DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11 February 2026, has been entered.
Status of Claims
The preliminary amendment, filed on 11 February 2026, is acknowledged.
Claims 28-30 and 32 are amended.
Claims 33-36 and 42 are cancelled.
New claims 43-45 are entered.
Claims 28-30, 32, and 43-45 are pending and under consideration in the instant Office Action.
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 28-30, 32, and 43-45 are rejected under 35 U.S.C. 103 as being unpatentable over Wilson et al. (WIPO Publication No. WO 2017/055169 A1, published on 6 April 2017, submitted by Applicant in IDS filed on 4 August 2022, hereafter referred to as Wilson) in view of Ahlstrøm et al. (J. Nutr. 2004, 134, 2145S., hereafter referred to as Ahlstrøm).
Wilson teaches a composition of pet food and method of producing said pet food which contains EPA and DHA (pg. 2, lines 14-18). Wilson teaches that the composition can be fed to pet cats and dogs (monogastric animals) as a method of increasing the concentration of EPA and DHA in blood plasma (Examples 3-10). In Tables 4 and 5 (pg. 20 and 21, respectively) the pet food fed to the test subjects comprised 0.69-1.88% DHA, which falls within the ranges “at least 0.6% DHA by weight” and “at least 0.68% DHA by weight” recited in instant claims 28 and 29, respectively. Compared to the control diet, which contained approximately 0.1% DHA, the pet food composition taught by Wilson resulted in “Plasma DHA and EPA concentrations [which] were significantly increased” in both the dog and cat test subjects (Examples 9 and 10, pg. 20-22). The pet food composition taught by Wilson contains EPA and DHA at a concentration ratio of “at least 0.2:1” EPA:DHA (claim 4). This has substantial overlap with the ratio of 0.39:1 or less EPA:DHA recited in instant claim 28. In addition, Wilson teaches a method of attaining blood plasma ratios of EPA:DHA in dogs and cats within a desired range by modifying the existing levels of DHA in pet food (Examples 3-8, pg. 18-20).
Guidelines on the obviousness of similar and overlapping ranges, amounts, and proportions are provided in MPEP § 2144.05. With respect to claimed ranges which “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). These guidelines apply to the concentrations of EPA and DHA, as well as the ratio between the two, taught by Wilson.
Wilson does not teach the pet food composition to comprise 0.21% or less EPA by weight. This deficiency is offset by the teachings of Ahlstrøm.
Ahlstrøm teaches the fatty acid composition in commercially available dog foods. Among the fatty acids measured are the omega-3 acids, which include EPA and DHA, as well as omega-6 acids such as linoleic acid and arachidonic acid (page 2145S, left column and page 2146S, Table 1). Of the 12 brands of commercially available dog food tested, 4 brands are taught to possess ≤0.1% EPA by weight and 5 brands are taught to possess >0.68% DHA by weight (page 2146S, Table 1). As of the filing date of the instant application, it was known in the art to produce pet foods with less than 0.21% EPA by weight as recited in instant claim 30, at least 0.6% DHA by weight as recited in instant claim 28, and at least 0.68% DHA by weight as recited in instant claim 29.
It would have been prima facie obvious to a person having ordinary skill in the art prior to the filing date of the instant application to combine the teachings of Wilson and Ahlstrøm to arrive at the claimed invention. One of ordinary skill would be motivated to combine the teachings of Wilson and Ahlstrøm because Ahlstrøm demonstrated the breadth of EPA and DHA concentrations commercially available in pet feed, including EPA concentrations at 0.21% or less by weight and DHA concentrations of at least 0.6% or at least 0.68% by weight. In MPEP § 2144.05, guidelines are provided on the obviousness of similar and overlapping ranges, amounts, and proportions. On routine experimentation to find an optimal concentration or range, the U.S. Court of Customs and Patent Appeals stated “[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.” (In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)). It would be beneficial to optimize the concentrations of EPA and DHA in the invention disclosed by Wilson and a person of ordinary skill in the art could do so through routine optimization in view of the teachings of Ahlstrøm.
Regarding the one-, two-, three-, four-, and five-fold increase in the plasma EPA:DHA ratio following feeding a pet the recited pet feed recited in instant claims 28, 32, and 43-45, the limitations are considered to be inherent properties of the pet feed. "[I]nherency may supply a missing claim limitation in an obviousness analysis." PAR, 773 F.3d at 1194-1195; see also Endo Pharms. Sols., Inc. v. Custopharm Inc., 894 F.3d 1374, 1381, 127 U.S.P.Q.2D (BNA) 1409 (Fed. Cir. 2018). It is long settled that in the context of obviousness, the "mere recitation of a newly discovered function or property, inherently possessed by things in the prior art, does not distinguish a claim drawn to those things from the prior art." In re Oelrich, 666 F.2d 578, 581 (C.C.P.A. 1981). The teachings of Wilson and Ahlstrøm have rendered obvious a pet feed comprising EPA, DHA at ≥0.6% w/w, and an EPA:DHA ratio of ≤0.39:1 and feeding the pet feed to a cat or dog would inherently increase the pet’s EPA:DHA plasma ratio one-, two-, three-, four-, or five-fold, therefore the limitations are also obvious in view of the prior art. See MPEP § 2112.I-II. and 2112.01.I. As a result, there is a reasonable expectation of success in arriving at the invention of claims 28-30, 32, and 43-45 prior to the effective filing date.
Response to Arguments
The Applicant’s arguments, filed on 11 February 2026, have been fully considered but are not persuasive.
In the penultimate para. of pg. 6, Applicant again notes that the Wilson reference teaches an EPA:DHA ratio of ≥0.2:1 and points to the examples of the Wilson reference that teach ratios of 0.54:1. As stated in the final Office Action mailed on 11 September 2025, and repeated here in brief for convenience, Wilson teaches “the ratio of concentration of EPA to concentration of DHA is at least 0.2:1” in claim 4, which substantially overlaps with the recited range of 0.39:1 or less and therefore renders the range prima facie obvious (vide supra). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). Furthermore, "[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Further in this para., Applicant argues that the Wilson reference does not teach that the pet plasma EPA:DHA ratio increases one-fold following feeding of the pet feed. As stated in the rejection above, the resulting concentrations of EPA and DHA in the blood plasma of a pet following consumption of the pet feed are inherent properties of the claimed pet feed. Because the teachings of Wilson and Ahlstrøm render obvious feeding pets with the pet feed comprising EPA and ≥0.6% w/w DHA, with an DPA:DHA ratio of ≤0.39:1, the limitations regarding the magnitude of increase in plasma EPA:DHA are also rendered obvious and the argument is found unpersuasive.
In the final para. of pg. 6, Applicant argues that the combination of references does not render obvious a pet feed containing an EPA:DHA ratio of ≤0.39:1 which increases the pet plasma EPA:DHA ratio one-fold. In view of the rejection above, this argument is not found to be persuasive.
Conclusion
No claims are allowed.
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/S.J.S./
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619