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 1-21 and 24-25 are pending and under examination in this application. Claims 22-23 are cancelled. Claim 26 is withdrawn from further consideration by the examiner.
Claim Objections
Claims 4 and 14 are objected to because of the following informalities:
Claim 4 last two lines recite, “inhomogeneous ridge specification or groove specification.” For clarity, the word “specification” should be deleted and the word “inhomogeneous should be added before “groove” so the claim reads, “inhomogeneous ridge or inhomogeneous groove.” Appropriate correction is required.
Claim 14 lines 1-2 recites, “wherein said tubular component comprises in formula a substance.” For clarity, the words, “in formula” should be deleted so the claim reads, “wherein said tubular component comprises a substance.”
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5-15 and 18-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Xu (US 20140255553).
Regarding claim 1, it is noted the claim language “any one of” is being interpreted that the pet chew needs to have either “a series of alternating ridges and grooves…” or “a helical ridge running on a surface…” but is not required to have both of these structures.
Regarding the claim language “series” the broadest reasonable interpretation of the noted claim language/recitation is having two or more “alternating ridges” or two or more “alternating grooves”.
Xu teaches an edible pet chew 0400 (Abstract, Figure 4), [0018]. The pet chew 0400 has a tubular component (tubular shape; Figure 4). The tubular pet chew 0400 of Xu is helically shaped with a helical ridge running on a surface of the tubular component (Figure 4). Character A on annotated Fig-4A below, points to the encircled helical ridges.
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Annotated Fig-4A
Regarding claim 2, it is noted that depending on the chosen claim structure of claim 1, either “a series of alternating ridges and grooves…” or “a helical ridge running on a surface…” will determine which structural claim limitation is required to be met in claim 2. It is being interpreted that if the claim structure of “a series of alternating ridges and grooves…” is met in claim 1, then the further limitation of “the series of alternating ridges and grooves… run approximately latitudinally on the surface…” is required to be met in claim 2. However, if the claim limitation of “a helical ridge running on a surface…” is met in claim 1, then the further limitation of “said helical ridge extends helically…” is required to be met in claim 2.
Xu teaches the tubular pet chew 0400 of Xu is helically shaped and the helical ridge extends helically on the surface of the chew (Figure 4).
Regarding claim 3, Xu teaches in Figure 4, the cross section forms a closed curve shape. The helical ridge of Xu extends helically but does not close, meaning the ridge spirals around but at no point intersects another part of the ridge (Figure 4). Therefore, it is being viewed as a ridge that has an open curve shape.
Regarding claim 5, Xu teaches in Figure 4, the cross section forms a closed curve shape and when the cross-section is outlined it is a circle shape [0062], [0151]. See character B highlighting the circle outline overlayed on the cross section of annotated Fig-4B below. Xu teaches in Figure 21, the cross section forms a rounded-triangle. Xu also teaches in Figure 5, the cross section forms an irregular open-curve shape [0063], [0152].
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Annotated Fig-4B
Regarding claim 6, Xu teaches tubular component (pet chew), is formed from composition material, wherein said composition material includes plant-based material, animal ingredient-based material and an animal hide-based material (plant ingredients, meat ingredients and plant and animal hide based material; [0036], [0158], [0180]).
Regarding claim 7, Xu teaches plant based material comprises plant ingredients selected from potato starch, or potato, sweet potato, tapioca, rice flour, or rice, plant derived material, the plant proteins of wheat protein isolate, corn protein isolate and soybean protein, and a plant starch [0089], [0126], [0131], [0140-0141], [0180].
Xu discloses the animal ingredient-based material (meat based material), comprises ingredients selected from animal flesh and animal muscle, or meat and meat by-products selected from animal lung, animal spleen, animal kidney, animal liver, animal tissues such as bone, animal stomach and animal intestines [0086-0088].
Regarding claim 8, Xu teaches the plant based material has over 50% plant ingredient, which is in the claimed amount of at least 20% [0180].
In addition, Xu teaches the animal ingredient-based material (meat based material), comprises at least 33.3% meat ingredient, or animal ingredient, which is in the claimed amount of at least 10%; and 15-50% plant ingredient by weight, which is within the claimed range of 5%-49.9% [0036].
In addition, Xu discloses an animal hide-based material (plant and animal hide based material), comprising at least 25% animal hide ingredient, which is in the claimed amount of at least 20%; and 25-50% plant ingredient, which is within the claimed range of 0.1-49.9% [0158].
Regarding claim 9, Xu discloses the tubular component is formed from ingredients selected from a group of an animal hide sheet, animal ingredient-based composition material (meat based material) and an animal hide-based composition material (plant and animal hide based material) [0036], [0090], [0158].
Regarding claim 10, it is noted this claim has product-by-process claim language in lines 7-9.
MPEP § 2113.I states,
[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)
Therefore, if the product in the product-by-process claim language in lines 7-9 of claim 10, is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.
Xu discloses the tubular component, is formed from an animal hide sheet, [0090]. Xu also discloses that the pet chew comprises animal throat [0138], or trachea material which is also interpreted as a glucosamine substance and a chondroitin substance, and animal esophagus, or esophagus material [0138] which is also viewed as a glucosamine substance and a chondroitin substance. As acknowledged by the specification in [0027], [0067], glucosamine and/or chondroitin substances inherently exist in the following naturally occurring material: animal trachea, animal esophagus, shellfish shells, fungus, mushrooms, animal tendon, poultry foot, mussel meat, animal lungs, animal bones, animal bone marrow, animal tails, animal ear, eggshell membrane and any combination thereof, all of which provide a natural source of glucosamine and chondroitin substance chemically to the product. It is noted the throat contains the trachea.
Xu teaches the pet chew comprises bone material [0137], or as a glucosamine substance and a chondroitin substance. The glucosamine and chondroitin substances are in the meat based material of the pet chew of Xu, which is introduced into the animal hide sheet, when the meat based material is wrapped by the animal hide sheet [0137-0138], [0158].
Claim 10 recites “a glucosamine substance or chondroitin substance is introduced… by a process selected from the group consisting of: a soaking process with a material in a solution or paste form, a basting process with a basting material and a coating process with a coating material.” However, as noted above, claim 10 is a product-by-process claim and any prior art product shown to be identical to the claimed product is considered to anticipate the claim.
Therefore, the pet chew product as taught by Xu, includes all of the constituent parts of the product claimed in claim 10 regardless of the specific process used to manufacture the pet chew and add the glucosamine or chondroitin substances. Thus, claim 10 is anticipated in view of Xu as a product-by-process claim.
Regarding claim 11, Xu teaches a pet chew formula that is free of animal hide material [0139].
Regarding claim 12, Xu teaches the pet chew comprises trachea material (animal throat) which is also viewed as naturally glucosamine-rich material and naturally chondroitin-rich material, and esophagus material (animal esophagus) which is also viewed as naturally glucosamine-rich material and naturally chondroitin-rich material [0138]. It is known the throat contains the trachea. Xu teaches the pet chew comprises bone material, or naturally glucosamine-rich material and naturally chondroitin-rich material [0137]. As acknowledged by the specification in [0027], [0067], glucosamine and/or chondroitin substances inherently exist in the following naturally occurring material: animal trachea, animal esophagus, shellfish shells, fungus, mushrooms, animal tendon, poultry foot, mussel meat, animal lungs, animal bones, animal bone marrow, animal tails, animal ear, eggshell membrane and any combination thereof, all of which provide a natural source of glucosamine and chondroitin substance chemically to the product.
Regarding claim 13, Xu teaches the pet chew comprises bone material, or naturally glucosamine-rich material and naturally chondroitin-rich material in the pet chew at 0.1%-4.9% [0137]. This overlaps the claimed range of at least 3% naturally glucosamine-rich material and at least 3% naturally chondroitin-rich material, which is one of the substances recited in the Markush group of claim 13.
Regarding claim 14, Xu teaches the pet chew, or tubular component, comprises animal throat, or trachea material which is also viewed as naturally glucosamine-rich material and naturally chondroitin-rich material, and animal esophagus, or esophagus material which is also viewed as naturally glucosamine-rich material and naturally chondroitin-rich material [0138]. It is noted the throat contains the trachea. Xu teaches the pet chew comprises bone material, or naturally glucosamine-rich material and naturally chondroitin-rich material [0137]. As acknowledged by the specification in [0027], [0067], glucosamine and/or chondroitin substances inherently exist in the following naturally occurring material: animal trachea, animal esophagus, shellfish shells, fungus, mushrooms, animal tendon, poultry foot, mussel meat, animal lungs, animal bones, animal bone marrow, animal tails, animal ear, eggshell membrane and any combination thereof, all of which provide a natural source of glucosamine and chondroitin substance chemically to the product.
Regarding claim 15, Xu teaches the pet chew, or tubular component, comprises naturally glucosamine-rich material from animal throat, or animal trachea, animal esophagus, or esophagus material, and bone material, or animal bone [0137-0138].
In addition, Xu teaches the pet chew, or tubular component, comprises naturally chondroitin-rich material from animal throat, or animal trachea, animal esophagus, or esophagus material, and bone material, or animal bone [0137-0138].
Regarding claim 18, Xu teaches the tubular pet chew 0400 is a twisted tube shape, having a helical twist to the tube (Figure 4). Xu also teaches the tubular pet chew 2000 is a spiral shape (Figure 20). Additionally, since Figure 4 of Xu discloses a hollow ring shaped tube, this has been construed to read on “a tube ring.”
Regarding claim 19, Xu teaches in Figure 15, the twisted stick 0201, or tubular component of claim 1, is rolled longitudinally along an edible material member 1501, thus assembling 0201 and 1501 together in a pre-determined relationship to form a final product (Figure 15, Claim 16), [0117], [0172].
Regarding claim 20, Xu teaches the edible material member 1501, is a plant-based material [0172]. The plant based material is made from plant starch and chicken meal, both food type material, and is considered porous [0177]. Xu teaches the plant based material stick 1501, or porous material component, has the sheet 0201, or tubular component, wrapped around it longitudinally, so at least a portion is without exposure (Figure 15).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 4, 16-17 and 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (US 20140255553) and in view of Natural Farm, Beef Trachea, accessed at: https://www.amazon.com/Natural-Farm-Farm-Raised-Grain-Free-Digestible/... Hereinafter, Xu and Farm respectively. Please note the basis of the rejections below for Farm are based off the paragraph and Figure numbers added to the reference.
Regarding claim 4, Xu does not teach the tubular component is a trachea-chew-shaped component having inhomogeneous ridge or inhomogeneous groove.
Farm teaches a beef trachea for pets, or an edible pet chew, comprising a tubular component (pg. 1 Product Title; pg. 10 Figure 1). In Figure 1 on pg. 10 Farm discloses the tubular component is a beef trachea, which has a trachea-chew-shaped component having inhomogeneous ridges and inhomogeneous grooves (pg. 1 Product Title; pg. 10 Figure 1).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to have the trachea chew shape of Farm because the rounded shape having a texture with ridges and grooves helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3).
Furthermore, a change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Regarding claim 16, Xu teaches a tubular component (retriever roll shape; Fig. 4) formed from a sheet material (chewy sheet of Fig. 1, [0062]). Xu does not teach the sheet material is corrugated.
Farm teaches a corrugated material forming a tube shape (pg. 10 Figure 1; pg. 11 Figure 2). It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to have the sheet material forming the tube shape to be corrugated because the corrugated texture helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3).
Regarding claim 17, Xu teaches rolling a sheet 0101 to form a cylindrical stick pet chew 1900, or cylinder-shaped chew, where the sheet material has been wrapped more than one time, at least three times (Fig. 19), [0176].
Xu does not teach the tubular component is from formed from a corrugated sheet material or a ribbed sheet material. Farm teaches a corrugated material forming a tube shape (pg. 10 Figure 1; pg. 11 Figure 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to have the sheet material forming the cylinder-shaped chew component to be corrugated because the corrugated texture helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3).
Regarding claim 24, Xu teaches the tubular component (retriever roll) is divided into plural curved pieces (formed from cut sheets; [0062]). Xu discloses the cross-section shape of the retriever roll 0400, or curved sheet piece forms an arc (Figure 4). See annotated Figure 4C showing the dotted cross-section line with the bolded 180 degree arc.
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Xu does not teach the tubular component is corrugated sheet pieces with alternating ridges and grooves approximately parallel to each other running latitudinally on the surface.
Farm teaches a corrugated material with alternating ridges and grooves that run approximately parallel to each other latitudinally on the surface, where the tubular component is formed from a corrugated sheet material (pg. 10 Figure 1; pg. 11 Figure 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the plural sheet pieces of Xu forming the cylinder-shaped chew component by corrugating with alternating ridges and grooves that run approximately parallel to each other latitudinally on the surface because the corrugated texture with alternating ridges and grooves helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3).
Regarding claim 25, Xu teaches an edible pet chew 0400 (Abstract, Figure 4), [0018]. The pet chew 0400 has a tubular shape, or is a cylindrical component (Figure 4). The cylindrical pet chew 0400 of Xu has a helical ridge running helically on the surface of the cylindrical component (Figure 4). Character A on annotated Fig-4A above, highlights the helical ridge.
Xu teaches a cylindrical component (retriever roll shape; Fig. 4), formed from a sheet material (rolled up chewy sheet of Fig. 1, [0062]). Xu does not teach the sheet material is corrugated.
Farm teaches a corrugated material forming a cylindrical shape (pg. 10 Figure 1; pg. 11 Figure 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to have the sheet material forming the cylindrical shape to be corrugated because the corrugated texture helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Xu (US 20140255553) and in view of Frudakis et al. (US 6165474). Hereinafter, Xu and Frudakis, respectively.
Regarding claim 21, Xu does not teach a coating material or basting material on the surface of a ridge of the tubular component.
Frudakis teaches a rawhide chew toy for delivering nutrients to pets, or an edible pet chew (C3 L5-7). Frudakis discloses a coating applied using a basting solution, or material (C3 L25-31; C4 L29-39). The rawhide chew, or pet chew, is manually hand dipped to apply the basting material to the desired area (C4 L55-65).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to apply the basting material of Frudakis on the surface of a ridge of the tubular component because using a basting material to coat a pet chew adheres the substance to the chew, as recognized by Frudakis (C3 L25-32).
Response to Arguments
Applicant's arguments filed 11/22/2024 have been fully considered but they are not persuasive.
Rejections under 35 U.S.C. § 102
Applicant argues on pgs. 26-31 and images IV and V of their remarks that the example sheet they have rolled up has a “step” and does not contain a “helical ridge.” Applicant explains that the Collin’s Dictionary definition of a “ridge” is a raised line on a flat surface. The applicant states that the Xu reference, which they view as similar to the sheet illustrated in images IV and V, also does not teach any “ridge” or “helical ridge” on the surface. Applicant continues arguing that since the initial sheet material piece of Xu from Fig. 1, does not contain any “raised line” or narrow raised land on the surface of the sheet material, no helical ridge can be produced on the overall surface of the pet chew product 0400 of Xu in Fig. 4. Applicant further states that the highlighted encircled areas shown in their annotated image VII on pg. 31, and referred to as notches by the applicant, are naturally uneven surface areas that may be produced by the nature of the meat-based sheet material after being rendered a twisting or rolling process and do not provide any support of the existence of a helical ridge form on the surface. However, the Office disagrees for the following reasons.
According to Merriam-Webster dictionary definition for “ridge” a ridge is an elevated structure, an elongated crest, a raised strip (Merriam-Webster, Ridge Definition & Meaning, Accessed 2/10/2025: https://www.merriam-webster.com/dictionary/ridge). As shown in Fig. 4 of Xu there is an elevated structure, elongated crest, or a raised strip, or in other words a ridge, that is elevated helically around the pet chew of Xu. Therefore, Xu is considered to have a helical ridge.
Applicant argues on pgs. 31-32 of their remarks, that the pet chew of Xu 0400 is not a tubular shape and does not have a tubular component. Applicant states that XU describes their pet chew as a “retriever roll” shape and is general understood as a rolled stick shape being silent about a “hollow” form. However, the Office disagrees for the following reasons.
As shown in Fig. 4 of Xu, pet chew 0400 is tubular in shape and does have a hollow core. Therefore, Xu is not silent on having a tubular shape and does have a tubular component.
Applicant argues on pg. 32 of their remarks, that Xu does not teach a series of alternating ridges and grooves… running approximately latitudinally on a surface. Therefore, Xu fails to disclose all the features of claim 1. However, the Office disagrees for the following reasons.
Line two of claim 1 states, “wherein said tubular component comprises any one of.” As shown in the rejection about for claim 1, any one of is construed as “or” and the pet chew needs to comprise either a series of alternating ridges and grooves… running approximately latitudinally on a surface OR a helical ridge running on a surface. Xu teaches a helical ridge running on a surface and is considered to meet the required limitations of claim 1.
Applicant argues on pgs. 33-39 of their remarks that the Office may potentially reject claim 1 as being unpatentable over Xu in view of Natural Farm. Applicant continues by arguing the nonobviousness of modifying Xu in view of Farm to arrive at the claimed invention of claim 1. However, the Office disagrees for the following reasons.
This argument is moot as the Office has not presented a rejection for claim 1 of Xu in view of Farm.
Rejections under 35 U.S.C. § 103
Claim 4
Applicant argues on pg. 40 of their remarks that Xu is silent about a trachea-chew-shaped tubular component having inhomogeneous ridge or groove specification. Applicant continues stating that it would not have been obvious to modify the pet chew of Xu in view of Farm to have a trachea-chew-shaped tubular component having a series of ridges and grooves or a helical ridge. Applicant points to their arguments on pgs. 33-39, which states there is a lack of reasonable expectation of success of the combining or modifying of the references since Xu teaches a sheet with many bumps or ridges is considered to fail to simulate a visual property of the rawhide sheet. Applicant argues that Farm has a corrugated tube structure and that the flat sheet of Xu is distinctly materially different from Farm, asserting that the sheet of Xu is to be flat on surface to simulate a traditional rawhide sheet and thus an ordinary person would not be encouraged by Xu in view of Farm to have a tubular component having a series of ridges and grooves on the surface. Applicant also states the references did not provide a basis for the modification, and that rawhide sheets lack formability, rarely being manipulated to a shape or form with complicated surface textures. Lastly, applicant argues that the references cannot be combined because Xu teaches away from the combination. Applicant states that the Farm composition is produced by a ribbed sheet configuration and that combining what Farm teaches to Xu involves replacing the common flat sheet of Xu with a ribbed sheet. However, the Office disagrees for the following reasons.
Regarding the argument that Xu teaches a sheet with many bumps or ridges is considered to fail to simulate a visual property of the rawhide sheet. Xu states in [0016] that too high percentage animal hide based material results in the outer layer having a surface with roughness or bumps or ridges or irregularities, which isn’t visually attractive for dog chew consumers. This is discussing the ingredients of a previous U.S. application 12/925,509 and the fine surface texture that is imparted based on the ingredients used. It is not discussing the shapes that the pet chew can be manipulated into. Therefore, the flat sheet of Xu can be manipulated into any type of shape and can have ridges and grooves or be formed into a corrugated tube structure as is made obvious by Farm. Thus, Xu is not distinctly materially different from Farm, since Xu in view of Farm can be made into a corrugated tube structure. Additionally, as shown by Figures 1 through 24, Xu contemplated that their pet chew could be formed into many different shapes and forms as is obvious by these figures.
Regarding the argument that the references did not provide a basis for the modification, as stated in the rejection above for claim 4, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to have the trachea chew shape of Farm because the rounded shape having a texture with ridges and grooves helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3). Furthermore, a change in aesthetic design, specifically the shape is generally recognized as being within the level of ordinary skill in the art, MPEP 2144.04(I). See In re Seid 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Regarding the argument that rawhide sheets lack formability, rarely being manipulated to a shape or form with complicated surface textures; as seen in Figures 1-24 of Xu, the material of Xu can be formed into several shapes and expanding on that shape selection is generally recognized as being within the level of ordinary skill in the art, as stated above. See MPEP 2144.04(I).
Regarding applicant’s argument that the references cannot be combined because Xu teaches away from the combination, specifically that the Farm composition is produced by a ribbed sheet configuration and that combining what Farm teaches to Xu involves replacing the common flat sheet of Xu with a ribbed sheet; Xu does not teach away from forming their flat sheet into a different shape. Xu teaches that the pet chew made from the chewy sheet can be manipulated to various forms and shapes with finished products as to enhance fun for pets/dogs and to provide more attractions and choices for pet owners [0025]. Xu encourages the changing and manipulating of the sheet into various forms and does not teach away from this. Thus, Xu can be combined with Farm to make a trachea-chew shaped component.
Moreover, 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).
Claim 16
Applicant argues on pgs. 40-42 in their remarks that one of ordinary skill in the art would not have had a reasonable expectation of success in combining or modifying the prior art references to arrive at the claimed invention because Xu is a flat sheet is used to simulate traditional rawhide sheet and having a ribbed or corrugated surface conflict with the definition of sheet of Xu as being flat and thin. Additionally, the flat sheet of Xu and Farm are distinctly materially different, so combining Xu and Farm, by having Xu include a series of ridges and grooves lacks reasonable expectation of success since a flat sheet lacks ribbed elements. However, the Office disagrees for the following reasons.
A person of ordinary skill in the art would have a reasonable expectation of success by adding ridges and grooves to the sheet of Xu and creating a corrugated surface. Xu teaches that the pet chew made from the chewy sheet can be manipulated to various forms and shapes with finished products as to enhance fun for pets/dogs and to provide more attractions and choices for pet owners [0025]. Xu encourages the changing and manipulating of the sheet into various forms. Therefore, a person of ordinary skill in the art would have a reasonable expectation of success when creating a corrugated surface by adding ridges and grooves to the sheet of Xu. Thus, Xu can be combined with Farm to make a corrugated surface.
Applicant argues on pgs. 43-44 of their remarks that the references do not provide a basis for the modification, noting that rawhide is rarely manipulated to take a complicated shape or form and Xu teaches a sheet form or shape where the sheet is flat on the surface. Applicant continues stating that a person of ordinary skill in the art is not encouraged by Xu in view of Farm to anticipate a meat-based sheet chew including a corrugated sheet tubular component having a series of ridges and grooves on surface. However, the Office disagrees for the following reasons.
As to the argument that rawhide is rarely being manipulated to a complicated shape; as seen in Figures 1-24 of Xu, the material of Xu can be formed into several shapes and expanding on that shape selection is generally recognized as being within the level of ordinary skill in the art, as stated above. See MPEP 2144.04(I). As stated earlier, regarding the basis for modification, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to have the trachea chew shape of Farm because the rounded shape having a texture with ridges and grooves helps scrape away tartar and plaque to clean dog’s teeth. Farm recognizes the pet chew as being able to brush away plaque and tartar (pg. 12 Figure 3). Furthermore, a change in aesthetic design, specifically the shape is generally recognized as being within the level of ordinary skill in the art, MPEP 2144.04(I). See In re Seid 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Applicant argues on pgs. 44-46 of their remarks that the proposed prior art renders the prior art unsatisfactory for its intended purpose. Applicant notes that the sheet of Xu is flat and is to simulate the sheet form of traditional rawhide sheets and that a sheet with many bumps or ridges is considered by Xu to fail to simulate a visual property of the rawhide sheet. Applicant states that the common flat sheet of Xu is materially different from the corrugated sheet of the claimed invention. Therefore, the proposed modification to have the common flat sheet of Xu to be a corrugated shape would result in the claimed invention as unsatisfactory for its intended purpose. However, the Office disagrees for the following reasons.
The purpose of Xu is to provide an edible pet chew that is long-lasting and “simulates” a traditional popular rawhide sheet as a dog chew member by replacing the traditional rawhide sheet member [0018]. By modifying Xu in view of Farm the purpose of Xu is still met. The pet chu will still be long-lasting and simulate a rawhide pet chew. By changing the shape of the pet chew, these aspects are not lost but are still maintained. Additionally, regarding Xu teaching a sheet with many bumps or ridges is considered to fail to simulate a visual property of the rawhide sheet. Xu states in [0016] that too high percentage animal hide based material results in the outer layer having a surface with roughness or bumps or ridges or irregularities, which isn’t visually attractive for dog chew consumers. This is discussing the ingredients of a previous U.S. application 12/925,509 and the fine surface texture that is imparted based on the ingredients used. It is not discussing the shapes that the pet chew can be manipulated into. Therefore, the flat sheet of Xu can be manipulated into any type of shape and can have ridges and grooves or be formed into a corrugated tube structure as is made obvious by Farm. Thus, Xu is not distinctly materially different from Farm, since Xu in view of Farm can be made into a corrugated tube structure. Additionally, as shown by Figures 1 through 24, Xu contemplated that their pet chew could be formed into many different shapes and forms as is obvious by these figures. Thus, Xu in view of Farm would still be considered satisfactory for the intended purpose of a long-lasting pet chew.
Applicant argues on pg. 46 of their remarks that nowhere does the product of Farm relate the corrugated texture to brushing away plaque and tartar. However, the Office disagrees for the following reasons.
Farm does have a corrugated shape and the mechanical action of the animal, like a dog, chewing the corrugated shape would indeed brush away plaque and tartar and is considered a desirable shape of a pet chew.
Claim 25
Applicant argues on pgs. 46-51 of their remarks the same arguments presented for claim 16. Response to these arguments can be found above with the response to claim 16 arguments.
Conclusion
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/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
/S.R.G./Examiner, Art Unit 1791