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 Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 24 October 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the 35 U.S.C. § 102 rejection of claims 1 and 2 has been withdrawn. However, the claims are presently rejected under 35 U.S.C. § 103.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-2, 5-11, and 13-14
Withdrawn claims: 5-11
Previously canceled claims: 3
Newly canceled claims: 4 and 12
Amended claims: 1
New claims: None
Claims currently under consideration: 1-2 and 13-14
Currently rejected claims: 1-2 and 13-14
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 24 October 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 1-2 and 13-14 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) as evidenced by Hoover et al. (Hoover R., Hughes T., Chung H.J., and Liu Q. (2010) “Composition, molecular structure, properties, and modification of pulse starches: A review”. Food Res Int. 43(2), 399-413).
Regarding claim 1, Harbour teaches a meat-based wet pet food composition – (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).
wherein it contains 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]).
characterized in that 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).
wherein the wet food composition comprises at least 25% by weight of water 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 25% 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).
and wherein 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 – 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.
However, as evidenced by Hoover, pulse starches (i.e., starches from the Leguminosae family, including lentils, chickpeas, beans, and peas) (p. 400, col. 1, ¶¶ 1-2) are isolated by dry milling (mainly used in industrial processing) and wet milling (used widely in the laboratory) (p. 400, col. 2, § 2, ¶ 1). Dry milling on pulses, including peas, has been shown to result in a protein content of about 0.25% in the starch (p. 401, col. 1, ¶ 1), and wet milling has been shown to result in a protein content of 0.01% to 0.50% in the pulse starch (p. 401, col. 2, ¶ 1).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a native and purified pea starch containing a protein content of not more than 1.5% by dry weight in the foodstuffs mixture of Harbour because, as evidenced by Hoover, common and widely used methods (i.e., dry milling and wet milling) of purifying pulse (e.g., pea) starches result in a protein content of less than 0.5% in the purified starch (p. 401, col. 1, ¶ 1 and p. 401, col. 2, ¶ 1). Hence, the vast majority of pea starches available to select from would have had a protein content of less than 0.5%. Since Harbour does not specify a purity of the pea starch, one of ordinary skill would have been inclined to use such a commonly available pea starch. That is, one of ordinary skill in the art would have had to go out of their way to select a native and purified pea starch with a protein content greater than the claimed protein content of not more than 1.5%.
It is also noted that the claim is directed toward 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 pea starch” is an intermediate ingredient that is mixed with other components. One would be unable to ascertain in the final product whether the protein is from the added pea starch or, for example, added peas, or even from the meat base. Therefore, only total amounts of protein, pea starch, and water in the final product can be considered for patentability.
The disclosed foodstuffs mixture of Harbour, pre-drying, reads on 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 meets all limitations of the claimed invention.
Therefore, claim 1 is rendered obvious.
Regarding claim 2, Harbour teaches the food composition according to claim 1.
Harbour also teaches that the native and purified 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 pea starch is the sole texturing agent present in the composition.
Claim 2 is therefore rendered obvious.
Regarding claim 13, Harbour teaches 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.
Regarding claim 14, Harbour teaches the food composition according to claim 1.
Harbour does not discuss that the native and purified 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.
However, as evidenced by Hoover, pulse starches (i.e., starches from the Leguminosae family, including lentils, chickpeas, beans, and peas) (p. 400, col. 1, ¶¶ 1-2) are isolated by dry milling (mainly used in industrial processing) and wet milling (used widely in the laboratory) (p. 400, col. 2, § 2, ¶ 1). Dry milling on pulses, including peas, has been shown to result in a protein content of about 0.25% in the starch (p. 401, col. 1, ¶ 1), and wet milling has been shown to result in a protein content of 0.01% to 0.50% in the pulse starch (p. 401, col. 2, ¶ 1).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a native and purified pea starch containing a protein content of between 0.35 and 1.2% by dry weight in the foodstuffs mixture of Harbour because, as evidenced by Hoover common and widely used methods (e.g., wet milling) of purifying pulse (e.g., pea) starches result in a protein content of 0.01% to 0.50% in the purified starch (p. 401, col. 2, ¶ 1). The claimed range of between 0.35% and 1.2% overlaps with the disclosed range of between 0.01% and 0.50%. 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).
It is also noted that the claim is directed toward 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 pea starch” is an intermediate ingredient that is mixed with other components. One would be unable to ascertain in the final product whether the protein is from the added pea starch or, for example, added peas, or even from the meat base. Therefore, only total amounts of protein, pea starch, and water in the final product can be considered for patentability.
Claim 14 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 102 of claims 1 and 2: Applicant’s amendment to claim 1 filed on 24 October 2025 is sufficient to overcome the rejections under 35 U.S.C. § 102. Accordingly, the 35 U.S.C. § 102 rejections have been withdrawn. However, upon consideration of the amendments, the new grounds of rejection under 35 U.S.C. § 103 presented in this Office action are made.
Regarding Applicant’s arguments inasmuch as they are relevant to the present rejections:
Applicant argued that Harbour does not teach a wet pet food, but instead a dry final product, and the moisture content of the final pet treat product is below 20%. Applicant argued that Harbour’s disclosure that “the moisture content of the foodstuffs mixture may be above 20% prior to drying the treat” ([0049]) refers to an intermediate product, and not the final product, and it is never suggested in Harbour that the intermediate product prior to drying could be used as the pet treat, and they are not similar or interchangeable products in their industrial or commercial use (p. 3, ¶ 4 – p. 4, ¶ 2).
Applicant’s argument has been considered, but it is not persuasive. The disclosed foodstuffs mixture of Harbour, pre-drying, reads on 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 meets all limitations of the claimed invention. The intermediate composition is deemed to be suitable for consumption by pets without drying, and therefore represents a credible intermediate that reads on the claimed invention. As such, the claims are rejected under 35 U.S.C. § 103 as presented hereinabove.
Claim Rejections – 35 U.S.C. § 103 of claims 4 and 14: Applicant’s arguments filed on 24 October 2025 have been fully considered, but they are not persuasive. Claim 4 has been cancelled and its limitations included in amended claim 1.
Applicant argued that Harbour fails to teach native and purified pea starch content of 5% to 8% by weight of the total composition, the water content of at least 25% by weight of the total composition, and the protein content of not more than 1.5% by dry weight with respect to the dry weight of the pea starch, and that the deficiencies of Harbour are not remedied by Hoover (p. 6, ¶¶ 2-3).
Applicant’s argument has been considered, but it is not persuasive. Harbour renders obvious all limitations of the present claims as described in the rejections hereinabove. While Harbour does not explicitly discuss the protein content of the native pea starch, evidence from Hoover indicates that common and widely used methods (i.e., dry milling and wet milling) of purifying pulse (e.g., pea) starches result in a protein content of less than 0.5% in the purified starch (p. 401, col. 1, ¶ 1 and p. 401, col. 2, ¶ 1). Hence, the vast majority of pea starches available to select from would have had a protein content of less than 0.5%. Since Harbour does not specify a purity of the pea starch, one of ordinary skill would have been inclined to use such a commonly available pea starch. That is, one of ordinary skill in the art would have had to go out of their way to select a native and purified pea starch with a protein content greater than the claimed protein content of not more than 1.5%.
It is also noted that the claim is directed toward 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 pea starch” is an intermediate ingredient that is mixed with other components. One would be unable to ascertain in the final product whether the protein is from the added pea starch or, for example, added peas, or even from the meat base. Therefore, only total amounts of protein, pea starch, and water in the final product can be considered for patentability.
Applicant next argued that the very specific native and purified pea starch content and water content are important features of the invention and lead to the advantageous properties of firmness and stability (p. 5, ¶ 6 – p. 6, ¶ 1). Applicant cited Figure 5 of the instant Application to demonstrate the unexpected result wherein recipes containing native and purified pea starch at 5% and 7% provide the most firmness stability after several freeze/thaw cycles (pp. 5-6, bridging ¶).
Applicant’s assertion of unexpected results that native and purified pea protein added to a wet pet food composition provides increased firmness stability after several freeze/thaw cycles is acknowledged. Applicant is reminded that “‘[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.’ Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977).”, MPEP § 2112(I). Applicant is also reminded that “[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 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 pea starch and at least 25% 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 (far more than the claimed minimum of 25% 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. 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. 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.
For these reasons, Applicant’s arguments are not found to be persuasive, and the claims are rejected under 35 U.S.C. § 103.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793