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 .
Claim Interpretation
It is noted for the record that the examiner is considering semi-hard as definite based on the special definition in the specification, “semi-hard” meaning that the treat can be extruded or molded into a shape and retain that shape when being inserted into a channel of the disclosed device (¶0048).
Similarly, “a substantial portion of the treat” is considered definite based on the disclosure which provides a standard for measuring this term of degree. See ¶0043: “a substantial portion (e.g. at least one-third, preferably at least one-half, and more preferably at least two-thirds)”. The examiner is considering, under BRI and in light of the specification, that a substantial portion of the treat be at least one-third of the treat.
Claim Objections
Claim 4 is objected to because of the following informalities:
Claim 4, line 1: it seems “the toy is formed of one major piece that permits the treat to be inserted” should read –the body is formed of one major piece that permits the treat to be inserted--, given the treat is now considered a part of the toy, and is clearly separate, per claim 1 and the insertion language.
Appropriate correction is required.
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.
Claim(s) ---1, 4, 6-7, 11-12, 21, and 24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wolfe (US 9901075 B2, as cited on previous 892).
Regarding claim 1:
Wolfe discloses a dog toy (animal treat delivery system 400 with treats 120, Fig 11, specifically the embodiment, similar to Fig 11, discussed in claim 3, where only one of the top and bottom are open, the other being closed) comprising:
a chew resistant body (frame 402, Fig 11) made of nylon or other tough, moldable, rigid polymer (claim 15), the body having a first end, a second end, and a central portion between the first and second ends (see annotated Fig 11 below), the central portion having a major upper surface (see annotated Fig 11 below) with an elongated opening along the major upper surface (planar opening formed by major upper surface (see Figs 11-13), wherein the toy further includes
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a replaceable lickable semi-hard treat (treat 120 on rod 404B; treat is capable of being licked; treat has formed shape, and is configured to retain shape when inserted into channel, as evidenced by Fig 11; Col 6, lines 10-15; Col 4, lines 34-46),
a channel along at least a portion of the central portion (channel includes the interior surfaces the frame, including the surface formed by the one end that is closed (not depicted), and empty space formed between said surfaces, where rods 404 are located)
wherein the channel is in communication with the major elongated opening (see Fig 13 and descriptions of elongated opening and channel above),
wherein the channel is adapted to receive and securely hold and retain the treat within the channel (see treat 120, Fig 11) and configured with one or more movable retaining devices comprising flexible hooks (rods 404A-B, Fig 11; flexible per Col 6, lines 9-15) that are configured to be pushed out of the way by the treat when the treat is introduced into the channel, but which then move back when the treat is fully introduced to thereby lock the treat into place and prevent the treat from being dislodged from the body (Col 6, lines 9-15; Col 4, lines 25-35),
wherein the fully introduced treat is beneath the major upper surface, and inside the body (see Fig 11; per claim 20, rod is centrally located between the top and bottom; per Col 7, lines 33-35, the height between top and bottom of the body is preferably about 50mm; and per Col 4, lines 43-46, the outer diameter of the treat 120 is about 25-35mm; given such, the treat is beneath the major upper surface and inside the body) so that the treat does not project from the body such as to enable sudden removal of the treat from the body by a one year old female labrador dog (Functional language: it is the examiners position that, given the structural requirement of no projection from the body is met, the toy of Wolfe is inherently capable of preventing removal as claimed; this assertion is supported by Col 5, lines 35-41; Col 5, line 59 – Col 6, line 15).
wherein the treat, the channel and the elongated opening are sized and shaped to prevent a substantial portion of the treat from being consumed by the Labrador dog other than by licking the treat through the elongated opening (functional language: it is the position of the examiner that the channel and treat are configured such that they are inherently capable of preventing consumption by a one year old female Labrador dog other than by licking of treat through the elongated opening; see MPEP 2114; claimed structure is taught; this assertion is supported by: the provided dimensions; Col 5, line 59 – Col 6, line 15; Col 5, lines 20-41; and the fact that the mouth/nose shape/size, number of teeth (or lack thereof), intelligence, and chew drive varies widely between dogs, even those of the same gender and age (1yr) – one of ordinary skill in the art would reasonably understand that the structure of Wolfe would be capable of preventing some one year old female labrador dog from consuming the treat therein other than by licking).
Regarding claim 4:
Wolfe discloses the limitations of claim 1 above and further discloses wherein the toy is formed of one major piece (see Fig 11; Col 10, lines 27-41) that permits the treat to be inserted into the channel (see Fig 11), and the treat is formulated or sized to enable retention of the treat in the body when the toy is subjected to the "Drop Test" performed by a) retaining the treat within the channel; b) holding the toy at a height of 1 meter over a concrete floor; c) flipping the toy in a random manner allowing the toy to drop onto the concrete floor; and d) repeating steps a) through c) for ten drops, with a successful Drop Test retaining the treat in the body for all ten drops, and with a drop not being a failure if only a small portion of the treat, constituting less than 5% of the treat's mass, is broken off and dislodged. (this limitation constitutes functional language, and it is the examiner’s position that this retention functionality is an inherent characteristic of the structure of Wolfe, Wolfe being capable of retention under such conditions; see MPEP 2114(I); this assertion is supported by Col 5, line 59 – Col 6, line 15, the fact that the treat is fully within the body, and the fact that the rods are protected by the surrounding frame).
Regarding claim 6:
Wolfe discloses the limitations of claim 1 above and further discloses wherein the one or more retaining devices are configured bend out of the way during insertion of the treat into the channel without damaging the treat (functional language: It is the position of the examiner, that the retaining devices of Wolfe are inherently capable of bending out of the way to allow insertion of the treat without damaging the treat; this assertion is supported by Fig 11; Col 5, line 59 – Col 6, line 15; and MPEP 2121(I), which states that prior art is presumed operable).
Regarding claim 7:
Wolfe discloses the limitations of claim 1 above and further discloses wherein the toy is made from an injection moldable nylon material (claim 15).
Regarding claim 11:
Wolfe discloses the limitations of claim 1 above and further discloses wherein the body has a curved major surface (surface of body curved – see Fig 13) that enables an animal to use a paw to hold down the first end and elevate the second end to facilitate chewing on the elevated second end (intended use: inherently capable of being used as such).
Regarding claim 12:
Wolfe discloses the limitations of claim 1 above and further discloses wherein the toy further comprises one or more replacement treats (treat on arm 404A could be used to replace treat on arm 404B – pure intended use).
Regarding claim 21:
Wolfe discloses the limitations of claim 4 above and further discloses wherein the channel has sidewalls (interior surfaces of frame walls), and one or more of the flexible hooks extend from a sidewall into the channel (see Fig 11-12).
Regarding claim 24:
Wolfe discloses the limitations of claim 4 above and further discloses wherein the channel has a base opposite the elongated opening (base is considered interior surfaces the frame, including the surface formed by the one end that is closed (not depicted)), and one or more of the flexible hooks extend from the base into the channel towards the elongated opening (see Figs 11-12).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Wolfe, as applied to claim 12 above, in view of Cohn (US 2021/0401738, as cited on previous 892), hereinafter referred to as Cohn.
Regarding claim 13:
Wolfe as modified discloses the limitations of claim 12 above and
Wolfe as modified fails to specifically disclose wherein the one or more replacement treats contains one or more active ingredients.
Cohn discloses a treat for animals including active ingredients (¶0025: CBD)
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to added CBD to the treats of Wolfe, as in Cohn, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Cohn, CBD provides anxiety relief, autoimmune stimulation, and pain and inflammation relief on bone and joint pain (¶0025).
Regarding claim 15
Wolfe as modified discloses the limitations of claim 13 above and further discloses wherein the one or more active ingredients include one or more pharmacologically active, but non-psychoactive, cannabinoids (¶0025: CBD).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable Wolfe and Cohn, as applied to claim 13 above, in view of Singer (US 2016/0158147, as cited on previous 892), hereinafter referred to as Singer.
Regarding claim 14:
Wolfe as modified discloses the limitations of claim 13 above
Wolfe as modified fails to disclose wherein the treat comprises one or more active ingredients including two or more active agents selected from the group consisting of theanine, RELORATM bark blend, SAMe, GABA, ashwagandha, tryptophan, turmeric, Boswellia serrata, ginseng, Methylsulfonylmethane, 5-HTP, Valerian root, Chamomile, Lemon balm, Passion flower, Kavakava, and Ocimum tenuiflorum.
Singer discloses a pet treat recipe that includes Theanine and Chamomile as active agents (Pg. 9-10: Example VI, ¶0056-0057)
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added the active ingredients discussed in Singer to the treats of Wolfe, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Singer, a treat with these ingredients is useful in imparting a calming effect on dogs with issues such as anxiety, nervousness, hyperactivity, destructive behavior, etc. (¶0056).
Claims 16-17 is rejected under 35 U.S.C. 103 as being unpatentable over Wolfe, as applied to claim 1 above, in view of Starmark (NPL ~ ‘Starmark Treat Ringer Toys’, as cited on previous 892), and in view of Honest Paws (NPL, as cited on previous 892), hereinafter referred to as Starmark and Honest Paws, respectively.
Regarding claim 16:
Wolfe discloses an assembly comprising the toy of claim 1 (see rejection of claim 1 above) and one or more replacement treats (treat on arm 404A could be used to replace treat on arm 404B – pure intended use).
Wolfe fails to disclose that the assembly comprises packaging containing both the toy of claim 1 and the one or more replacement treats, and that the one or more replacement treats selected from a set of treats dosed with active ingredients appropriate for a small or a medium or a large dog.
Starmark discloses packaging containing a very similar toy comprising a treat and one or more replacement treats (see below; the treat that is part of the toy is one of the ring treats, the others are considered ‘replacement treats’ – capable of being removed, and used to replace the treat that is part of the toy).
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It would have been obvious to a person having ordinary skill in the art before the effective filing date of the instant application to have packaged the toy of Wolfe with the one or more replacement treats in a single package, as in Starmark, the result having a reasonable expectation of success. One would have been motivated to make such a modification in order to display information about the product and protect the toy/treats from damage or degradation before being sold. Further, packaging extra treats and the toy together reduces the packaging necessary for proper preservation prior to sale, and thereby is an environmentally conscious decision that is also convenient for the consumer. Also, packaging a product prior to sale of the product is well known and within the level of ordinary skill in the art.
Honest Paws discloses a dog treat which contains active ingredients (CBD) appropriate for a small or a medium or a large dog. (see snapshot below).
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It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have added CBD in proper dosage depending on intended dog weight, to the treats of Wolfe, as in Honest Paws, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as disclosed in Honest Paws, CBD can be calming to dogs.
Regarding claim 17:
The modified reference discloses the limitations of claim 16 above, and Honest Paws further discloses a dog treat which contains CBD and where the CBD recommended dosage is between 2 and 30 mg (see snapshot below).
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Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Wolfe, as applied to claim 4 above, in view of DeGhionno (US 20080314331 A1), hereinafter referred to as Deghionno
Regarding claim 22:
Wolfe discloses the limitations of claim 1 above.
Wolfe fails to specifically disclose wherein the opening has a first width and the channel or treat has a second width that is greater than the first width (see annotated Fig 8 below).
DeGhionno discloses a treat holding toy with an opening (bounded by lip 34, Fig 5) and a channel (interior of body 14, with bounding interior surfaces), beneath and connected with the opening, wherein the opening has a first width and the channel has a second width that is greater than the first width lip which forms opening overhangs channel, with the walls curving outward, and therefore width being greater, moving from opening into channel (see Fig 5 and Fig 2).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have provided the toy of Wolfe with a lip about the opening, the opening having a width less than a width of the channel, as in DeGhionno, the result having a reasonable expectation of success. One would have been motivated to make this modification because, as in DeGhionno, a lip may provide additional durability, at the opening, which is important, as pet is likely to interact most with the opening (¶0075). Further, Deghionno acknowledges that the size of the opening (which may be achieved via increase or decrease in lip area) may be optimized based on pet anatomy and abilities, so as to provide appropriate difficulty based on the pet (¶0028)– making the opening of Wolfe smaller, through the addition of the lip, may be beneficial in providing increased difficulty for hyperactive or intelligent dogs. Finally, it has been held that there is no invention in merely changing the shape or form of an article without changing its function except in a design patent (Eskimo Pie Corp. v. Levous et al., 3 USPQ 23), and a change in size is generally recognized as being within the level of ordinary skill in the art (In re Rose, 105 USPQ 237 (CCPA 1955)).
Response to Arguments
Applicant's arguments filed 01/02/2025 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to all pending claims, particularly towards the limited scope of the retaining devices being flexible hooks, have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BROOK V SCHMID whose telephone number is (571)270-0141. The examiner can normally be reached M-F 8:30-5:30ish.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joshua Huson, can be reached on 571-270-5301. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.V.S./Examiner, Art Unit 3642
/JOSHUA D HUSON/Supervisory Patent Examiner, Art Unit 3642