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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/01/2025 has been entered.
Status of the Claim
Claims 1-4, 7-8, 21-22 and 24 are pending and are under examination. Any objections or rejections not repeated below have been withdrawn.
Claim Objections
Claim 4 is objected to because of the following informalities:
Claim 4 recites, “wherein the first and second formulations both comprise an edible fat.” However, the amended claim 1 language states, “the edible inner core having a higher fat content than that of the edible outer shell.” With the newly added claim language in claim 1, the edible inner core, which is made from the first formulation, must contain fat since it has a higher fat content than that of the edible outer shell. While the outer shell in claim 1 is only required to have a lower fat content than the edible inner core, which could be a fat content of zero. Thus, claim 4 should be amended to remove, the “first formulation” so it recites, “wherein the second formulation comprises an edible fat.” Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4, 7-8, 21-22 and 24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
The terms “remaining soft to touch” and "remaining firm to touch" in claim 1 and “being soft to touch” and “being firm to touch” in claim 21 are relative terms which render the claims indefinite. The terms “remaining soft to touch” and "remaining firm to touch" in claim 1 and “being soft to touch” and “being firm to touch” in claim 21 are not defined by the claims, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The phrases “edible inner core remaining soft to touch” and “edible outer shell remaining firm to touch” in claim 1 and “edible inner core being soft to touch” and “edible outer shell being firm to touch” in claim 21 have been rendered indefinite by use of the terms “remaining soft to touch” and "remaining firm to touch" in claim 1 and the terms “being soft to touch” and “being firm to touch” in claim 21 because one of ordinary skill in the art would not be able to ascertain what degree of softness or firmness would satisfy the recitations, “edible inner core remaining soft to touch” and “edible outer shell remaining firm to touch” in claim 1 and “edible inner core being soft to touch” and “edible outer shell being firm to touch” in claim 21.
For the purpose of examination, the recitations of “the edible inner core remaining soft to touch and the edible outer shell remaining firm to touch when the feed products are placed outdoors” for claim 1 and “the edible inner core being soft to touch, the edible outer shell being firm to touch” in claim 21, are being construed as the edible inner core having a higher fat content than the edible outer shell, since the major difference as shown in the instant specification on pg. 5 between the inner core (Inner Materials) and outer shell (Outer Materials) is the amount of fat content.
Claims 1 and 21 recites the limitation "its ends" in line 12 and “ends” in line 5, respectively. There is insufficient antecedent basis for this limitation in the claims. Additionally, the claim doesn’t define “ends” and doesn’t talk about any shape that would inherently have ends. The shape could be a sphere, as shown in Fig. 7 of the instant application, which would not inherently have “ends.” For the purpose of examination, “ends” will be interpreted as being the ends of an elongated shape. Thus, having two ends total, one on each side of the elongated shape.
Claims 2-4, 7-8, 22 and 24 are included in the rejection as it depends from a rejected base claim.
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.
Claims 1-4 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Hoogland (US 20070272162) in view of Loria, Taking the heat off pet food, treats with cold extrusion applications, Pet Food Processing, in view of Lush (US 20110300274) cited on IDS dated 11/27/2023, in view of Niehues (US 20110076363) cited on IDS dated 11/27/2023, in view of Rygielski et al. (WO 2012118993) cited on IDS dated 11/27/2023 and in view of White et al. (US 20130171291) cited on IDS dated 09/09/2022.
Regarding claims 1-4, Hoogland teaches a method of providing nutritional feed to wild songbirds (providing feed cakes as a food source to wildlife including wild birds; [0002]), comprising an edible inner core of a first formulation (flavor blend portion 26 formed from a second feed material combination; Figure 2, [0016]) and an edible outer shell of a second formulation (seed cake portion 22 from a first feed material combination; Figure 2, [0016]) to form feed products, as required by claim 1 (feed cake assembly 20; Figure 2, [0016]).
Hoogland teaches the feed products can be formed through an extrusion process, but does not specifically teach cold co-extrusion, as required by claim 1 [0029].
Loria discloses a method of providing animal feed products using cold co-extrusion (cold, co-product extrusion), allowing two formulations (two components) to be combined into a single product (pg. 2 [0001] and [0003]). Loria states that cold extrusion can be applied to a wide variety of animal feed and is useful when ingredients are sensitive to heat (pg. 2 [0002]).
Loria and Hoogland are combinable because they are concerned with the same field of endeavor, namely a method for producing animal feed using extrusion (pg. 2 [0001] and [0003]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria to have the extrusion process be cold co-extrusion, as required by claim 1, which allows two formulations to be combined into a single product, can be applied to a wide variety of animal feed and is useful when ingredients are sensitive to heat, as recognized by Loria (pg. 2 [0001-0003]).
Hoogland teaches the first and second formulations are selected from a group comprising grains, nuts and seeds, as required by claim 1 [0014].
It is noted that the terms “resistant to deterioration” and “ambient weather conditions” in claim 1 are broad terms. The specification states in [0026] that the product is weather resistant but does not give any guidance as to what “resistant to deterioration” means. There are two types of deterioration that can happen to the product. The deterioration of ingredient quality, e.g. the fat goes rancid; or the physical deterioration, e.g. the breaking apart of the product. Additionally, the specification states in [0002] that birds can maintain a body temperature of 100 °F even when ambient air temperature is 0 °F and in [0022] states that the shell can withstand high and low ambient temperatures, as well as rain and snow. Ambient weather conditions is construed as the current weather conditions at a given location, e.g. the ambient wind speed during a category 4 hurricane can be 150 mph or on a light breezy day can be 5 mph.
Hoogland teaches a product that has a similar inner core (flavor blend portion 26) containing fat seeds, grains and nuts, and a similar outer shell (seed cake portion 22) containing a binder material and seeds, grains and nuts [0014]. Therefore, it would be reasonable for a person having ordinary skill in the art to expect that the product of Hoogland would also be “resistant to deterioration” for some period of time in some type of ambient weather condition, as required by claim 1.
Additionally, Hoogland is silent regarding the outer shell is resistant to deterioration in ambient weather conditions, as required by claim 1.
Lush discloses a method of providing wild bird feed through cold extrusion. Lush states that it has been known and desirable to make the extruded feed resistant to deterioration in ambient weather conditions (weather resistant so that it remains substantially intact until it has been completely consumed by the wild birds) which allows the feed to remain substantially intact until it has been completely consumed, even when subjected to rain and snow (Abstract, [0002], [0004], [0007], [0016]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria to have incorporated the property of the feed products as taught by Lush of being resistant to deterioration in ambient weather conditions, allowing the feed to remain substantially intact until the feed product has been completely consumed, even when subjected to rain and snow (Abstract, [0002], [0004], [0007], [0016]).
Hoogland teaches the edible inner core and the edible outer shell can be formed through extrusion (the assemblies 10 and 30 may be formed by utilizing extrusion process; [0029]) and the edible inner core is encapsulated on all sides by a substantially even layer of the edible outer shell and the edible inner core is exposed on its end, as required by claim 1 (a recess in the seed cake portion 12 includes a recess 14 formed therein that it is adapted to receive a flavor blend portion 16; [0014], Fig. 1 and Fig. 3). However, Hoogland does not specifically mention the process of the inner and outer shell being co-extensively formed through inner and outer extrusion tubes, as required by claim 1. Also, while Hoogland does teach the inner core (second cake or flavor blend portion) can be any size and/or shape and located anywhere on or inside the outer shell (seed cake portion), it does not explicitly show the inner core being exposed on its ends, or in other words being exposed on more than one end, as required by claim 1.
Niehues teaches a co-extruded animal food product with open ends where the outer shell component is harder and the inner filling component is softer (Abstract, Figure 1). The dual texture nature of animal food product provides advantages including consumer preference, increased product variety and interest and enhanced palatability and preference [0001]. Niehues teaches the edible inner core (inner softer filing portion; [0008]) and the edible outer shell (outer harder shell portion; [0008]) are co-extensively formed through inner and outer extrusion tubes (the product is co-extruded, meaning the outer harder shell material is continuously manufactured by a forming extruder and the inner softer filling material is continuously combined with the shell materials by means of a co-extrusion die. The co-extrusion die combines the flow of each material resulting in a continuous flow stream of the combined materials; [0010]). Niehues teaches that through extrusion the edible inner core is encapsulated on all sides by a substantially even layer of the edible outer shell and the edible inner core is exposed on its ends (the outer harder shell portion appears to have a generally tubular shape which surrounds the inner softer filling portion on all sides expect the ends of the generally tubular shape. The present invention is an open-ended product meaning the inner softer filling portion is exposed on the ends of the tubular shaped outer harder shell material; [0008], Figure 1). Niehues states an additional advantage of the animal food product is the manufacturing by co-extrusion processing, which is much more efficient and cost effective [0007].
Niehues and Hoogland are combinable because they are concerned with the same field of endeavor, namely a method for producing animal feed products with an outer shell and inner core using extrusion. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria and Lush to have incorporated the teachings of Niehues to have co-extensively formed through inner and outer extrusion tubes the edible inner core and outer shell being exposed on its ends because manufacturing using co-extrusion process is more efficient and cost effective [0007] and the dual texture nature of animal food product that is open on its ends provides advantages of consumer preference, increased product variety and interest and enhanced palatability and preference, as recognized by Niehues [0001].
Hoogland does not teach the addition of water in the product. However, Hoogland does not specifically recite that the edible inner core and the edible outer shell are co-extruded without the use of water, as required by claim 1.
Loria teaches cold extrusion that does not use water, since with the introduction of water you add an additional element of risk with the potential growth of yeast and mold, which may negatively affect the performance of the product (pg. 4 [0001-0002] and [0004]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, Lush and Niehues to have further incorporated the teachings of Loria by creating a product that does not contain water, since with the introduction of water an additional element of risk is added with the potential growth of yeast and mold, which may negatively affect the performance of the product, as recognized by Loria (pg. 4 [0001-0002] and [0004]).
Hoogland does not teach a drying step as part of the method steps to provide the nutritional feed (Claim 17, [0022]). Therefore, the feed products of modified Hoogland are viewed as being ready for use after co-extrusion without drying, as required by claim 1.
Hoogland teaches an edible inner core of a first formulation (flavor blend) that contains suet [0014-0015] or a first formulation comprising edible fat, as required by claim 4. Hoogland also teaches the outer shell or a second formulation (first feed material combination) may be formed from any suitable feed material or combination of feed materials including, but not limited to seeds, grains, nuts, fruits, or the like, which comprise edible fat [0014]. Thus, Hoogland teaches the second formulation comprises an edible fat, as required by claim 4. However, Hoogland does not teach the edible inner core having a higher fat content than that of the edible outer shell, as required by claim 1, or the edible inner core having at least 28% fat content, as required by claim 2, or the edible outer shell having at least 9% fat content, as required by claim 3.
Rygielski teaches a method of providing nutritious feed mixture to birds that contains a suet composition and pellets (Abstract). Rygielski discloses the edible inner core of the first formulation (suet composition) contains at least about 30 to 50% fat content of tallow, an edible fat [0026], and the edible outer shell of the second formulation (pellet composition) contains at least 1-10% fat content of canola oil, an edible fat, these fats at these amounts are intrinsically more nutritious containing essential nutrition as these compositions comprise essential fatty acids and attract more birds (Abstract, [0007-0008]). The suet composition of Rygielski is within the claimed range of at least 28% fat content, as required by claim 2. The pellet composition of Rygielski encompasses the claimed range of at least 9% fat content, as required by claim 3. Additionally, looking at the fat content of the inner core of Rygielski, which is at least about 30-50% fat, this is a higher fat content than the fat content of the outer shell, which is at least 1-10% fat content, as required by claim 1.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, Lush and Niehues to have incorporated the teachings of Rygielski, to have the edible inner core contain an edible fat at a fat content of at least 28% fat and a higher fat content than that of the edible outer shell and an edible outer shell of the second formulation containing an edible fat at a fat content of at least 9% fat, since edible fat at these percentages attracts more desirable birds for viewing by bird enthusiasts and these edible fats are intrinsically more nutritious containing essential nutrition for the birds as it comprises essential fatty acids, as recognized by Rygielski (Abstract, [0007-0008]).
Hoogland does not teach placing the product outdoors. White teaches a method of producing a suet composition that is attractive to birds, or a nutritional feed, that is placed at woodland edges or in riparian habitats, or is placed outdoors, at a location where it is available to birds (Abstract), [0097] [0197].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, Lush, Niehues and Rygielski to have incorporated the teachings of White to have placed the feed products outdoors because a composition that provides nutritional feed for birds should be placed at a location where it is available to birds, which is outside, as recognized by White (Abstract), [0011], [0055], [0096], [0197].
Regarding the recitation for claim 1, “the edible inner core remaining soft to touch and the edible outer shell remaining firm to touch when the feed products are placed outdoors” this recitation is being construed as the inner core having a higher fat content than the outer shell. As shown by the above rejection, for claim 1, the inner core has a higher fat content than the outer shell. Thus, modified Hoogland is considered to meet the claim limitation of the edible inner core remaining soft to touch and the edible outer shell remaining firm to touch when the feed products are placed outdoors.
Regarding claim 7, modified Hoogland teaches the method of claim 1, as described above. Loria teaches the cold co-extruding step is forward extrusion (push doughs through a die, which describes forward extrusion; pg. 5 [0004]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Hoogland (US 20070272162), Loria, Taking the heat off pet food, treats with cold extrusion applications, Pet Food Processing, Lush (US 20110300274), Niehues (US 20110076363), Rygielski et al. (WO 2012118993) and White et al. (US 20130171291) as applied to claim 1 above, and further in view of Anand et al., A Review of Food Extrusion Its Classification and Quality Attributes, Food Hydrocolloids.
Regarding claim 8, modified Hoogland teaches cold co-extruding as shown in claim 1, but is silent as to the edible inner core and edible outer shell being at room temperature during the co-extruding. Anand teaches cold extrusion of food products where the temperature of the inner core and outer shell are at room temperature during the extruding step (cold extrusion, in which the temperature of the food remains at ambient temperature; pg. 2 column 2 [0001]). Loria teaches that this lower processing temperature helps maintain nutritional value of the product (pg. 3 [0001]).
Anand and Hoogland are combinable because they are concerned with the same field of endeavor, namely a method for producing products using extrusion (pg. 2 [0001]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, Lush and White to have incorporated the teachings of Anand to have the edible inner core and edible outer shell at room temperature during the co-extruding step as this lower processing temperature helps maintain nutritional value of the product, as recognized by Loria (pg. 3 [0001]).
Claims 21-22 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Hoogland (US 20070272162) in view of Loria, Taking the heat off pet food, treats with cold extrusion applications, Pet Food Processing, in view of Wang et al., A review of structural transformations and properties changes in starch during thermal processing of foods, Food Hydrocolloids, in view of Rygielski et al. (WO 2012118993), in view of Niehues (US 20110076363) and in view of Lush (US 20110300274).
Regarding claim 21, Hoogland teaches a method of making a wild songbirds food products (method of making feed cakes as a food source to wildlife including wild birds; [0002]), comprising an edible inner core of a first formulation (flavor blend portion 26 formed from a second feed material combination; Figure 2, [0016]) and an edible outer shell of a second formulation (seed cake portion 22 from a first feed material combination; Figure 2, [0016]) to form feed products (feed cake assembly 20; Figure 2, [0016]).
Hoogland teaches the feed products can be formed through an extrusion process, but does not specifically teach co-extrusion [0029].
Loria discloses a method of providing animal feed products using cold co-extrusion (cold, co-product extrusion), allowing two formulations (two components) to be combined into a single product (pg. 2 [0001] and [0003]). Loria states that cold extrusion can be applied to a wide variety of animal feed and is useful when ingredients are sensitive to heat (pg. 2 [0002]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria to have the extrusion process be cold co-extrusion which allows two formulations to be combined into a single product, can be applied to a wide variety of animal feed and is useful when ingredients are sensitive to heat, as recognized by Loria (pg. 2 [0001-0003]).
Hoogland in view of Loria teaches co-extruding as stated above but does not teach the co-extruding at room temperatures. Wang teaches extruding at room temperatures (cold extrusion is carried out using an extruder that is operated at room temperature; Abstract, pg. 6 first paragraph under heading 3.1.3). Loria teaches that this lower processing temperature helps maintain nutritional value of the product (pg. 3 [0001]).
Wang and Hoogland are combinable because they are concerned with the same field of endeavor, namely a method for producing products using extrusion. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, to have incorporated the teachings of Wang to have the inner core and outer shell at room temperature during the co-extruding step as this lower processing temperature helps maintain nutritional value of the product, as recognized by Loria (pg. 3 [0001]).
Hoogland does not teach the addition of water in the product. However, Hoogland does not specifically recite that the first and second formulations are free from the addition of water.
Loria teaches cold extrusion that does not use water, since with the introduction of water you add an additional element of risk with the potential growth of yeast and mold, which may negatively affect the performance of the product (pg. 4 [0001-0002] and [0004]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria and Wang to have incorporated the teachings of Loria by creating a product that does not contain water since with the introduction of water you add an additional element of risk with the potential growth of yeast and mold, which may negatively affect the performance of the product, as recognized by Loria (pg. 4 [0001-0002] and [0004]).
Hoogland does not teach the fat content of the inner core or the fat content of the outer shell.
Rygielski discloses the inner core of the first formulation (suet composition) contains at least about 30 to 50% fat content of tallow [0026], and the outer shell of the second formulation (pellet composition) contains at least 1-10% fat content of canola oil; these fats at these amounts are intrinsically more nutritious containing essential nutrition as these compositions comprise essential fatty acids and attract more birds (Abstract, [0007-0008]). The inner core of the first formulation (suet composition) of Rygielski is within the claimed range of at least 20% fat content. The outer shell of a second formulation (pellet composition) of Rygielski encompasses the claimed range of at least 5% fat content.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria and Wang to have incorporated the teachings of Rygielski to have the inner core contain a fat content of at least 20% fat and an outer shell of the second formulation contain an edible fat at a fat content of at least 5% fat, since edible fat at these percentages attracts more desirable birds for viewing by bird enthusiasts and these edible fats are intrinsically more nutritious containing essential nutrition for the birds as it comprises essential fatty acids, as recognized by Rygielski (Abstract, [0007-0008]).
Hoogland teaches the edible outer shell encloses all sides of the edible inner core while an end of the edible inner core is uncovered (a recess in the seed cake portion 12 includes a recess 14 formed therein that it is adapted to receive a flavor blend portion 16; [0014], Fig. 1 and Fig. 3). While Hoogland does teach the inner core (second cake or flavor blend portion) can be any size and/or shape and located anywhere on or inside the outer shell (seed cake portion), it does not explicitly show the inner core being uncovered on its ends, or in other words being uncovered on more than one end.
Niehues teaches a co-extruded animal food product with open ends where the outer shell component is harder and the inner filling component is softer (Abstract, Figure 1). The dual texture nature of animal food product provides advantages including consumer preference, increased product variety and interest and enhanced palatability and preference [0001].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, Wang and Rygielski to have incorporated the teachings of Niehues to uncover the inner core on its ends because the dual texture nature of an animal food product that is open on its ends provides advantages of consumer preference, increased product variety and interest and enhanced palatability and preference, as recognized by Niehues [0001].
Regarding the recitation, “the edible inner core being soft to touch, the edible outer shell being firm to touch,” this recitation is being construed as the inner core having a higher fat content than the outer shell. As shown by the above rejection, the inner core has a higher fat content than the outer shell. Thus, modified Hoogland is considered to meet the claim limitation of the edible inner core being soft to touch, the edible outer shell being firm to touch.
Hoogland does not state that the outer shell is resistant to deterioration in ambient weather conditions.
Lush discloses a method of providing wild bird feed through cold extrusion. Lush states that the extruded feed is resistant to deterioration in ambient weather conditions (weather resistant so that it remains substantially intact until it has been completely consumed by the wild birds) which allows the feed to remain substantially intact until it has been completely consumed, even when subjected to rain and snow (Abstract, [0002], [0004], [0007], [0016]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Hoogland in view of Loria, Wang, Rygielski and Niehues to have incorporated the property of the feed products as taught by Lush of being resistant to deterioration in ambient weather conditions, allowing the feed to remain substantially intact until the feed product has been completely consumed, even when subjected to rain and snow (Abstract, [0002], [0004], [0007], [0016]).
Hoogland teaches the first and second formulations are selected from a group comprising grains, nuts and seeds [0014].
Regarding claim 22, modified Hoogland teaches the method of claim 21, as described above. Hoogland does not teach a drying step as part of the method steps to provide the nutritional feed (Claim 17, [0022]). Therefore, the food product is made without drying after the co-extruding step.
Regarding claim 24, modified Hoogland teaches the method of claim 21, as described above. Hoogland teaches the edible outer shell forms a substantially consistent thickness layer around the edible inner core (Fig. 1).
Response to Declaration
The declaration under 37 CFR 1.132 filed 12/01/2025 is insufficient to overcome the rejection of claims 1-4, 7-8, 21-22 and 24 based upon the combination of references applied under 35 U.S.C 103 as set forth in the Office action.
The declaration does not overcome the obviousness rejection and does not establish commercial success. The applicant must establish a nexus between the claimed method steps and the entirety of the evidence in the declaration. The declaration simply stated the gross sales figures for Energy+ product, which declarant states is the commercial embodiment of the wild songbird food made in accordance with pending claims 1 and 21, compared to the gross sales figures of the other two products sold by the company, namely Energy Complete and NATURALL. Declarant stated that Energy+ has sold more than 3X the amount compared to the other two products they offer, even though all three products were introduced at the same time. Declarant also notes that marketing costs for these three products, is cumulatively less than 5% of sales. It is noted that the amount of marketing costs per individual product has not been disclosed. The amount for marketing spent for Energy+ may be higher, since it has higher sales, e.g. 4% of $1,200,000 is $48,000. The declarant has only disclosed that the marketing costs for all three products “cumulatively, is less than 5% of sales.” Thus, the declarant has not established a connection between the claimed invention and the objective evidence provided in the declaration of nonobviousness. See MPEP 716.03(b). Additionally, even though the declarant states sales data for competitors does not exist, i.e. the declarant does not have the sales data for competitors, the gross sales figures presented by the declarant still do not show commercial success, since the declarant has not established what sales would normally be expected in the market by other brands. See MPEP 716.03(b), Ex parte Standish, 10 USPQ2d 1454 (Bd. Pat. App. & Inter. 1988).
Response to Arguments
Applicant's arguments filed 12/01/2025 have been fully considered but they are not persuasive.
Rejections Under 35 U.S.C. § 103
Applicant argues, on pg. 6 of their remarks, that none of their cited references disclose the co-extensive extrusion step of amended claim 1. Applicant contends that Hoogland figures 1, 2, and 4 show products that have sides of both components exposed. Applicant argues Figure 3 of Hoogland shows a product that is not co-extensively extruded and the square outer shell is not an even layer around the round inner core. Applicant states the secondary references do not overcome the deficiency of Hoogland. However, the Office disagrees for the following reasons.
While Hoogland does show in Figures 1-3 the edible inner core (flavor blend portion 16) and the edible outer shell (seed cake portion 12) separated, these two portions are meant to be combined [0014]. Recess 14 in the edible outer shell (seed cake portion 12) is adapted to receive the edible inner core (flavor blend portion 16), so that at least 1 side of the edible inner core is exposed [0014]. Thus, Hoogland does not teach that the final assembled product has all sides of both components exposed, but teaches at least one side exposed Figure 1 [0014].
As stated in the above rejection, Hoogland teaches the edible inner core and the edible outer shell can be formed through extrusion (the assemblies 10 and 30 may be formed by utilizing extrusion process; [0029]). Hoogland also teaches the edible inner core is encapsulated on all sides by a substantially even layer of the edible outer shell (a recess in the seed cake portion 12 includes a recess 14 formed therein that it is adapted to receive a flavor blend portion 16; [0014], Fig. 1). As can be seen from Figure 1, the flavor blend portion 16 is a rectangular shape that fits into a recess in the rectangular shape seed cake portion 12, this allows for a substantially even layer of the edible outer shell (seed cake portion 12) to encapsulate the edible inner core (flavor blend portion 16).
Regarding the rest of the arguments made about the newly added limitation of, “the edible inner core and the edible outer shell being co-extensively formed…” these arguments are moot because the new ground of rejection does not rely on any teaching or matter specifically challenged in the argument.
Applicant argues, on pgs. 6-9, the combination of references. Applicant contends that only Hoogland, Lush, White, and Rygielski are related to wild bird feed. While Loria, Anand, and Wang do not teach or suggest wild bird feed. Applicant asserts food for consumption by humans and indoor pets do not address the problems of feed consumed outdoors by songbirds, which are addressed by the present invention. Applicant states there is no evidence that a person skilled in the bird feed industry would consider food products from other industries. Applicant continues, contending that references must be considered in their entirety and cannot be cherry picked to focus on one teaching. Applicant argues hindsight, stating an obviousness rejection can’t stitch together disparate parts from multiple references, but all aspects of the prior art reference must be considered. However, the Office disagrees for the following reasons.
Loria, Anand, and Wang do not disclose all the features of the present claimed invention, these secondary references are used as teaching references. Therefore, it is not necessary for these secondary references to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather, these references teach certain concepts, namely, extrusion of food products, and in combination with the primary reference and other secondary references, discloses the presently claimed invention. Additionally, it would be obvious for one skilled in the art to look at extrusion processes across various food products, since these extrusion processes, that are well known in the food art, can be applied to a broad range of food, including wild songbird feed.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues, on pgs. 8-9, that the proposed modification to prior art reference cannot render the reference unsatisfactory for its intended purpose. Applicant outlines the main purpose of each reference used, with Hoogland, Lush, White, and Rygielski having a purpose that centers on bird feed and Loria, Anand, and Wang having purposes that are unrelated to the present invention. Applicant also argues that the proposed modification cannot change the principle of operation of the reference. Applicant asserts it is a gross over-simplification to suggest that Hoogland can be modified multiple times in view of 3-5 secondary references while maintaining its intended purpose or principle of operation to have the two portions of seed cake assembly fused or bonded permanently together. However, the Office disagrees for the following reasons.
As noted above, Loria, Anand, and Wang are not unrelated to the present invention. Hoogland is combinable with these secondary references because they are all concerned with the same field of endeavor, namely a method for producing food products using extrusion. A person skilled in the art would look at extrusion processes over a wide range of food to apply best practices to their extrusion process related to the specific food product they are making. This would allow the skilled person to improve their overall product. There is motivation to combine each and every secondary reference used in the above obviousness rejection, as shown by the above rejection. A skilled person would see that motivation explained in the secondary reference and be encouraged to use those principles, which deal with the same technology of extrusion, in their own invention.
Modifying the extrusion process of Hoogland does not render Hoogland unsatisfactory for its intended purpose or change the principle of operation. Hoogland states that the feed cake assembly can be formed using an extrusion process [0029] but does not go into details for the extrusion process. It would be expected for a skilled artisan to look to other extrusion processes and the benefits of those extrusion processes. The skilled artisan would then apply these best practices of extrusion to form the extruded product of Hoogland. The above revisions to the extrusion process to form the modified product of Hoogland all allow Hoogland to maintain its intended purpose and principle of operation to have the two portions of seed cake assembly fused or combined together.
In response to applicant's argument that Loria, Anand, and Wang are not related to the present invention or are nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, as noted earlier, all of these references are concerned with methods for producing food products using extrusion and are in the same field of endeavor.
Applicant argues, on pgs. 9-10, the same arguments for claim 1, applying them to independent claim 21 and dependent claim 22. Applicant also argues that Loria teaches away from the steps of claim 21 because it discusses challenges of cold extrusion and the need for 15 pieces of equipment to cold extrude pet treats. Applicant contends there is no evidence that a person skilled in the art of making wild songbird food would consider other types of non-bird food products. Applicant states it lacks common sense to consider all coextruded food products as being the same, regardless of content or formulations and without regard to the intended purpose of the food product. However, the Office disagrees for the following reasons.
Regarding applicant’s argument of applying the same arguments for claim 1 to independent claim 21, these arguments were already addressed in the above remarks and apply for claim 21 as well.
Regarding applicant’s arguments directed to Loria teaching away from claim 21, while Loria does discuss challenges to cold extrusion, it also discusses benefits to cold extrusion. As stated above, Loria teaches cold, co-product extrusion, which allows two formulations (two components) to be combined into a single product (pg. 2 [0001] and [0003]). Loria states that cold extrusion is useful when ingredients are sensitive to heat (pg. 2 [0002]). A prior art reference that "teaches away" from the claimed invention is a significant factor to be considered in determining obviousness; however, "the nature of the teaching is highly relevant and must be weighed in substance. 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, 553, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) MPEP 2145(X)(D)(1).
Loria reference is not just directed to a pet treat made with a high fresh meat content but is a very broad reference that encompasses many products. Loria states there are numerous applications for cold extrusion in the pet food industry [0001], noting that cold extrusion is applicable in a wide variety of animal and pet feed, treats, supplements and medicines and is very useful when additive ingredients are sensitive to heat [0002], which would include a wild songbird feed product that has a high fat content, where the high fat content would be sensitive to heat. Thus, a skilled artisan would consider the teachings of Loria.
Applicant Arguments/Remarks with respect to Declaration
Applicant argues, on pgs. 10-11, that the wild bird feed product of the present invention and pending claims is sold under the Energy+ trademark. Applicant contends a nexus between the objective evidence of nonobviousness and the claimed invention is presumed when the Applicant shows the asserted objective evidence of record is tied to a certain product and that product includes the claimed features. Applicant asserts that Energy+ bird feed products are made in accordance with the present invention, as set forth in claim 1, such that the nexus should be presumed. However, the Office disagrees for the following reasons.
The Office notes that it does consider Energy+ bird feed product to be made in accordance with the present invention, as set forth in claim 1. However, as discussed in the “Response to Declaration” section above, applicant has not shown that the commercial success is actually attributable to the claimed invention, as opposed so some other factor, i.e. advertising, applicant hasn't broken down the marketing spending for each of its three products. Additionally, high volume sales compared to a company's other products does not equate to commercial success, especially since no other information like sales of comparable competitive products has been presented.
Regarding applicant’s other arguments/remarks on pgs. 10-12, which are directed toward the declaration by the inventor/applicant, these are addressed in the “Response to Declaration” section above or, with regards to Exhibit 2 statements from people skilled in the wild bird feed industry, within the previous Final rejection “Response to Declaration” section dated 05/30/2025.
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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