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 .
Status of the Claim
Claims 1-3, 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 Any objections or rejections not repeated below have been withdrawn.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 1 is objected to because of the following informalities:
Claim 1 line 15 recites, “the edible out shell.” While it is understood that the applicant is referring to the “edible outer shell,” for matters of form, the word “out” should be replaced with the word “outer.” The limitation would then read as follows, “the edible outer shell.” 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 1-3 and 7-8 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 line 9 recites, “to form a feed product with a longitudinal axis.” Claim 1 line 4 recites, “to form feed products.” It is unclear if the “feed product” recited in line 9 is a new feed product or if it is the same “feed products” recited in line 4. For the purpose of examination, the “feed product” recited in line 9 will be viewed as the same “feed products” recited in line 4.
Claims 2-3 and 7-8 are included in the rejection because they depend from or otherwise include 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 1-3 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 1-3, 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] the specification states that the shell can withstand high and low ambient temperatures, as well as rain and snow. Ambient weather conditions are 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 being 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 around the longitudinal axis by a layer of the edible outer shell and the edible inner core being exposed on an 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; [0006]), it does not explicitly show the inner core being exposed on opposite ends, 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 opposite 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 opposite 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 1. 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 1. However, Hoogland is silent as to 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 limitation for claim 1, “the edible inner core being softer than the edible outer shell when the feed products are placed outdoors” this limitation is considered a property of the nutritional feed products made by the method disclosed above. Since the method of modified Hoogland is a substantially identical method with substantially identical ingredients to the claimed method, and produces a substantially identical nutritional feed product, it is considered to possess the claimed property, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
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. Thus, the edible inner core fat content is greater than the edible outer shell 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, so the edible inner core fat content is greater than the edible outer shell fat content, 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 feed products have a longitudinal axis and the edible outer shell encloses all longitudinal 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; [0006]), it does not explicitly show the inner core being uncovered on opposite ends.
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 opposite 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 limitation, “the edible inner core being soft, and the edible outer shell being firm relative to one another” this limitation is considered a property of the nutritional feed products made by the method disclosed above. Since the method of modified Hoogland is a substantially identical method with substantially identical ingredients to the claimed method, and produces a substantially identical nutritional feed product, it is considered to possess the claimed property, absent convincing arguments or evidence to the contrary. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
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 Arguments
Applicant's arguments filed 08/06/2026 have been fully considered but they are not persuasive.
Rejections Under 35 U.S.C. § 103
Applicant argues, on pgs. 7-8 of their remarks, that the feed products of Hoogland as shown in Figures 1-4 cannot be formed by coextrusion due to the recesses and flanges. Applicant contends that Hoogland specifically describes forming the feed products (feed cake assembly) with molds and only has one reference to using extrusion. Applicant states that a reference must be enabling in order to properly be relied upon for an obviousness rejection. Applicant asserts that Hoogland does not teach or suggest a bird feed product coextruded with an inner core and outer shell. However, the Office disagrees for the following reasons.
As noted by the applicant, Hoogland does reference using an extrusion process to form the feed products. Hoogland states that “those skilled in the art will appreciate that the assemblies may be formed by… an extrusion process… while remaining within the scope of the present invention” [0029]. Additionally, while applicant asserts that the feed products shown in Figures 1-4 cannot be formed by coextrusion, it is noted that the feed product can be “any size and/or shape” [0006]. Thus, the Hoogland reference does enable using extrusion/coextrusion to form its feed products.
Additionally, while Hoogland does disclose multiple ways to form the feed product, as stated in MPEP 2123, “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989).” Thus, it is reasonable for a person of ordinary skill to have selected extrusion for forming the feed product, since it is taught in the prior art and Hoogland specifically states that using the process of extrusion remains within the scope of the present invention [0029].
Regarding applicant’s argument that Hoogland doesn’t teach or suggest a bird feed product coextruded; as shown in the rejection above, while Hoogland does not specifically teach cold 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]). 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]).
Applicant argues, on pgs. 8-9, that Loria is cited for a coextruded animal feed product with two formulations, but that Loria relates to pet food products and not wild bird feed. Applicant states that the above rejection used motivation from Loria to exclude water from the coextruded product to eliminate the risk of yeast and mold and extend the shelf life of the product. Applicant argues that since Hoogland is considered “ready for use” shortly after production that no motivation to modify Hoogland in view of Loria to exclude water is required for the rejection. Applicant continues to argue Hoogland in view of Loria by looking at the motivation cited to combine Hoogland in view of Loria, specifically noting and arguing three points. 1) Since Hoogland already uses two formulations, the motivation of Loria to allow two formulations to be combined into a single product does not apply. 2) Hoogland’s feed products are useful for wildlife, including but not limited to wild birds and the like, and since Hoogland is intended for a variety of animals, the motivation of Loria that coextrusion can be applied to a wide variety of animal feed does not apply. 3) There is no disclosure in Hoogland that any of its ingredients are sensitive to heat so the motivation that cold coextrusion can be used when ingredients are sensitive to heat is not applicable. Applicant concludes that there are no rational underpinnings to support the obviousness rejection of Hoogland in view of Loria. However, the Office disagrees for the following reasons.
Regarding applicant’s argument that relates to pet food products and not wild bird feed; Loria does not disclose all the features of the presently claimed invention, this secondary reference is used as teaching reference. Therefore, it is not necessary for this secondary reference 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, this reference teaches a certain concept, namely, cold coextrusion 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 since Hoogland is considered “ready for use” shortly after production that no motivation to modify Hoogland in view of Loria to exclude water is required, but as stated above, Hoogland does not specifically recite that the edible inner core and the edible outer shell are co-extruded without the use of water. Even though modified Hoogland is viewed as “ready for use” after the coextrusion process, the motivation of not using water in the coextrusion process still applies. When making a product that will be consumed, shelf life is always considered and is an important factor in the formulation of a product. A person of ordinary skill generally wants to increase that shelf life and lower the risk of any mold or yeast growth. 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]). Thus, it would have been obvious to one of ordinary skill in the art to modified Hoogland in view of Loria, by creating a product that does not contain water for the reasons stated above.
In response to the arguments on motivation and the three points stated above: 1) The motivation of Loria to use coextrusion to combine the first portion and second portion of Hoogland to create a feed product (feed cake assembly) does apply. Hoogland states that the product can be formed using an extrusion process. Therefore, a person of ordinary skill would review extrusion techniques and find an extrusion process that allows for the extrusion of a first portion and a second portion together. Thus, 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 co-extrusion, which allows two formulations to be combined into a single product, as recognized by Loria (pg. 2 [0001-0003]).
2) The motivation of Loria that coextrusion can be applied to a wide variety of animal feed does apply. This motivation shows that coextrusion can be applied to an animal feed product like wild songbird feed and gives another reason why Hoogland can be modified by Loria. Therefore, it would have been obvious to one of ordinary skill to modify Hoogland to have the cold co-extrusion process of Loria, which can be applied to a wide variety of animal feed (Loria pg. 2 [0001-0003]), which would include wild songbird feed.
3) The motivation of Loria for cold coextrusion being used when ingredients are sensitive to heat is applicable. Even though Hoogland is silent as to any of its ingredients being sensitive to heat, ingredients such as suet, grains and nuts, which may all be present in the feed product of Hoogland [0014], are all inherently sensitive to heat. For example, all these ingredients contain fat, which when exposed to high heat speeds up the oxidation process causing the fat to become rancid at a faster rate. This decreases the shelf-life of the product. Thus, the motivation of Loria does apply to Hoogland, and it would have been obvious to one of ordinary skill in the art to have modified Hoogland to have the extrusion process be cold co-extrusion, which is useful when ingredients are sensitive to heat, as recognized by Loria (pg. 2 [0001-0003]).
Applicant argues, on pg. 9, that the secondary references of Lush and Niehues contradict the limitation of claims 1 and 21 regarding no use of water. Applicant states that both secondary references use water as an ingredient. It is also noted that Niehues has a drying step in its process. Applicant asserts that a prior art reference must be evaluated as a whole, and Examiners cannot pick out isolated teachings while ignoring other portions of the reference. However, the Office disagrees for the following reasons.
While Lush does teach the use ingredients in its formulation that may not be in the formulation of Hoogland or the claimed method, it also teaches the use of cold extrusion and gives motivation on why a person of ordinary skill would want to experiment with their own formulation to produce a product that is weather resistant. Lush states that cold extrusion produces a weather resistant wild bird feed that remains substantially intact until it has been completely consumed by the birds [0007]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to modify Hoogland 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]).
Additionally, although Lush does not disclose all the features of the present claimed invention, the secondary reference is used as a teaching reference to show that cold extrusion can produce a weather resistant wild bird feed. Therefore, it is not necessary for this secondary reference 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).
Niehues reference does teach ingredients and processes that may not be in the primary reference of Hoogland or the claimed method. However, Niehues is used as a teaching reference to show how a product can be coextruded into a shape that has an outer shell component that is harder and an inner filling component that is softer while the inner filling component is exposed on opposite ends. Therefore, it is not necessary for this secondary reference 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 this reference teaches a certain concept, namely, coextrusion of a dual textured product that has a shape where the inner core is exposed on opposite ends. Thus, Niehues in combination with the modified Hoogland discloses the presently claimed invention.
Applicant argues, on pgs. 9-10, that the motivation for modifying Hoogland in view of Niehues, specifically that coextrusion is more efficient and cost-effective, has no evidence or support. Applicant states that Niehues only compares coextrusion to baking and not to the mold process used by Hoogland. Applicant also argues the second motivation that coextrusion provides a dual texture for consumer preferences, giving variety, interest, and palatability. They note that Hoogland already provides dual texture in the different compositions used for the seed cake portion and flavor blend portion. Applicant contends that this dual texture rational is not applicable to support the modification. However, the Office disagrees for the following reasons.
The fact that Niehues recognizes coextrusion is an efficient and cost-effective process is motivation and support enough for a person of ordinary skill in the art to use that production method [0007]. A person of ordinary skill could easily compare a mold process to a coextrusion process and see if the coextrusion process is efficient and cost-effective.
The motivation that the coextrusion process of Niehues provides a dual texture for consumer preferences is applicable to support the modification. Niehues shows how a different method, other than a mold process, can be used to obtain a dual textured product. A person of ordinary skill would be highly motivated to use a coextrusion process when viewing the teachings of Hoogland in view of Niehues. They would note that Hoogland teaches extrusion is a process that can be used to form its feed product and then would see how Niehues teaches a dual textured product can be coextruded. Thus, it would have been obvious to modify Hoogland by incorporating 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 opposite ends because 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].
Applicant argues, on pg. 10, that the motivation to modify Hoogland with the teachings of Rygielski, specifically the motivation that ingredients in its formulation attracts more desirable birds and is more nutritious, has no evidence or facts for support. Applicant contends that there is no evidence that shows the Rygielski composition attracts more birds and is more nutritious than the composition of Hoogland. Applicant concludes that the description of Rygielski is overly broad and without any comparative basis to Hoogland. However, the Office disagrees for the following reasons.
The motivation to modify Hoogland in view of Rygielski does have support. Reviewing the disclosure of Rygielski, a person of ordinary skill would note the different ingredients in the disclosure and how these ingredients are considered intrinsically more nutritious containing essential nutrition for the birds as it comprises essential fatty acids, which is in the fat (Abstract, [0007-0008]). Thus, it would be obvious to view the fat content of the different compositions taught by Rygielski and modify Hoogland to have a similar fat content in their compositions that make up the feed product. Therefore, as shown in the above rejection, it would have been obvious to modify Hoogland to incorporate the teachings of Rygielski, to have modified the composition as claimed for the reasons stated above.
Applicant argues, on pg. 10, that Hoogland does not teach the limitation of an inner core with a higher fat content than the outer shell and that Rygielski does not disclose an inner core with a high fat content and an outer shell with lower fat content than the inner core. Applicant states that Rygielski describes four compositions but does not describe an inner core and an outer shell. Applicant states the rejection cannot support the proposed modification of Hoogland in view of Rygielski. However, the Office disagrees for the following reasons.
Hoogland does not explicitly state that the inner core has a higher fat content than the outer shell. However, as discussed in the above rejection, the edible inner core contains suet [0014-0015] and the outer shell has a combination of ingredients including, but not limited to seeds, grains, nuts, fruits, or the like, which comprise edible fat [0014]. Rygielski teaches a suet composition that comprises at least about 30 to 50% fat content of tallow [0026], and a second formulation (pellet composition) contains seeds and grains and at least 1-10% fat content of canola oil [0016-0017]. Rygielski also teaches that 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 and the amount of fat within that composition would be applied to the inner core suet composition of Hoogland, while the pellet composition of Rygielski that comprises seeds and grains would be applied to the outer shell composition of Hoogland that comprises seeds and grains. Thus, the rejection can support the proposed modification of Hoogland in view of Rygielski since the suet composition of Rygielski translates to the inner core suet composition of Hoogland, and the pellet composition with seeds and grains of Rygielski translates to the outer shell composition with seeds and grains of Hoogland.
Applicant argues, on pg. 11, that the rejection has a series or sequence of modifications, one after the other, and lacks common sense. Applicant states that there is no evidence that a person skilled in the art would undertake multiple modifications to achieve applicant’s claimed innovation. Applicant argues that the asserted motivations appear to be based upon the use of the claims as a roadmap to reconstruct isolated pieces from the references. Applicant concludes, while modifying the primary reference once or twice may be sensible in some instances, the need to modify Hoogland four or five times does not make sense in the real world or to an imaginary PHOSITA. However, the Office disagrees for the following reasons.
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, i.e., using the claims as a roadmap, 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 Arguments/Remarks with respect to Declaration submitted 12/01/2025
Applicant argues, on pg. 12, that the examiner disregarded applicant’s substantial volume of sales, generating approximately $1.2 million worth of sales with minimal marketing costs. Applicant contends that even if 5% of marketing costs were all applied to the claimed feed product, namely Energy+ product, spending $60,000 to generate $1.2 million in sales for the product covered by the claims is the epitome of commercial success. Applicant also states that the MPEP 716.03(b) does not require market share data to establish commercial success. Rather gross sales may show commercial success when paired with “the time period during which gross sales occurred,” among other things. Applicant states that the $1.2 million worth of sales occurred in approximately 2.5 years. Applicant argues that commercial success does not require market share data but that the Federal Circuit has further defined commercial success as requiring “significant sales in a relevant market.” Applicant concludes that gross sales data over a period of time may be sufficient to demonstrate commercial success. However, the Office disagrees for the following reasons.
Reviewing the affidavit submitted 12/01/2025, the data given within this affidavit does not state that the sales for Energy+ occurred in approximately 2.5 years. This is new information given by the applicant that was not in the affidavit. When breaking down the $1.2 million in sales over 2.5 years, assuming all of the 5%, or $60,000, of advertising went to the Energy+ product over the 2.5 years, like the applicant suggests in their remarks, then Energy+ product generated approximately $456,000 in sales per year. Wise Guy Reports, Global Wild Bird Feed Market Research Report published in June 2026 looks at the wild bird feed market size. The report states that in 2024 the wild bird feed market was valued at 1,736.3 million U.S. dollars (pg. 1 last paragraph). It also states that the wild bird feed market in North America is valued at 650 million U.S. dollars in 2024 (pg. 9 first paragraph). When comparing the sales of the Energy+ product, which is produced using the claimed method, the sales for 1 year in 2024, which is assumed to be $456,000, is only about 0.07% of sales for the total wild bird feed market in North America. While the amount of sales compared to two other products the applicant sells may be at a higher rate, the sales for the Energy+ product, when viewed in light of total wild bird feed sales in North America for 2024, is not significant and the declaration has not established commercial success.
Even with additional information of the time period sales occurred, applicant has not shown that their perceived “commercial success” is actually attributable to the claimed invention, as opposed so some other factor. Additionally, high volume sales compared to a company's other products does not equate to commercial success. MPEP 716.03(b) states that “Merely showing that there was commercial success of an article which embodied the invention is not sufficient. Ex parte Remark, 15 USPQ2d 1498, 1502-02 (Bd. Pat. App. & Inter. 1990). Compare Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 7 USPQ2d 1222 (Fed. Cir. 1988).” To only state the amount of sales a product had over a 2.5 year time period when compared to two other products sold by the same company (see table at the top of pg. 2 in 12/01/2025 affidavit) is not showing commercial success. These numbers have no context in wild songbird feed sales as a whole. The applicant has not presented enough data to show that commercial success has been achieved.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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