DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on September 9, 2025 has been entered.
Status of the Claim
Claims 1, 5, 10, 13-14 and 16-17 are pending in this application and are under examination. Claims 2-4, 6-9, 11-12 and 15 are cancelled. Any objections or rejections not repeated below have been withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 5, 10, 13-14 and 16-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 line 8 recites the following, “a holder having no tines on an edge portion thereof.” Upon further review of the specification, it is found that this limitation is never disclosed in the specification. In paragraph [0032] of the specification it states, “the shape of the holding part 24 is not particularly limited as long as the feeder can hold it with one hand." While it can be argued and can be envisaged that the shape of the holder could have tines on it, the specification does not recite a limitation where the holder has tines, or recite a limitation that excludes tines on the holder. Additionally, it is noted that this is a negative limitation and there needs to be clear support in the specification for the negative limitation, the mere absence of a positive recitation is not basis for a negative limitation. See MPEP 2173.05. Therefore, the limitation is considered new matter since it is not present in the disclosure.
Claims 5, 10, 13-14 and 16-17 are included in the rejection as they depend from rejected base claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 5, 10, 13-14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Evelich et al. (US 2021/0078765 cited on IDS filed January 17, 2023) in view of Bourigault (US 2003/0066490), Tsuchida et al. (WO 2020045309), Kiel et al. (US 2003/0155362) and Ichihashi et al. (US 2016/0128361).
Regarding claim 1, Evelich teaches a cat food product (packaged food product 100, food product 200 is a single serving of a wet pet food; Figure 2, [0016]) comprising:
a container (container 205; Figure 3, [0017]) comprising:
a housing (storage area 305; Figure 3, [0017]) containing a wet snack food (food product 200 is a single serving of a wet pet food; Figure 2 [0016]).
As noted in the specification in [0002], the term “snack” is a pet food intended to be given in a limited amount aiming at training, exercise, and rewards for pets. However, the claim recitation of “snack” throughout the claim, is merely directed at the intended use of the product. There is no patentable distinction by its intended use of a “snack” or result unless some difference is imposed by the use or result on the material recited in the claim. The intended use does not impose any limit on the interpretation of the claim. Therefore, said recitation does not further limit the claim.
Evelich teaches a food container further comprising:
a bottom (bottom wall 300; Figure 3, [0017]); and
a peripheral wall (sidewall 210; Figure 4, [0016]) extending upward from an outer peripheral edge of the bottom and surrounding the bottom (sidewall 210 being shown to have an annular wall extending upward from an outer peripheral edge of the bottom 300; Figure 3; the annular wall surrounding the bottom wall 300; Figure 4, [0016]-[0017]); and
a holder having no tines on an edge portion thereof, protruding outward from the peripheral wall (a tool portion 400 of rim 105 extends outward beyond sidewall 210, where the tool portion 400 can alternatively have a straight or tapered edge, thus not having tines; [0020], Figures 3 and 4.
Evelich teaches a holder (tool portion 400) having a length of 2 cm or more (Figure 4, [0020]), which overlaps the claimed range of 20 mm or more and 40 mm or less.
Evelich does not teach the housing having a depth of 18 mm or less.
Bourigault teaches a disposable pet food bowl ([0001]; Figure 2) wherein the small bowl has an inner height of 2 cm allowing the animal to seize the pieces contained in the bowl laterally between its teeth [0012] and is particularly adapted to small animals [0015], [0040] (Figure 2; [0040]). This is near the claimed range of housing depth of 18 mm or less. See MPEP 2144.05(I). Further, if the only difference between the prior art and the claims is a recitation of relative dimensions and a product having the claimed relative dimensions would not perform differently than the prior art product, the claimed device is not patentably distinct from the prior art product. See MPEP 2144.04 IV A.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Evelich to further incorporate the teachings of Bourigault by adjusting the pet food bowl inner height to the height within the claimed range, which would allow the animal to seize the pieces contained in the bowl laterally between its teeth [0012] and is particularly adapted to small animals [0015], [0040] as recognized by Bourigault. Furthermore, a change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Evelich does not teach the housing having an opening diameter between 20 mm and 40 mm.
Tsuchida teaches a container 20 (Figure 1) with a center point C, at the center of the housing 16 (storage portion 16), which is defined as the center of a circle that is virtually drawn so as to circumscribe the outer edge of the housing 16 in plain view (Figure 1, pg. 3 [0019]). A diameter is a straight line passing through the center of a circle or sphere and meeting the circumference or surface at each end. Tsuchida teaches a small-capacity container 20, the storage section 16 having a size in plain view of 60 mm or less and more preferably 40 mm or less (Figure 1, pg. 4, [0022]). This encompasses the claimed range of an opening diameter between 20 mm and 40 mm. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
See the solid lines in Modified Figure 1 below defining the diameter of storage section 16 in plan view, which is within the claimed range of the housing opening diameter.
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Modified Figure 1
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Evelich in view of Bourigault and Tsuchida by adjusting the housing opening diameter to be between 20 mm and 40 mm, because such a dimension allows for a small-capacity (pg. 4, [0022]), and is a portion container or portion cup, meant to contain just one portion or serving size (pg. 1, [0003]).
Furthermore, a change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Kiel teaches a pet food product (a tray pack 10 for pet foods, Figure 1, [0014]), wherein the bottom has a circular shape in plan view ([0014]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Evelich in view of Bourigault and Tsuchida to further incorporate the teachings of Kiel by adjusting the shape of the container to be circular in shape because Kiel teaches that the tray packs can have any conceivable geometric shape, including circular in shape. The change in form or shape, without any new or unexpected results, is an obvious engineering design. See In re Dailey, 149 USPQ 47 (CCPA 1966) (see MPEP § 2144.04).
Evelich does not teach the viscosity of the wet cat snack food measured by a Bostwick viscometer is 5 mm/min and 60 mm/min.
Ichihashi teaches a wet type pet food [0024] wherein the viscosity of the pet food measured by a Bostwick viscometer is in a range of 0.1 cm/min to 5.0 cm/min (or 1 mm/min to 50 mm/min; [0010]), which overlaps with the claimed range of a viscosity of the wet cat snack food measured by a Bostwick viscometer between 5 mm/min and 60 mm/min. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Evelich in view of Bourigault, Tsuchida and Kiel to further incorporate the teachings of Ichihashi by adjusting the viscosity of the wet pet food to be in within the claimed range because doing so would allow the wet pet food to be easily mixed with dry type pet food and unlikely to make a container dirty [0022], as recognized by Ichihashi.
Regarding claim 5, Evelich in view of Bourigault, Tsuchida, Kiel and Ichihashi renders the invention of claim 1 obvious. Evelich does not teach the housing having a depth of 10 mm or more.
Bourigault teaches a disposable pet food bowl ([0001]; Figure 2) wherein the small bowl has an inner height of 2 cm ([0040]), which is near the claimed range of housing depth of 10 mm or more. See MPEP 2144.05(I). Further, if the only difference between the prior art and the claims is a recitation of relative dimensions and a product having the claimed relative dimensions would not perform differently than the prior art product, the claimed device is not patentably distinct from the prior art product. See MPEP 2144.04 IV A.
Regarding claim 10, Evelich in view of Bourigault, Tsuchida, Kiel and Ichihashi renders the invention of claim 1 obvious. Evelich teaches an angle between 45° and 90° is formed by the holder and an axis orthogonal to a horizontal plane of the bottom (the square box labeled with an “x” shows the 90° angel that is formed by the tool portion 400 and an axis orthogonal, denoted by the solid line, to the horizontal plane of the bottom which is denoted by a dotted line; see Modified Figure 4 below).
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Modified Figure 4
Regarding claim 13, Evelich in view of Bourigault, Tsuchida, Kiel and Ichihashi renders the invention of claim 1 obvious. Evelich teaches a lid that is removably joined to an opening edge of the peripheral wall (a lid 110 in sealing contact with rim 105; Figure 2, [0015]; rim 105 is associated with and extends away from sidewall 210; Figure 2, [0016]).
Regarding claim 14, Evelich in view of Bourigault, Tsuchida, Kiel and Ichihashi renders the invention of claim 13 obvious. Further, Evelich teaches said lid has a detachable part disposed on a holder side of the pet food product (lid 110 peeled partially away from rim 105; Figure 2 [0016]; Figure 2 shows lid 105 peeled partially away with a part still attached to tool portion 400 [0020]; Figure 5 shows lid 110 [0016] completely removed from tool portion 400, and so the lid 110 has a “detachable part” as claimed).
Regarding claim 16, Evelich in view of Bourigault, Tsuchida, Kiel and Ichihashi renders the invention of claim 1 obvious. Evelich does not teach the housing having a depth of 10 mm or less.
Bourigault teaches a disposable pet food bowl ([0001]; Figure 2) wherein the small bowl has an inner height of 2 cm allowing the animal to seize the pieces contained in the bowl laterally between its teeth [0012] and is particularly adapted to small animals [0015], [0040] (Figure 2; [0040]). This is near the claimed range of housing depth of 10 mm or less. See MPEP 2144.05(I). Further, if the only difference between the prior art and the claims is a recitation of relative dimensions and a product having the claimed relative dimensions would not perform differently than the prior art product, the claimed device is not patentably distinct from the prior art product. See MPEP 2144.04 IV A.
Evelich does not teach the housing having an opening diameter between 20 mm and 39 mm.
Tsuchida teaches a small-capacity container 20, the storage section 16 having a size in plan view of 60 mm or less and more preferably 40 mm or less (Figure 1, pg. 4, [0022]). This encompasses the claimed range of an opening diameter between 20 mm and 39 mm. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Regarding claim 17, Evelich teaches the holder, as described in claim 1. Evelich does not teach the holder having the edge portion with a smooth, wavy contour in plan view. However, Evelich does teach that the disclosed embodiments are merely exemplary of the invention and that they may be embodied in various and alternative forms and specific structural and functional details disclosed are not to be interpreted as limiting [0012]. The teaching of Evelich of “various and alternative forms” is considered to render obvious the edge portion having a smooth, wavy contour in plan view as claimed, where both Evelich and the instant invention are directed to a cat food product with a container comprising a holder.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Evelich to have a holder that includes the edge portion having a smooth, wavy contour as claimed, since various and alternative forms can be used for the shape of the Evelich container, including the shape of the handle edge portion. Additionally, it is noted that the edge portion having a smooth, wavy contour is a mere change in shape of the holder and the change in form or shape, without any new or unexpected results, is an obvious engineering design. See In re Dailey, 149 USPQ 47 (CCPA 1966) (see MPEP § 2144.04).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Evelich et al. (US 2021/0078765) in view of Bourigault (US 2003/0066490), Tsuchida et al. (WO 2020045309), Kiel et al. (US 2003/0155362) and Ichihashi et al. (US 2016/0128361), as applied to claim 1 above, and further in view of Amazon, Sterling Silver Scalloped Edge Salt Spoon, FashionJunkie4Life, https://www.amazon.com/FashionJunkie4Life-Sterling-Silver-Scalloped-Mustard/dp/B06Y1X4JRY?th=1, Date: April 5, 2017.
Alternatively, regarding claim 17, Evelich teaches the holder, as described in claim 1. Evelich does not teach the holder having the edge portion with a smooth, wavy contour in plan view. However, Evelich does teach that the disclosed embodiments are merely exemplary of the invention and that they may be embodied in various and alternative forms and specific structural and functional details disclosed are not to be interpreted as limiting [0012].
Amazon teaches a container (spoon), comprising a housing (bowl of the spoon) and a holder (spoon handle), wherein the holder includes the edge portion having a smooth, wavy contour in the plan view (see edge of spoon handle; Figure 1 pg. 1). The edge of the holder having a smooth, wavy contour in the plan view is considered a change in shape from Evelich, see MPEP 2144.04(IV)(B).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Evelich in view of Bourigault, Tsuchida, Kiel and Ichihashi, by incorporating the teachings of Amazon by having the edge of the holder have a smooth, wavy contour, because shape is a matter of choice which a person of ordinary skill in the art would have found obvious. See MPEP 2144.04(IV)(B).
Response to Argument
Applicant's arguments filed 09/02/2025 have been fully considered but they are not persuasive.
Rejections under 35 U.S.C. § 103
Applicant argues, on pgs. 4-6 of their remarks, that the cited references do not disclose or suggest a holding part that has no tines on the edge portion thereof. Applicant states that Evelich Fig. 5, tool portion 400, includes tines 500, which is contrary to the newly added limitation requiring that the holder has no tines on the edge portion. Applicant argues that if the tool portion 400 of Evelich was modified and the tines 500 were removed, then Evelich would no longer be able to break up wet pet food after it has been removed from the container, rendering Evelich unsatisfactory for its intended purpose. Applicant states that for these reasons a person of ordinary skill would not be motivated to modify Evelich to arrive at the claimed invention. However, the Office disagrees for the following reasons.
As shown in the rejection above, Evelich teaches in paragraph [0020] that the tool portion 400 can alternatively have a straight or tapered edge, thus not having tines. Evelich also teaches that the disclosed embodiments are merely exemplary of the invention and that they may be embodied in various and alternative forms and specific structural and functional details disclosed are not to be interpreted as limiting [0012]. Thus, Evelich discloses the tool portion 400 does not need to have tines and that the shape of the tool portion 400 can be altered. Evelich would not teach this if it rendered the tool portion 400 unsatisfactory for its intended purpose. Therefore, a person of ordinary skill would have been motivated to modify Evelich, since Evelich teaches a tool portion 400 that does not include tines, and the tool portion would still be considered satisfactory for its intended purpose of breaking up wet pet food after it has been removed from the container.
Applicant argues on pg. 7 of their remarks that the cited references fail to disclose or suggest the limitations of new claim 17. These arguments have been considered but are moot based on the newly added rejection above.
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759