the amount of oxygen in the package (Abstract). Phelps teaches air in the packaging is displaced by gas, where the modified atmosphere contains nitrogen or carbon dioxide or a combination [0033]. Phelps states the residual oxygen in the modified atmosphere is about 7% or less, which is 93% protective gas, reducing the amount of oxygen in the bag [0033]. This is within the claim range of at least 80% protective gas.
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 Deuerer in view of Mitchell to have incorporated the teachings of Phelps to have the protective gas within the claimed range because this reduces the amount of oxygen in the package, as recognized by Phelps [0033], which helps extend the shelf life and ensure a minimum shelf life is achieved, as recognized by Deuerer [0049].
Response to Arguments
Applicant's arguments filed February 11, 2026 have been fully considered but they are not persuasive.
Applicant argues on pg. 7 of their remarks, that neither Deuerer or Mitchell teach reverting the gray color of meat into a red tone, such as a red-brown tone. Applicant states the combination of references does not make the claimed invention obvious since it does not teach the gray color being reverted to a red tone. Applicant repeats these arguments on pgs. 8-9 with respect to claims 9 and 19 in relation the secondary reference Sundays, and with respect to claim 24 in relation to the secondary reference of Phelps. However, the Office disagrees for the following reasons.
The Office notes that the color of the semimoist animal feed is a physical property of the composition. As long as the ingredients outlined in the claims undergoes the method steps discussed in the claims, the same color change noted in the claims will occur. As discussed above, the method of Deuerer in view of Mitchell is a substantially identical method to the claimed method and produces a substantially identical animal feed. Thus, the color of the animal feed of modified Deuerer, which is a property of the animal feed, would undergo the same changes as claimed. Therefore, the animal feed of modified Deuerer is considered to possess the claimed property of color and color change, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Regarding applicant’s arguments on pg. 7 directed toward the evidentiary reference Meat Industry Services, these arguments are considered moot as the evidentiary reference has been removed.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759