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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/22/2026 has been entered.
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.
Claim(s) 1,4,7-8,12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Taiyo(English translation of JP 2015204823 and original JP 2015204823 provided by the applicant) in view of Zemel(US 2016/0073659), Villagran(US 2016/0198742), and Shimotoyodome(US 2008/0096842A1).
Regarding claims 1,6, Taiyo teaches a dry food composition comprising, by weight relative to the total weight of said composition:
a. protein in an amount ranging from 25% mass or more([0006])
wherein the food composition is comprised of discrete elements, each discrete element defining a total volume and comprising, within said total volume, at least one empty cavity comprising at least one aperture, and said cavity representing a volume of 5 to 90% of the total volume
and wherein said empty cavity is in a central or a substantially central position in the kibble and is substantially cylindrical shaped(each piece of pet food has a cylindrical structure and a central hollow cylindrical cavity, see pictures on original Taiyo document provided by the applicant and [0006] of translation).
Taiyo teaches that the composition and comprise starch and fiber(barley)([0016) but does not specifically teaches the amounts of each component. Zemel discloses a dry food composition (Para. [0029], dry pet food composition) for preventing obesity the food composition comprising, by weight relative to the total weight of said composition:
a. a protein in an amount ranging from about 20% to about 36% (Para. [0017]. pet food composition comprising, on a dry matter basis, about 35 to 70% by weight of a protein),
b. a total dietary fiber in an amount ranging from about 15% to about 30% (Para. [0015], 20 to 30 wt.% of total dietary fiber on a dry matter basis), and
c. a starch in an amount ranging from about 15% to about 32% (Para. [0017], about 10 to 35% by weight of a carbohydrate; Para. [0273], Examples of such carbohydrate sources include a starch such as corn starch or wheat starch or mixtures).
It would have been obvious to include 20 to 30 wt.% of total dietary fiber on a dry matter basis and about 10 to 35% by weight of starch in with the pet food of Taiyo since these components form a nutritionally complete composition that prevents obesity as taught in Zemel.
Taiyo and Zemel do not teach a total porosity of about 40% to about 70%.
However, Villagran is also in the field of pet food compositions (Abstract) and teaches comprising, within said total volume, at least one empty cavity comprising at least one aperture and said cavity representing a volume of at least 20% of the total volume (Para. [0038], During extrusion cooking and/or drying, the water in the bubbles evaporates, leaving pores in the dried kibble which contribute to a light, airy texture; Para. (0070], Percent porosity is defined as the percent of voxels below a fixed threshold divided by the total number of voxels in the 3D region of interest. The 3D region of interest was manually selected as the largest single, rectangular. 3D volume that would fit entirely within the kibble. Since kibbles are different sizes, the volume of the region of interest varies with each kibble: Para. [0057]. Villagran teaches that the kibble has a porosity of between 60% and 75%(paragraph 59), which overlaps the claimed range and renders it obvious.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify Taiyo and Zemel to have a porosity of between 60% and 75%. The motivation for doing so would have been to provide a texture that is easy to chew (Para. (0030]).
Taiyo teaches the use of corn starch in the composition(para 16). Taiyo, Zemel, and Villagran do not teach that the starch has an amylose to amylopectin ratio not exceeding 30:70, or 15:85 as recited in claim 14. However, Shimotoyodome teaches a pet food composition that contains waxy corn starch(para 29). Shimotoyodome teaches that waxy corn starch comprises 100% amylopectin(i.e. 0% amylose)(para 23) and “serves as a preventive/remedy for obesity, an agent for suppressing fat accumulation in internal organs, an agent for suppressing blood glucose level increase, an agent for suppressing blood insulin level increase, a preventive/remedy for diabetes, an agent for improving lipid metabolism, and an agent for promoting fatty acid oxidation (hereinafter referred to as the preventive/remedy for obesity and the like)”(para 28).
A 0:100 ratio of amylose to amylopectin does not exceed the 15:85 ratio as recited in claim 14. It would have been obvious to use waxy corn starch as the corn starch in Taiyo as taught in Shimotoyodome due to the blood sugar/metabolism benefits as recited above.
In regards to having a caloric density ranging from about 500 kCal/L to about 900 kCal/L and a breakage rate of equal or less than 7%, the composition of Taiyo in view of Zemel, Villagran, and Shimotoyodome is the same as the instantly claimed composition. As a product and its properties are inseparable, the composition of Taiyo in view of Zemel, Villagran, and Shimotoyodome would be expected to possess the properties of having a caloric density ranging from about 500 kCal/L to about 900 kCal/L and a breakage rate of equal or less than about 7%(see Para. (02811).
Furthermore, it would have been obvious to ensure proper packaging and handling so that the amount of breakage in the composition is reduced to a minimum of less than about 7%. The instant claims do not recite the conditions of said breakage. Therefore, the instant claims do not preclude effective packaging or require the breakage to be measured under a set of conditions.
Regarding claim 4, Taiyo teaches the use of proteins but does not specifically teach that the proteins are at least partially hydrolyzed. However, Zemel discloses a dry pet food composition comprising proteins, characterized in that said it comprises proteins at least partially hydrolyzed (Para. [0203], The protein can be intact, almost completely hydrolyzed, or partially hydrolyzed). Therefore, it would have been obvious to one of ordinary skill in the art to include at least partially hydrolyzed proteins in the pet food composition of Taiyo since they are palatable and desirable in pet food compositions as taught in Zemel.
Regarding claim 7, Taiyo teaches that the dry food composition has a volume density of 0.1 to 0.6g/cm^3(100 to 600g/L)([0010])
Regarding claim 8, Taiyo teaches that the dry food composition consists of a nutritionally complete food([0001]).
Regarding claims 12 and 13, Taiyo teaches that the composition is fed to an animal in order to decrease food intake and control the weight of the animal([0005]).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1,4,6-8,12,13 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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