DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 7 May 2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-2, 5-11, and 13
Withdrawn claims: 5-11
Previously canceled claims: 3-4 and 12
Newly canceled claims: 14
Amended claims: 1-2 and 13
New claims: None
Claims currently under consideration: 1-2 and 13
Currently rejected claims: 1-2 and 13
Allowed claims: None
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 1-2 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Harbour et al. (US 2017/0181449 A1, cited on the IDS filed on 29 July 2022) in view of AKFP (American Key Food Products. (2019, November 22). Native Pea Starch. Retrieved on July 14, 2026 from https://web.archive.org/web/20191122152001/https://akfponline.com/
pet-food-ingredients/native-pea-starch/) and Singh et al. (Singh, B., Nagi, H. P. S., Sekhon, K. S., & Singh, N. (2005). Studies on the functional characteristics of flour/starch from wrinkled peas (Pisum sativum). International Journal of Food Properties, 8(1), 35-48. https://doi.org/10.1081/JFP-200048100).
Regarding claim 1, Harbour teaches a meat-based wet food composition for pets, comprising meat – (foodstuffs mixture) that is applied to chew sticks and dried to prepare a pet treat ([0021]). The foodstuffs mixture comprises a combination of a meat base and/or a plant base with auxiliary ingredients ([0013]). The total meat base content is 6-35% by weight of the foodstuffs mixture ([0023]). The total plant base content is 6-90% of the foodstuffs mixture, and the plant base may also comprise meat ([0035]). Therefore, a meat base comprising plant material is also disclosed (e.g., 35% meat + 6% plant material).
comprising native and purified pea starch – Harbour teaches that the pet treat may also include a starch composition extracted from plants including peas ([0028]) “to provide structural support to the foodstuffs mixture” ([0029]) (i.e., as a texturing agent). Harbour further teaches that “The raw starch itself may be native, which may be understood as unmodified starch recovered in the original form by extraction and not physically or chemically modified.” ([0029]). Harbour discloses starch that is purified at least inasmuch as it is separated or “extracted from” other components of the pea ([0028]). MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Harbour discloses that the claimed native and purified pea starch is a suitable compound for use in providing structural support to the foodstuffs mixture, it would have been prima facie obvious to select native and purified pea starch as the starch to include in the foodstuffs mixture.
Additionally, AKFP teaches that native pea starch can be used for improving texture and mouthfeel in meat products, including pates, and canned products, including processed meats, and that the pea starch can also be used in pet food applications (p. 2, “Food Applications for Native Pea Starch”). AKFP teaches that pea starch has a higher amylose content compared to other starches, giving it strong gelling properties, and that because it can form a gel in water at much lower dosages than other starches, it is the best gelling native starch (p. 2, ¶ 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to select native purified pea starch as the starch in the foodstuffs mixture of Harbour given the teachings of AKFP. One of ordinary skill in the art would have been motivated to do so because Harbour teaches that native purified pea starch is a suitable starch, and because AKFP teaches that native purified pea starch has the advantages over other starches of having stronger gelling properties and it can be used at much lower dosages than other starches. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because AKFP teaches that native purified pea starch can be used in human food applications including pates and canned processed meats, as well as pet food applications, for improving texture.
wherein the native and purified pea starch is introduced at a content of between 5% and 8% by weight of the total food composition – Harbour teaches that “[t]he starch may be present between about 6-80%” ([0028]). The claimed range of between 5% and 8% lies inside the disclosed range of 6-80%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
comprising water, wherein the amount of water is at least 40% by weight with respect to the total weight of the food composition – Harbour teaches that the foodstuffs mixture comprises >20% water prior to its application to the chew stick and drying ([0049]). The claimed range of at least 40% by weight lies inside the disclosed range of greater than 20%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Harbour does not discuss that the native purified pea starch is native and purified smooth pea starch or wherein the native and purified smooth pea starch contains a protein content of between 0.35 and 1.2% by dry weight with respect to the dry weight of the pea starch – Harbour does not discuss that the native and purified pea starch contains a protein content of not more than 1.5% by dry weight with respect to the dry weight of the pea starch.
Regarding the smooth pea starch, Singh teaches that “only the starch from smooth peas with plain, round to oval granules is produced on a commercial scale. Many problems related to kernel shape, size, and granule structure are encountered during isolation of starch from wrinkled peas. Moreover, difficulties in seed dehulling make effective extraction of starch or protein from wrinkled peas complex.” (p. 36, ¶ 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to select native and purified pea starch from smooth peas for use in the foodstuffs mixture of Harbour because Singh teaches that only smooth peas are used for starch production on a commercial scale. One of ordinary skill in the art would have been motivated to use a commercially available native and purified pea starch because of its ease of access. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because Singh teaches that commercially available pea starch is only produced from smooth peas.
Regarding the amount of protein in the native and purified smooth pea starch, the claim is directed to a meat-based wet food composition as a whole, which contains abundant protein from the meat, and from which plant proteins are not excluded. The “native and purified smooth pea starch” is an intermediate ingredient that is mixed with other components. One would be unable to ascertain in the final product that the protein originated in the native and purified smooth pea starch additive. Therefore, only the amount of protein in the final composition can be considered for patentability. In this case, the claim requires that the composition comprises a minimum of 0.35% x 5% = 0.0175% by weight of protein and a maximum of 100% – 8% pea starch – 40% water = 52% by weight protein. At least where Harbour teaches that the total meat base content is 6-35% by weight of the foodstuffs mixture ([0023]), the foodstuffs mixture of Harbour meets the required protein range of 0.0175-52% since meat is substantially protein.
The disclosed foodstuffs mixture of Harbour as modified by AKFP and Singh, pre-drying, satisfies the claimed wet pet food composition. MPEP § 2123(I) states, “‘The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.’ In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)).” In the present case, the intermediate foodstuffs mixture of Harbour as modified by Singh meets all limitations of the claimed invention.
Therefore, claim 1 is rendered obvious.
Regarding claim 2, Harbour, AKFP, and Singh teach the food composition according to claim 1.
Harbour also teaches that the native and purified smooth pea starch is the sole texturing agent present in the composition – “It should be appreciated that each of these ingredients other than the base material is optional” ([0050]). The base material comprises the meat base and/or plant base material ([0013]), which may include the pea starch as a “vegetable extract” ([0024], [0025], [0028]). Therefore, Harbour teaches an embodiment wherein the native and purified smooth pea starch is the sole texturing agent present in the composition.
Claim 2 is therefore rendered obvious.
Regarding claim 13, Harbour, AKFP, and Singh teach the food composition according to claim 1.
Harbour also teaches that the native and purified pea starch is introduced at a content of about 7% by weight of the total food composition – Harbour teaches that “[t]he starch may be present between about 6-80%” ([0028]). The claimed range of about 7% lies inside the disclosed range of 6-80%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 13 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 7 May 2026 have been fully considered, but they are not persuasive.
Applicant first argued that a skilled artisan would not be led to a meat-based, wet food composition as instantly claimed from a dried chew stick as disclosed in Harbour because Harbour is not analogous art to Applicant's claimed wet pet food technology (p. 4, ¶ 5 – p. 5, ¶ 4).
In response to applicant's argument that Harbour is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Harbour meets at least the “reasonably pertinent” requirement. MPEP § 2141.01(a)(I) states:
As for the "reasonably pertinent" test, the examiner should consider the problem faced by the inventor, as reflected - either explicitly or implicitly - in the specification. In order for a reference to be "reasonably pertinent" to the problem, it must "logically [] have commended itself to an inventor's attention in considering his problem." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007) (quoting In re Clay, 966 F.2d 656,658, 23 USPQ2d 1058, 1061 (Fed. Cir. 1992)). See also In re Klein, 647 F.3d 1343, 1348, 98 USPQ2d 1991, 1993 (Fed. Cir. 2011) An inventor is not expected to have been aware of all prior art outside of the field of endeavor. Airbus, 41 F.3d at 1380-82. A reference outside of the field of endeavor is reasonably pertinent if a person of ordinary skill would have consulted it and applied its teachings when faced with the problem that the inventor was trying to solve. Airbus, 41 F.3d at 1380-82.
The instant specification at paragraphs [0001] – [0002] provides:
The present invention relates to a novel meat-based wet food composition for pets, characterized in that it contains native and purified pea starch as a substitute for the texturizers conventionally used (wheat or legume flours, hydrocolloid mixtures, plasma, etc.).
More particularly, the present invention recommends preferably using a particular content of native and purified pea starch in said food compositions, to ensure the required qualities of firmness and stability.
The problem faced by the inventor is achieving or ensuring qualities of firmness and stability in a wet pet food composition. Even though the final product of Harbour is a dried pet treat, an inventor seeking to solve this problem would have looked to Harbour in an attempt to find a solution to the problem because the “foodstuff mixture” of Harbour is a wet pet food composition that must have sufficient firmness and stability in its structure in order to be applied to the chew stick prior to drying. Harbour teaches that starch is used to provide structural support to the foodstuffs mixture ([0029]). Accordingly, Harbour meets the “reasonably pertinent” requirement and therefore qualifies as analogous art. Therefore, Applicant’s argument is not persuasive.
Applicant’s arguments with respect to Hoover (p. 6, ¶ 1 – p. 7, ¶ 4) have been considered but are moot because the new ground of rejection does not rely on Hoover for any teaching or matter specifically challenged in the argument.
Applicant next asserted that the claimed invention achieves the unexpected technical effect of forming a remarkably firm and stable gel matrix as shown in Figure 5, recipes 3 and 4, which contain a native and purified pea starch content of 5% and 7% by weight and a water content of 49% by weight, and demonstrate the most stability in terms of firmness (p. 7, ¶ 4 – p. 8, ¶ 1). Applicant submitted that these results are commensurate with the claimed meat-based wet food composition for pets comprising meat, native and purified smooth pea starch in a content range of between 5% and 8% by weight and water in a content of at least 40% by weight (pp. 7-8, bridging ¶).
Applicant’s assertion of unexpected results is acknowledged. “[w]hether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. See MPEP § 716.02(d).
In the present case, Applicant' s evidence is not commensurate in scope with the claimed invention. The examples are not commensurate in scope with the claimed invention because it cannot be ascertained whether the alleged unexpected result occurs over the entire claimed ranges and combinations of the claimed ingredients from the examples provided, and none of the claims are directed toward the specific embodiment provided by any of the examples. The scope of the claims is far broader than the embodiments supported by the data in Figure 5. The claimed invention is a meat-based wet food composition comprising between 5% and 8% of native and purified smooth pea starch and at least 40% by weight of water. No amount of meat product is claimed. The data presented in Figure 5 were obtained by analyzing the specific compositions presented in Table 1 ([0074]) of the instant specification, with Recipes 3 and 4 being the invention. These compositions comprise 49% water (9% more than the claimed minimum of 40% water, and far less than the potential maximum encompassed by the claim), specifically 40 or 38 % “meat” ingredients in beef pieces and beef liver, and 6% NUTRALYS® F85M (a pea protein composition) in addition to the 5 or 7% of native and purified pea starch. Furthermore, there is no indication in the specification that “Native and purified pea starch N-735” is native and purified smooth pea starch as claimed. It is recommended that Applicant narrows the scope of the claims to include an amount of water, meat and protein ingredients that can be supported by the data provided, provides additional data to support the scope of the claims, or both.
Applicant’s arguments regarding improper hindsight, failure to establish a prima facie case of obviousness and a reasonable expectation of success (p. 8, ¶ 3) are moot in view of the rejections presented hereinabove. Applicant is reminded that, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The rejections presented hereinabove rely only on the cited prior art, which is knowledge which was within the level of ordinary skill at the time the claimed invention was made.
For at least these reasons, Applicant’s arguments are not found to be persuasive, and the claims are rejected under 35 U.S.C. § 103.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Shellhammer whose telephone number is (703) 756-5525. The examiner can normally be reached Monday - Thursday 7:30 am - 5:00 pm ET.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
