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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 3, 2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on March 3, 2026 was filed after the mailing date of the Final Rejection mailed on December 9, 2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 5-10, 12-13, and 15-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “tumbling the pale meat in an aqueous solution of a chelating agent, after the tumbling, homogeneously mixing the pale meat and the gravy in a weight ratio of 50:50-98:2” in lines 3-5. The claim recites a tumbling step as well as a separate mixing step. However, Josephson et al. US 2011/0159149 discloses a method of making pet food (‘149, Paragraph [0001]) comprising chelating agents (‘149, Paragraph [0019]) wherein tumbling is a type of mixing step (‘149, Paragraph [0013]) wherein cat food is placed in a container for mixing and spraying a fat onto the cat food to obtain a coating of a kibble wherein the cat food is mixed for a few minutes after spraying a fat to improve uniformity of the coating (‘149, Paragraph [0026]). Goralczyk et al. US 20080199413 discloses tumbling is a type of mixing step (‘413, Paragraph [0227]). Habich et al. US 2006/0153912 discloses tumbling mixers are a type of mixing step (‘413, Paragraph [0143]) used in making pet food (‘413, Paragraph [0001]). Raczek US 2002/0146399 discloses a method of making an animal feedstuff (‘399, Paragraph [0054]) comprising a tumbling mixing step for about 15 minutes (‘399, Paragraph [0077]). Josephson et al., Goralcyzk et al., Habich, and Raczek all discloses that tumbling is a type of mixing step as is known in the art. It is unclear what differentiates the claimed tumbling step from the claimed mixing step since the four aforementioned references above teaches that tumbling is a known type of mixing step.
Claim 1 recites the limitation “after tumbling and before the mixing, leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes” in lines 8-9. The phrase “after tumbling” indicates a point in the process at which tumbling has ceased. The phrase “leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes” indicates a point in the process in which tumbling occurs for approximately 15 minutes. It is unclear if the claimed time “approximately 15 minutes” refers to “after the tumbling” or if the claimed time “approximately 15 minutes” refers to “leaving the pale meat tumbled,” i.e. tumbling for approximately 15 minutes. For purposes of examination Examiner interprets the claim to require a tumbling step for approximately 15 minutes.
Claim 2 recites the limitation “wherein the chelating agent is added by tumbling the pale meat in an aqueous solution of the chelating agent before adding and homogeneously mixing the gravy to the pale meat” in lines 6-8. The claim recites a tumbling step as well as a separate mixing step. However, Josephson et al. US 2011/0159149 discloses a method of making pet food (‘149, Paragraph [0001]) comprising chelating agents (‘149, Paragraph [0019]) wherein tumbling is a type of mixing step (‘149, Paragraph [0013]) wherein cat food is placed in a container for mixing and spraying a fat onto the cat food to obtain a coating of a kibble wherein the cat food is mixed for a few minutes after spraying a fat to improve uniformity of the coating (‘149, Paragraph [0026]). Goralczyk et al. US 20080199413 discloses tumbling is a type of mixing step (‘413, Paragraph [0227]). Habich et al. US 2006/0153912 discloses tumbling mixers are a type of mixing step (‘413, Paragraph [0143]) used in making pet food (‘413, Paragraph [0001]). Raczek US 2002/0146399 discloses a method of making an animal feedstuff (‘399, Paragraph [0054]) comprising a tumbling mixing step for about 15 minutes (‘399, Paragraph [0077]). Josephson et al., Goralcyzk et al., Habich, and Raczek all discloses that tumbling is a type of mixing step as is known in the art. It is unclear what differentiates the claimed tumbling step from the claimed mixing step since the four aforementioned references above teaches that tumbling is a known type of mixing step.
Claim 2 recites the limitation “after the tumbling and before the mixing, leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes” in lines 18-19. The phrase “after tumbling” indicates a point in the process at which tumbling has ceased. The phrase “leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes” indicates a point in the process in which tumbling occurs for approximately 15 minutes. It is unclear if the claimed time “approximately 15 minutes” refers to “after the tumbling” or if the claimed time “approximately 15 minutes” refers to “leaving the pale meat tumbled,” i.e. tumbling for approximately 15 minutes. For purposes of examination Examiner interprets the claim to require a tumbling step for approximately 15 minutes.
Claim 6 recites the limitation “tumbling the pale meat in an aqueous solution of a chelating agent, homogeneously mixing the gravy to the pale meat” in lines 3-4. The claim recites a tumbling step as well as a separate mixing step. However, Josephson et al. US 2011/0159149 discloses a method of making pet food (‘149, Paragraph [0001]) comprising chelating agents (‘149, Paragraph [0019]) wherein tumbling is a type of mixing step (‘149, Paragraph [0013]) wherein cat food is placed in a container for mixing and spraying a fat onto the cat food to obtain a coating of a kibble wherein the cat food is mixed for a few minutes after spraying a fat to improve uniformity of the coating (‘149, Paragraph [0026]). Goralczyk et al. US 20080199413 discloses tumbling is a type of mixing step (‘413, Paragraph [0227]). Habich et al. US 2006/0153912 discloses tumbling mixers are a type of mixing step (‘413, Paragraph [0143]) used in making pet food (‘413, Paragraph [0001]). Raczek US 2002/0146399 discloses a method of making an animal feedstuff (‘399, Paragraph [0054]) comprising a tumbling mixing step for about 15 minutes (‘399, Paragraph [0077]). Josephson et al., Goralcyzk et al., Habich, and Raczek all discloses that tumbling is a type of mixing step as is known in the art. It is unclear what differentiates the claimed tumbling step from the claimed mixing step since the four aforementioned references above teaches that tumbling is a known type of mixing step.
Claim 6 recites the limitation “after the tumbling and before the mixing, leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes” in lines 5-6. The phrase “after tumbling” indicates a point in the process at which tumbling has ceased. The phrase “leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes” indicates a point in the process in which tumbling occurs for approximately 15 minutes. It is unclear if the claimed time “approximately 15 minutes” refers to “after the tumbling” or if the claimed time “approximately 15 minutes” refers to “leaving the pale meat tumbled,” i.e. tumbling for approximately 15 minutes. For purposes of examination Examiner interprets the claim to require a tumbling step for approximately 15 minutes.
Clarification is required.
Claims 3, 5, 7-10, 12-13, and 15-19 are rejected as being dependent on a rejected base claim.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-3, 5-7, 9, 12, 15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Dierking et al. US 2009/0214738 (cited on Information Disclosure Statement filed November 23, 2022) in view of Spears et al. US 2017/0326054, Johnston US 2012/0263838, Ludwig et al. US 5,436,017, Van Vranken et al. US 2020/0068921, and Raczek US 2002/0146399 as further evidenced by Hansen et al. US 2014/0288193 in further view of Ditmarsen et al. US 6,236,048, De Jong et al. US 2010/0015291, Jorhem et al. “Determination of Metals in Foods by Atomic Absorption Spectrometry after Dry Ashing: NMKL Collaborative Study” (published 2000) (herein referred to as “Jorhem”), Duran et al. “Trace element concentrations of some pet foods commercially available in Turkey” (published July 8, 2010) (herein referred to as “Duran et al.”), and Djuragic et al. “Evaluation of homogeneity in feed by method of microtracers” (published 2009) (herein referred to as “Djuragic et al.”) or alternatively Claims 1-3, 5-7, 9, 12, 15, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Dierking et al. US 2009/0214738 (cited on Information Disclosure Statement filed November 23, 2022) in view of Spears et al. US 2017/0326054, Johnston US 2012/0263838, Ludwig et al. US 5,436,017, Mao et al. US 2018/0295861, Van Vranken et al. US 2020/0068921, and Raczek US 2002/0146399 as further evidenced by Hansen et al. US 2014/0288193 in further view of Ditmarsen et al. US 6,236,048, De Jong et al. US 2010/0015291, Jorhem et al. “Determination of Metals in Foods by Atomic Absorption Spectrometry after Dry Ashing: NMKL Collaborative Study” (published 2000) (herein referred to as “Jorhem”), Duran et al. “Trace element concentrations of some pet foods commercially available in Turkey” (published July 8, 2010) (herein referred to as “Duran et al.”), and Djuragic et al. “Evaluation of homogeneity in feed by method of microtracers” (published 2009) (herein referred to as “Djuragic et al.”).
Regarding Claim 1, Dierking et al. discloses a process for preparing pet food comprising pale meat (meat mix comprising skeletal muscle from fish or chicken and meat by products) (‘738, Paragraph [0041]) and gravy (‘738, Paragraphs [0043]-[0044]). It is noted that applicant defines the term “pale” meat as meaning to be understood to comprise poultry and the like as well as pale fish meats (Specification, Page 3, lines 22-27). Therefore, the meat mix comprising skeletal muscle from fish or chicken and meat by products (‘738, Paragraph [0041]) reads on the claimed pale meat. Dierking et al. further discloses homogeneously mixing the pale meat and the gravy (‘738, Paragraph [0018]), filling the mixture into a container (cans) and sealing and sterilizing the filled container (‘738, Paragraph [0033]). Dierking et al. discloses the final pet food product being 60% meat, 30% gravy, and 10% of a combination of grain, vitamins, minerals, color, and flavor (‘738, Table 1) (‘738, Paragraph [0039]). Claim 1 specifies the weight ratio to be in relation to pale meat and the gravy. Claim 1 does not specify the weight ratio in terms of pale meat and gravy in the total amount of pet food. The transitional phrase “comprising” is inclusive or open ended and does not exclude additional unrecited elements or method steps in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). The transitional phrase “comprising” does not exclude the presence of unrecited elements such as grains, vitamins, minerals, color, and flavor disclosed by Dierking et al. Using the disclosure of the pet food product being 60% and 30% gravy in the pet food, this converts to a weight ratio of pale meat to gravy of 60:30, which can be equivalently expressed as 2:1 or about 66.6:33.3 weight ratio of pale meat to gravy, which falls within the claimed pale meat and gravy weight ratio of 50:50-98:2. Where the claimed weight ratio of pale meat to gravy in the pet food overlaps weight ratio of pale meat to gravy in the pet food ranges disclosed in the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, Dierking et al. also teaches that by properly balancing the carbohydrate sources such as starches one skilled in the art can manipulate the texture of the final product (‘738, Paragraph [0023]). Differences in the weight ratio of pale meat to gravy in the pet food will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such weight ratio of pale meat to gravy in the pet food is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the ratio of pale meat to starch containing gravy of the pet food of Dierking et al. based upon the desired texture of the final product (‘738, Paragraph [0023]).
Dierking et al. is silent regarding the pale meat being added to an aqueous solution of a chelating agent.
Spears et al. discloses a pet food filled into a sterilized container (retorted canned pet food) (‘054, Paragraph [0006]) wherein the pet food comprises a meat (‘054, Paragraph [0040]) and gravy (‘054, Paragraphs [0097] and [0099]) wherein a chelating agent (sodium citrate) is added to the pet food (‘054, Paragraph [0010]) since chelating agents are effective against oral disease associated bacteria (‘054, Paragraph [0009]) and helps to prevent conversion of plaque calculus in animals (‘054, Paragraph [0010]). Johnston discloses a method for rendering poultry or fish materials wherein a chelating solution is applied to the poultry or fish material at the outset of a rendering process to provide a processed animal material resistant to rancidity and stable over an extended period of time (‘838, Paragraph [0006]) wherein adding a citric acid chelating solution prior to the heating of the chicken materials decreases peroxide values of the processed materials and increases the residual tocopherol levels wherein addition of a chelating solution prior to heating of the animal materials is useful in rendering animal materials (‘838, Paragraph [0027]) wherein the chicken by products are used in the pet food industry (‘838, Paragraph [0004]).
Both Dierking et al. and Spears et al. are directed towards the same field of endeavor of methods of making pet food comprising a meat and gravy. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Dierking et al. and add a chelating agent to the pet food as taught by Spears et al. in order to fight against oral disease associated bacteria and to prevent conversion of plaque calculus in animals (‘054, Paragraphs [0009]-[0010]). Furthermore, the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Spears et al. teaches that there was known utility in the pet food art to incorporate chelating agents into pet food for treating or preventing oral diseases (‘054, Paragraphs [0050]-[0051]). Additionally, Dierking et al. and Johnston are both directed towards the same field of endeavor of methods of making food compositions suitable for making pet food wherein animal by products are used in the composition. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and add the chelating agent to the animal by products at the outset to render the animal by products used in the pale meat and blend/mix the chelating agent that is added to the pale meat in an aqueous solution before adding to the gravy as taught by Johnston since Bouthegourd et al. teaches that rendered animal by products are easier to process and are highly digestible and palatable (‘163, Paragraphs [0005]-[0006]).
Further regarding Claim 1, Dierking et al. modified with Spears et al. is silent regarding the pale meat that is added to the aqueous solution of a chelating agent being tumbled and the homogenous mixing step to occur after the tumbling step.
Ludwig et al. discloses a method of inhibiting bacterial growth in meat to improve long term storage capacity of red meats and poultry (‘017, Column 1, lines 13-16) wherein the meat is injected with an aqueous solution of a chelating agent (sodium citrate) (‘017, Column 1, lines 63-68) wherein injection of the aqueous solution of chelating agent (sodium citrate) is effected as a separate step in that the aqueous solution of chelating agent (sodium citrate) is added to the brine which is injected into the meat or to the solution in which the meat is tumbled as part of a standard process curing process for massaging into the meat wherein the aqueous solution containing the sodium citrate is used as the tumbling solution (‘017, Column 2, lines 17-29) wherein half of the sodium citrate solution is injected or massaged into the meat with the brine while the other half is massaged into the meat in the subsequent tumbling operation (‘017, Column 2, lines 32-39).
Both modified Dierking et al. and Ludwig et al. are directed towards the same field of endeavor of methods of processing meats by combining the meats in an aqueous solution of a chelating agent comprising sodium citrate. Dierking et al. teaches that the meat mixture is prepared using any suitable mixing apparatus known to one skilled in the art (‘738, Paragraph [0022]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. that mixes together the ingredients of the meat mass and tumble the pale meat in the aqueous solution of the chelating agent of sodium citrate since Ludwig et al. teaches that it was known and conventional in the food art to mix together a meat mass by tumbling. The simple substitution of one known element (generic mixing of a meat mass) for another (tumbling of the meat mass) to obtain predictable results is prima facie obvious (MPEP § 2143.I.(B).).
Further regarding Claim 1, Dierking et al. the pet food composition having an essentially homogeneous mass substantially conforming to the shape of its container (‘738, Paragraph [0010]) and the meat component and gravy component being mixed together to provide the essentially homogeneous mass and to prevent component separation when the composition is partitioned during filling into containers (‘738, Paragraph [0027]), which necessarily entails the homogeneous mixing step to occur after the tumbling step in order to achieve the final homogeneous mass. Additionally, in the event that it can be argued that modified Dierking et al. does not explicitly or necessarily require the homogeneous mixing step to occur after the tumbling step, the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.). The order in which the pale meat and the gravy are mixed together homogenously with respect to the tumbling of the pale meat is obvious since the combination of prior art references teaches the pet food having a final homogeneous composition.
Further regarding Claim 1, Dierking et al. discloses the final pet food having a 66:33 ratio of meat:gravy. In the event that it can be argued that Dierking also includes ingredients of a combination of grain, vitamins, minerals, color, and flavor in the final pet food and does not express the concentration of the pale meat and the gravy being mixed in a ratio of 50:50-98:2 and rather contains additional ingredients in its calculations, Mao et al. discloses a pet food product comprising a pale meat (poultry and/or fish) (‘861, Paragraph [0086]) wherein the pet food comprises 20-100 wt% of a composition meat product and 0-80 wt% of a gravy sauce (‘861, Paragraph [0001]), which encompasses the claimed concentration ratio of pale meat to gravy being mixed in a ratio of 50:50-98:2.
Both Dierking et al. and Mao et al. are directed towards the same field of endeavor of methods of making pet food comprising a pale meat of poultry and/or fish and a gravy. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Dierking et al. and incorporate the pale meat and gravy in the claimed weight ratio of pale meat to gravy to make the pet food as taught by Mao et al. since where the claimed concentration ratio of pale meat to gravy mixed in the pet food ranges overlaps concentration ratio of pale meat to gravy mixed in the pet food disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the ratio of pale meat to gravy in the pet food will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration ratio of pale meat to gravy in the pet food is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Dierking et al. teaches that by properly balancing the carbohydrate sources such as starches one skilled in the art can manipulate the texture of the final product (‘738, Paragraph [0023]). One of ordinary skill in the art at the time of the invention would adjust the amount of meat to other ingredients of Dierking et al. based upon the desired texture of the final pet food.
Further regarding Claim 1, Dierking et al. discloses the pet food comprising a meat mixture, a gravy, and a grain mixture comprising one or more grains (‘738, Paragraph [0019]) wherein the grain mixture comprises minerals and trace elements such as copper (‘738, Paragraph [0024]). However, Dierking et al. modified with Spears et al. and Ludwig et al. or alternatively Dierking et al. modified with Spears et al., Ludwig et al., and Mao et al. is silent regarding the gravy including at least one copper compound other than copper sulfate selected from saturated copper proteinate and yeast cells enriched with copper.
Van Vranken et al. discloses a pet food designed to prevent copper accumulation in livers and a method designed to prevent or at least reduce copper storage disease in pets (‘921, Paragraph [0002]) wherein the pet food comprises a naturally occurring copper concentration from about 7.3 ppm to about 25.0 ppm (‘921, Paragraph [0005]) wherein the pet food comprises a pale meat (fish or chicken) and one or more added ingredients having a naturally occurring copper source (‘921, Paragraph [0006]). A copper compound other than copper sulfate is added to the pet food (‘921, Paragraph [0008]) and that the copper introduced into the pet food comes from the naturally occurring copper found in plants, yeasts, and/or other natural materials (‘921, Paragraph [0032]) wherein copper is an essential trace mineral meaning a pet only needs very small amounts of it for normal function (‘921, Paragraph [0033]). Van Vranken et al. also discloses there has been an increased prevalence of copper associated liver injury in dogs and that the change in requirements by the Association of American Feed Control Officials (AAFCO) to include copper sulfate as a copper fortifier in their food products has been determined to lead to the gradual increase of copper accumulation in many dogs to the point of risking of developing Copper Storage Disease (CSD) and that the increased copper accumulation coincides with the date that AFFCO required copper sulfate to be used as compounds for copper fortification in pet food formulations (‘921, Paragraph [0026]) and that a large portion of the dog population in the US is at risk of developing CSD because of copper sulfate being added to most dog foods and that eliminating highly bioavailable copper sulfate can eliminate the ingredient that causes the copper to build up in the liver that contributes to CSD (‘921, Paragraph [0027]). The yeast cells are enriched with copper (‘921, Paragraph [0032]).
Both Dierking et al. and Van Vranken et al. are directed towards the same field of endeavor of methods of making pet foods comprising pale meat of chicken and/or fish. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Dierking et al. and add a copper compound other than copper sulfate to the pet food in the form of ingredients having a naturally occurring amount of copper (‘921, Paragraph [0032]) in trace amounts (‘921, Paragraph [0033]) as taught by Van Vranken et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Van Vranken et al. teaches that there was known utility in the pet food art that pet foods made with pale meat of chicken and/or fish to incorporate copper in small amounts for normal functioning of pets (‘921, Paragraph [0033]). Additionally, it would have been obvious to one of ordinary skill in the art to add copper compounds other than copper sulfate to the pet food of Dierking et al. since Van Vranken et al. teaches that including copper sulfate to a copper fortifier in food products leads to the gradual increase of copper accumulation in many dogs to the point of risking developing Copper Storage Disease (‘921, Paragraph [0026]) due to the presence of copper sulfate in most dog foods (‘921, Paragraph [0027]). One of ordinary skill in the art would add copper compounds naturally occurring in foods to the pet food of Dierking et al. rather than copper sulfate as taught by Van Vranken et al. (‘921, Paragraph [0021]) in order to prevent the pet from developing Copper Storage Disease.
Further regarding Claim 1, Dierking et al. modified with Spears et al., Johnston et al., Ludwig et al., and Van Vranken et al or alternatively Dierking et al. modified with Spears et al., Johnston et al., Ludwig et al., Mao et al., and Van Vranken et al. is silent regarding leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes.
Raczek discloses a method of making an animal feedstuff (‘399, Paragraph [0054]) comprising sorbic acid and applying a tumbling mixing step for about 15 minutes for mixing a homogeneous mixture (‘399, Paragraph [0077]), which reads on the claimed tumbling duration of approximately 15 minutes. Hansen et al. provides evidence that it was known in the pet food/animal consumption art (‘193, Paragraph [0086]) that sorbic acid and its salt has chelating properties as a processing aid (‘193, Paragraph [0058]).
Both modified Dierking et al. and Raczek are directed towards the same field of endeavor of methods of processing pet foods/animal feedstuff. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and leave the pale meat tumbled in the aqueous solution of the chelating agent for the claimed tumbling duration as taught by Raczek since where the claimed tumbling duration overlaps tumbling durations disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Raczek teaches that there was known utility in the pet food art to apply a tumbling step for the claimed tumbling duration for the purposes of making a homogeneous mixture of a pet food. Furthermore, differences in the duration of tumbling the pale meat in the aqueous solution of the chelating agent will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such duration of tumbling the pale meat in the aqueous solution of the chelating agent is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Further regarding Claim 1, the limitations “determining a homogeneous mixing quality of the mixture by adding a tracer substance to the mixed pale meat and gravy, distributing the tracer substance through the mixed pale meat and gravy using a mixer at a fixed speed for a first time interval, removing one or more samples of the mixture at one or more predetermined locations on a surface of the mixer, reducing the one or more samples to ash, and determining a concentration of the tracer substance by Atomic Absorption (AA) spectroscopy based on results from the AA spectroscopy satisfying a predetermined threshold” recites limitations with respect to a method of measuring and evaluating the degree of homogeneous mixing of food components to an unspecified predetermined threshold. Examiner notes that the claim is directed towards a process of preparing a pet food product and not towards a method of measuring or determining parameters of a food using specific measurement techniques. Nevertheless, Dierking et al. modified with Van Vranken et al., Johnston, and Ludwig et al. or alternatively Dierking et al. modified with Mao et al., Van Vranken et al., Johnston, and Ludwig et al. is silent regarding a step of measuring and evaluating the degree of homogeneous mixing of food components to an unspecified predetermined threshold.
Ditmarsen et al. discloses a method of measuring and evaluating (examining) a flowable material to exploit the advantages associated with spectroscopy (‘048, Column 2, lines 7-11) to measure and evaluate (examine) foodstuffs including animal foodstuffs such as meat in the form of minced or emulgated products or fodder of dry/wet food mixtures of vegetables products, fats, and protein containing raw materials including pet food (‘048, Column 3, lines 23-47) to measure and evaluate using recorded measurement values or sets of the same to ascertain whether or when a mixture or a stream of material is sufficiently homogeneous (‘048, Column 5, lines 10-14) wherein measurement values from each sampling and measuring cycle is used to check whether the material is processed in an optimum manner in which a mixing process is sufficiently thorough and that if a great deviation is found, e.g. the material is still heterogeneous, the mixing process should continue and that if the deviation is only a minimum or lies below a predetermined limit and it is not possible to improve the homogeneity of the material by continuing the mixing process the mixing step is terminated which shortens the mixing process to what is necessary to save the material from being subjected to continued mechanical processing (‘048, Column 12, lines 48-64) wherein when the measurements show the material mixed exhibits the desired homogeneity a final check on fat content is made on the basis of measuring results from the most recent measuring cycles (‘048, Column 13, lines 4-19) and then placing the homogenized sample into a container (cup) (‘048, Column 2, lines 7-16).
Both modified Dierking et al. and Ditmarsen et al. are directed towards the same field of endeavor of methods of processing wet pet food comprising meat. Dierking et al. discloses the pet food being mixed at a time and a temperature to result an essentially homogenous mass (‘738, Paragraph [0019]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and determine the homogeneous mixing quality at various stages of the process in order to ensure that the mixing process is thoroughly being conducted and finishing the mixing process when the pet food is thoroughly mixed as taught by Ditmarsen et al.
Further regarding Claim 1, although Ditmarsen et al. does not teach explicitly the claimed method of determining the homogenous mixing quality of the mixture comprising an analysis by atomic absorption spectroscopy using the claimed measurement conditions and steps, the claim is directed towards a process of preparing a pet food product and not towards a method of measuring or determining parameters of a food using specific measurement techniques. Dierking et al. discloses mixing the meat and the gravy for a time and a temperature sufficient to result in an essentially homogenous mass (‘738, Paragraph [0019]). Ditmarsen et al. teaches a method of measuring homogeneity of a wet pet food comprising meat and terminating a mixing process of the wet pet food when the desired homogeneity is achieved when the mixing process is sufficiently thorough (‘048, Column 12, lines 40-65). The particular method in which the homogeneity of the wet pet food is measured is obvious since Dierking et al. teaches mixing until achieving an essentially homogenous mixture and since Ditmarsen et al. teaches a method of measuring the homogeneity of the wet pet food and terminating the mixing process when the desired homogeneity is achieved. Nevertheless, De Jong et al. discloses a method of determining homogeneity measurements using spectroscopy to determine iron content of compositions by measuring iron intensity (‘291, Paragraph [0076]). Although Dimarsen et al. and DeJong et al. teach homogeneity measurements using spectroscopy techniques other than the claimed atomic absorption spectroscopy, Jorhem et al. discloses a method for determination of copper and iron in foods by atomic absorption spectrometry (AAS) after dry ashing using food samples wherein no losses of Cd occurred by volatilization or retention at a maximum ashing temperature of 450°C which yields results free from losses by volatilization or retention (Page 1204) wherein ZN is determined by flame AAS in most foods (Page 1208). The ash temperature is increased from an initial temperature not higher than 100°C to 450°C at which the temperature is increased at a maximum rate of 50°C/h (Jorhem, Page 1207), which indicates that the ash temperatures reach approximately 400°C at some point in the heating process. Duran et al. discloses a method of determining trace element levels in different types of cat and dog foods by flame atomic absorption spectrometry after the wet digestion method wherein levels of Cu trace elements in the samples were investigated (Abstract, Page 2833) wherein copper is important for connective tissue formation, iron metabolism, blood cell formation, melanin pigment formation, myelin formation, defense against oxidative damage (Duran et al., Page 2834).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the measurement of the homogeneity of the wet pet food of modified Dierking et al. using spectroscopy analysis since De Jong et al. teaches that there was known utility in the homogeneity measurement art to use spectroscopy analysis techniques for obtaining homogeneity measurements. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and analyze a concentration of a trace substance of iron and/or copper that is added to foods using atomic absorption spectroscopy as taught by Jorhem et al. and Duran et al. since the simple substitution of one known element (spectroscopy measurement method disclosed by Dirmarsen et al.) for another (atomic absorption spectroscopy method disclosed by Jorhem et al. and Duran et al.) to obtain predictable results (to use a well established analytical chemistry technique for the analysis of trace metals in food samples) is prima facie obvious (MPEP § 2143.I.B.).
Further regarding Claim 1, Dierking et al. modified with Spears et al., Johnston et al., Ludwig et al., Van Vranken et al., Ditmarsen et al., DeJong et al., Jorhem et al., and Duran et al., or alternatively Dierking et al. modified with Spears et al., Johnston et al., Ludwig et al., Mao et al., Van Vranken et al., Ditmarsen et al., DeJong et al., Jorhem et al., and Duran et al. discloses analyzing the presence or use of trace elements in the context of compositional analysis but does not explicitly disclose adding a tracer substance to the mixed pale meat and gravy, distributing the tracer substance through the mixed pale meat and gravy using a mixer at a fixed speed for a first time interval, removing one or more samples of the mixture at one or more predetermined locations on a surface of the mixer, determining a concentration of the tracer substance, and filling the pet food into a container based on a determination that satisfies a predetermined threshold.
Djuragic et al. discloses a method of determining animal feed homogeneity using a microtracer (colored iron particles) by adding components in certain mixing ratios wherein satisfactory particle mixture homogeneity is attained in mixtures with more uniform particle sizes wherein excess mixing of feed causes degradation of vitamins and medications whereas insufficient mixing results in portions of the feed that contains either too much or too little of the formulated ingredients wherein mixing to a completely homogeneous blend is done to make every sample identical in nutrient content (Djuragic et al., Page 85) wherein several different methods for determining animal feed homogeneity are used wherein colored iron tracer particles which can be separated from formula feeds magnetically have been used wherein the tracers consist of iron or other ferromagnetic material coated with dyes (Djuragic et al., Page 86) wherein the tracer should be contributed form only one source, the tracer should be a microingredient, and there should be an analytical procedure to determine the tracer of known or determinable accuracy and precision (Djuragic et al., Page 87).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the analytical technique used to determine the homogeneity of the samples of the pet food mixture of modified Dierking et al. and incorporate a tracer substance in the form of a microtracer having colored iron particles into the pet food mixture since Djuragic et al. teaches that there was known utility in the homogeneity measurement art to use add a separate tracer substance to pet foods for obtaining by analytical techniques the homogeneity measurements of said pet foods. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and analyze a concentration of a tracer substance of the degree of homogeneity of a pet food as taught by Djuragic et al. since the simple substitution of one known element (spectroscopy measurement method disclosed by Dirmarsen et al.) for another (incorporation of a tracer substance into pet food disclosed by Djuragic et al.) to obtain predictable results (to use a well established analytical chemistry technique for the analysis of the degree of homogeneity in pet food samples) is prima facie obvious (MPEP § 2143.I.B.).
Regarding Claim 2, it is noted that Claim 2 requires the same exact limitations as that of Claim 1 with slightly different wording. Therefore, Claim 2 is rendered obvious for the same reasons as that discussed above in the rejections of Claim 1.
Regarding Claim 6, it is noted that Claim 6 requires the same exact limitations as that of Claim 1 except that Claim 1 requires the tumbling step to occurs after the homogenous mixing step and that Claim 6 recites the additional limitation “removing after a second time interval additional samples from the one or more predetermined locations on the surface of the mixer.” Therefore, Claim 6 is rendered obvious for the same reasons as that discussed above in the rejections of Claim 1. With respect to the additional limitations “removing after a second time interval additional samples from the one or more predetermined locations on the surface of the mixer,” these limitations are limitations with respect to a method of measuring and evaluating the degree of homogeneous mixing of food components to an unspecified predetermined threshold. Examiner notes that the claim is directed towards a process of preparing a pet food product and not towards a method of measuring or determining parameters of a food using specific measurement techniques. Nevertheless, Ditmarsen et al. teaches a method of measuring the homogeneity of a wet pet food comprising meat.
Regarding Claim 3, Spears et al. discloses the gravy (‘054, Paragraphs [0097] and [0099]) including one or more chelating agents (‘054, Paragraph [0010]). The disclosure of one or more chelating agents indicates an embodiment of more than one chelating agents, which reads on the claimed gravy including a second chelating agent. The mere duplication of parts (multiple chelating agents) has no patentable significance unless a new and unexpected result is produced in view of In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (MPEP § 2144.04.VI.B.).
Regarding Claim 5, Spears et al. discloses the chelating agent being sodium citrate or potassium citrate (‘054, Paragraph [0010]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Dierking et al. and incorporate sodium citrate or potassium citrate as the chelating agent into the pet food as taught by Spears et al. since he selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Spears et al. teaches that there was known utility in the pet food art to incorporate chelating agents into pet food wherein the chelating agent is sodium citrate or potassium citrate.
Regarding Claim 7, Spears et al. discloses a pet food filled into a sterilized container (retorted canned pet food) (‘054, Paragraph [0006]) wherein the pet food comprises a meat (‘054, Paragraph [0040]) and gravy (‘054, Paragraphs [0097] and [0099]) wherein a chelating agent is added to the pet food since chelating agents are effective against oral disease associated bacteria (‘054, Paragraph [0009]) and helps to prevent conversion of plaque calculus in animals (‘054, Paragraph [0010]). Both modified Dierking et al. and Spears et al. are directed towards the same field of endeavor of methods of making pet food comprising a meat and gravy. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and add a chelating agent to the pet food as taught by Spears et al. in order to fight against oral disease associated bacteria and to prevent conversion of plaque calculus in animals (‘054, Paragraphs [0009]-[0010]). Furthermore, the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Spears et al. teaches that there was known utility in the pet food art to incorporate chelating agents into pet food for treating or preventing oral diseases (‘054, Paragraphs [0050]-[0051]).
Regarding Claims 9, 12, and 15, Van Vranken et al. discloses a pet food designed to prevent copper accumulation in livers and a method designed to prevent or at least reduce copper storage disease in pets (‘921, Paragraph [0002]) wherein the pet food comprises a pale meat (chicken or fish) (‘921, Paragraph [0055]). Van Vranken et al. also discloses no copper sulfate being added in the process (‘921, Paragraph [0032]). Both modified Dierking et al. and Van Vranken et al. are directed towards the same field of endeavor of methods of making pet food comprising a pale meat of chicken or fish. It would have been obvious to one of ordinary skill in the art to not add copper sulfate to the pet food of modified Dierking et al. since Van Vranken et al. teaches that including copper sulfate to a copper fortifier in food products leads to the gradual increase of copper accumulation in many dogs to the point of risking developing Copper Storage Disease (‘921, Paragraph [0026]) due to the presence of copper sulfate in most dog foods (‘921, Paragraph [0027]). One of ordinary skill in the art would not add copper sulfate to the pet food of modified Dierking et al. in order to prevent the pet from developing Copper Storage Disease (‘921, Paragraph [0026]).
Regarding Claim 17, Van Vranken et al. discloses the pet food comprising ingredients having a naturally occurring copper source to provide a naturally occurring copper concentration wherein the copper source is not copper sulfate (‘921, Paragraph [0032]). Applicant discloses it is assumed that the grey discoloration of pale meat is substantially based on the use of copper sulfate as one of the minerals (Specification, Page 1, lines 19-25). Since Dierking et al. modified with Van Vranken et al. teaches a pet food comprising pale meat in the form of chicken/poultry and/or fish comprising an ingredient having a naturally occurring amount of copper wherein the pet food does not have any copper sulfate, one of ordinary skill in the art would expect Dierking et al. modified with Van Vranken et al. to also have the same properties as claimed of having no grey discoloration in the final pet food since Dierking et al. modified with Van Vranken et al. also teaches not using copper sulfate in the pet food, which copper sulfate applicant contends contributes to grey discoloration of pale meat. Furthermore, where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Therefore, the pet food of Dierking et al. modified with Van Vranken et al. that does not use any copper sulfate would also have the same properties of having no grey discoloration in view of applicant’s disclosure that it is assumed that copper sulfate causes grey discoloration of pale meat.
Claims 8, 10, 13, 16, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Dierking et al. US 2009/0214738 (cited on Information Disclosure Statement filed November 23, 2022) in view of Spears et al. US 2017/0326054, Johnston US 2012/0263838, Ludwig et al. US 5,436,017, Van Vranken et al. US 2020/0068921, Raczek US 2002/0146399 as further evidenced by Hansen et al. US 2014/0288193 in further view of Ditmarsen et al. US 6,236,048, De Jong et al. US 2010/0015291, Jorhem et al. “Determination of Metals in Foods by Atomic Absorption Spectrometry after Dry Ashing: NMKL Collaborative Study” (published 2000) (herein referred to as “Jorhem”), Duran et al. “Trace element concentrations of some pet foods commercially available in Turkey” (published July 8, 2010) (herein referred to as “Duran et al.”), and Djuragic et al. “Evaluation of homogeneity in feed by method of microtracers” (published 2009) (herein referred to as “Djuragic et al.”) as applied to claim 1 or claim 2 or claim 6 above in further view of Bernotavicz US 4,247,562 or alternatively Claims 8, 10, 13, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Dierking et al. US 2009/0214738 (cited on Information Disclosure Statement filed November 23, 2022) in view of Spears et al. US 2017/0326054, Johnston US 2012/0263838, Ludwig et al. US 5,436,017, Mao et al. US 2018/0295861, Van Vranken et al. US 2020/0068921, and Raczek US 2002/0146399 as further evidenced by Hansen et al. US 2014/0288193 in further view of Ditmarsen et al. US 6,236,048, De Jong et al. US 2010/0015291, Jorhem et al. “Determination of Metals in Foods by Atomic Absorption Spectrometry after Dry Ashing: NMKL Collaborative Study” (published 2000) (herein referred to as “Jorhem”), Duran et al. “Trace element concentrations of some pet foods commercially available in Turkey” (published July 8, 2010) (herein referred to as “Duran et al.”), and Djuragic et al. “Evaluation of homogeneity in feed by method of microtracers” (published 2009) (herein referred to as “Djuragic et al.”) as applied to claim 1 or claim 2 or claim 6 above in further view of Bernotavicz US 4,247,562.
Regarding Claims 8 and 19, Dierking et al. discloses the gravy being prepared separately from the pale meat (meat mixture) (‘738, Paragraph [0019]) wherein the gravy is prepared by mixing together modified corn starch and guar gum with water (‘738, Paragraph [0038]). Van Vranken et al. discloses the copper compound other than copper sulfate being added to the pet food (‘921, Paragraph [0032]). However, modified Dierking et al. is silent regarding the copper compound other than copper sulfate being an ingredient of the gravy and instead only discloses the copper compound other than the copper sulfate to be an ingredient of the final pet food.
Bernotavicz discloses a pet food comprising gravy (vitamin and mineral fortified nutritional gravy) (‘562, Column 1, lines 15-19) and pale meat (poultry and fish) (‘562, Column 7, lines 11-29) wherein the gravy is enriched by the addition of a vitamin mineral mixture formulated to meet part to all of a pet’s daily requirements as specified by the National Research Council for both dogs and cats wherein the minerals include copper (‘562, Column 5, lines 25-44).
Both modified Dierking et al. and Bernotavicz are directed towards the same field of endeavor of methods of making pet food comprising pale meat in the form of chicken/poultry and/or fish as well as gravy. It would have been obvious to one of ordinary skill in the art to modify the process of modified Dierking et al. that contains a copper compound other than copper sulfate in the pet food and incorporate the copper compound other than copper sulfate as an ingredient of the gravy which is then added to the pale meat as taught by Bernotavicz since the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.). Bernotavicz teaches that there was known utility in the pet food art to incorporate the copper compound as an ingredient of the gravy of the pet food.
Regarding Claims 10, 13, and 16, Dierking et al. discloses the gravy comprising water and a thickening agent (‘738, Paragraph [0025]). Dierking et al. also discloses the pet food comprising a mixture of a meat mixture, a grain mixture, and a gravy (‘738, Paragraph [0017]) wherein the grain mixture comprises vitamins and minerals and flavorants (‘738, Paragraph [0024]). However, modified Dierking et al. is silent regarding the additional minerals and vitamins being ingredients of the gravy. Rather, modified Dierking et al. teaches the additional minerals and vitamins being ingredients of the final pet food.
Bernotavicz discloses a pet food comprising gravy (vitamin and mineral fortified nutritional gravy) (‘562, Column 1, lines 15-19) and pale meat (poultry and fish) (‘562, Column 7, lines 11-29) wherein the gravy is enriched by the addition of a vitamin mineral mixture formulated to meet part to all of a pet’s daily requirements as specified by the National Research Council for both dogs and cats wherein the minerals include copper (‘562, Column 5, lines 25-44) and the gravy also comprises flavoring agents (‘562, Column 4, lines 14-19).
Both modified Dierking et al. and Bernotavicz are directed towards the same field of endeavor of methods of making pet food comprising pale meat in the form of chicken/poultry and/or fish as well as gravy. It would have been obvious to one of ordinary skill in the art to modify the process of modified Dierking et al. that contains additional vitamins and minerals in the final pet food and make the gravy with the additional minerals and vitamins and flavorants as taught by Bernotavicz since the selection of any order of mixing ingredients is prima facie obvious in view of In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (MPEP § 2144.04.IV.C.). Bernotavicz teaches that there was known utility in the pet food art to incorporate the additional vitamins, minerals, and flavorants of the gravy of the pet food.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Dierking et al. US 2009/0214738 (cited on Information Disclosure Statement filed November 23, 2022) in view of Spears et al. US 2017/0326054, Johnston US 2012/0263838, Ludwig et al. US 5,436,017, Van Vranken et al. US 2020/0068921, and Raczek US 2002/0146399 as further evidenced by Hansen et al. US 2014/0288193 in further view of Ditmarsen et al. US 6,236,048, De Jong et al. US 2010/0015291, Jorhem et al. “Determination of Metals in Foods by Atomic Absorption Spectrometry after Dry Ashing: NMKL Collaborative Study” (published 2000) (herein referred to as “Jorhem”), Duran et al. “Trace element concentrations of some pet foods commercially available in Turkey” (published July 8, 2010) (herein referred to as “Duran et al.”), and Djuragic et al. “Evaluation of homogeneity in feed by method of microtracers” (published 2009) (herein referred to as “Djuragic et al.”) as applied to claim 1 or claim 2 or claim 6 above in further view of Speirs et al. US 5,422,135
or alternatively Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Dierking et al. US 2009/0214738 (cited on Information Disclosure Statement filed November 23, 2022) in view of Spears et al. US 2017/0326054, Johnston US 2012/0263838, Ludwig et al. US 5,436,017, Mao et al. US 2018/0295861, Van Vranken et al. US 2020/0068921, and Raczek US 2002/0146399 as further evidenced by Hansen et al. US 2014/0288193 in further view of Ditmarsen et al. US 6,236,048, De Jong et al. US 2010/0015291, Jorhem et al. “Determination of Metals in Foods by Atomic Absorption Spectrometry after Dry Ashing: NMKL Collaborative Study” (published 2000) (herein referred to as “Jorhem”), Duran et al. “Trace element concentrations of some pet foods commercially available in Turkey” (published July 8, 2010) (herein referred to as “Duran et al.”), and Djuragic et al. “Evaluation of homogeneity in feed by method of microtracers” (published 2009) (herein referred to as “Djuragic et al.”) as applied to claim 1 or claim 2 or claim 6 above in further view of Speirs et al. US 5,422,135.
Regarding Claim 18, Van Vranken et al. disclose chelated copper being a special type of mineral supplement that is better absorbed and easier on the stomach (‘921, Paragraph [0033]) wherein the pet food containing no or substantially no chelated copper (‘921, Paragraph [0032]). In the embodiment of the pet food containing substantially no chelated copper, there exists a trace small amount of chelated copper in the pet food. However, modified Dierking et al. is silent regarding the chelated form of copper being copper salts of citric acid.
Speirs et al. discloses a pet food comprising a pale meat (poultry) (‘135, Column 10, lines 7-15) and gravy (‘135, Column 7, lines 59-65) and a chelated form of citric acid (‘135, Column 6, lines 14-24).
Both modified Dierking et al. and Speirs et al. are directed towards the same field of endeavor of methods of making pet food comprising pale meat and gravy. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Dierking et al. and incorporate ion-chelated forms containing citric acid as taught by Speirs et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Speirs et al. teaches that there was known utility in the pet food art to incorporate ion-chelated form containing citric acid.
Response to Arguments
Applicant’s arguments with respect to the previous new matter rejections under 35 USC 112(a) have been fully considered and are persuasive. Applicant argues on Pages 8-9 of the Remarks that Paragraphs [0030]-[0031] states that the samples were analyzed on their concentration of the tracer substance. Applicant contends that the measurements are analyzed and based on this analysis, i.e. a determination of homogeneity, the subsequent steps are performed. Applicant continued that the MPEP states that an applicant is not limited to the nomenclature used in the application as filed but rather should amend the claims such that the meaning of the terms in the claims may be ascertainable by reference to the description (MPEP 608.01(o).). Applicant contends that Examiner defined the term “determine” to mean “to ascertain the presence, quantity, or amount of.” The Specification clearly describes analyzing the results of the homogeneity tests and supports the step of “determining a homogeneous mixing quality of the mixture” and therefore complies with the written description requirement. Examiner notes that these arguments are found persuasive. Therefore, the previous new matter rejections under 35 USC 112(a) has been withdrawn.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made herein.
Applicant’s arguments with respect to the obviousness rejections of independent Claims 1-2 and 6 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Applicant argues on Pages 11-12 of the Remarks that the combination of prior art does not teach the newly presented limitations “after the tumbling and before the mixing, leaving the pale meat tumbled in the aqueous solution of the chelating agent for approximately 15 minutes.” These newly presented limitations are rendered obvious by the secondary reference Raczek as further evidenced by Hansen et al., which was necessitated by amendment. It is noted that these newly presented limitations are also rejected under 35 USC 112(b) as being indefinite. An obviousness rejection has been made insofar as the claims could be understood.
With respect to applicant’s arguments on Pages 12-14 of the Remarks with respect to the improper equating of a trace element mentioned in the prior art with the claimed tracer substance and that the present claims require the intentional use of a tracer substance specifically to assess whether a composition is homogeneous which tracer substance is deliberately used as a diagnostic tool where its distribution within the composition is evaluated to determine uniformity and that the cited prior art does not teach analyzing the spatial or statistical distribution of an element to assess homogeneity via a tracer substance or that a tracer element is not recognized in the prior art to serve as a proxy for determining whether a composition has been adequately mixed, it is noted that the secondary reference of Djuragic et al. is being relied upon to teach the limitations regarding a tracer substance to determine uniformity/homogeneity of an animal feed sample.
It is noted that Examiner also maintains the position that the limitations “determining a homogeneous mixing quality of the mixture by adding a tracer substance to the mixed pale meat and gravy, distributing the tracer substance through the mixed pale meat and gravy using a mixer at a fixed speed for a first time interval, removing one or more samples of the mixture at one or more predetermined locations on a surface of the mixer, reducing the one or more samples to ash, and determining a concentration of the tracer substance by Atomic Absorption (AA) spectroscopy based on results from the AA spectroscopy satisfying a predetermined threshold” recites limitations with respect to a method of measuring and evaluating the degree of homogeneous mixing of food components to an unspecified predetermined threshold. Examiner notes that the claim is directed towards a process of preparing a pet food product and not towards a method of measuring or determining parameters of a food using specific measurement techniques. With respect to applicant’s comment on Page 13 of the Remarks that the step of a specific method of determining mixing quality serves as a control step that allegedly is integral to the process of preparing the food product wherein the claimed technique influences process conditions such as determining whether a desired level of homogeneity has been achieved for the particular pet food formulation and upon reaching a specific threshold of homogeneity the process proceeds to subsequent steps in the preparation of the food product and is not a standalone measurement but guides and completes the preparation process, Examiner notes that arguments presented by the applicant cannot take the place of evidence in the record in view of In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984) (MPEP § 716.01(c).II.). Applicant has not provided any objective evidence showing the allegation that the claimed measurement steps is an integral part of the manufacturing process. Dierking et al. discloses mixing the meat and the gravy for a time and a temperature sufficient to result in an essentially homogenous mass (‘738, Paragraph [0019]). Ditmarsen et al. teaches a method of measuring homogeneity of a wet pet food comprising meat and terminating a mixing process of the wet pet food when the desired homogeneity is achieved when the mixing process is sufficiently thorough (‘048, Column 12, lines 40-65). The particular method in which the homogeneity of the wet pet food is measured is obvious since Dierking et al. teaches mixing until achieving an essentially homogenous mixture and since Ditmarsen et al. teaches a method of measuring the homogeneity of the wet pet food and terminating the mixing process when the desired homogeneity is achieved. Furthermore, Baker et al. “Atomic Spectroscopy in Food Analysis” (Encyclopedia of Analytical Chemistry, 2006) discloses flame atomic absorption spectrometry (FAAS) is a well established technique for the analysis of trace metals in food samples wherein the determination of Cu in mussels by FAAS was reported (Baker et al., Page 8). Baker et al. teaches that it was known and conventional in the food art that atomic absorption spectrometry is a well established technique for the analysis of trace metals in food samples. Critchley “An Introduction to Food Analysis Techniques” <https://www.azom.com/article.aspx?ArticleID=18331> (published August 14, 2019) discloses atomic absorption spectroscopy (AAS) is a technique which is used across the food industry to detect the presence of metals in a food or beverage sample and AAS is a technique that is widely used in analytical labs to determine the concentration of various chemical elements in a sample by how they absorb light which are then compared against known standards. Both Baker et al. and Critchley et al. teach that the claimed atomic absorption spectroscopy is a known technique used in the food industry to detect the presence of metals in food samples to determine the concentrations of various chemical elements in a sample. Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Capodieci US 2010/0040745 discloses a method of making kibble (‘745, Paragraph [0006]) comprising a step of mixing vegetables and meat and combining with atomized water to a desired moisture level and to a homogeneous blend and compressing the combined ingredients in a forming chamber between an anvil plug and an ultrasonic horn by means of an actuator wherein the ultrasonic horn is energized to cause the combined ingredients to be agglomerated into a desired shape (‘745, Paragraph [0012]).
Nadeau et al. US 2014/0242228 discloses a process for preparing pet food compositions (‘228, Paragraph [0001]) comprising the steps of combining a plurality of ingredients and mixing the ingredients using any suitable mixing device to provide a substantially homogeneous mixture (‘228, Paragraph [0057]) for a time sufficient to provide a substantially homogeneous mixture (‘228, Paragraph [0059]).
Ibraimi et al. US 2017/0172176 discloses a pet food palatant composition of mixed alkali metal pyrophosphates (‘176, Paragraph [0002]) prepared using a solution of TSPP and TKPP by reacting STPP with NaOH to form TSPP wherein TKPP was charged into this prepared solution to make a solution of sodium potassium pyrophosphate (‘176, Paragraph [0043]) wherein the mixed alkali metal pyrophosphates are blended with pet food processing aids to produce the palatant composition (‘176, Paragraph [0045]).
Capelle et al. US 2015/0251963 discloses an inorganic nutrient composition in aqueous phase enriched with micronutrients (‘963, Paragraph [0001]) comprising at least one polyphosphate and at least one source of iron as a micronutrient (‘963, Paragraph [0037]) wherein the phosphate source added to the aqueous phase is sodium tripolyphosphate (STPP) or tetrapotassium pyrophosphate (TKPP) (‘963, Paragraph [0077]).
Lee et al. US 2005/0106285 discloses a palatability enhancing composition to extruded pet food compositions in a quantity sufficient to enhance palatability of the finished pet food product (‘285, Paragraph [0024]) wherein STPP dissolved in solution may partially or completely dissociated depending on pH to form one or more additional species including the free tripolyphosphate anion and mono di tri and tetra sodium salts thereof in which after liquid product has dried on an extruded pet food product sodium atoms are replaced with hydrogen atoms wherein the palatability enhancers in which STPP has been dissolved in solution and permitted to equilibrate are referred to as containing one or more sodium tripolyphosphate salts wherein the palatability enhancers are liquid or dried by evaporation, lyophilization, and the like to form a dry product (‘285, Paragraph [0025]).
Grosso et al. US 3,962,484 discloses a method of making liquid feed supplements for animals comprising an aqueous solution of sodium tripolyphosphate (‘484, Column 2, lines 38-59).
Melman US 2015/0231095 discloses a pet food composition (‘095, Paragraph [0087]) comprising a concentrated aqueous solution of at least one buffering agent, at least one chelating agent, and at least one antimicrobial agent, diluting the concentrated aqueous solution to a desired concentration by adding an appropriate volume of the aqueous solution to the desired concentration of composition to be administered (‘095, Paragraph [0092]).
Knochenmus et al. US 2011/0152363 discloses a method of making a mineral product by contacting a carboxylic acid and an inorganic mineral compound sufficient to form a solution, reacting the solution over a period of time sufficient to provide a mineral chelated compound, transferring the mineral chelated compound to one or more molds, and reducing the size of the mineral chelated compound to provide a rapidly soluble mineral chelated product (‘363, Paragraph [0009]).
Josephson et al. US 2011/0159149 discloses a method of making pet food (‘149, Paragraph [0001]) comprising chelating agents (‘149, Paragraph [0019]) wherein tumbling is a type of mixing step (‘149, Paragraph [0013]) wherein cat food is placed in a container for mixing and spraying a fat onto the cat food to obtain a coating of a kibble wherein the cat food is mixed for a few minutes after spraying a fat to improve uniformity of the coating (‘149, Paragraph [0026]).
Goralczyk et al. US 20080199413 discloses tumbling is a type of mixing step (‘413, Paragraph [0227]).
Habich et al. US 2006/0153912 discloses tumbling mixers are a type of mixing step (‘413, Paragraph [0143]) used in making pet food (‘413, Paragraph [0001]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERICSON M LACHICA/Examiner, Art Unit 1792