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 Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed 12/12/2025 is acknowledged.
Applicant has overcome the following rejections by cancellation of the claims: the 35 U.S.C. §103 rejection of claim 2 over Ikegami, Woo, and Vigon has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3-22
Withdrawn claims: None
Previously cancelled claims: 23-28
Newly cancelled claims: 2
Amended claims: 1, 16 (*claim 7 still contains underlining from the amendment made in the last claim set.”)
New claims: None
Claims currently under consideration: 1, 3-22
Currently rejected claims: 1, 3-22
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/12/2025 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html), 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/) 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), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html), 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/) 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), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html), 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/) 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).
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), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html), 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/) 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).
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 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), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html), 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/), 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) 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 (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.
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.
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), Brennan (Brennan, L., “Sew A Scented Sachet”, 2020, Charm About You”, https://www.charmaboutyou.com/2020/12/sew-scented-sachet.html), 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/), 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) 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).
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.
Response to Amendment
The Declaration under 37 CFR 1.132 filed 12/12/2025 is insufficient to overcome the rejection of claim 1 based upon Ikegami, Woo, and Vigon; and the rejection of claim 16 based upon Ikegami, Fabrics, Vigon, and David as set forth in the last Office action.
Applicant argued that the definition of “mesh” used by the Examiner to include any air permeable fabric is not consistent with the understanding of “mesh” in the art as all fabric has some degree of air permeability. Applicant stated that a definition of “mesh” accepted in the art is “any fabric (woven, knit, crochet, lace, or knotted), which is characterized by open spaces between the yarns” (Declaration, pages 2-4, paragraphs 6-9).
The Examiner notes that this definition is similar to the definition provided in the Examiner’s response in paragraph 65 of the Final Office Action filed 07/21/2025. However, the Examiner notes that the definition still encompasses fabrics which contains perforations in the fabric, wherein the perforations may not have been formed during weaving or knitting of the fibers (e.g., a knit or woven fabric containing perforations).
Ikegami discloses that the inner container of its toy may comprise a permeable fabric which releases an attractant scent through perforations (column 7, lines 27-30). Ikegami also discloses that fabric used for the toy may be knit or woven (column 3, lines 55-62). Although Ikegami discloses knit or woven fabric in relation to the exterior of the toy, a skilled practitioner would readily understand that the fabric of the inner container may also be knit or woven, particularly in light of Ikegami also disclosing that both the exterior and container may comprise cotton fabric with perforations (column 3, lines 55-62; column 7, lines 27-30). Since Ikegami discloses these features, the fabric of the inner container is considered to qualify as the claimed mesh fabric. Even if the fabric of Ikegami is not a typical mesh as asserted by the Applicant, the fabric of Ikegami is at least an equivalent to the claimed mesh fabric, especially wherein claims 1 and 16 do not require: (1) a type of material for the claimed mesh; (2) the openings in the mesh to be any particular size; (3) the mesh to have any specific number of openings in a given area; and (4) the mesh to have any particular function. MPEP 2183.
The Declaration then stated that the arrangement of the inner mesh layer, microcapsules retained in the inner mesh layer, and fill enclosed by the inner mesh layer of the claimed toy provide a synergistic effect and unexpected improvement in the effective microcapsule loading of the toy, wherein the microcapsules are close to the toy’s surface so as to enable them to be ruptured by a pet; and wherein the microcapsules do not fall into the fill. Applicant argued that the cited prior art does not teach these features (Declaration, pages 5-6, paragraphs 10-13).
However, the present claims do not necessarily reflect these asserted synergistic results as the present claims do not: (1) exclude additional fill or fabric layers from being located between the claimed inner mesh layer and outer fabric layer; or (2) require the inner mesh layer to be located within a specific distance from the outer fabric layer. Furthermore, Applicant has not demonstrated that these synergistic effects occur in the claimed invention as Applicant has not provided a comparison between the inventive toy and comparative toys. Therefore, the claimed invention may not have and is not required to have the asserted benefits.
Furthermore, “Establishing long-felt need requires objective evidence that an art recognized problem existed in the art for a long period of time without solution. The relevance of long-felt need and the failure of others to the issue of obviousness depends on several factors. First, the need must have been a persistent one that was recognized by those of ordinary skill in the art. In re Gershon, 372 F.2d 535, 539, 152 USPQ 602, 605 (CCPA 1967) ("Since the alleged problem in this case was first recognized by appellants, and others apparently have not yet become aware of its existence, it goes without saying that there could not possibly be any evidence of either a long felt need in the . . . art for a solution to a problem of dubious existence or failure of others skilled in the art who unsuccessfully attempted to solve a problem of which they were not aware."); Orthopedic Equipment Co., Inc. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir. 1983) (Although the claimed invention achieved the desirable result of reducing inventories, there was no evidence of any prior unsuccessful attempts to do so.). MPEP 716.04. Applicant of the present invention has not provided any objective evidence that the issue of diminished diffusion of scent was previously identified and/or not solved by others skilled in the art.
For at least these reasons, the Declaration is insufficient to overcome the rejection of claim 1 based upon Ikegami, Woo, and Vigon; and the rejection of claim 16 based upon Ikegami, Fabrics, Vigon, and David as set forth in the last Office action. However, it is noted that the present rejections are based on new combinations of prior art wherein Ikegami is no longer cited.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-2, 6, 9, and 13-15 over Ikegami, Woo, and Vigon: Applicant’s arguments have been fully considered and are considered moot or unpersuasive.
Applicant canceled claim 2. Applicant argued that the definition of “mesh” used by the Examiner to include any air permeable fabric is not consistent with the understanding of “mesh” in the art as all fabric has some degree of air permeability. Applicant argued that Ikegami does not disclose a “mesh fabric layer” as it is understood in the art. Applicant pointed to the Declaration filed 12/12/2025 for support in this stance (Applicant’s Remarks, page 5, 1st paragraph under “Rejection of Claims” – page 9, 1st paragraph).
However, in the new grounds of rejection necessitated by the amendment of claim 1, the features of claim 1 are rendered obvious by the combination of Woo, Ritchey, Brennan, and Fix as evidenced by Vigon while Ikegami is no longer cited as a reference. Therefore, arguments regarding Ikegami are moot.
For the response to arguments made within or referring to the Declaration, please see the section labeled “Response to Amendment” above.
Applicant then argued that neither Ikegami nor Woo disclose a “microcapsule-incorporated inner mesh layer that surrounds a fill”. Applicant argued that the Examiner made conflicting mappings of the claimed “inner mesh fabric layer” to Ikegami; and that Ikegami discloses putting the animal attractant within the fill of the toy. Applicant argued that neither Woo nor Ikegami discloses using animal play as a means of releasing the flavor composition from the animal toy. Applicant argued that neither Ikegami nor Woo disclose retaining microcapsules within the inner mesh layer as now recited by amended claim 1 (Applicant’s Remarks, page 9, paragraph under “A POSITA Would Not Have Been Led” – page 12, 1st paragraph).
However, in the new grounds of rejection necessitated by the amendment of claim 1, the features of claim 1 are rendered obvious by the combination of Woo, Ritchey, Brennan, and Fix as evidenced by Vigon while Ikegami is no longer cited as a reference. Therefore, arguments regarding Ikegami are moot.
In reference to Applicant’s assertion that the prior art does not disclose animal play as a means of releasing the aromatic/flavor composition from the animal toy, it is noted that the features upon which applicant relies (i.e., animal play as a means of releasing the aromatic/flavor composition from the animal toy) 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). Even though the prior art is not required to disclose such a feature, the combination of prior art used in the rejection of amended claim 1 discloses that the microcapsules comprising the aromatic/flavor breaks when being handled and that the animal plays with the toy (Ritchey [0060]; Woo, column 2, lines 32-36), thereby rendering breaking of the microcapsules during play of the animal with the toy obvious.
In response to Applicant’s assertion that the prior art does not disclose retaining microcapsules within the inner mesh layer as now recited by amended claim 1, Woo teaches a woven fabric formed from fibers for stuffed toys 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); and that the microcapsules release the fragrance upon breaking (column , lines 60-63).
Applicant stated that the inventive animal toy unexpected benefits comprising: (1) the unexpected ability of the mesh to retain the microcapsules; and (2) improved microcapsule loading into the mesh fabric layer. Applicant then argued that the Examiner’s analysis of the secondary considerations in the previous Final Office Action was improper as the analysis compared the results of the combination of Woo and Ikegami to the Applicant’s unexpected results whereas the Examiner’s analysis should have been between the single closest piece of prior art and the Applicant’s unexpected results (Applicant’s Remarks, page 12, 1st paragraph under “The Animal Toy of Claim 1”- page 14, 1st paragraph).
However, “Rebuttal evidence may also include evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art. Rebuttal evidence may consist of a showing that the claimed compound possesses unexpected properties. Dillon, 919 F.2d at 692-93, 16 USPQ2d at 1901. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997) (conclusory statements regarding unusually low immune response or unexpected biological activity that were unsupported by comparative data held insufficient to overcome prima facie case of obviousness). MPEP 2145. Applicant has not demonstrated that the asserted synergistic effects occur in the claimed invention as Applicant has not provided a comparison between the inventive toy and comparative toys. Therefore, Applicant’s secondary considerations do not include evidence that the claimed invention yields the unexpectedly improved properties.
Furthermore, “Establishing long-felt need requires objective evidence that an art recognized problem existed in the art for a long period of time without solution. The relevance of long-felt need and the failure of others to the issue of obviousness depends on several factors. First, the need must have been a persistent one that was recognized by those of ordinary skill in the art. In re Gershon, 372 F.2d 535, 539, 152 USPQ 602, 605 (CCPA 1967) ("Since the alleged problem in this case was first recognized by appellants, and others apparently have not yet become aware of its existence, it goes without saying that there could not possibly be any evidence of either a long felt need in the . . . art for a solution to a problem of dubious existence or failure of others skilled in the art who unsuccessfully attempted to solve a problem of which they were not aware."); Orthopedic Equipment Co., Inc. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir. 1983) (Although the claimed invention achieved the desirable result of reducing inventories, there was no evidence of any prior unsuccessful attempts to do so.). MPEP 716.04. Applicant of the present invention has not provided any objective evidence that the issue of diminished diffusion of scent was previously identified and/or not solved by others skilled in the art.
Since the claims are presently rejected over new combinations of prior art and Applicant’s arguments have been shown to be moot or unpersuasive, the rejections of the claims stand as written herein. The rejection of claim 2 is withdrawn due to the cancellation of the claim.
Claim Rejections – 35 U.S.C. §103 of claims 3-5, 7-8, and 10 over Ikegami, Woo, Vigon, and David; claim 11 over Ikegami, Woo, Vigon, and Songer; claim 12 over Ikegami, Woo, Vigon and Fabrics: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that the claims are patentable by reason of dependency from claim 1 (Applicant’s Remarks, page 14, paragraph under “Rejection of Claims 3-5, 7-8, and 10” – page 14, paragraph under “Rejection of Claim 12”).
However, in the new grounds of rejection necessitated by the amendment of claim 1, the features of claim 1 are rendered obvious by the combination of Woo, Ritchey, Brennan, and Fix as evidenced by Vigon. As described above, Applicant’s arguments in regards to amended claim 1 have been shown to be moot or unpersuasive. As such, the rejections of the claims stand as written herein.
Claim Rejections – 35 U.S.C. §103 of claims 16-21 over Ikegami, Fabrics, Woo, Vigon, and David; claim 22 over Ikegami, Fabrics, Woo, Vigon, David, and Songer: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that the claims are patentable for the same reason claim 1 is patentable over Ikegami, Woo and Vigon (Applicant’s Remarks, page 14, paragraph under “Rejections of Claims 16-21” – page 15, paragraph under “Rejection of Claim 22”).
However, in the new grounds of rejection necessitated by the amendment of claim 1, the features of claim 1 are rendered obvious by the combination of Woo, Ritchey, Brennan, and Fix as evidenced by Vigon while Ikegami is no longer cited as prior art. As described above, Applicant’s arguments in regards to amended claim 1 have been shown to be moot or unpersuasive. As such, the rejections of the claims stand as written herein.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791