DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 19 August 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the 112(b) rejection of claims 5 and 7 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-20
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1, 4-5, 7-8, 17 and 19
New claims: None
Claims currently under consideration: 1-20
Currently rejected claims: 1-20
Allowed claims: None
Specification
The disclosure is objected to because of the following informalities:
Paragraph [0010] refers to appended drawings. The application does not contain appended drawings. As such, the reference to appended drawings should be removed.
In paragraph [0063], line 2, “using the a dry mix” should read, “using the dry mix”.
In paragraphs [0032 and [0071], “tomato pumice” should read, “tomato pomace”.
Appropriate correction is required.
Claim Objections
Claims 5, 7-9, 17, and 19 are objected to because of the following informalities:
In claim 5, the language, “wherein the total copper concentration in the pet food composition constitutes a combination of an animal by-product and at least one of a plant and a yeast” is grammatically awkward because animal by-products, plants, and yeast are not solely made of copper. Additionally, in using “constitutes” the order of the total copper concentration and its constituents in the claim should have been switched. For clarity, the language, “wherein the total copper concentration in the pet food composition comprises copper contributed from a combination of an animal by-product and at least one of a plant and a yeast” is suggested.
In claim 7, the language, “wherein the total copper concentration constitutes a non-bioavailable copper” is grammatically awkward because in using “constitutes” the order of the total copper concentration and a non-bioavailable copper in the claim should have been switched. For clarity, the language, “wherein the total copper concentration comprises a non-bioavailable copper” is suggested. The open language “comprises” is suggested because copper inherent in a meal base as required by claim 1 is considered to be at least partially bioavailable and would contribute to the total copper concentration.
In claim 8, the language, “adding at least one ingredient having a copper source that constitutes a non-chelated copper oxide” is grammatically awkward. For clarity, the language, “adding at least one ingredient to provide a copper source that is a non-chelated copper oxide”, as recited in claim 1, is suggested.
In claim 9, line 4, “and omega-3 fatty acid ratio is” should read, “and the omega-3 fatty acid is”.
In claim 17, the language, “adding at least one ingredient having a copper source that is free of chelated copper oxide” is grammatically awkward. For clarity, the language, “adding at least one ingredient to provide a copper source that is free of chelated copper oxide”, following the structure of claim 1, is suggested.
In claim 19, lines 3-4, “wherein a ratio the omega-6 fatty acid to the omega-3 fatty acid ratio is” should read, “wherein a ratio of the omega-6 fatty acid to the omega-3 fatty acid is”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 7 requires that the total copper concentration comprises a non-bioavailable copper. Claim 1, from which claim 7 depends, already requires that a non-chelated copper oxide forms the total copper concentration. As evidenced by paragraph [0026] of the instant specification, copper oxides are unavailable copper moieties. Claim 7 therefore fails to further limit claim 1.
It is noted that amending claim 7 to require that the total copper concentration consists of non-bioavailable copper would fail to include all limitations of claim 1 because copper inherent in the meal base would be at least partially bioavailable.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Applicant’s amendments to independent claims 1, 8, and 17 narrows the scope of the copper source, necessitating the new grounds of rejection presented hereinbelow.
Claims 1-4 and 7-16 are rejected under 35 U.S.C. 102(a)(1) as being unpatentable over Zemel et al. (US 2016/0073659) in view of EFSA (EFSA FEEDAP Panel (EFSA Panel on Additives and Products or Substances used in Animal Feed). (2015). Scientific Opinion on the safety and efficacy of copper compounds (E4) as feed additives for all animal species (cupric acetate, monohydrate; basic cupric carbonate, monohydrate; cupric chloride, dihydrate; cupric oxide; cupric sulphate, pentahydrate; cupric chelate of amino acids, hydrate; cupric chelate of glycine, hydrate), based on a dossier submitted by FEFANA asbl. EFSA Journal, 13(4):4057, 52 pp. doi:10.2903/j.efsa.2015.4057), and as evidenced by AAFCO (AAFCO (2013). AAFCO Methods for Substantiating Nutritional Adequacy of Dog and Cat Foods. https://www.aafco.org/wpcontent/uploads/2023/01/Pet_Food_ Report_2013_Midyear-Proposed_Revisions_to_AAFCO_Nutrient_Profiles.pdf).
Claim interpretation:
MPEP § 2111 states:
During patent examination, the pending claims must be “given their broadest reasonable interpretation consistent with the specification.” The Federal Circuit’s en banc decision in Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) expressly recognized that the USPTO employs the “broadest reasonable interpretation” standard:
The Patent and Trademark Office (“PTO”) determines the scope of claims in patent applications not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364[, 70 USPQ2d 1827, 1830] (Fed. Cir. 2004).
Independent claims 1 and 8 recite the limitation, “adding at least one ingredient to provide a copper source that is a non-chelated copper oxide and that forms a total copper concentration for said pet food composition from about 7.3 ppm to about 25.0 ppm”. The claimed non-chelated copper oxide forming a total copper concentration from about 7.3 ppm to about 25.0 ppm is interpreted broadly such that the total copper concentration of the pet food composition comprises a non-chelated copper oxide in addition to other copper sources. This is at least because meal bases also contain copper that would contribute to the total copper concentration, as evidenced by the instant specification on p. 21, Table 2. Additionally, dependent claim 5 requires that copper from a combination of an animal by-product and at least one of a plant and a yeast contribute to the total copper concentration of the pet food composition. Copper does not exist as copper oxide in animal by-products, plants, or yeast, but rather as copper ions. Therefore, additional copper sources beyond a copper oxide must be considered to contribute to the total copper concentration of the pet food composition. This interpretation is in light of the instant specification at paragraph [0032], where it appears that the intent is that the pet food composition comprises at least 7.3 ppm of total copper that is provided by ingredients having naturally occurring and/or non-chelated copper naturally disposed in them, including plants, yeasts, and/or other natural, non-man-made materials alone or in combination with copper oxides. It is important to note that this interpretation does not preclude the inclusion of chelated copper, copper sulfate, and/or copper proteinate because it is improper to import limitations from the specification into the claims as per MPEP § 2111.01(II).
Claim Rejections:
Regarding claims 1 and 7, Zemel teaches a method of making a pet food ([0198] – [0200]), comprising:
providing a meal base – corn gluten meal ([0205]);
adding at least one ingredient that forms a total copper concentration for said pet food composition from about 7.3 ppm to about 25.0 ppm – Zemel teaches adding minerals and/or trace elements, including copper, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). As evidenced by AAFCO, a dog food should have a minimum of 7.3 mg/kg (ppm) of copper for adult maintenance and a minimum of 12.4 ppm of copper for growth & reproduction (p. 4, Table). Zemel therefore teaches a pet food comprising a total copper concentration of 7.3 ppm or 12.4 ppm as specific minimum requirements. These amounts lie inside the claimed range of about 7.3 ppm to about 25.0 ppm.
adding an omega-6 fatty acid and an omega-3 fatty acid to form a ratio between the omega-6 fatty acid and the omega-3 fatty acid from about 1:1 to about 10:1 – Zemel teaches that omega-3 and omega-6 fatty acids are essential fatty acids, and critical nutrients for the health of an animal ([0118]). Zemel teaches that the pet food may comprise omega-3 fatty acid in a range of 0.05-3.5% weight of the composition ([0013]) and linoleic acid (i.e., omega-6 fatty acid) in an amount of at least 0.05% ([0103]). These disclosed ranges teach an embodiment where the omega-6 fatty acid is at 0.05% and the omega-3 fatty acid is at 0.05%, i.e., a ratio of 1:1. Therefore, Zemel teaches a ratio between the omega-6 fatty acid and the omega-3 fatty acid from about 1:1 to about 10:1 as claimed.
adding a mineral; and adding a vitamin – Zemel teaches that the foods can be nutritionally complete and may contain minerals and vitamins ([0202]).
Zemel does not teach adding at least one ingredient to provide a copper source that is a non-chelated copper oxide. As stated above, Zemel teaches adding minerals and/or trace elements, including copper, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). Zemel generally does not discuss the source of the copper, and discloses copper sulfate in one example embodiment of a pet food ([0373]).
However, EFSA teaches adding cupric oxide (CuO) as a safe source of copper in feed for all animal species/categories when used up to maximum EU-authorized copper levels in complete feed (p. 22, § 3.1.1, ¶ 1), and that CuO is an efficacious source of copper for animal nutrition (p. 29, ¶ 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the copper sulfate, as taught in Zemel, with CuO, as taught by EFSA, to provide a pet food with a copper source that is non-chelated copper oxide as claimed. One of ordinary skill in the art would have expected that the substitution would yield the predictable result of providing an efficacious source of copper to the pet food as indicated by EFSA (p. 29, ¶ 2). See MPEP § 2143(I)(B).
Therefore, claims 1 and 7 are rendered obvious.
Regarding claim 2, Zemel teaches providing a protein ingredient from beef (cattle), chicken (poultry), goat, and pig ([0203]), lamb, kangaroo ([0263]), and any of a variety of protein sources known by those skilled in the art ([0203]).
Claim 2 is therefore obvious.
Regarding claim 3, Zemel teaches providing a carbohydrate ingredient including wheat, corn, potato, and any of a variety of carbohydrate sources known by those skilled in the art ([0205], [0266]).
Claim 3 is therefore obvious.
Regarding claim 4, Zemel teaches providing a fat ingredient including fish oil, vegetable oils (i.e., and oil), animal fat, beef tallow, chicken tallow, pig tallow, and any of a variety of fat sources know by those skilled in the art ([0204]).
Claim 4 is therefore obvious.
Regarding claim 8, Zemel teaches a method of forming a pet food ([0198] – [0200]), the method comprising:
providing a formula selected from the group consisting of chicken (poultry), fish ([0203], [0204]), corn gluten, barley, rice, corn ([0205]), and pea ([0207]).
adding at least one ingredient that forms a total copper concentration for said pet food composition from about 7.3 ppm to about 25.0 ppm – Zemel teaches adding minerals and/or trace elements, including copper, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). As evidenced by AAFCO, a dog food should have a minimum of 7.3 mg/kg (ppm) of copper for adult maintenance and a minimum of 12.4 ppm of copper for growth & reproduction (p. 4, Table). Zemel therefore teaches a pet food comprising a total copper concentration of 7.3 ppm or 12.4 ppm as specific minimum requirements. These amounts lie inside the claimed range of about 7.3 ppm to about 25.0 ppm.
adding at least one of an omega-6 fatty acid and an omega-3 fatty acid – Zemel teaches that the pet food may comprise omega-3 fatty acid in a range of 0.05-3.5% weight of the composition ([0013]) and linoleic acid (i.e., omega-6 fatty acid) in an amount of at least 0.05% ([0103]).
adding at least one mineral – Zemel teaches that the foods can be nutritionally complete and may contain minerals and vitamins ([0202]).
Zemel does not teach adding at least one ingredient to provide a copper source that is a non-chelated copper oxide. As stated above, Zemel teaches adding minerals and/or trace elements, including copper, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). Zemel generally does not discuss the source of the copper, and discloses copper sulfate in one example embodiment of a pet food ([0373]).
However, EFSA teaches adding cupric oxide (CuO) as a safe source of copper in feed for all animal species/categories when used up to maximum EU-authorized copper levels in complete feed (p. 22, § 3.1.1, ¶ 1), and that CuO is an efficacious source of copper for animal nutrition (p. 29, ¶ 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the copper sulfate, as taught in Zemel, with CuO, as taught by EFSA, to provide a pet food with a copper source that is non-chelated copper oxide as claimed. One of ordinary skill in the art would have expected that the substitution would yield the predictable result of providing an efficacious source of copper to the pet food as indicated by EFSA (p. 29, ¶ 2). See MPEP § 2143(I)(B).
The phrase, “to reduce copper accumulation in a pet” is a statement of intended use. The claimed method is toward making a product. A statement with regard to intended use is not further limiting insofar as the claimed method of making is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II), which states, “where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation” Rowe v. Dror, 112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997). In the present case there is no difference between the pet food suggested in the prior art and the claimed pet food. Therefore, the preamble is not limiting.
Claim 8 is therefore rendered obvious.
Regarding claim 9, Zemel teaches that the step of adding at least one of an omega-6 fatty acid and an omega-3 fatty acid includes:
adding each of the omega-6 fatty acid and the omega-3 fatty acid, wherein a ratio between the omega-6 fatty acid and the omega-3 fatty acid is from about 1:1 to about 10:1 – Zemel teaches that omega-3 and omega-6 fatty acids are essential fatty acids, and critical nutrients for the health of an animal ([0118]). Zemel teaches that the pet food may comprise omega-3 fatty acid in a range of 0.05-3.5% weight of the composition ([0013]) and linoleic acid (i.e., omega-6 fatty acid) in an amount of at least 0.05% ([0103]). These disclosed ranges teach an embodiment where the omega-6 fatty acid is at 0.05% and the omega-3 fatty acid is at 0.05%, i.e., a ratio of 1:1. Therefore, Zemel teaches a ratio between the omega-6 fatty acid and the omega-3 fatty acid from about 1:1 to about 10:1 as claimed.
Claim 9 is therefore obvious.
Regarding claim 10, Zemel teaches that the step of adding at least one mineral includes:
adding zinc oxide to form a zinc oxide concentration from about 150 mg/kg to about 1000 mg/kg – Zemel teaches adding minerals and/or trace elements, including zinc, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). As evidenced by AAFCO, a dog food should have a minimum of 80 mg/kg of zinc for adult maintenance and a minimum of 100 mg/kg of zinc for growth & reproduction (p. 4, Table). The maximum zinc concentration tested for animal tolerance was 1000 mg/kg (p. 12, ¶ 1). Zemel discloses the zinc as zinc oxide ([0373]). Zemel therefore teaches a pet food comprising a zinc oxide concentration in a range from 80 mg/kg to 1000 mg/kg, and specifically the claimed amount of 1000 mg/kg.
Claim 10 is therefore obvious.
Regarding claim 11, Zemel teaches adding a vitamin, wherein the vitamin is vitamin E ([0125]).
and forming a vitamin E concentration from about 300 IU/kg to about 1000 IU/kg – Converting IU/kg of vitamin E to mg/kg (ppm) using the conversion factor of 1 IU = 0.67 mg of natural vitamin E results in a claimed range of about 201 ppm to about 670 ppm. Zemel discloses a vitamin E concentration of at least about or about 200, 300, or 500 ppm ([0125]). These amounts lie inside the claimed range.
Claim 11 is therefore obvious.
Regarding claim 12, Zemel also teaches said method further comprising:
adding a vitamin, wherein the vitamin is vitamin B6 ([0093]);
and forming a vitamin B6 concentration from about 2 mg/kg to about 50 mg/kg – Converting mg/kg of vitamin B6 to percent weight using the conversion factor of 1 mg/kg = 0.0001% results in a claimed range of about 0.0002 wt% to about 0.005 wt% of vitamin B6. Zemel discloses a vitamin B6 concentration of about 0.001 to 0.05 wt% ([0093]).
The claimed range of about 0.0002 wt% to about 0.05 wt% overlaps the disclosed range of at about 0.001 to 0.05 wt%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 12 is therefore rendered obvious.
Regarding claim 13, Zemel teaches adding at least one of tomato pomace ([0124]), flaxseed ([0204]), carrot ([0124], [0266]), field peas ([0266]), potatoes ([0266]), and beets ([0205]).
It is noted that Zemel does not readily recognize that these ingredients have the claimed copper source. However, these ingredients are known to have at least traces of minerals, including copper, as evidenced by the instant specification at paragraph [0032] and p. 20, Table 2. Paragraph [0032] states, “…the copper concentration in the pet food composition is introduced using an ingredient comprising for example, but is not limited to, tomato pumice [sic], flaxseed, linseed, pumpkin, carrot, field peas, chickpeas, potatoes, beets, dry yeast, yeast, or any combinations thereof without using any copper fortification.” Therefore, these ingredients necessarily comprise an amount of copper.
Moreover, regarding the source of copper, it remains that the claims are directed toward the inclusion of copper, and Zemel’s teachings include copper. MPEP § 2112.01(I) states, “Where the claimed and prior art products 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)”. Zemel teaches that these are suitable ingredients for pet food compositions as cited above. Pet foods comprising these ingredients would necessarily have the desired copper source.
Claim 13 is therefore obvious.
Regarding claim 14, Zemel as modified by EFSA teaches the method of claim 8 that the total copper concentration is free of copper sulfate and free of copper proteinate, Zemel does not require the pet food to include copper proteinate. Therefore, Zemel teaches a pet food wherein the copper concentration is free of copper proteinate.
Zemel discloses an embodiment of a pet food comprising copper sulfate ([0373]), and as such does not teach that the total copper concentration is free of copper sulfate.
However, EFSA teaches adding cupric oxide (CuO) as a safe source of copper in feed for all animal species/categories when used up to maximum EU-authorized copper levels in complete feed (p. 22, § 3.1.1 ¶ 1), and that CuO is an efficacious source of copper for animal nutrition (p. 29, ¶ 2).
As applied regarding claim 8, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the copper sulfate, as taught in Zemel, with CuO, as taught by EFSA, to obtain a pet food wherein the total copper concentration is free of copper sulfate as claimed. One of ordinary skill in the art would have expected that the substitution would yield the predictable result of providing an efficacious source of copper to the pet food as indicated by EFSA (p. 29, ¶ 2). See MPEP § 2143(I)(B).
Claim 14 is therefore rendered obvious.
Regarding claim 15, Zemel teaches that the pet food may comprise meat by-products, but does not require that the pet food comprises meat by-products from beef, providing alternative options including sheep and goat by-products ([0203]). Therefore, Zemel teaches a pet food that is free of at least one of a beef by-product and a pork by-product.
Claim 15 is therefore obvious.
Regarding claim 16, Zemel teaches feeding a pet said pet food – “The process of feeding a companion animal the stage I pet food product of the present invention can promote comprehensive weight management in the companion animal…” ([0289]).
Claim 16 is therefore obvious.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Zemel et al. in view of EFSA, as evidenced by AAFCO as applied to claim 1 above, and as further evidenced by NIH (National Institutes of Health Office of Dietary Supplements. (2025). Copper Fact Sheet for Health Professionals. Accessed on 12 May 2025 from https://ods.od.nih.gov/factsheets/Copper-HealthProfessional/#h3).
Regarding claim 5, Zemel and EFSA teach the method of claim 1 as described above.
Zemel also teaches that the pet food may comprise animal by-products including lungs, kidneys, brain, livers, stomachs and intestines ([0203]) and plant ingredient sources including grains such as rice, corn, milo, sorghum, barley, and wheat ([0265]). As evidenced by NIH, organ meats and whole-grain products are among the richest sources of dietary copper (p. 3, ¶ 2; pp. 3-4, Table 2). Zemel teaches a pet food comprising animal protein, plant protein, farinaceous matter, vegetables, fruit, and combinations thereof ([0258]). Therefore, in such embodiments comprising animal by-products as a protein source and grains as at least a source of farinaceous matter ([0258]), Zemel teaches that the total copper concentration in the pet food composition comprises copper contributed from a combination of an animal by-product and a plant as claimed.
Claim 5 is therefore rendered obvious.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Zemel et al. in view of EFSA, as evidenced by AAFCO as applied to claim 1 above, and further in view of Friesen et al. (US 2009/0104315 A1, cited on the IDS filed on 21 February 2023).
Regarding claim 6, Zemel and EFSA teach the method of claim 1, further comprising: adding methionine and adding taurine ([0208]).
Zemel does not specifically teach that the methionine is DL-methionine.
However, Friesen is drawn to enhancing the palatability of compositions for consumption by an animal (Abstract). Friesen teaches using methionine to enhance palatability ([0003]), and that the methionine compounds can be in the D-, L-, or DL-forms ([0017]). Friesen teaches that the compositions are for companion animals such as dogs and cats ([0021]), and discloses an exemplary pet food comprising taurine and methionine ([0092]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use DL-methionine, as taught by Friesen, as the methionine in Zemel to obtain a pet food comprising DL-methionine as claimed. As Zemel does not disclose a specific form of methionine, one of ordinary skill in the art would have been motivated to consult Friesen to determine a suitable form of methionine to use in a pet food. One of ordinary skill in the art would have been met with a reasonable expectation of success for doing so because Friesen teaches that adding DL-methionine the palatability of the pet food ([0003], [0017]).
Claim 6 is therefore rendered obvious.
Claims 17-20 are rejected under 35 U.S.C. 102(a)(1) as being unpatentable over Zemel et al. (US 2016/0073659) as evidenced by AAFCO (AAFCO (2013). AAFCO Methods for Substantiating Nutritional Adequacy of Dog and Cat Foods. https://www.aafco.org/ wpcontent/uploads/2023/01/ Pet_Food_Report_2013_MidyearProposed_Revisions_to_ AAFCO_Nutrient_Profiles.pdf).
Claim Interpretation:
Independent claim 17 recites the limitation, “adding at least one ingredient to provide a copper source that is free of chelated copper oxide, wherein the at least one ingredient forms a total copper concentration within said pet food from about 7.3 ppm to about 25.0 ppm”. As provided by the instant specification at paragraph [0003], “…the pet food industry changed the source of copper in pet food from cupric oxide to chelated copper sources such as copper sulfide”. This statement evidences that cupric oxide (i.e., copper oxide) is not a form of chelated copper. Therefore, any copper oxide is interpreted to be in a non-chelated form (i.e., free of chelated copper oxide). The phrase, “free of chelated copper oxide” is interpreted to also include “free of copper oxide”. The at least one ingredient forming a total copper concentration from about 7.3 ppm to about 25.0 ppm is interpreted broadly such that the total copper concentration of the pet food composition comprises a copper source that is free of chelated copper oxide in addition to other copper sources for the reasons described regarding independent claims 1 and 8 above.
Claim Rejections:
Regarding claim 17, Zemel teaches a method of forming a pet food ([0198] – [0200]), the method comprising:
providing a formula having at least one formula ingredient, the at least one formula ingredient selected from fish ([0203], [0204]), corn gluten, barley, rice, corn ([0205]), peas, and potato ([0266]).
adding zinc oxide to form a zinc oxide concentration from about 150 mg/kg to about 1000 mg/kg – Zemel teaches adding minerals and/or trace elements, including zinc, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). As evidenced by AAFCO, a dog food should have a minimum of 80 mg/kg of zinc for adult maintenance and a minimum of 100 mg/kg of zinc for growth & reproduction (p. 4, Table). The maximum zinc concentration tested for animal tolerance was 1000 mg/kg (p. 12, ¶ 1). Zemel discloses the zinc as zinc oxide ([0373]). Zemel therefore teaches a pet food comprising a zinc oxide concentration in a range from 80 mg/kg to 1000 mg/kg, and specifically the claimed amount of 1000 mg/kg;
adding vitamin E to form a vitamin E concentration from about 300 IU/kg to about 1000 IU/kg – Converting IU/kg of vitamin E to mg/kg (ppm) using the conversion factor of 1 IU = 0.67 mg of natural vitamin E results in a claimed range of about 201 ppm to about 670 ppm. Zemel discloses a vitamin E concentration of at least about or about 200, 300, or 500 ppm ([0125]). These amounts lie inside the claimed range;
adding vitamin B6 to form a vitamin B6 concentration from about 2 mg/kg to about 50 mg/kg – Converting mg/kg of vitamin B6 to percent weight using the conversion factor of 1 mg/kg = 0.0001% results in a claimed range of about 0.0002 wt% to about 0.005 wt% of vitamin B6. Zemel discloses a vitamin B6 concentration of about 0.001 to 0.05 wt% ([0093]).
The claimed range of about 0.0002 wt% to about 0.05 wt% overlaps the disclosed range of at about 0.001 to 0.05 wt%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I);
adding at least one ingredient to provide a copper source that is free of chelated copper oxide, wherein the at least one ingredient forms a total copper concentration for said pet food from about 7.3 ppm to about 25.0 ppm – Zemel teaches adding minerals and/or trace elements, including copper, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]). Zemel does not teach adding any form of copper oxide. That is, the pet food of Zemel is free of chelated copper oxide. As evidenced by AAFCO, a dog food should have a minimum of 7.3 mg/kg (ppm) of copper for adult maintenance and a minimum of 12.4 ppm of copper for growth & reproduction (p. 4, Table). Zemel therefore teaches a pet food comprising a total copper concentration of 7.3 ppm or 12.4 ppm as specific minimum requirements. These amounts lie inside the claimed range of about 7.3 ppm to about 25.0 ppm.
The phrase, “to help prevent copper storage disease in a pet” is a statement of intended use. The claimed method is toward making a product. A statement with regard to intended use is not further limiting insofar as the claimed method of making is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II), which states, “where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation” Rowe v. Dror, 112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997). In the present case there is no difference between the pet food suggested in the prior art and the claimed pet food. Therefore, the preamble is not limiting.
Claim 17 is therefore rendered obvious.
Regarding claim 18, Zemel also teaches adding at least one of tomato pomace ([0124]), flaxseed ([0204]), carrot ([0124], [0266]), field peas ([0266]), potatoes ([0266]), and beets ([0205]).
It is noted that Zemel does not readily recognize that these ingredients have the claimed copper source. However, these ingredients are known to have at least traces of minerals, including copper, as evidenced by the instant specification at paragraph [0032] and p. 20, Table 2. Paragraph [0032] states, “…the copper concentration in the pet food composition is introduced using an ingredient comprising for example, but is not limited to, tomato pumice [sic], flaxseed, linseed, pumpkin, carrot, field peas, chickpeas, potatoes, beets, dry yeast, yeast, or any combinations thereof without using any copper fortification.” Therefore, these ingredients necessarily comprise an amount of copper.
Moreover, regarding the source of copper, it remains that the claims are directed toward the inclusion of copper, and Zemel’s teachings include copper. MPEP § 2112.01(I) states, “Where the claimed and prior art products 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)”. Zemel teaches that these are suitable ingredients for pet food compositions as cited above. Pet foods comprising these ingredients would necessarily have the desired copper source.
Claim 18 is therefore rendered obvious.
Regarding claim 19, Zemel also teaches the method further comprising:
adding an omega-6 fatty acid and an omega-3 fatty acid, wherein a ratio of the omega-6 fatty acid to the omega-3 fatty acid is from about 5:1 to about 10:1 – Zemel teaches that omega-3 and omega-6 fatty acids are essential fatty acids, and critical nutrients for the health of an animal ([0118]). Zemel teaches that the pet food may comprise omega-3 fatty acid in a range of 0.05-3.5% weight of the composition ([0013]) and linoleic acid (i.e., omega-6 fatty acid) in an amount of at least 0.5% ([0103]). These disclosed ranges teach an embodiment where the omega-6 fatty acid is at 0.5% and the omega-3 fatty acid is at 0.05%, i.e., a ratio of 10:1. Therefore, Zemel teaches a ratio between the omega-6 fatty acid and the omega-3 fatty acid from about 1:5 to about 10:1 as claimed.
The phrase, “to reduce adverse gastrointestinal food reactions” is a statement of intended use. The claimed method is toward making a product. A statement with regard to intended use is not further limiting insofar as the claimed method of making is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II). In the present case there is no difference between the pet food suggested in the prior art and the claimed pet food.
Claim 19 is therefore obvious.
Regarding claim 20, Zemel does not require that the pet food comprises beef, dairy, or wheat ingredients. Therefore, Zemel teaches a pet food that is free of each of beef, dairy, and wheat ingredients.
The phrase, “to reduce food allergies” is a statement of intended use. The claimed method is toward making a product. A statement with regard to intended use is not further limiting insofar as the structure of the product is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II). In the present case there is no difference between the pet food suggested in the prior art and the claimed pet food.
Claim 20 is therefore obvious.
Response to Arguments
Summary of the Interview:
The interview held between Applicant’s representatives and the Office on August 5, 2025 to clarify the claim language is acknowledged. However, upon further consideration, it is determined that the more traditional language, “comprises”, “consists of”, and/or “is”, instead of the suggested “constitutes” would render the claim language more clear. This is in part due to the fact that the use of “constitutes” also requires that the order of elements within a claim limitation are rearranged such that the claim makes sense grammatically. Objections to the affected claims are presented hereinabove with suggested claim language. In determining whether open or closed language is more appropriate, the Examiner has considered the claims in light of the instant specification as required by MPEP § 2111, and also other limitations within each claim, such that the combination of limitations within a claim are physically possible. The Examiner apologizes for inadvertently suggesting claim language that, in the end, did not fully remedy the issues at hand.
Claim Objections:
Applicant’s amendment to claim 19 was insufficient to overcome all issues raised. The objection is maintained.
Claim Rejections – 35 U.S.C. § 112:
Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 5 and 7 based on amendment to the claims. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. § 102: Applicant’s amendments to the claims filed on 19 August 2025 are sufficient to overcome the rejections under 35 U.S.C. § 102. Accordingly, the 35 U.S.C. § 102 rejections have been withdrawn. While Applicant’s amendments to independent claims 1, 8, and 17 narrows the scope of the copper source, upon consideration of the amendments, the new grounds of rejection under 35 U.S.C. § 103 presented in this Office action are made. Applicant’s arguments regarding rejection under 35 U.S.C. § 102 are therefore moot.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 19 August 2025 have been fully considered, but they are not persuasive.
Regarding claims 6, 12, and 14 rejected under 35 U.S.C. § 103, Applicant argued that the prior art cited to reject these claims (Friesen and EFSA in addition to further teachings from Zemel) does not remedy the deficiencies of Zemel in teaching the limitations of the independent claims from which these claims depend (p. 6, ¶ 2 – p. 7). The cited art was not applied to remedy the deficiencies of the independent claims, but to demonstrate that the limitations of the respective dependent claims are obvious. Therefore, no substantive arguments were made with regard to the propriety of the application of the cited art to the teachings of Zemel with regard to claims 6, 12, and 14. Accordingly, these claims remain rejected under 35 U.S.C. § 103.
It is noted that Applicant argued that AAFCO teaches away from using copper oxide sources in forming the copper amount on the dry matter basis, which is the opposite of the teachings of claim 1 (p. 3, ¶ 2).
Applicant’s argument has been considered, but it is not persuasive. AAFCO discloses copper in a range from an adult maintenance minimum of 7.3 mg/kg (ppm) and a growth and reproduction minimum of 12.4 mg/kg based on dry matter (pp. 3-4). Therefore, AAFCO tells one of ordinary skill in the art that a food should have a minimum of 7.3 ppm of copper, which is the lower end of the claimed range. While AAFCO also states that copper from oxide sources should not be included as contributors to this range of copper, it is well known that copper is present in at least some amount in plant and animal products. This is demonstrated by the evidentiary NIH document, “Copper Fact Sheet for Health Professionals”, and as evidenced by the instant specification at paragraph [0032], which states, “the copper concentration in the pet food composition is introduced using an ingredient comprising for example, but is not limited to, tomato pumice [sic], flaxseed, linseed, pumpkin, carrot, field peas, chickpeas, potatoes, beets, dry yeast, yeast, or any combinations thereof without using any copper fortification” and on p. 20, Table 2, which shows that among other ingredients, corn gluten meal and chicken meal comprise a substantial amount of copper. Many of these ingredients are taught for use in preparing the pet food of Zemel. Therefore, given the AAFCO guidelines and that Zemel teaches adding minerals and/or trace elements, including copper, in amounts known by those of skill in the art, for example as provided by AAFCO ([0209]), one of ordinary skill in the art would have ensured that the minimum required amount of copper was present in the pet food and would have recognized that proportions of animal and plant ingredients could be selected and combined to meet the minimum copper requirement of 7.3 ppm.
Regarding the inclusion of copper oxide, EFSA teaches that copper oxide is a safe source of copper in feed for all animal species/categories when used up to maximum EU-authorized copper levels in complete feed (p. 22, § 3.1.1, ¶ 1), and that CuO is an efficacious source of copper for animal nutrition (p. 29, ¶ 2). Although AAFCO states that copper from oxide sources should not considered in determining the minimum nutrient concentration of copper (p. 5), EFSA states that copper oxide is safe and efficacious as a source of copper for animal nutrition, and as stated above, one of ordinary skill in the art would have been able to formulate a food from animal and plant ingredients to reach the minimum 7.3 ppm of copper without relying on copper oxide, and would have found copper oxide as an obvious choice for further increasing the copper concentration of the food. Therefore, given the information known at the time, the claimed invention would have been obvious to one of ordinary skill in the art.
be included as contributors to this range of copper, AAFCO therefore suggests that any amount of copper oxide is acceptable in the food, including the claimed amount. Absent any evidence of criticality of the claimed amount, one of ordinary skill in the art would have found it obvious to include such an amount due to overlapping ranges being prima facie obvious.
Claims 1-20 are rejected under 35 U.S.C. § 103 as presented hereinabove.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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