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 Application
Claims 1-15 are pending. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
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.
Claims 1 and 3-15 are rejected under 35 U.S.C. 103 as being unpatentable over Dixon (US 2012/0171336 A1) in view of Niceron (US 2014/0227386 A1) and Umeda (WO 2014098193A1).
All citations to Umeda refer to the attached English translation.
Regarding claims 1, 14 and 15, Dixon discloses a wet food composition comprising from 90-99% meat emulsion chunks (meaty mass) comprising 1-10% of one or more binders wherein the composition has a moisture content greater than 45% [0031]. Dixon discloses wet food compositions are pet food compositions [0044]. Dixon discloses the meats useful in the invention include real meat of beef, pork, fish turkey, chicken or combinations thereof [0034]. Dixon disclose the meat is ground [0059]. Dixon discloses the binder can be plant proteins, including wheat gluten [0036]. According to the specification wheat gluten is a heat settable protein comprising vegetable protein (Specification [0029]). Dixon discloses the binder can be mixed in the meat emulsion chunks from 1-10% [0037].
Dixon discloses the wet food compositions can further comprise one or more palatability enhancers, including yeast extracts. The palatability enhancers are added to the composition in amounts from 0.01-6% [0039], which encompasses the claimed range of 0.1-3% yeast extract. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding the quantity of ground animal material in the meaty mass, Dixon discloses an example comprising 74.8 lbs of comminuted chicken chunks in 100 lbs of chicken emulsion product, which is equivalent to 74.8% meat, which falls into the claimed range of 30-80% ground animal material [0068] and Table 2, p6.
Regarding the quantity of binder, Dixon discloses the binder can be mixed in the meat emulsion chunks from 1-10% [0037], which falls outside the claimed range of 15-40%. Dixon discloses the amount of moisture and the types and amount of binders can be varied within the given ranges to alter the texture, viscosity, and palatability of the compositions [0042], in other words the amount of binder is a result effective variable. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the quantity of binder recited in claim 1 is merely an obvious variant of the prior art.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.Dixon discloses the wet pet food may further include flavors and sweeteners [0046].
Dixon does not disclose a vegetable flour nor a carbonyl source or a Maillard reaction flavor.
Niceron, in the field of palatability enhancers for pet food, discloses palatability enhancing composition for pet food [0002]. Niceron discloses a wet petfood with 5% wheat flour (vegetable flour as defined in [0024] of Applicant’s specification) [0207]. Niceron discloses the palatability enhancing composition may comprise Maillard reaction products from about 0.01 to 99 wt% of the palatability enhancing composition [0112] and [0113].
Niceron does not disclose the quantity of Maillard reaction products in the final pet food composition. However, the amount of Maillard reaction products is a result effective variable. Change the amount of Maillard reaction products and you change the palatability of the pet food. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the quantity of Maillard reaction flavor recited in claim 1 is merely an obvious variant of the prior art.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the wet pet food with palatability enhancers of Dixon with the wet pet food with palatability enhancers of Niceron because both are drawn to pet food ingredients for enhancing palatability of pet foods. It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. MPEP 2144.06 I.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the wet pet food of Dixon with the vegetable flour of Niceron since Niceron discloses the vegetable flour as an appropriate ingredient for inclusion in a wet pet food comprising palatability enhancers.
Regarding the weight ratio of yeast extract to vegetable flour, Dixon discloses palatability enhancers, including yeast extracts, are added to the composition in amounts from 0.01-6% [0039]. Niceron discloses 5 wt% wheat flour [0207]. These disclosure of yeast extract and vegetable flour encompass the yeast extract to vegetable flour weight ratio of 1:500 to 1:0.83, which encompasses the claim 1 range of at least 1:20, the claim 14 range of 1:20 to 1:12 and the claim 15 range of 1:7 to 1:1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Dixon does not disclose wherein the yeast extract comprises extract obtained from at least two types of yeast selected from the group consisting of Saccharomyces, Pichia, Kluyveromyces, Hansenula, Candida, and combinations thereof.
Umeda, in the field of pet food, discloses a pet food comprising meat protein, vegetable protein and yeast extracts (Abstract, p1). Umeda discloses the pet food may be a wet type or semi-moist type [52]. Umeda discloses the yeasts used for the extracts may include Saccharomyces, Pichia, and Candida [40]. Umeda discloses the yeast extracts included at 3% by mass or less [89].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combine the pet food comprising yeast extracts of Dixon with the pet food comprising yeast extracts of Saccharomyces, Pichia, and Candida as disclosed by Umeda since both are drawn to using yeast extracts as palatability enhancers in pet food.
Umeda discloses the pet food comprises at least one palatability enhancer, including yeast extract. Umeda discloses the yeasts used for the extracts may include Saccharomyces, Pichia, and Candida [40]. Umeda does not provide an example with at least two types of yeast extract, however "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06 I. In the instant case the yeasts extract of Saccharomyces, Pichia, and Candida are all taught as palatability enhancers in pet food. I would have been obvious to combine at least two of the yeast extract strains recited by Umeda to form a compostion comprising at least two yeast extracts to enhance the palatability of the pet food.
Regarding claims 3 and 13, Dixon discloses the binder can be plant proteins, including wheat gluten [0036]. According to the specification wheat gluten is a heat settable protein comprising vegetable protein (Specification [0029]). Wheat gluten is also considered to meet the claim 13 limitation of a vegetable protein concentrate.
Regarding claims 4, 5 and 6; The limitations of claim 1 are considered to be met by the inclusion of a Maillard reaction flavor. However, Dixon discloses the wet pet food composition may further comprise sweeteners [0046].
Dixon does not disclose monosaccharides, disaccharides, or uronic acid.
Niceron discloses the moist pet foods and/or the palatability enhancer may contain carbohydrates and the carbohydrate may be dextrose (monosaccharide), fructose (monosaccharide) or sucrose (disaccharide) [0065], [0141], [0147].
Niceron does not disclose the quantity of dextrose, fructose or sucrose in the final pet food. However, the amount of dextrose, fructose and/or sucrose is a result effective variable. Change the amount of dextrose, fructose and/or sucrose and you change the palatability/sweetness of the pet food. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the quantity of carbonyl source recited in claim 6 is merely an obvious variant of the prior art.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the wet pet food composition of Dixon, which comprises meaty chunks, with the wet pet food of Niceron, which comprises wet pet food comprising fructose, dextrose and/or sucrose since both are drawn to pet foods comprising meaty chunks and palatability enhancement.
Regarding claim 7, Dixon discloses the wet pet food composition may further comprise one or more nutritional ingredient such as amino acids. Dixon discloses the nutritional ingredient may be included from 1-20% [0041].
Dixon does not disclose which amino acids are included.
Niceron discloses a wet cat food comprising a mixture of amino acids at 1.4 wt% of the cat food (Example 4, pp9-10), which falls within the claimed range of 0.01-2 wt% amino acid compound. Niceron discloses the amino acid mixture in Table 5 (p8) which includes proteinogenic amino acids.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the wet pet food of Dixon, comprising meaty chunks, with the amino acids of Niceron because both are drawn to pet foods and Niceron discloses the amino acids of the present invention increases the overall palatability of the pet food.
Regarding the claim language “before the wet pet food product is sterilized,” it is noted the claims are drawn to a wet pet food composition which has not undergone sterilization.
Regarding claim 8, Dixon in view of Niceron and Umeda discloses the wet food product of claim 7 as discussed above.
Niceron discloses a wet cat food comprising a mixture of amino acids at 1.4 wt% of the cat food (Example 4, pp9-10) and the amino acid mixture in Table 5 (p8) which includes proteinogenic amino acids. Niceron’s mixture of amino acids at 1.4 wt% of the wet cat food meets the claim 8 limitation of a source of the amino compound in an amounts sufficient to provide a total amount of at least 0.01% of the wet pet food product by weight. Niceron’s mixture of amino acids in Table 5 (p8) meets the claim 8 limitation of said source of the amino compound, Niceron’s amino acid mix, comprising at least 5% of the amino compound by weight dry matter since amino acid mix is 100% of the amino compound by weight.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the wet pet food of Dixon, comprising meaty chunks and amino acids, with the amino acids of Niceron because both are drawn to pet foods enhancing palatability.
Regarding claim 9, Niceron discloses the amino acids comprise cysteine, methionine, proline, leucine, phenylalanine and glutamic acid (Table 5, p8).
Regarding claim 10, Dixon does not disclose the meaty mass combined with a sauce comprising at least 0.02 % by weight of the Maillard component.
Niceron discloses the palatability enhancing composition is 0.01-99 wt% Maillard reaction products [0112] and [0113]. Niceron discloses the palatability enhancing composition can be liquid and the liquid palatability enhancing composition can be applied in a gravy matrix (sauce) [0114] and [0146]. Niceron’s disclosure of 0.01-99 wt% Maillard reaction products in a sauce overlaps with the claimed range of at least 0.02 wt% Maillard component. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the wet pet food composition of Dixon, which comprises meaty chunks, with the wet pet food of Niceron, which comprises chunks of meat component combined with gravy comprising Maillard reaction products since both are drawn to pet foods comprising meaty chunks and gravy and palatability enhancers.
Regarding claim 11, Dixon in view Niceron and Umeda discloses the wet pet food product of claim 7 as discussed above.
Dixon does not disclose the meaty mass combined with a sauce comprising at least 0.02 % by weight of the amino compound.
Niceron discloses a chunk in jelly diet where the jelly (sauce) comprises 1.03 wt% of a mixture of amino acids of Table 5 (p8) and [0221]. Niceron’s amino acid mixture at 1.03 wt% of the jelly falls within the claimed range of at least 0.02 wt%.
Regarding claim 12, Dixon discloses an example wet pet food with taurine included at 2.33 lbs per 1000 lbs of wet pet food, or 0.233% taurine, which falls within the claimed range of 0.1-1% taurine (Table 1, p6).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Dixon in view of Niceron and Umeda as evidenced by Mitra Ayu (Maillard Reaction, https://www.ptmitraayu.com/single-post/maillard-reaction-a-flavor-breaking, 2025).
Regarding claim 2, Dixon discloses an example comprising 74.8 lbs of comminuted chicken chunks in 100 lbs of chicken emulsion product, which is equivalent to 74.8% meat, which falls into the claimed range of 30-80% ground animal material [0068] and Table 2, p6. Additionally, Dixon discloses the wet food product of Example 2 and Table 2 is sterilized [0068].
As evidenced by Mitra Ayu, chicken contains ribose as reducing sugars and cysteine as amino acids and produces the Maillard reaction products of 2-furfurylthiol and methionol (p2, 1. Chicken). Therefore, the wet food product comprising chicken, as disclosed by Dixon, would also form the Maillard reaction products of 2-furfurylthiol and methionol when sterilized as disclosed by Dixon.
As to the amount of these Maillard reaction products formed after sterilization, the quantity of Maillard reaction products is a result effective variable. Change the amount of chicken (and therefore the amount of ribose and cysteine) and you change the amount of Maillard reaction products, including 2-furfurylthiol and methionol. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. As such, the quantity of 2-furfurylthiol and methionol recited in claim 2 is merely an obvious variant of the prior art.
Response to Arguments
Applicant's arguments filed 07 July 2026 have been fully considered. To the extent they apply to the above rejection they are not persuasive.
Applicant argues unexpected pronounced palatability due to the combination of yeast extract, Maillard component and vegetable flour. Remarks p5.
This argument is not persuasive. Applicant points to paragraph [0116] of the PGPub which repeats the argument for unexpected palatability. Applicant does not point to any data to support the claim of unexpected palatability. Five Examples are included in the application. Examples 1 and 2 use a meaty chunk that does not comprise any vegetable flour and are therefore not commensurate in scope with the claims (see Table 1 on p18 of the specification). Examples 3 and 4 use a restructured meat piece with no vegetable flour or vegetable protein included in the binder and are therefore not commensurate in scope with the claims (see Table 7 on p21 of the specification). Example 5 uses restructured meat pieces comprising all of the required ingredients, but the quantities of the ingredients are not commensurate in scope with the claims (see Table 10 on pp23-34 of the specification).
Instant claim 1 requires at least 40% of the meaty mass by weight water and Example 5 includes only 5.1% water. Instant claim 1 requires 15-40% of the meaty mass by weight heat settable binder comprising vegetable protein. Example 1 includes 4.6% heat settable binder plus wheat gluten at 6.1% for a total of 10.7% heat settable binder, which falls outside the claimed range of 15-40% by mass. Therefore Example 5 is also not commensurate in scope with the claimed invention and Applicant has not provided any data to support the claimed unexpected palatability.
Applicant argues Dixon and Niceron fail to teach the newly amended claim limitation of: wherein the yeast extract comprises extract obtained from at least two types of yeast selected from the group consisting of Saccharomyces, Pichia, Kluyveromyces, Hansenula, Candida, and combinations thereof. Remarks p6.
This argument is not persuasive. Umeda is relied upon to disclose the yeast extracts of Saccharomyces, Pichia, Kluyveromyces, Hansenula, Candida, and combinations thereof.
Applicant argues the prior art fails to teach the vegetable four and yeast extract ratio as claimed. Applicant points to the unexpectedly pronounced palatability of the combination of a significant amount of vegetable flour in combination with the yeast extract and Maillard component. Remarks p6.
This argument is not persuasive. As detailed above the specification does not provide any data commensurate in scope with the claims to support claims of unexpected results.
Applicant argues a skilled artisan would not be motivated to add vegetable flour to the composition of Dixon because Dixon fails to provide any particular reason to do so. Niceron does not provide any further motivation to modify Dixon with the claimed amount of vegetable flour. Even if a skilled artisan did combine Dixon and Niceron they would have no reason to arrive at the claimed ration of yeast extract and vegetable flour. Remarks pp6-7.
This argument is not persuasive. Niceron discloses palatability enhancing composition for pet food [0002]. Niceron discloses a wet petfood with 5% wheat flour (vegetable flour as defined in [0024] of Applicant’s specification) [0207]. Niceron discloses the palatability enhancing composition may comprise Maillard reaction products from about 0.01 to 99 wt% of the palatability enhancing composition [0112] and [0113].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the wet pet food with palatability enhancers of Dixon with the wet pet food with palatability enhancers of Niceron because both are drawn to pet food ingredients for enhancing palatability of pet foods. It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. MPEP 2144.06 I.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the wet pet food of Dixon with the vegetable flour of Niceron since Niceron discloses the vegetable flour as an appropriate ingredient for inclusion in a wet pet food comprising palatability enhancers.
Regarding the weight ratio of yeast extract to vegetable flour, Dixon discloses palatability enhancers, including yeast extracts, are added to the composition in amounts from 0.01-6% [0039]. Niceron discloses 5 wt% wheat flour [0207]. These disclosure of yeast extract and vegetable flour encompass the yeast extract to vegetable flour weight ratio of 1:500 to 1:0.83, which encompasses the claim 1 range of at least 1:20, the claim 14 range of 1:20 to 1:12 and the claim 15 range of 1:7 to 1:1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
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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/C.L.G./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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