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, 5-7, 9-21 and 24-25 are pending and under examination in this application. Any objections or rejections not repeated below have been withdrawn.
Claim Objections
Claims 1 and 25 are objected to because of the following informalities:
Claims 1 and 25 line 2 recite, “formed of anyone of.” The word “anyone” should be two words instead of one with a space added between “any” and “one.” The limitation should read, “formed of any one of.” Appropriate correction is required.
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 1-3, 5-7, 9-20 and 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (US 20140255553) in view of Natural Farm, Beef Trachea, accessed at: https://www.amazon.com/Natural-Farm-Farm-Raised-Grain-Free-Digestible/... Hereinafter, Farm.
Regarding claims 1 and 25, Xu teaches an edible pet chew 0400 (Abstract, Figure 4, [0018], [0144-0145]) as required by claim 1 and 25. The pet chew 0400 has a tubular component, as required by claim 1, and where the pet chew 0400 has a cylindrical component, as required by claim 25 (tubular/cylindrical shape; Figure 4).
Xu teaches the component is formed of a meat based material chewy sheet as a single chewy sheet, or alternatively a multiple sheet construction with a meat based material sheet member and an edible material member (Abstract, [0144-0145], [0155]). Xu teaches the component formed of any one of: a material, specifically a meat based material chewy sheet with <30% animal hide ingredient (ground rawhide), which is coextruded with an edible material sheet made of 100% animal hide ingredient (traditional animal hide sheet), and where the edible material sheet comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0090], [0141-0142], [0160], [0184], [0186]. Thus, the pet chew is considered to be formed of a material comprising about 85% or less of animal hide ingredient. This overlaps the claim 1 and claim 25 range of at least 50% animal hide ingredient.
Xu teaches the component formed of any one of: a material, specifically a meat based material chewy sheet with typically 15%-50% plant ingredient, which may be present as a single chewy sheet or is coextruded with an edible material sheet made of a plant based material sheet with over 50% plant ingredient by weight [0142], [0144-0145], [0158], [0162], [0186]; and where the edible material sheet may comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0142]. Thus, if the pet chew component is present as a single meat based chewy sheet at 15%-50% plant ingredient, or a multiple sheet meat based material chewy sheet combined with the plant based material sheet at over 50% plant ingredient by weight, Xu is considered to overlap or be within the claimed range of at least 50% plant ingredient by weight as claimed in claims 1 and 25. See MPEP 2144.05(I).
The tubular/cylindrical component (pet chew 0400) of Xu comprises a series of alternating ridges and grooves approximately parallel to each other running approximately latitudinally on a surface of the component (Figure 4). Character A on annotated Fig-4A below, points to the ridge and next to the ridge is the groove, which is highlighted by character C. The ridges and grooves of Xu are parallel to each other and circle around the pet chew. Thus, the alternating ridges and grooves are running approximately latitudinally on the surface of the pet chew, as required by claim 1 and claim 25.
Xu teaches wherein said series of alternating ridges and grooves includes at least 3 ridges and 2 grooves as required by claims 1 and 25. See Fig. 4 of Xu and Annotated Fig-4A below. As shown in annotated Fig.-4A below, the top portion of the pet chew shows ridge A and groove C, where the ridges and grooves continue along the top portion of the pet chew, showing 3 ridges and 3 grooves.
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Annotated Fig-4A
Regarding the recitation in claim 25, “wherein said cylindrical component is formed from a corrugated sheet material or a ribbed sheet material, wherein said corrugated sheet material is rolled up to form a cylindrical shape, and wherein said ribbed sheet material is rolled up to form a cylindrical shape” does not limit the claim, but is merely directed towards process steps to make the final product instead of the final product. See MPEP 2113.I.
If the product in the product-by-process recitation in claim 25, 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. Thus, because Xu satisfies claim 25 as being a cylindrical component having a series of alternating ridges and grooves…, it is also viewed as satisfying the product-by-process recitation of claim 25 wherein said cylindrical component is formed from a corrugated sheet material or a ribbed sheet material, wherein said corrugated sheet material is rolled up to form a cylindrical shape, and wherein said ribbed sheet material is rolled up to form a cylindrical shape.
Xu does not limit the shape of the pet chew and teaches the edible pet chew can be manipulated to various forms and shapes with the finished products so as to enhance fun for pets/dogs, and provide more attractions and choices for pet owners [0025]. However, Xu is silent as to a shape where said ridges have two sloping sides.
Farm teaches an edible pet chew (a beef trachea for pets), comprising a tubular/cylindrical component (pg. 1 Product Title; pg. 10 Figure 1). Farm teaches the tubular/cylindrical component comprises a series of alternating ridges and grooves approximately parallel to each other running approximately latitudinally on a surface of the component, wherein each of said ridges has two sloping sides (pg. 10 Figure 1; pg. 11 Figure 2). Farm teaches the overall pet chew, including the shape, is fun for dogs and great for dental health, brushing away plaque and tartar (pg. 10 Figure 1, pg. 12 Figure 3).
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 incorporate the teachings of Farm by having said ridges have two sloping sides because this pet chew and pet chew shape is fun for dogs and great for dental health, brushing away plaque and tartar, as recognized by Farm (pg. 10 Figure 1, pg. 12 Figure 3).
Regarding claim 2, modified Xu teaches the edible pet chew of claim 1, as discussed above. Xu teaches wherein said tubular component comprises two open ends (Figure 4). Xu discloses the pet chew 0400 comprises the series of alternating ridges and grooves, wherein each of said ridges runs approximately latitudinally on the surface, wherein each of said grooves runs approximately latitudinally on the surface (Figure 4). See character A, which highlights the ridge, and character C, which highlights the groove, in annotated Fig-4A above. These ridges and grooves alternate and run approximately latitudinally on the surface of the pet chew.
Regarding claim 3, modified Xu discloses the edible pet chew of claim 2, as discussed above. Xu teaches in Figure 4, the cross section forms a closed curve shape. The ridge of Xu extends approximately latitudinally along the surface of the pet chew but does not close, meaning the ridge wraps 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, modified Xu discloses the pet chew of claim 3, as discussed above. 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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Regarding claim 6, modified Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches the tubular component (pet chew), is formed of a composition material, wherein said composition material includes any one of: a plant based material including at least 50% plant ingredient [0142], [0158], [0162]. Specifically, Xu teaches a composition material is a meat based material chewy sheet with typically 15%-50% plant ingredient, which is coextruded with an edible material sheet made of a plant based material sheet with over 50% plant ingredient by weight [0142], [0158], [0162]; and where the edible material sheet (plant based material sheet) comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0142]. Thus, the pet chew is considered to be formed of a composition material comprising over 50% plant ingredient by weight. This is within the claimed range of comprising at least 50% plant ingredient by weight. It is noted that the term “composition” is defined by the instant specification (pg. 13 [0055]) and generally refers to a material made of two or more distinct materials (ingredients).
Regarding claim 7, modified Xu discloses the edible pet chew of claim 6, as discussed above. 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].
Regarding claim 9, modified Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches the tubular component is formed of a material selected from the group consisting of an animal hide sheet (an edible material sheet made of traditional animal hide sheet; [0090], [0184]).
Regarding claim 10, modified Xu discloses the edible pet chew of claim 2, as discussed above. Xu teaches the tubular component, is formed from an animal hide sheet, (an edible material sheet made of traditional animal hide sheet; [0090], [0184]).
Xu teaches wherein a glucosamine substance or chondroitin substance is introduced into said animal hide sheet by a process selected from the group consisting of: a coating process with a coating material [0090], [0138], [0141], [0184], [0186]. Specifically, Xu teaches a co-extruded multiple layer structured material comprising an animal hide sheet (an edible material sheet made of traditional animal hide sheet) and a meat based material sheet; where the meat based material sheet is viewed as a coating material on the animal hide sheet, and is co-extruded onto the animal hide sheet; where the co-extruding process is considered a coating process; and where the meat based material sheet comprises trachea material (animal throat) and animal bone [0090], [0138], [0141], [0184], [0186], which both are natural glucosamine and chondroitin substances per the instant specification paragraphs [0027] and [0067]. Thus, Xu is considered to teach all the limitations of claim 10.
Additionally, it is noted that 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.” This recitation is product-by-process claim language.
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)
If the product, in the product-by-process claim language, 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. The pet chew product as taught by modified 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 made obvious in view of Xu as a product-by-process claim.
Regarding claim 11, modified Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches wherein said tubular component is animal hide free (a single chewy sheet of meat based material composition, where the formula is free of animal hide material; [0139], [0144-0145]).
Regarding claim 12 (dependent on claim 1), and claim 14, (dependent on claim 2), modified Xu discloses the edible pet chew of claims 1 and 2, as discussed above. Xu teaches the pet chew/tubular component comprises a substance selected from the group consisting of trachea material (animal throat), esophagus material (animal esophagus), and naturally glucosamine-rich and chondroitin-rich material (bone material, animal throat and animal esophagus; [0137-0138]). 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 and animal bones, all of which provide a natural source of glucosamine and chondroitin substance chemically to the product.
Regarding claim 13, modified Xu discloses the edible pet chew of claim 12, as discussed above. 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. See MPEP 2144.05(I).
Regarding claim 15, modified Xu discloses the dibble pet chew of claim 14, as discussed above. 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 16, modified Xu discloses the pet chew of claim 1, as discussed above. It is noted the recitation within the claim of “wherein said tubular component is formed from a corrugated sheet material or a ribbed sheet material, wherein said corrugated sheet material is curved or rolled to form a tube shape, and wherein said ribbed sheet material is curved or rolled to form a tube shape” does not limit the claim, but is merely directed towards process steps to make the final product instead of the final product. See MPEP 2113.I. Therefore, if the product in the product-by-process recitation in claim 16, 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 teaches a tubular component, pet chew 400, is ribbed with ridges and grooves (Fig. 4 of Xu and Characters A and C from annotated Fig. 4-A above), being formed from a sheet material (chewy sheet of Fig. 1, [0062]). Therefore, Xu satisfies claim 16 as being a tubular component formed from a ribbed sheet material wherein said ribbed sheet material is curved or rolled to form a tube shape.
Regarding claim 17, modified Xu discloses the pet chew of claim 1, as discussed above. The recitation within the claim of “wherein said tubular component is formed from a corrugated sheet material or ribbed sheet material, wherein said corrugated sheet material is rolled up to form a cylinder-shaped chew component by wrapping more than one time, and wherein said ribbed sheet material is rolled up to form a cylinder-shaped chew component by wrapping more than one time” does not limit the claim, but is merely directed towards process steps to make the final product instead of the final product. See MPEP 2113.I. Therefore, if the product in the product-by-process recitation in claim 17, 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 teaches a tubular component, pet chew 400, is corrugated with ridges and grooves (Fig. 4 of Xu and Characters A and C from annotated Fig. 4-A above), being formed from a sheet material (chewy sheet of Fig. 1, [0062]). Xu discloses 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]. Therefore, Xu satisfies claim 17 as being a tubular component formed from a corrugated sheet material wherein said corrugated sheet material is rolled up to form a cylinder-shaped chew component by wrapping more than one time.
Regarding claim 18, modified Xu discloses the edible pet chew of claim 2, as discussed above. Xu teaches the tubular pet chew 0400 is a twisted tube shape, having a twist to the tube (Figure 4). 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, modified Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches a tubular component of claim 1, where a second edible material component (edible material member) is assembled together with the first tubular component (meat based material member) in a pre-determined relationship (co-extruded multiple layer structure) to form a final product (Abstract, [0155], [0186], claims 16-17).
Regarding claim 20, modified Xu discloses the edible pet chew of claim 19, as discussed above. Xu teaches the second edible material (edible material member) is a porous material component formed of a plant-based material, (a plant based material sheet; [0158]), wherein at least a portion of said porous material component (edible material formed of a plant based material sheet) is wrapped in said tubular component (meat based material) without exposure (the edible material wrapped in the meat based material outer layer; [0158], [0161], claims 16 and 17).
Regarding claim 24, modified Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches the tubular component (retriever roll) is divided into plural curved sheet pieces (formed from cut sheets; [0062]) that is corrugated with ridges and grooves (Fig. 4 of Xu and Characters A and C from annotated Fig. 4-A above). Xu teaches wherein each of said plural curved corrugated sheet pieces (pet chew 0400) has alternating ridges and grooves approximately parallel to each other running latitudinally on a surface of the tubular component (Figure 4). Character A on annotated Fig-4A above, points to the ridge and next to the ridge is the groove, which is highlighted by character C. The ridges and grooves of Xu are parallel to each other and circle around the pet chew. Thus, the ridges and grooves are running latitudinally on the surface of the pet chew.
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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Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Xu (US 20140255553) view of Natural Farm, Beef Trachea as applied to claim 2 above, and further in view of Frudakis et al. (US 6165474).
Regarding claim 21, modified Xu discloses the pet chew of claim 2, as discussed above. However, 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 pet chew (rawhide chew) is manually hand dipped to apply the basting material to the desired area (C4 L55-65). Frudakis teaches using a basting material to coat a pet chew adheres the substance to the chew (C3 L25-32), ensuring the substances consumption.
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 in view of Farm by applying 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 and ensures it is applied to the desired area, as recognized by Frudakis (C3 L25-32; C4 L29-39).
Response to Arguments
Applicant's arguments filed 04/21/2026 have been fully considered but they are not persuasive.
Rejections under 35 U.S.C. § 102
Independent claim 1
Applicant argues, on pgs 39-41 of their remarks, that Xu does not teach a series of alternating ridges and grooves. Applicant discusses different definitions for a “ridge,” contending that a ridge has two sloping surfaces and that Xu merely teaches a “step” on a surface. However, the Office disagrees for the following reasons.
The definition used by the Office in their previous response dated 02/21/2025 is still viewed as a common definition for ridge and the pet treat structure of Xu is viewed as complying with that definition and teaching the claimed limitation of having a ridge running approximately latitudinally on the surface of the pet chew. 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 and runs approximately latitudinally on the surface of the pet chew of Xu. Therefore, Xu is considered to have a ridge.
Applicant argues, on pgs. 39-41, that Xu does not teach the ridge has two sloping sides. It is noted that this is the newly amended claim language of “wherein each of said ridges has two sloping sides.” These arguments have been fully considered and are persuasive. Therefore, the anticipation rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made in view of Xu (US 20140255553) in view of Natural Farm, Beef Trachea.
As discussed in the rejection above, Farm teaches a pet treat with a ridge having two sloping side (pg. 1 Product Title; pg. 10 Figure 1; pg. 11 Figure 2). Farm teaches the overall pet chew, including the shape, is fun for dogs and great for dental health, brushing away plaque and tartar (pg. 10 Figure 1, pg. 12 Figure 3). 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 incorporate the teachings of Farm by having said ridges have two sloping sides because this pet chew and pet chew shape is fun for dogs and great for dental health, brushing away plaque and tartar, as recognized by Farm (pg. 10 Figure 1, pg. 12 Figure 3).
Applicant argues, on pgs. 41-42, that Xu does not teach the pet chew is made of a material comprising at least 50% animal hide ingredient but only consists of a single “meat-based material” chewy sheet component. Applicant contends that the meat-based material sheet may only comprise 0.1-30% animal hide ingredient and cannot comprise 50% animal hide ingredient. However, the Office disagrees for the following reasons.
As discussed in the above rejection, Xu teaches the pet chew is formed of a meat based material chewy sheet as a single chewy sheet, or alternatively a multiple sheet construction with a meat based material sheet member and an edible material member (Abstract, [0144-0145], [0155]). Xu teaches the component formed of any one of: a material, specifically a meat based material chewy sheet with <30% animal hide ingredient (ground rawhide), which is coextruded with an edible material sheet made of 100% animal hide ingredient (traditional animal hide sheet), and where the edible material sheet comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0090], [0141-0142], [0160], [0184], [0186]. Thus, the pet chew is considered to be formed of a material comprising about 85% or less of animal hide ingredient. This overlaps the claimed range of at least 50% animal hide ingredient.
Applicant argues, on pg. 42, that Xu does not teach the pet chew is made of a material comprising at least 50% plant ingredient but only consists of a single “meat-based material” chewy sheet component. Applicant contends that the meat-based material sheet may only comprise less than 50% plant ingredient and cannot comprise 50% plant ingredient. However, the Office disagrees for the following reasons.
As discussed in the above rejection, Xu teaches the pet chew is formed of any one of: a material, specifically a meat based material chewy sheet with “typically 15%-50%” plant ingredient by weight, which may be present as a single chewy sheet or is coextruded with an edible material sheet made of a plant based material sheet with over 50% plant ingredient by weight [0142], [0144-0145], [0158], [0162], [0186]; and where the edible material sheet may comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0142]. Thus, if the pet chew component is present as a single meat based chewy sheet at 15%-50% plant ingredient, or a multiple sheet meat based material chewy sheet combined with the plant based material sheet at over 50% plant ingredient by weight, Xu is considered to overlap or be within the claimed range of at least 50% plant ingredient by weight as claimed. See MPEP 2144.05(I).
Applicant argues on pg. 43 of their remarks, that Xu does not teach the pet chew having a tubular shape or tubular component. Applicant states the term “tube” in the present disclosure generally refers to a long hollow object that may be round or not, whose cross-section shape may be various as desired. Applicant asserts the pet chew of Xu is in a retriever roll shape, as disclosed in paragraph [0062] of Xu and Fig. 1, instead of a tubular shape. Applicant also asserts the pet chew of Xu can have an alternate shape of a twisted stick, which would not be hollow and would not have two open ends. However, the Office disagrees for the following reasons.
Notwithstanding Xu’s characterization of the pet treat of Fig. 4 as “looking like a twisted stick” [0151], Fig. 4 of Xu clearly shows the pet chew is a hollow tube, in a tubular shape, with two open ends. Additionally, sheet material 0203 is shown in cross section in Fig. 4, while no material cross section is shown for the interior of the pet treat 0400. Thus, the tube is hollow, with two open ends.
Nonobviousness of modifying Xu to arrive at the claimed invention of amended claims:
Claim 1
Applicant argues, on pgs. 44-57, the non-obviousness of modifying Xu to arrive at the claimed invention, specifically a tubular component being formed from a material comprising at least 50% animal hide ingredient by weight, or a material comprising at least 50% plant ingredient by weight. Applicant contends Xu indicates problems and disadvantages of having too high percentage of animal hide based material or too high percentage of plant ingredient. Applicant also argues that Xu teaches away from at least 50% animal hide ingredient and from at least 50% plant ingredient, stating that Xu distinctly expresses criticism over animal hide based material and plant based materials being over 50%. On pg. 47, applicant contends that Xu teaches a too high percentage of animal hide based material should be avoided in the meat-plant-hide based sheet and overcomes this problem by having a meat-based material sheet component having less than 30% animal hide ingredient. On pg. 55, applicant states Xu teaches that too much plant ingredient in the meat based material will reduce the palatability or attraction of the member significantly when the plant ingredient is >50% by weight, and the meat based material member isn’t intended to have >50% plant ingredient to be an option. However, the Office disagrees for the following reasons.
Xu is not considered as teaching away from a pet chew comprising at least 50% animal hide ingredient or at least 50% plant ingredient by weight. As noted previously and discussed in the above rejection, Xu teaches the pet chew is formed of a meat based material chewy sheet as a single chewy sheet, or alternatively a multiple sheet construction with a meat based material sheet member and an edible material member (Abstract, [0144-0145], [0155]). Xu teaches the component formed of any one of: a material, specifically a meat based material chewy sheet with <30% animal hide ingredient (ground rawhide), which is coextruded with an edible material sheet made of 100% animal hide ingredient (traditional animal hide sheet), and where the edible material sheet comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0090], [0141-0142], [0160], [0184], [0186]. Thus, the pet chew is considered to be formed of a material comprising about 85% or less of animal hide ingredient. This overlaps the claimed range of at least 50% animal hide ingredient and Xu is considered as teaching a pet chew with at least 50% animal hide ingredient as claimed. Xu explains that the animal hide ingredient (animal hide sheet) significantly extends chewing time and enhances the chewing function of the edible pet chew [0188].
Additionally, regarding Xu teaching away from a pet chew having at least 50% plant ingredient, discussed in the above rejection, Xu teaches the pet chew is formed of any one of: a material, specifically a meat based material chewy sheet with “typically 15%-50%” plant ingredient by weight, which may be present as a single chewy sheet or is coextruded with an edible material sheet made of a plant based material sheet with over 50% plant ingredient by weight [0142], [0144-0145], [0158], [0162], [0186]; and where the edible material sheet may comprises 80% or less of the pet chew and where the meat based material sheet (when there is multi-sheet construction) accounts for at least 20% [0142]. Thus, if the pet chew component is present as a single meat based chewy sheet at 15%-50% plant ingredient, or a multiple sheet meat based material chewy sheet combined with the plant based material sheet at over 50% plant ingredient by weight, Xu is considered to overlap or be within the claimed range of at least 50% plant ingredient by weight as claimed. See MPEP 2144.05(I).
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).
Applicant argues, on pgs. 57-64, that a favorable function of series of “ridges” and grooves of having tooth cleaning abilities is not recognized in the industry. Applicant explains that on the surface of natural trachea grease forms on the ridges. Due to the soft and sticky nature of the grease, the ridges cannot deal with tartar and plaque efficiently and a person of ordinary skill would not recognize the ridges on natural trachea as providing favorable function of tooth cleaning and fresh breath to dogs. Applicant continues stating natural trachea provides irregular ridges and groove configurations as a dog chew product, which applicant states would not provide a favorable function for tooth cleaning and fresh breath to dogs. Applicant contends that the dental benefits of the pet chew taught by Farm is an inherent function of an ordinary dog chew, as an ordinary dog chew provides basic tooth cleaning functions. Applicant also provides arguments directed towards a potential rejection based on MPEP 2144.04 IV. B., where the pet chew has a change in shape. Applicant contends it would not be obvious to a person of ordinary skill to transform Xu, with its “sheet” properties, into a pet chew with a serious of alternating ridges and grooves, where the ridges have two sloping sides. However, the Office disagrees for the following reasons.
As noted in the rejection above, Farm teaches the overall pet chew, including the shape, is fun for dogs and great for dental health, brushing away plaque and tartar (pg. 10 Figure 1, pg. 12 Figure 3). Thus, 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 incorporate the teachings of Farm by having said ridges have two sloping sides because this pet chew and pet chew shape is fun for dogs and great for dental health, brushing away plaque and tartar, as recognized by Farm (pg. 10 Figure 1, pg. 12 Figure 3).
Regarding applicant’s argument that the shape of the pet chew of Farm alone, with the grease on the ridges and irregularity in ridges and grooves, would not clean dogs’ teeth. The grease that may or may not build up on the ridges of the Farm pet chew and the irregularity of the ridges and grooves are not critical elements when looking at the combination of references. Farm is specifically used to modify the ridge shape of Xu. The modifications of Xu in view of Farm are independent of any grease that may be present on the ridges of Farm. Additionally, Farm does teach that their pet chew, which includes the shape of the pet chew is great for dental health and for brushing away plaque and tartar. Thus, it would be obvious for a person of ordinary skill to modify the pet chew of Xu to have a ridge with two sloping sides as taught by Farm for the reasons discussed above.
Moreover, it is noted that not only would it be obvious to change the shape of the pet chew because it is a good shape that will promote dental health and brushes away plaque and tarter, it is recognized by Farm as a pet chew (which includes the shape of the chew) that is “fun for your dog” (pg. 10 Figure 1). Also, Xu does not limit the shape of the pet chew and teaches the edible pet chew can be manipulated to various forms and shapes with the finished products so as to enhance fun for pets/dogs, and provide more attractions and choices for pet owners [0025].
Regarding applicant’s arguments directed towards a protentional rejection based on MPEP 2144.04 IV. B. While applicant’s arguments have been considered, they are moot because no rejection based on MPEP 2144.04 IV. B. has been presented.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
/S.R.G./Examiner, Art Unit 1791
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