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 .
This office action is in response to applicant’s submission dated April 23, 2026, any objections and/or rejections made in previous actions and not repeated below are hereby withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 April 23, 2026 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-15, 17, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Heydtmann et al. (US 20060240169 A1) in view of Cupp et al. (US 20020150650 A1), Yamka et al. (US 8906434 B2), and Nordgren et al. (WO 2016/191389 A2).
With respect to Claims 1 and 2, Heydtmann et al. teaches an invention that is a nutritionally complete pet food product with a density less than 240 g/L. [0007] Heydtmann et al. describes the pet food product as containing between 40-50% carbohydrates [0025], 25-40% protein [0027], and 1-25% fat. [0028]
According to 2144.05 I of the M PEP, "In the case where the claimed ranges 'overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists."
The food product has a moisture content of about 2-7% [0036], constituting a dry food product. Heydtmann et al. states that a low-density pet food is preferable due to satiety inducing effects. [0019]
Heydtmann et al. is silent to the fiber content of the product, the use of non-hydrolyzed protein, and the penetration rate.
Cupp et al. presents a dry pet food designed to reduce tartar when chewed by the pet by providing a reduced density. [0011] The ingredients in the pet food comprise, by weight, 20-65% carbohydrate [0034], 12-50% protein [0035], 2-15% fiber [0036], and various other ingredients such as vitamins, mineral, and tallow. [0039] The moisture content of the pet food composition is about 3-7% 0046], constituting a dry food product. Additionally, a preferred embodiment of the composition has a density of about 250 g/L [0030] and a texture such that a test for breakage results in the probe traveling about 30-40% of the way through the food. [0033]
Cupp et al. is silent to the use of non-hydrolyzed protein.
Yamka et al. teaches a highly digestible pet food composition which comprises high quality proteins in order to decrease the size and odor of pet stool. [Col. 1, Ln 28-31] Yamka et al. teaches that the high-quality protein can be plant, animal, or both, and can be intact proteins. [Col. 3, Ln. 32-37] Intact proteins are equivalent to non-hydrolyzed proteins in that they have not been broken down into smaller units.
All references are silent to the use of egg powder containing IgY immunoglobulins.
Nordgren et al. teaches a novel IgY composition [0018] with a specific interest in providing compositions for improving the tooth and mouth health of animals. [0023] The composition is preferably extracted from egg yolk, [0034] and can be applied to the composition as a coating, sprayed onto the chews, tablets, or other food articles. [0038] Additionally, Nordgren et al. teaches the invention may be added to the total food composition at about 0.5-3%. [0083]
Heydtmann et al., Cupp et al., Yamka et al., and Nordgren et al. exist within the same field of endeavor in that they teach pet food products. Cupp et al. presents a pet food with a similar density and composition as Heydtmann et al., and presents an overlapping range of fiber content and penetration rate. Yamka et al. teaches a variety of applicable protein compositions for pet foods, including non-hydrolyzed proteins, that provide the benefit of more manageable and less odoriferous stool, and Nordgren et al. teaches the addition of an IgY composition in order to improve the mouth and tooth health of an animal companion.
According to 2144.05 I of the M PEP, "In the case where the claimed ranges 'overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists." One of ordinary skill in the art would have found it obvious to combine the two arts due to the overlapping ranges of the compositions. One would have been motivated to adjust the penetration rate of the dog food in order to increase the brushing effect during consumption, as presented in Cupp et al.
With regard to the limitation reciting the porosity of the composition between 50 and 85%, the instant application defines porosity as the relationship between the void spaces and the food product, and is accomplished by way of the low volume density of the product.
Heydtmann et al. in combination with Cupp et al. presents a pet food that is compositionally and functionally identical to the composition presented in the instant application, in that it is comprised of the same components in overlapping ranges, with overlapping physical properties, and is produced by the same process. Additionally, Heydtmann et al. describes the product as possessing a high porosity. [0035]
According to MPEP 2112.01 I, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness exists. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have produced a dry food composition according to the limitations recited in claim 1 by combining the composition presented in Heydtmann et al. with the non-hydrolyzed protein taught in Yamka et al. and the IgY composition taught in Nordgren et al. and the composition presented in Cupp et al.
With respect to Claim 3, 9, 11, 13, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Heydtmann et al. describes a pet food composition with overlapping ranges of protein, fat and starch as recited in claims 3, 9, and 11. Cupp et al. presents a composition wherein the range of fiber presented overlaps with the limitation recited in claim 13. According to 2144.05 I of the M PEP, "In the case where the claimed ranges 'overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists."
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have produced a pet food composition according to the limitation recited in claim 1 using the teachings of Heydtmann et al. in view of Cupp et al. and Yamka et al., wherein the amounts of non-hydrolyzed protein, fat, carbohydrate, and fiber overlap with the values recited in claims 3, 9, 11, and 13, thereby rendering those claims obvious.
With respect to Claims 4-7, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al. teaches that the composition presented has a protein source that may be a vegetable protein, an animal protein, or a mix of the two, [0026] and suitable proteins for the purpose are listed as including corn proteins, specifically corn gluten, and poultry meal. [0038] Yamka et al. teaches that the high quality protein can be plant, animal, or both, and can be non-hydrolyzed proteins. [Col. 3, Ln. 32-37]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Heydtmann et al., Cupp et al., and Yamka et al. in order to select non-hydrolyzed proteins for use in a dog food composition from those recited in claims 4-7, thereby rendering those claims obvious.
With respect to Claim 8, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al. teaches the protein source of their inventive product can be animal, vegetable, or a combination of both. [0105] MPEP 2144.05 II states, "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. '[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.2.d 454, 456, 105 USPQ 2.33, 235 (CCPA 1955)".
Therefore, It would have been obvious for one of ordinary skill in the art, before the effective filing date of the instant invention, to have optimized the animal and vegetal proteins to a ratio of between 2:1 to 1:2, thereby rendering claim 8 obvious.
With respect to Claim 10, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al. presents tallow as an illustrative example of the fat source in their inventive product. [0028] This reads on the limitation recited in claim 10.
With respect to Claim 12, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al. describes a specific embodiment of the product as comprising corn flour. [0038] This reads on the limitation recited in claim 12.
With respect to Claim 14, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Cupp et al. teaches the source of fiber for the inventive product can be from wheat bran fiber, soy fiber, cellulose, and more. [0036] Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Heydtmann et al. in view of Cupp et al. and Yamka et al. to have produced a pet food composition according to the limitations recited in claim 1, wherein the source of fiber is one selected from the group recited in claim 14, thereby rendering claim 14 obvious.
With respect to Claim 15, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al. describes a specific embodiment of their invention that includes vitamins and mineral at about 6%. [0038] The instant application describes ash as minerals. [Page 22, Line 16] According to 2144.05 I of the MPEP, "In the case where the claimed ranges 'overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists." Therefore, Heydtmann et al. reads on the limitation presented in claim 15.
With respect to Claim 17, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al. teaches a pet food composition with a moisture content of about 2-7%. [0036] This reads on the limitation of claim 17.
With respect to claim 24, Heydtmann et al. in view of Cupp et al., Yamka et al., and Nordgren et al. teach the composition recited in claim 1, as described above. Additionally, Heydtmann et al describes the pet food composition as a kibble. [0034] This reads on the limitations recited in claim 24.
Response to Arguments
Applicant's arguments filed April 23, 2026 have been fully considered but they are not persuasive.
Firstly, with respect to applicant’s assertion that examiner misinterpreted the declaration filed February 17, 2026 due to examiner’s previous statement, “[a]pplicant states the declaration of the amount of hydrolyzed protein in the instant invention supports the findings in the instant specification as unexpected”. Applicant proceeds to restate the primary thrust of the declaration as “to provide support that the Examples in the present application used non-hydrolyzed protein”. Applicant concludes by asserting that “the purpose of clarifying the use of non-hydrolyzed protein is to support unexpected results associated with the penetration rates of compositions comprising non-hydrolyzed proteins”.
Examiner clarifies that the statement pertaining to the amount of hydrolyzed protein in the previous office action with respect to applicant’s declaration filed February 17, 2026 was intended to include low or no amounts of hydrolyzed protein. Examiner understands the assertion that a greater amount of non-hydrolyzed protein to hydrolyzed protein was attributed to the proclaimed unexpected results of penetration rate. To wit, examiner reasserts the previously held conclusion with respect to the declaration provided below.
“In contrast to the assertion made by applicant with regard to the criticality of the hydrolyzed protein, no mention of the importance of the hydrolysis of the protein in the instant specification is made. Additionally, the Examples cited in the declaration also impart no criticality to the hydrolysis of the proteins, with examples 1-4 and 7 being directed towards the impact of fat content, the shape of the food, the moisture content, activity of immunoglobulins, and functionality in cats, respectively.”
For these reasons, applicant’s assertions on Page 6 and the first paragraph of Page 7 are found to be unpersuasive.
Applicant asserts on Page 7, Lines 11-13, that “Heydtmann is completely silent with respect to any specific form of proteins (hydrolyzed, partially hydrolyzed, or non-hydrolyzed)”, and continues on Lines 16-18, “any reliance on Heydtmann fails to provide the basic teachings or motivation for a skilled artisan to arrive at such a composition with non-hydrolyzed proteins”.
Applicant is directed to MPEP 2145 IV, which states, “One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”. Applicant is only considering the limitations to which Heydtmann et al. is silent without considering the rejection as a whole. Additionally, MPEP 2145 X. C, states, “A teaching suggestion, or motivation to combine references that is found in the prior art is an appropriate rationale for determining obviousness”. Therefore, there need not be explicit motivation in Heydtmann et al. in order for one of ordinary skill in the art to have been motivated to make a modification. For these reasons, applicant’s assertions are found to be unpersuasive.
Applicant asserts on Page 7, Lines 20-23, that “Cupp also fails to provide the basic teachings or motivation for a skilled artisan to arrive at a composition with non-hydrolyzed proteins. Cupp is completely silent with respect to any specific form of proteins that are comprised in the composition, and fails to provide any motivation for a skilled artisan to vary the form of the protein”. Applicant is directed to the previous response with regard to MPEP 2145 IV and X. C. Therefore, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Page 7, Lines 28-30, with regard to the combination with Yamka, that, “a skilled artisan would have known at the time of the effective filing date of the present application that using non-hydrolyzed proteins instead of hydrolyzed proteins would result in a lower penetration rate”.
Applicant is directed to the rejection of Claim 1, with respect to the motivation to combine Yamka et al. As described above, the motivation to combine stems from a beneficial effect on the stool of the animal and not on the penetration rate. Additionally, MPEP 2145 X. B, states, “An ‘obvious to try’ rationale may support a conclusion that a claim would have been obvious where one skilled in the art is choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success”. In the interest of improving upon the invention that would have been a combination of Heydtmann et al. and Cupp et al., one of ordinary skill in the art would have been motivated to try the finite number of protein types, including non-hydrolyzed, taught in Yamka et al. with a reasonable expectation of success.
For this reason, applicant’s assertion is found to be unpersuasive.
With respect to applicant’s remaining assertions directed to the limitation “wherein the composition is coated with an IgY containing egg powder in an amount ranging from 0.01% to 1% by weight relative to the total weight of the composition” of claim 1 have been considered, but are moot because the rejection of claim 1 relies on a new reference not applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
For this reason and those enumerated above, applicant’s assertions are found to be unpersuasive and the rejection of claims 1-15, 17, and 24 are maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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