DETAILED ACTION
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 Application
Receipt of the Response and Amendment after Non-Final Office Action filed is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3-22, 29-32
Withdrawn claims: None
Previously cancelled claims: 2, 23-28
Newly cancelled claims: None
Amended claims: None
New claims: 29-32
Claims currently under consideration: 1, 3-22, 29-32
Currently rejected claims: 1, 3-22, 29-32
Allowed claims: None
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.
Claims 1, 6, 9, and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited) in view of Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), and Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited).
Regarding claim 1, Woo teaches a woven fabric formed from fibers, wherein the fabric is for stuffed toys; and wherein a plurality of microcapsules containing a fragrance is trapped within the fibers of the fabric (column 2, lines 19-23, 32-38, 43-45). Woo teaches that the microcapsules release the fragrance upon breaking (column , lines 60-63). Woo discloses that the impregnated fabric provides long-lasting scent (column 2, lines 47-56) and that the core of each microcapsule is an essential oil (column 1, 56-58).
Woo does not teach that the stuffed toy is an animal toy comprising the fabric enclosure; or that a compressible fill material is enclosed in the inner mesh fabric layer as recited in present claim 1.
However, Ritchey teaches a stuffed animal toy (abstract), comprising: a fabric enclosure comprising an outer fabric layer (corresponding to pliable shell 12 that may be formed of fabric) [0049] and an inner layer (corresponding to pouch 58) (Figs. 5-6; [0059]-[0060]). Ritchey teaches that the outer fabric layer may be formed of long-napped, faux fur [0049], [0053]. Ritchey teaches that the inner layer may comprise an aromatic material that encourages an animal such as a cat to play with the toy such as catnip [0060]. Ritchey teaches that the inner layer may be filled with stuffing material wherein the stuffing material may be: the attractant (e.g., catnip), fur comprising the fabric of the layers of the toy: and/or loose filler material (corresponding to the item labeled 16 in at least Fig. 6). Therefore, Ritchey at least suggests a compressible fill material is enclosed within the inner layer of the toy.
It would have been obvious for a person of ordinary skill in the art to have modified the stuffed toy of Woo to be the animal toy disclosed by Ritchey. Since Woo discloses that a stuffed toy may be formed from the impregnated fabric so as to provide a long-lasting scent (column 2, lines 19-23, 32-38, 43-56)column 2, lines 47-56), but does not disclose a specific stuffed toy, a skilled practitioner would have been motivated to consult an additional reference such as Ritchey in order to determine a suitable stuffed toy which may benefit from long-lasting scent, thereby rendering the claimed fabric enclosure comprising a fabric outer layer and an inner fabric layer formed from fibers, wherein the inner fabric layer encloses a compressible fill obvious.
The combination of Woo and Ritchey does not teach that the inner layer of the animal toy is a mesh fabric layer; or that the plurality of microcapsules encapsulate a food flavor.
However, Brennan discloses pouches (corresponding to sachets) comprising aromatic substances wherein a layer of the pouch comprises an open-weave such as mesh so as to allow fragrance to emit (page 4, all pictures; page 8, 2nd picture; page 9, 1st picture).
It would have been obvious for a person of ordinary skill in the art to have modified the inner pouch in the toy of modified Woo to be made from mesh fabric formed from fibers as taught by Brennan. Since Woo discloses a stuffed toy that emits long-lasting fragrance wherein the fabric comprising the fragrance is a woven fabric (column 2, lines 19-23, 32-38, 43-56) and Ritchey discloses that its animal toy comprises an inner pouch which emits fragrance [0060], but the prior art does not specify the weave of a fabric capable of doing so, a skilled practitioner would have been motivated to consult an additional reference such as Brennan in order to determine a suitable pliable material comprising a weave which would allow fragrance to emit from the enclosed material, thereby rendering the claimed inner mesh fabric layer formed from fibers obvious.
The combination of Woo, Ritchey, and Brennan does not disclose the plurality of microcapsules comprise a flavor composition.
However, Fix discloses that valerian root extract oil is a cat attractant (page 1, #10). Valerian root oil has a flavor as evidenced by Vigon (page 1, “Taste Description”). Therefore, the valerian root oil of Fix qualifies as a flavor composition.
It would have been obvious for a person of ordinary skill in the art to have modified the microcapsules of modified Woo to contain valerian root oil as taught by Fix. Since Woo discloses that the core of each microcapsule is an essential oil (column 1, 56-58) and Ritchey discloses that its animal toy comprises an aromatic to encourage an animal such as a cat to play with the toy [0060], a skilled practitioner would have been motivated to consult an additional reference such as Fix in order to determine a suitable essential oil as an animal attractant. Therefore, the claimed natural food flavor composition is rendered obvious.
Regarding claims 6 and 9, modified Woo teaches the invention as described above in claim 1, including the flavor composition valerian root oil (Fix, page 1, #10). Valerian root oil is extracted from valerian root and is water immiscible (corresponding to separates from water) as evidenced by Vigon (page 1, 3rd paragraph). Therefore, the flavor composition is a natural food flavor composition as recited by present claim 6; and is water immiscible as recited by present claim 9.
Regarding claim 13, modified Woo teaches the invention as described above in claim 1, including the mesh in the mesh fabric layer is an open mesh (corresponding to open weave) (Brennan, page 1, 4th bullet under “You Will Need”).
Regarding claim 14, Woo teaches the invention as described above in claim 1, including the inner mesh layer comprises fiber strands and the microcapsules are entrapped in the fiber strands (column 2, lines 19-23).
Regarding claim 15, Ritchey teaches the invention as described above in claim 1, including the animal toy is for play by an animal (abstract), thereby at least suggesting that the animal toy is non-toxic to animals.
Claims 3-5, 7-8, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited) in view of Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), and Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited) as applied to claim 1 above, and further in view of David (US 5,051,304; previously cited).
Regarding claim 3, modified Woo teaches the invention as described above in claim 1, including the flavor composition is a liquid (corresponding to valerian root oil) (Fix, page 1, #10). The prior art also teaches that the microcapsules have a polymeric shell (corresponding to thin polymeric coating) (Woo, column 1, lines 17-20).
The prior art does not teach that the shell is a protein shell.
However, David teaches the microencapsulation of aroma and oils with polymer shells, wherein a polymer in the shell is gelatin (column 1, lines 6-12; column 5, lines 4-13). Therefore, David discloses a microcapsule having a protein shell.
It would have been obvious for a person of ordinary skill in the art to have modified the polymer shell of modified Woo to comprise a protein polymer as taught by David. Since Woo discloses that the shell of its microcapsule is a polymer (Woo, column 1, lines 17-20), but does not disclose a specific polymer, a skilled practitioner would have been modified to consult an additional reference such as David in order to determine a suitable polymer for a polymer shell of a microcapsule, thereby rendering the claimed natural protein shell obvious.
Regarding claims 4 and 5, modified Woo teaches the invention as described above in claim 3, including the protein shell comprises a cross-linked hydrocolloid (corresponding to cross-linked gelatin) (David, column 4, lines 29-36). Modified Woo also discloses that the protein is natural (corresponding to gelatin) (David, column 1, lines 6-7).
Regarding claims 7 and 8, modified Woo teaches the invention as described above in claim 5, including the flavor composition comprises valerian root oil (Fix, page 1, #10), which is a FEMA GRAS ingredient (corresponding to FEMA 3100) as evidenced by Vigon (page 1, first paragraph; FEMA number located above “Odor Strength”). Therefore, the flavor composition is considered to be AAFCO compliant and a FEMA GRAS ingredient.
Regarding claim 10, modified Woo teaches the invention as described above in claim 1, including the flavor composition is a liquid (corresponding to valerian root oil) (Fix, page 1, #10). The prior art also teaches that the microcapsules have a polymeric shell (corresponding to thin polymeric coating) (Woo, column 1, lines 17-20) and are micron-sized in order not to alter the general feel and texture of the fabric (Woo, column 1, lines 59-60; column 2, lines 23-26). The prior art does not teach the claimed distribution of major dimension lengths.
However, David teaches the microencapsulation of aroma and oils with polymer shells (column 1, lines 6-12; column 5, lines 4-13), wherein the mean diameter of the microcapsules is 50-700 µm (column 4, lines 66-67), which is considered to overlap the claimed distribution of major dimension lengths. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
It would have been obvious for a person of ordinary skill in the art to have modified the size of the microcapsule of modified Woo to be within the range of 50-700 µm as taught by David. Since Woo discloses that the shell of its microcapsule is a polymer (column 1, lines 17-20), but does not disclose a specific polymer, a skilled practitioner would have been modified to consult an additional reference such as David in order to determine a suitable polymer for a polymer shell of a microcapsule. In consulting David, the practitioner would find that the microcapsule may be larger than the micron-size disclosed in Woo as changes in size and proportion are prima facie obvious. MPEP 2144.04.IV.A. Therefore, the claim is rendered obvious.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited) in view of Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), and Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited) as applied to claim 1 above, and further in view of Songer (Songer et al., “Mask Fabrics: Introduction to Fibers and Fabrics”, 2020, Maker Mask, https://makermask.org/mask-fabrics-101-introduction-to-fibers-and-fabrics/#woven; previously cited) and Netting (“Nylon Woven Mesh”, 2019, Industrial Netting, https://web.archive.org/web/20191207084814/https://www.industrialnetting.com/woven-nylon.html; previously cited).
Regarding claim 11, modified Woo teaches the invention as described above in claim 1, including the mesh fabric layer is composed of woven fabric (Woo, column 2, line 19) that allows a scent or odor to pass through it (Ritchey [0060]).
The prior art does not teach that the mesh has openings have the claimed net area.
However, Songer teaches that woven fabrics have spaces between the weaves, wherein tighter weaves have smaller spaces between the threads that influences air flow and filtration capacity (page 5, paragraph beginning “For masks”). Netting discloses woven mesh fabrics comprising apertures as small as 50 microns that are commonly used for filtration (page 1, 1st paragraph).
As the level of air permeability, and consequently the level of permeability of other substances, are variables that can be modified, among others, by adjusting the net area from one side of the inner mesh fabric layer to an opposite side of the layer, the net area would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the invention. As such, without showing unexpected results, the claimed the net area cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized, by routine experimentation, the net area in the inner mesh fabric of modified Woo to obtain the desired aromatic permeability as taught by Songer using the mesh opening size of at least 50 microns taught by Netting as a guide (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP § 2144.05, II.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited) in view of Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), and Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited) as applied to claim 1 above, and further in view of Amazon (“Faux Fake Fur Solid Shaggy Long Pile Fabric”, 2019, Amazon, https://web.archive.org/web/20190917031549/https://www.amazon.com/Faux-Fake-Solid-Shaggy-Fabric/dp/B00KYXBIAY; previously cited).
Regarding claim 12, modified Woo teaches the invention as described above in claim 1, including the outer fabric layer may be formed of long-napped, faux fur (Ritchey [0049], [0053]). The prior art does not teach that the outer fabric layer is a plush fabric layer.
However, Amazon discloses a long-napped (corresponding to long pile) faux fur wherein the length of the pile/nap is 4 inches (page 1, 4th bullet in the list located near the top right of page). Since the present specification defines “plush fabric” as being a fabric with a pile height of at least 0.3 cm (specification [0020]), the fabric of Amazon qualifies as plush fabric.
It would have been obvious for a person of ordinary skill in the art to have modified the outer faux fur layer in the toy of modified Woo to be plush fabric as taught by Amazon. Since Ritchey teaches that the outer fabric layer may be formed of long-napped, faux fur [0049], [0053], but does not specify such a fabric, a skilled practitioner would have been motivated to consult an additional reference such as Amazon in order to find a suitable faux fur fabric material having a long pile, thereby rendering the claimed plush fabric outer layer obvious.
Claims 16-21 and 29-30 are rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited) in view of Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited), David (US 5,051,304; previously cited), and Amazon (“Faux Fake Fur Solid Shaggy Long Pile Fabric”, 2019, Amazon, https://web.archive.org/web/20190917031549/https://www.amazon.com/Faux-Fake-Solid-Shaggy-Fabric/dp/B00KYXBIAY; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited).
Regarding claim 16, Woo teaches a woven fabric formed from fibers, wherein the fabric is for stuffed toys; and wherein a plurality of microcapsules containing a fragrance is trapped within the fibers of the fabric (column 2, lines 19-23, 32-38, 43-45). Woo teaches that the microcapsules release the fragrance upon breaking (column , lines 60-63). Woo discloses that the impregnated fabric provides long-lasting scent (column 2, lines 47-56) and that the core of each microcapsule is an essential oil (column 1, 56-58).
Woo does not teach that the stuffed toy is an animal toy comprising the fabric enclosure as recited in present claim 17. Woo also does not teach that the microcapsules comprise a natural food flavor composition and a natural protein shell as recited in present claim 17.
However, Ritchey teaches a stuffed animal toy (abstract), comprising: a fabric enclosure comprising an outer fabric layer (corresponding to pliable shell 12 that may be formed of fabric) [0049] and an inner layer (corresponding to pouch 58) (Figs. 5-6; [0059]-[0060]). Ritchey teaches that the outer fabric layer may be formed of long-napped, faux fur [0049], [0053]. Ritchey teaches that the inner layer may comprise an aromatic material that encourages an animal such as a cat to play with the toy such as catnip [0060]. Ritchey teaches that the inner layer may be filled with stuffing material wherein the stuffing material may be: the attractant (e.g., catnip), fur comprising the fabric of the layers of the toy: and/or loose filler material (corresponding to the item labeled 16 in at least Fig. 6). Therefore, Ritchey at least suggests a compressible fill material is enclosed within the inner layer of the toy.
It would have been obvious for a person of ordinary skill in the art to have modified the stuffed toy of Woo to be the animal toy disclosed by Ritchey. Since Woo discloses that a stuffed toy may be formed from the impregnated fabric so as to provide a long-lasting scent (column 2, lines 19-23, 32-38, 43-56)column 2, lines 47-56), but does not disclose a specific stuffed toy, a skilled practitioner would have been motivated to consult an additional reference such as Ritchey in order to determine a suitable stuffed toy which may benefit from long-lasting scent, thereby rendering the claimed fabric enclosure comprising a fabric outer layer and an inner fabric layer formed from fibers, wherein the inner fabric layer encloses a fill obvious.
The combination of Woo and Ritchey does not teach that the inner layer of the animal toy is a mesh fabric layer; or that the plurality of microcapsules comprise a natural food flavor composition and a natural protein shell. The combination of Woo and Ritchey also does not teach that the outer fabric layer is a plush fabric layer.
However, Brennan discloses pouches (corresponding to sachets) comprising aromatic substances wherein a layer of the pouch comprises an open-weave such as mesh so as to allow fragrance to emit from the inside of the pouch (page 4, all pictures; page 8, 2nd picture; page 9, 1st picture).
It would have been obvious for a person of ordinary skill in the art to have modified the inner pouch in the toy of modified Woo to be made from mesh fabric formed from fibers as taught by Brennan. Since Woo discloses a stuffed toy that emits long-lasting fragrance wherein the fabric comprising the fragrance is a woven fabric (column 2, lines 19-23, 32-38, 43-56) and Ritchey discloses that its animal toy comprises an inner pouch which emits fragrance [0060], but the prior art does not specify the weave of a fabric capable of doing so, a skilled practitioner would have been motivated to consult an additional reference such as Brennan in order to determine a suitable pliable material comprising a weave which would allow fragrance to emit from the enclosed material, thereby rendering the claimed inner mesh fabric layer formed from fibers obvious.
The combination of Woo, Ritchey, and Brennan does not disclose the plurality of microcapsules comprise a natural food flavor composition and a natural protein shell. The combination of Woo, Ritchey, and Brennan also does not teach that the outer fabric layer is a plush fabric layer.
However, Fix discloses that valerian root extract oil is a cat attractant (page 1, #10). Valerian root oil has a flavor and is extracted from valerian root as evidenced by Vigon (page 1, “Taste Description”; page 1, 3rd paragraph). Therefore, the valerian root oil of Fix qualifies as a natural food flavor composition.
It would have been obvious for a person of ordinary skill in the art to have modified the microcapsules of modified Woo to contain valerian root oil as taught by Fix. Since Woo discloses that the core of each microcapsule is an essential oil (column 1, 56-58) and Ritchey discloses that its animal toy comprises an aromatic to encourage an animal such as a cat to play with the toy [0060], a skilled practitioner would have been motivated to consult an additional reference such as Fix in order to determine a suitable essential oil as an animal attractant. Therefore, the claimed natural food flavor composition is rendered obvious.
The combination of Woo, Ritchey, Brennan, and Fix does not disclose that the plurality of microcapsules comprise a natural protein shell. The combination of Woo, Ritchey, Brennan, and Fix also does not teach that the outer fabric layer is a plush fabric layer.
However, David teaches the microencapsulation of aroma and oils with polymer shells, wherein a polymer in the shell is gelatin (column 1, lines 6-12; column 5, lines 4-13). Therefore, David discloses a microcapsule having a protein shell.
It would have been obvious for a person of ordinary skill in the art to have modified the polymer shell of modified Woo to comprise a protein polymer as taught by David. Since Woo discloses that the shell of its microcapsule is a polymer (column 1, lines 17-20), but does not disclose a specific polymer, a skilled practitioner would have been modified to consult an additional reference such as David in order to determine a suitable polymer for a polymer shell of a microcapsule, thereby rendering the claimed natural protein shell obvious.
The combination of combination of Woo, Ritchey, Brennan, Fix, and David does not teach that the outer fabric layer is a plush fabric layer.
However, Amazon discloses a long-napped (corresponding to long pile) faux fur wherein the length of the pile/nap is 4 inches (page 1, 4th bullet in the list located near the top right of page). Since the present specification defines “plush fabric” as being a fabric with a pile height of at least 0.3 cm (specification [0020]), the fabric of Amazon qualifies as plush fabric.
It would have been obvious for a person of ordinary skill in the art to have modified the outer faux fur layer in the toy of modified Woo to be plush fabric as taught by Amazon. Since Ritchey teaches that the outer fabric layer may be formed of long-napped, faux fur [0049], [0053], but does not specify such a fabric, a skilled practitioner would have been motivated to consult an additional reference such as Amazon in order to find a suitable faux fur fabric material having a long pile, thereby rendering the claimed plush fabric outer layer obvious.
Regarding claim 17, modified Woo teaches the invention as described above in claim 16, including the flavor composition is a liquid (corresponding to valerian root oil) (Fix, page 1, #10)
Regarding claim 18, modified Woo teaches the invention as described above in claim 16, including the natural protein shell comprises a cross-linked hydrocolloid (corresponding to cross-linked gelatin) (David, column 4, lines 29-36).
Regarding claim 19, modified Woo teaches the invention as described above in claim 16, including the flavor composition comprises valerian root oil (Fix, page 1, #10), which is a FEMA GRAS ingredient (corresponding to FEMA 3100) as evidenced by Vigon (page 1, first paragraph; FEMA number located above “Odor Strength”).
Regarding claim 20, modified Woo teaches the invention as described above in claim 16, including the flavor composition valerian root oil (Fix, page 1, #10). Valerian root oil is water immiscible (corresponding to separates from water) as evidenced by Vigon (page 1, 3rd paragraph). Therefore, the flavor composition is water immiscible.
Regarding claim 21, modified Woo teaches the invention as described above in claim 16, including the microencapsulation of aroma and oils with polymer shells (David, column 1, lines 6-12; column 5, lines 4-13), wherein the mean diameter of the microcapsules is 50-700 µm (David, column 4, lines 66-67), which is considered to overlap the claimed distribution of major dimension lengths. The selection of a value within the overlapping range renders the claimed dimension obvious. MPEP 2144.05.
Regarding claim 29, modified Woo teaches the invention as described above in claim 16, including a layer of fabric forming an inner shell 56 located between the inner fabric layer and outer fabric layer may not be present (corresponding to flaps 24 and 26 not being extended into the inner shell) (Ritchey [0055]; Fig. 6). Without this inner shell 56, Ritchey at least suggests that the outer plush layer is immediately adjacent to the inner fabric layer.
Regarding claim 30, modified Woo teaches the invention as described above in claim 16, including stuffing material 16 may be located within a cavity between the outer fabric layer and the outer fabric layer (corresponding to shell 12 may be filed with stuffing material 16); and that the inner fabric layer (corresponding to pouch 58) may contain stuffing material 16 (Ritchey [0045]; Figs. 5-6). Ritchey also teaches that the stuffing material 16 may comprise: the attractant (e.g., catnip), fur comprising the fabric of the layers of the toy: and/or loose filler material (corresponding to the item labeled 16 in at least Fig. 6). In (1) using loose filler material as the stuffing material in the inner fabric layer and (2) using the fur of the fabric of the outer fabric layer in the cavity between the outer fabric layer, Ritchey at least suggests that the fill is exclusively within the inner mesh layer.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited), Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited), David (US 5,051,304; previously cited), and Amazon (“Faux Fake Fur Solid Shaggy Long Pile Fabric”, 2019, Amazon, https://web.archive.org/web/20190917031549/https://www.amazon.com/Faux-Fake-Solid-Shaggy-Fabric/dp/B00KYXBIAY; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited) as applied to claim 16 above, and further in view of Songer (Songer et al., “Mask Fabrics: Introduction to Fibers and Fabrics”, 2020, Maker Mask, https://makermask.org/mask-fabrics-101-introduction-to-fibers-and-fabrics/#woven; previously cited) and Netting (“Nylon Woven Mesh”, 2019, Industrial Netting, https://web.archive.org/web/20191207084814/https://www.industrialnetting.com/woven-nylon.html; previously cited).
Regarding claim 22, modified Woo teaches the invention as described above in claim 16, including the mesh fabric layer is composed of woven fabric (Woo, column 2, line 19) that allows a scent or odor to pass through it (Ritchey [0060]). The prior art does not teach that the mesh has openings have the claimed net area.
However, Songer teaches that woven fabrics have spaces between the weaves, wherein tighter weaves have smaller spaces between the threads that influences air flow and filtration capacity (page 5, paragraph beginning “For masks”). Netting discloses woven mesh fabrics comprising apertures as small as 50 microns that are commonly used for filtration (page 1, 1st paragraph).
As the level of air permeability, and consequently the level of permeability of other substances, are variables that can be modified, among others, by adjusting the net area from one side of the inner mesh fabric layer to an opposite side of the layer, the net area would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the invention. As such, without showing unexpected results, the claimed the net area cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized, by routine experimentation, the net area in the inner mesh fabric of modified Woo to obtain the desired aromatic permeability as taught by Songer using the mesh opening size of at least 50 microns taught by Netting as a guide (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP § 2144.05, II.
Claims 31 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Woo (U.S. 4,514,461; previously cited) in view of Ritchey (US 2004/0092198; previously cited), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html; previously cited), Fix (“Top 10 Tips for Getting Your Tenacious Trap-Savvy Cat”, 2011, Fix Nation, https://fixnation.org/2011/01/top-10-tips-for-getting-your-tenacious-trap-savvy-cat/; previously cited), David (US 5,051,304; previously cited), and Amazon (“Faux Fake Fur Solid Shaggy Long Pile Fabric”, 2019, Amazon, https://web.archive.org/web/20190917031549/https://www.amazon.com/Faux-Fake-Solid-Shaggy-Fabric/dp/B00KYXBIAY; previously cited) as evidenced by Vigon (“Valerian Root Oil”, 2020, Vigon, https://www.vigon.com/valerian-root-oil/; previously cited) as applied to claim 16 above, and further in view of Perinelli (Perinelli et al., “Encapsulation of Flavours and Fragrances into Polymeric Capsules and Cyclodextrins Inclusion Complexes: An Update”, 2020, Molecules, 25, 5878).
Regarding claims 31 and 32, Woo teaches the invention as described above in claim 16, including the inner mesh layer comprises fiber strands and the microcapsules are entrapped in the fiber strands (column 2, lines 19-23). Ritchey discloses that a layer of fabric forming an inner shell 56 located between the inner fabric layer and outer fabric layer may not be present (corresponding to flaps 24 and 26 not being extended into the inner shell) (Ritchey [0055]; Fig. 6). Without this inner shell 56, Ritchey at least suggests that the outer plush layer is immediately adjacent to the inner fabric layer.
Modified Woo also teaches that stuffing material 16 may be located within a cavity between the outer fabric layer and the outer fabric layer (corresponding to shell 12 may be filed with stuffing material 16); and that the inner fabric layer (corresponding to pouch 58) may contain stuffing material 16 (Ritchey [0045]; Figs. 5-6). Ritchey also teaches that the stuffing material 16 may comprise: the attractant (e.g., catnip), fur comprising the fabric of the layers of the toy: and/or loose filler material (corresponding to the item labeled 16 in at least Fig. 6). In (1) using loose filler material as the stuffing material in the inner fabric layer and (2) using the fur of the fabric of the outer fabric layer in the cavity between the outer fabric layer or eliminating stuffing material in the cavity between the outer fabric layer, Ritchey at least suggests that the fill is exclusively within the inner mesh layer.
Woo discloses that the plurality of microcapsules may be impregnated into the fabric using any known micro-binding processes and agents (column 2, lines 43-46).
The combination of Woo, Ritchey, Fix, Brennan, David, and Amazon does not disclose that the plurality of microcapsules are retained to the inner mesh by electrostatic attraction between the microcapsules and the inner mesh fabric layers as recited in present claims 31 and 32.
However, Perinelli teaches that encapsulated flavors and fragrances may be impregnated into fabric using electrostatic attraction between the encapsulated flavor/fragrance and the fabric (corresponding to electrostatic adsorption) as a simple method of preparing impregnated fabrics (page 7, 2nd paragraph).
It would have been obvious for a person of ordinary skill in the art to have modified the method of modified Woo to include incorporating microcapsules into fabric using electrostatic attraction as taught by Perinelli. Since Woo teaches that the plurality of microcapsules may be impregnated into the fabric using any known micro-binding processes and agents (column 2, lines 43-46), a skilled practitioner would readily recognize that other techniques such as those disclosed in Perinelli may be used since Perinelli discloses that such methods are known in the art (abstract). A skilled practitioner would be motivated to select electrostatic attraction as a method of trapping microcapsules within fabric fibers from the techniques disclosed in Perinelli as this method is a simple method and Perinelli provides a finite number of identified, predictable solutions with a reasonable expectation of success. MPEP §2143.I.E. Therefore, the claimed electrostatic attraction between the microcapsules and the fabric is rendered obvious, particularly in light of there being no assertion of criticality in the present specification of electrostatic attraction being the method of trapping microcapsules in fabric.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1, 6, 9, and 13-15 over Woo, Ritchey, Brennan, and Fix as evidenced by Vigon: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that the cited references do not teach or suggest “a fabric enclosure comprising an outer fabric layer and an inner mesh fabric layer formed from fibers” as recited in present claim 1. Applicant stated that the inner mesh fabric in claim 1 is part of “a fabric enclosure” which also comprises an outer fabric layer. Applicant stated that the asserted “inner layer” in Ritchey is a removable pouch buried deep inside the toy (i.e., pouch 58 in Fig. 5-6 and in [0060]-[0061] of Ritchey) so that the “inner layer” of Ritchey is spaced apart from the outer fabric layer instead of being attached to the outer layer as required by the phrase “a fabric enclosure comprising an outer fabric layer and an inner mesh fabric layer” recited in present claim 1 (Applicant’s Remarks, page 5, 2nd paragraph – page 6, 2nd paragraph).
However, the Examiner points out that present claim 1 does not require the outer fabric layer to be directly attached to the inner mesh fabric layer. The phrase “a fabric enclosure comprising an outer fabric layer and an inner mesh fabric layer” merely requires that there be a layer of fabric that forms the outside of an enclosed space and there be an inner mesh fabric layer inside the enclosed space formed by the outer fabric layer, wherein the inner mesh fabric layer forms another enclosed space within the enclosed space formed by the outer fabric layer. The phrase does not mean that the outer and inner layers must be attached to one another as is asserted by the Applicant. Therefore, the arrangement of the outer fabric layer (i.e., pliable shell 12) and the inner layer (i.e., pouch 58) of the toy of Ritchey meet the limitations of claimed fabric enclosure as recited by present claim 1.
Applicant then argued that there is no reasonable expectation of success in using Brennan’s mesh to retain Woo’s microcapsules as Brennan discloses using items that are bigger than the mesh openings to retain scents and Woo discloses microcapsules that are substantially dust consistency. Applicant stated that, although Woo discloses the use of a liquid binder to hold the microcapsules within the interstices of the fabric, Woo does not teach that its microcapsules would work with a mesh material and Woo does not teach trapping the microcapsules within the fabric. Applicant argued that a skilled practitioner would have no reasonable expectation of success that Woo’s dust could be successfully retained in Brennan’s open weave mesh (Applicant’s Remarks, page 6, 3rd paragraph – page 7, 2nd paragraph).
However, in response to applicant's argument that there is no reasonable expectation of success in using Brennan’s mesh to retain Woo’s microcapsules as Brennan discloses using items that are bigger than the mesh openings to retain scents and Woo discloses microcapsules that are substantially dust consistency, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
As such, Brennan is cited in the prior art rejections for its teachings regarding pouches (corresponding to sachets) comprising aromatic substances wherein a layer of the pouch comprises an open-weave such as mesh so as to allow fragrance to emit (page 4, all pictures; page 8, 2nd picture; page 9, 1st picture). Brennan is not cited for its teachings regarding items to place within the pouch. Woo discloses a stuffed toy that emits long-lasting fragrance wherein the fabric comprising the fragrance is a woven fabric (column 2, lines 19-23, 32-38, 43-56) and Ritchey discloses that its animal toy comprises an inner pouch which emits fragrance [0060]. Since Brennan discloses pouches comprising aromatic substances wherein a layer of the pouch comprises an open-weave such as mesh (which fulfills the requirement in Woo that the fabric to be impregnated with microcapsules be woven, non-woven, or otherwise made fabric having interstices (column 2, lines 19-23) so as to allow fragrance to emit, a skilled practitioner would understand that the mesh fabric of Brennan may be used as the fabric of the inner layer of the toy of modified Woo with a reasonable expectation of success.
In response to Applicant’s assertion that, although Woo discloses the use of a liquid binder to hold the microcapsules within the interstices of the fabric, Woo does not teach trapping the microcapsules within the fabric, Woo discloses “[t]he micron biner coated capsules 3 in the form of minute bubbles are confined in the interstices 4 around the strands of fabric” (column 2, lines 20-23). This disclosure, specifically the term “confined”, means that the microcapsules are trapped within the fabric.
Applicant then argued that the cited references do not suggest that the use of a mesh beneficially allows for the increase in microcapsule loading due to the microcapsules’ ability to be applied by flowing a slurry comprising the microcapsules through the mesh openings. Applicant stated that the Declaration filed 12/12/2025 provided a reasoned explanation of this assertion despite the Declaration being discredited for not providing comparative data to serve as a basis for making such an assertion (Applicant’s Remarks, page 7, 3rd – 4th paragraphs).
However, in addition to the responses to the Declaration provided in the section labeled “Response to Amendment” in the Final Office Action filed 01/12/2026, the Examiner points out that it is noted that the features upon which applicant relies (i.e., microcapsule loading by flowing a slurry comprising the microcapsules through the mesh openings) are not recited in the rejected claim(s). 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). Since the present claims are directed to an animal toy, not a method of making an animal toy, any benefits connected to the method of making the animal toy are moot.
Since the cited prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims are maintained as written herein.
Claim Rejections – 35 U.S.C. §103 of claims 3-5, 7-8, and 10 over Woo, Ritchey, Brennan, Fix, and David as evidenced by Vigon: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that David does not remedy the aforementioned deficiencies of Woo, Ritchey, Brennan, and Vigon. Applicant then argued that Examiner asserts that Valerian root oil is AAFCO compliant without providing any reasoning or legal authority (Applicant’s Remarks, page 8, 1st paragraph).
However, Woo, Ritchey, Brennan, and Vigon were shown to render present claim 1 obvious. Therefore, David is not needed to remedy any deficiencies of Woo, Ritchey, Brennan, and Vigon in regard to present claim 1.
In regard to the assertion that the Examiner has not shown that Valerian root oil is AAFCO compliant, as written in the “Claim Interpretation” section in the Final Rejection filed 07/21/2025, “Claims 7-8 and 19 will be interpreted as meaning an ingredient considered to be FEMA GRAS as of the filing date of the provisional application of the present specification. Claim 7 will also be interpreted in the same manner since AAFCO compliant ingredients may also be ingredients that are FEMA GRAS per AAFCO (see page 2, first through second paragraphs under "Safety and Utility Standards" of "Ingredient Standards", 2025, AAFCO, https://www.aafco.org/consumers/understandingpet-food/ingredient-standards/; previously cited). Therefore, FEMA GRAS compliant ingredients will also be considered as being AAFCO compliant ingredients.” Furthermore, Applicant has not provided any evidence that valerian root oil is not AAFCO compliant. Due to this lack of evidence and due to the claim interpretation, Applicant’s argument regarding valerian root oil are unpersuasive. Therefore, the rejections are maintained as written herein.
Claim Rejections – 35 U.S.C. §103 of claim 11 over Woo, Ritchey, Brennan, Fix, Songer, and Netting as evidenced by Vigon: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Songer is concerned with spacing between threads and does not mention mesh. Applicant argued that the fact that Netting uses the phrase “woven mesh” demonstrates that “woven” fabrics are not inherently “mesh” even if the fabric has some interthread spacings (Applicant’s Remarks, page 8, 2nd-3rd paragraphs).
However, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Since Songer discloses that the spacing between threads of woven fabrics influence air flow and filtration capacity of the fabric (page 5, paragraph beginning “For masks”); and Woo discloses woven fabrics and spaces between threads of the fabrics (i.e., interstices in column 2, lines 19-22 of Woo), the combination of Songer and Woo demonstrate that the woven fabric of the prior art has interthread spacings and that the size of those spacings influence air flow and filtration capacity of the fabric. Songer does not need to specifically mention “mesh” as the combination of Woo and Brennan have already renders the mesh fabric obvious, including woven mesh since Woo discloses that the fabric may be woven and Brennen discloses mesh. Netting is merely used to provide a basis (i.e., as small as 50 microns) from which to manipulate the size of the interthread spaces in a woven mesh fabric.
Applicant then argued that neither Songer nor Netting says that the mesh open area is a result effective variable. Applicant stated that Songer refers to the impact of thread spacing on filtration in the context of masks and that there is nothing in Woo, Ritchey, or Brennan that suggests that there is any relevance to mesh size for the diffusion of Woo’s microencapsulated scents (Applicant’s Remarks, page 8, 5th paragraph – page 9, 1st paragraph).
However, in response to Applicant’s assertion that neither Songer nor Netting says that the mesh open area is a result effective variable, Songer states that tighter weaves have smaller spaces between the threads that influences air flow and filtration capacity (page 5, paragraph beginning “For masks”), which means that the size of the amounts of air flow and filtration capacity are dependent upon interthread spaces. Therefore, Songer discloses that the interthread spaces in fabrics (which include those found in mesh) are result effective variables.
In response to Applicant’s assertion that there is nothing in Woo, Ritchey, or Brennan that suggests that filtration has any relevance to mesh size for the diffusion of Woo’s microencapsulated scents, filtration itself is concerned with the movement of molecules (e.g., molecules found in the air) across a barrier. Therefore, in disclosing that the size of interthread spacings influences filtration, Songer discloses that the size of the interthread spacings influences the movement of molecules through the fabric. Since aroma, such as the aroma in the microcapsules of Woo, comprise molecules, the teachings of Songer at least suggests that the movement of those aroma molecules through a fabric, such as the mesh fabric of the prior art, is influenced by the size of the interthread openings within the fabric.
Since the cited prior art has been shown to render the present claim obvious and Applicant’s arguments have been shown to be unpersuasive, the rejection of the claim is maintained as written herein.
Claim Rejections – 35 U.S.C. §103 of claim 12 over Woo, Ritchey, Brennan, Fix, and Amazon as evidenced by Vigon: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Amazon does not remedy the aforementioned deficiencies of Woo, Ritchey, Brennan, and Vigon (Applicant’s Remarks, page 9, 2nd paragraph).
However, Woo, Ritchey, Brennan, and Vigon were shown to render present claim 1 obvious. Therefore, Amazon is not needed to remedy any deficiencies of Woo, Ritchey, Brennan, and Vigon in regard to present claim 1.
Since the cited prior art has been shown to render the present claim obvious and Applicant’s arguments have been shown to be unpersuasive, the rejection of the claim is maintained as written herein.
Claim Rejections – 35 U.S.C. §103 of claims 16-21 over Woo, Ritchey, Brennan, Fix, David, and Amazon as evidenced by Vigon: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that claims 16-21 are allowable over the combination of Woo, Ritchey, Brennan, Fix, and Vigon for the same reasons that claim 1 is allowable over the combination of Woo, Ritchey, Brennan, Fix, and Vigon (Applicant’s Remarks, page 9, 3rd paragraph – page 10, 3rd paragraph).
However, Woo, Ritchey, Brennan, and Vigon were shown to render present claim 1 obvious. Since the cited prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims are maintained as written herein.
New Claims 29-32: Applicant argued that the new claims are patentable over the cited prior art (Applicant’s Remarks, page 10, 4th-7th paragraphs).
However, the new claims are shown to be rejected as described in their rejections above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
