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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10 February 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.
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 1-8, 10, 13, 16, 17 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Elliot USPGPub 20140295052 and Fisher USPN 4145447. Evidence for claim 8 provided by USDA (https://fdc.nal.usda.gov/food-details/168446/nutrients)
Regarding claims 1-3, 5-7, 10, 16 and 17, Elliot teaches an edible animal chew comprising at least two coextruded concentric layers having a circular (round) cross section as recited in claims 1, 16 and 17. (Fig. 1a,b, [0018], [0040]) It is clear from Fig. 1 that there is an air gap between the extruded layers. The composition used to form the chew of Elliot is disclosed to comprise the following components[0050]:
Animal skin protein: 30wt% or less collagen fibers [0055]
4-9wt% tallow (bovine) or lard (porcine) animal fat [0057]
5-45 wt% plant protein such as soy protein [0053]
35 wt% or more starch [0063]
Fig. 1 of Elliot clearly demonstrates the inner and outer concentric walls of the chew have different thicknesses relative to one another. Nonetheless, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. (Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), MPEP 2144.04 IV A)
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The structures corresponding to the “Zigzag” identified in Fig. 1b of Elliot is interpreted to read on the zigzag pattern claimed. They extend from the outer layer to intermittently contact the outer surface of the inner layer. While this structure does not have angles as sharp as a “W” zigzag pattern, any slight difference between the claimed structure and that disclosed by Elliot does not provide any function to the chew recited. Page 11 of applicant’s remarks describes the claimed zigzag as “aesthetically appealing” which does not impart any significance. Applicant’s remarks also describe this feature as having “desirable long-lasting chew texture”, but fails demonstrate that this texture is solely attributed to the broadly claimed “zigzag” pattern. Clearly, the texture of a chew is dependent on the composition of the chew and the absolute thicknesses of the various walls comprising it, not merely the presence of a ”zigzag” pattern. Since no nexus has been established between the broadly claimed structure and the specific property of “desirable long-lasting chew texture”, the claimed structure does not provide a patentably significant difference from the prior art. (See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) MPEP 2144.04 IV B)
Elliot is silent regarding the collagen fibers being of bovine origin.
Fisher teaches an animal chew resistant to chewing that comprises collagen fibers derived from cowhide. (Col. 1, lines 40-49, Col. 3, lines 25-44)
Elliot and Fisher are both directed to animal chews comprising collagen fibers. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have utilized collagen fibers derived from cowhide as disclosed by Fisher for the collagen fibers in Elliot because such fibers were known in the art to be suitable for animal chews. The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297. (MPEP 2144.07)
The proportion of animal skin protein, animal fat, plant protein and starch disclosed by Elliot overlap or encompass the proportions recited in claims 2, 3 and 5-7. In the case where the claimed ranges "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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Therefore, the modification of Elliot with Fisher renders obvious the invention recited in claims 1-3, 5-7, 10, 16 and 17.
Regarding claim 4, Elliot encompasses an embodiment where the fibers are only collagen and therefore the animal skin protein comprises 100% collagen which reads on claim 4.
Regarding claim 8, Elliot discloses that the starch may comprise potato starch. [0051] The starches in Elliot are disclosed to be provide in the form of flour.[0071] USDA evidences that potato flour comprises 6.9 g protein/100 g of flour, or 6.9%. As such, given that the composition of Elliot is at least 35% starch, the composition of Elliot comprises at least 2.4% or more potato protein. This proportion overlaps with the proportion recited in claim 8. In the case where the claimed ranges "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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Regarding claim 13, Elliot teaches the composition may comprise plasticizer. [0059]
Regarding claim 22, Elliot is silent regarding the “tensile toughness” of the chew. Elliot discloses that the degree of gelatinization of the starch may be modulated to increase the amount of the time the chew lasts. [0073] The inventive chews of Elliot have a lasting time of over 10 minutes.[0078]
Fisher teaches that the chew resistance of pet chews can be improved by controlling the type and amount of fibers in the chew. (Col. 1, lines 19-21) Water content is also identified as affecting the chew resistance of the product. (Col. 1, lines 45-49)
Elliot and Fisher are both directed to chews having chew resistance. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have optimized the amount of fibers and water in the chew of Elliot in order to optimize the chew resistance. Applicant’s specification (pg. 41) indicates the inventive chew has a lasting time of at least 12 minutes. Lasting time and tensile toughness are merely different measures of the same property, namely resistance to deformation. Given that Elliot teaches a lasting time of over 10 minutes and Elliot and Fisher both identify means of improving the lasting time, and therefore “tensile toughness” of chews, the tensile toughness recited in claim 22 merely reflects the routine optimization of the lasting time of the chew of Elliot in light of the teachings of Elliot and Fisher that would have been obvious to one of ordinary skill in the art.
Response to Arguments
Applicant’s amendments to claims 1 and 2 are sufficient to overcome the rejection under 35 U.S.C. 112(a) for new matter set forth in the previous rejection.
Applicant's arguments filed 10 February 2026 have been fully considered but they are not persuasive.
Applicant asserts on page 9 of the remarks that “In the present invention, the “zigzag” is an undulating deformation of the wall itself”. This assertion is inaccurate. Claims 1 and 2 recite “a rippled inner surface defining a zigzag pattern”. This limitation does not require “undulating deformation” of the outer wall. It only requires that the outer wall has an inner surface that is “rippled”. As such, applicant’s assessment of this claim limitation does not reflect the broadest reasonable interpretation of the claim and cannot be reasonably relied on to exclude Elliot given that Elliot is demonstrated above to have “ripples” that form a “zigzag”.
Applicant’s assertions on pages 9 and 10 of the remarks regarding destroying the Elliot reference are not germane as the instant rejection has not relied on modification of the structure of Elliot to reject the claims.
Applicant asserts on pages 10 and 11 of the remarks that the examiner relies on hindsight reasoning to “invent” a rippled inner surface in Elliot. This assertion is inaccurate as the rejection above provides an explanation of why Elliot reads on the claim as written and does not require a motivation to read the structure of Elliot on the presently claimed invention.
Applicant asserts on page 11 of the remarks that Elliot and Fisher are technically incompatible based on the assertion that one of ordinary skill would not incorporate every aspect of Fisher in Elliot. However, as stated in MPEP 2145 III., “[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]I is not necessarily that the inventions of the references be physically combinable to render obvious the invention under review.”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve the ability to combine their specific structures.”).
Applicant asserts on pages 11 and 12 of the remarks that the present invention displays unexpected results of an aesthetically appealing visual appearance and long-lasting chew texture. These assertions are not found persuasive for the reasons set forth in paragraph 9 above which discusses how aesthetic features which have no function are not patentable and paragraphs 18-20 above which discusses how long-lasting chew texture is a result effective variable. In addition, applicant has failed to establish any nexus between the asserted results and the instant claims which fail to recite proportions of ingredients or structural dimensions that would necessarily affect the textural properties of a chew.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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