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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on a has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-11, 15-19
Withdrawn claims:
None
Previously canceled claims:
None
Newly canceled claims:
12-14
Amended claims:
1-4, 7-10
New claims:
None
Claims currently under consideration:
1-11, 15-19
Currently rejected claims:
1-11, 15-19
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-3, 5, 7, 9, 11, and 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Tepper (US 2004/0126462 A1)(IDS Reference filed 10/21/2022) in view of Kirch (US 2003/0106500 A1) and Alfiere (US 2017/0188616 A1).
Claim 1 is product-by-process claims. MPEP §2113 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). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
The structure imparted by the process of claim 1 is rolled or folded rawhide chew with a coating on the inside of the folded or rolled rawhide chew and the rawhide is hardened.
Regarding claim 1, Tepper teaches a consumable pet chew (Abstract) comprising a chewable material forming the body such as natural rawhide ([0037]) and a filling that may contain additional food additive or supplements (i.e., active ingredients; [0069]). Tepper also teaches that the rawhide may be shaped into any desired configuration, such as rolls ([0042]). Tepper also teaches that the chew is dried and sterilized ([0067]). Tepper also teaches the pet chew having a tempting flavor and odor substantially throughout the chew that encourage the dog to chew for long periods of time (i.e., a taste and scent for the dog during use of the toy; [0049]).
Tepper does not teach the rawhide chew having a coating comprising a first group of active ingredients, wherein the first group of one or more active ingredients include two or more active agents selected from the group comprising theanine, Relora, SAMe, GABA, ashwagandha, tryptophan, turmeric, Boswellia serrata, Methylsulfonylmethane, 5-HTP, Valerian root, Lemon balm, Passion flower, Kavakava, and Ocimum tenuiflorum, where the coating is inside the rolled rawhide.
Regarding the rawhide chew having a coating inside the rolled rawhide, Kirch teaches of a rawhide pet chew (Title, Abstract) comprising a first sheet of rawhide and a second sheet of rawhide, where the second sheet of rawhide is soaked in a flavor solution (i.e., a coating) and then wrapped with the first sheet of rawhide, wherein the first sheet substantially covers the second sheet ([0009]). Therefore, it logically follows that the outer rawhide sheet has a flavor coating within it.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the pet chew of Tepper with the process taught by Kirch to make a rawhide chew. One of ordinary skill would be motivated to make this modification because Kirch teaches that the first sheet of rawhide reduces the opportunities for contact between the flavored second sheet of rawhide and a decorative surface upon which the chew may rest (Abstract).
Regarding the first group of active ingredients comprising two or more active agents, Alfiere teaches a supplement for an animal ([0003]) comprising turmeric and Valerian root ([0021]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the consumable pet chew of Tepper with the addition of turmeric and Valerian root as taught by Alfiere. One of ordinary skill would have been motivated to make this modification because Alfiere says that these additional ingredients can be added depending on the desired characteristics of the supplement ([0021]).
Regarding claim 2, Tepper also teaches the chewable body is rawhide ([0037]).
Regarding claim 3, Tepper teaches that the edible chew has receptacles filled with an edible filling (i.e., a bolus in the form of a topper; [0013]).
Tepper does not teach wherein the bolus comprises a second group of one or more active ingredients and wherein the second group of one or more active ingredients are provided in an amount greater than the first group of one or more active ingredients.
However, in the same field of endeavor, Alfiere teaches of a cannabinoid (i.e., an active ingredient) enriched supplement (Abstract) to be consumed by an animal ([0006]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the bolus of Amazon with the addition of cannabidiol as taught by Alfiere. One of ordinary skill would have been motivated to make this modification because Alfiere teaches cannabidiol is often used for its calming effect on the nervous system ([0013]).
Regarding the recitations “wherein the second group of one or more active ingredients will act quickly to calm a dog, and the first group of one or more active ingredients will continue an prolong a calming effect”, this is interpreted as a necessary property of the composition of the first and second active ingredients as claimed. Additionally, MPEP §2112.01 states where the claimed and prior art are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Regarding claim 5, Tepper also teaches adding the nutrients such as ginseng in proper amounts and ratios as is known in the art for optimum pet nutrition and health ([0070]).
Regarding claim 7, Tepper also teaches an edible filling positioned in a receptacle in the chew ([0020]).
Regarding claim 9, Tepper also teaches the active ingredients being included in the filling of the pet toy ([0070], where the filling is interpretated as being a treat member).
Regarding claim 11, Tepper also teaches the edible filling being jerky ([0013]).
Regarding claim 15, Tepper also teaches that the dog chew can be configured in a roll ([0042]).
Regarding claim 16, Tepper also teaches the chew being in the shape of a knotted or compressed bone ([0042], Figure 1).
Regarding claim 17, Tepper also teaches packaging the chew in moisture proof packaging ([0074]).
Regarding claim 18, Although Tepper does not explicitly teach providing a dog with the edible chew toy, Tepper does teach the dog beginning to chew on the chew toy ([0048]). Because dogs are not self-sufficient, it necessarily follows that a step of providing the dog with the edible chew toy was performed.
The preamble language “a method of calming a dog” recites the intended use of the claimed invention and does not result in a manipulative difference to the method as claimed. MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020).
Regarding claim 19, Although Tepper does not explicitly teach providing a dog with a first bolus of a calming composition that is quickly ingested by the dog and providing the dog with the pet chew of claim 1, Tepper does teach a dog beginning to chew on the pet chew (i.e., chewing and ingesting-[0048]). Because dogs are not self-sufficient, it necessarily follows that a step of providing the dog with the edible chew toy was performed.
Here, the pet chew of Tepper comprising ginseng is also considered a bolus of a calming composition.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have provided the pet chew of Tepper more than one time. The person of ordinary skill in the art would have provided a second pet chew to a dog after consuming a first one to maintain or reinforce good behavior.
The preamble language “a method of calming a dog” recites the intended use of the claimed invention and does not result in a manipulative difference to the method as claimed. MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020).
Claims 4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Tepper (US 2004/0126462 A1)(IDS Reference filed 10/21/2022) in view of Kirch (US 20030106500 A1) and Alfiere (US 2017/0188616 A1) as applied to claim 1 above, and further in view of Cooper (US 2017/0251637).
Regarding claims 4 and 6, Tepper also teaches that the chew is dried and sterilized ([0067]).
Tepper does not teach wherein the active ingredients include one or more pharmacologically active, but non-psychoactive, cannabinoids (hereinafter “CBD”) or that the CBD are present in an amount between 2 to 30 mg per 17.2 kg of body size.
Cooper, in the same field of endeavor, teaches a pet treat item comprising hemp based products (Abstract). Cooper teaches the hemp comprises CBDs ([0009]) and the CBDs are beneficial for the treatment of pet ailments such as arthritis, hip pan, tumor shrinking, leukemia, cancers and organ tissue regeneration, fiber support for teeth and digestive system health ([0009]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add hemp comprising CBDs, as taught by Cooper, to the pet chew of Tepper. One of ordinary skill in the art would be motivated to add hemp comprising CBDs because, as taught by Cooper, CBDs have many helpful benefits for treating pet ailments. Given Cooper teaches CBDs, inherently the CBDs would be capable of promoting a calming effect on a dog.
Cooper also teaches the pet treat contains about 5% to about 40% of the beneficial CBDs ([0052]). Given Cooper teaches the known effects of CBDs on the health of dogs, one of ordinary skill in the art would have adjusted, in routine processing, the amount of CBD to add to the pet chew of Tepper in order to obtain a particular dose and health benefit.
Claims 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Tepper (US 2004/0126462 A1)(IDS Reference filed 10/21/2022) in view of Kirch (US 20030106500 A1) and Alfiere (US 2017/0188616 A1) as applied to claim 1 above, and further in view of Adkins (US 2011/0253062 A1).
Regarding claims 8 and 10, Tepper teaches that that at least one of the chewable material and the filling of the pet chew comprise the ginseng (i.e., active ingredient provided with or included in the chewable material – [0070]). Tepper also teaches that the rawhide can be in any known form ([0038]).
Tepper does not teach wherein the tough chewable material is a synthetic rawhide and the first group of one or more active ingredients are also included in the synthetic rawhide.
Regarding the first group of one or more active ingredients being included in the synthetic rawhide, Alfiere teaches a supplement for an animal ([0003]) comprising turmeric and Valerian root ([0021]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the pet chew of Tepper with the use of turmeric or Valerian root taught by Alfiere as a substitute for the ginseng taught by Tepper. One of ordinary skill would have been motivated to make this modification because Alfiere says that these additional ingredients can be added depending on the desired characteristics of the supplement ([0021]).
Regarding wherein the tough chewable material is a synthetic rawhide, Adkins teaches that long enduring pet chews can be made from rawhide or other synthetic materials ([0005]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the pet chew of Tepper with the use of synthetic material as taught by Adkins. One of ordinary skill would have been motivated to make this modification because Adkins teaches that the synthetic material accommodate for longevity and durability ([0005]).
Response to Arguments
Claim Rejections - 35 U.S.C. §112(a): Applicant has overcome the 35 U.S.C. § 112(a) rejections of claim 3 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(a) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 3 and 4 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-3, 5, 7-12, and 15-19 over Tepper and Alfiere: Applicant’s arguments filed September 8, 2025 have been fully considered but they are not persuasive.
Applicant argued that neither Tepper nor Alfiere uses the term active ingredient. Applicant further argued that Tepper appears to focus only on taste and odor, not bioactive chemicals (Remarks, p. 5, ¶ 2-3).
This argument has been considered. However, MPEP §2112.01(II) states that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties the applicant discloses and/or claims are necessarily present. Thus, the ingredients of Tepper and Alfiere would necessarily promote a calming effective. Furthermore, it is noted that the features upon which applicant relies (i.e., the active ingredient having a calming effect) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant also argued Alfiere’s supplements are made using a low-heat process and that one of ordinary skill would not have combined Tepper and Alfiere as proposed because the heat conditions would damage the cannabinoids (Remarks, p. 5, ¶ 6-7).
This argument has been considered. However, Tepper teaches that the bones are dried at a temperature of 40-65°C ([0051]) and Alfiere teaches that the CBD is process at a temperature of 100-120°F (equivalent to 37.7-48.9°C; [0037]). Thus, one of ordinary skill would recognize that the CBD of Alfiere can be used in the product of Tepper because there is a range of heat treatment that overlaps with an acceptable range for CBD processing.
Claim Rejections – 35 U.S.C. §103 of claim 3 over Tepper, Alfiere, and Amazon: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated/obvious in view of Tepper, Alfiere, and Amazon. However, upon further consideration, a new ground(s) of rejection is made in view of Tepper and Alfiere.
Claim Rejections – 35 U.S.C. §103 of claims 4 and 6 over Tepper, Alfiere, and Cooper: Applicant’s arguments filed September 8, 2025 have been fully considered but they are not persuasive.
Applicant argued that due to the CBD content in Cooper’s hemp would not properly be combinable with Tepper for the reasons discussed above.
This argument has been considered. However, Tepper teaches that the chews are dried at a temperature of 40-65°C ([0051]) and Alfiere teaches that the CBD is process at a temperature of 100-120°F (equivalent to 37.7-48.9°C; [0037]). Thus, one of ordinary skill would recognize that the CBD of Alfiere (and therefore Cooper) can be used in the product of Tepper because there is a range of heat treatment that overlaps with an acceptable range for CBD processing.
The rejections of claims 1-11, 15-19 have been maintained herein.
Conclusion
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793