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 Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 12 February 2026 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and the claims: (1) the objections to the specification and the claims have been withdrawn; (2) the 112(d) rejection of claim 7 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-6 and 8-20
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 7
Amended claims: 1, 5, 8-9, 17, and 19
New claims: None
Claims currently under consideration: 1-6 and 8-20
Currently rejected claims: 1-6 and 8-20
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12 February 2026 has been entered.
Claim Objections
Claims 1 and 8 are objected to because of the following informalities:
In claim 1, lines 4-5, “the total copper concentration is the non-chelated copper and from about 7.3 ppm to about 25.0 ppm” should read, “wherein the total copper concentration is the non-chelated copper and is in an amount of from about 7.3 ppm to about 25.0 ppm”.
In claim 8, lines 6-8, “and wherein a total copper concentration in said pet food is the non-chelated copper and from about 7.3 ppm to about 25.0 ppm” should read, “and wherein a total copper concentration in said pet food is the non-chelated copper and is in an amount of from about 7.3 ppm to about 25.0 ppm”.
Appropriate correction is required.
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.
Claims 1-5 and 8-20 are rejected under 35 U.S.C. 103 as being unpatentable over Zemel et al. (US 2016/0073659) in view of Thixton (Thixton, S. (2015, January 17). A Veterinarian Takes A Stand Against A Common Pet Food Supplement. Truth about Pet Food. Retrieved on July 28, 2026 from https://truthaboutpetfood.com/a-veterinarian-takes-a-stand-against-a-common-pet-food-supplement/), 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) and 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 1, 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 to provide a copper source that forms a total copper concentration for said pet food composition, wherein the total copper concentration is in an amount of 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 expressly discuss that the copper source is a non-chelated copper that forms a total copper concentration for said pet food composition, wherein the total copper concentration is the non-chelated copper. 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 specifically discuss the source of the copper, and discloses copper sulfate in one example embodiment of a pet food ([0373]).
However, Thixton teaches that copper sulfate has been connected to fatalities in dogs (p. 2, ¶ 1), that copper sulfate is a modern, more biologically available replacement for copper oxide that was based on a study in pigs (pp. 2-3, bridging ¶), that excessive copper storage in the liver of dogs is likely due to copper sulfate in the diet (p. 3, ¶ 2), and that copper occurs naturally in most grains and organ meats (p. 3, ¶ 3). Indeed, 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).
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 grains and organ meats, as taught in Thixton. One of ordinary skill in the art would have been motivated to do so in order to remove the undesirable copper sulfate from the pet food, while still meeting AAFCO minimum copper requirements. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because Zemel teaches a base food composition, which may comprise grains ([0205]) and organ meats ([0203]) and comprising copper in amounts as indicated by AAFCO, AAFCO teaches that the minimum copper requirements are within the claimed total copper concentration range, and Thixton teaches that copper occurs naturally in grains and organ meats, as further evidenced by NIH. Thus, it is expected that one of ordinary skill in the art would have been able to achieve at least the AAFCO minimum amounts of copper by routine experimentation with various amounts of the natural copper sources disclosed by Zemel (e.g., organ meats and grains).
It is noted that the instant specification at paragraph [0017] provides the following on chelated copper:
As used herein, the term, "chelated copper" is defined to include supplemental, man- made, and/or synthetically produced copper in the +1 and/or +2 oxidation state where the charged copper includes the formation of at least one coordinate bond between the charged copper and a ligand, chelant, chelator, chelating agent, and/or sequestering agent. In some aspects, the chelated copper may include, for example, copper sulfate, copper acetate, copper carbonate, copper complexed with amino acids (e.g., copper glycinate), copper complexed with polysaccharides, and/or copper proteinate.
Copper sources not so categorized as “chelated copper” are construed as non-chelated copper. Grains and organ meats are thus sources of non-chelated copper.
Therefore, claim 1 is 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., an 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 5, Zemel 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 the non-chelated copper contributed from a combination of an animal by-product and a plant as claimed.
Claim 5 is therefore rendered 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 to provide a copper source, and wherein a total copper concentration in said pet food composition is in an amount of 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 expressly discuss that the copper source is a non-chelated copper, wherein the total copper concentration is the non-chelated copper. 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 specifically discuss the source of the copper, and discloses copper sulfate in one example embodiment of a pet food ([0373]).
However, Thixton teaches that copper sulfate has been connected to fatalities in dogs (p. 2, ¶ 1), that copper sulfate is a modern, more biologically available replacement for copper oxide that was based on a study in pigs (pp. 2-3, bridging ¶), that excessive copper storage in the liver of dogs is likely due to copper sulfate in the diet (p. 3, ¶ 2), and that copper occurs naturally in most grains and organ meats (p. 3, ¶ 3). Indeed, 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).
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 grains and organ meats, as taught in Thixton. One of ordinary skill in the art would have been motivated to do so in order to remove the undesirable copper sulfate from the pet food, while still meeting AAFCO minimum copper requirements. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because Zemel teaches a base food composition, which may comprise grains ([0205]) and organ meats ([0203]) and comprising copper in amounts as indicated by AAFCO, AAFCO teaches that the minimum copper requirements are within the claimed total copper concentration range, and Thixton teaches that copper occurs naturally in grains and organ meats, as further evidenced by NIH. Thus, it is expected that one of ordinary skill in the art would have been able to achieve at least the AAFCO minimum amounts of copper by routine experimentation with various amounts of the natural copper sources disclosed by Zemel (e.g., organ meats and grains).
It is noted that the instant specification at paragraph [0017] provides the following on chelated copper:
As used herein, the term, "chelated copper" is defined to include supplemental, man- made, and/or synthetically produced copper in the +1 and/or +2 oxidation state where the charged copper includes the formation of at least one coordinate bond between the charged copper and a ligand, chelant, chelator, chelating agent, and/or sequestering agent. In some aspects, the chelated copper may include, for example, copper sulfate, copper acetate, copper carbonate, copper complexed with amino acids (e.g., copper glycinate), copper complexed with polysaccharides, and/or copper proteinate.
Copper sources not so categorized as “chelated copper” are construed as non-chelated copper. Grains and organ meats are thus sources of non-chelated copper.
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 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 inherently 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 pomace, 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 Thixton teaches the method of claim 8, wherein the total copper concentration is free of copper sulfate (see supra). Zemel does not require the pet food to include copper proteinate. Therefore, Zemel also teaches a pet food wherein the copper concentration is free of copper proteinate.
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 obvious 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.
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 forms a total copper concentration for said pet food composition, wherein the total copper concentration is in an amount of 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 ingredient to provide a copper source that is free of chelated copper, 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, and wherein the total copper concentration is non-chelated copper –
Zemel does not expressly discuss that the copper source is free of chelated copper, wherein the total copper concentration is the non-chelated copper. 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 specifically discuss the source of the copper, and discloses copper sulfate in one example embodiment of a pet food ([0373]).
However, Thixton teaches that copper sulfate has been connected to fatalities in dogs (p. 2, ¶ 1), that copper sulfate is a modern, more biologically available replacement for copper oxide that was based on a study in pigs (pp. 2-3, bridging ¶), that excessive copper storage in the liver of dogs is likely due to copper sulfate in the diet (p. 3, ¶ 2), and that copper occurs naturally in most grains and organ meats (p. 3, ¶ 3). Indeed, 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).
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 grains and organ meats, as taught in Thixton. One of ordinary skill in the art would have been motivated to do so in order to remove the undesirable copper sulfate from the pet food, while still meeting AAFCO minimum copper requirements. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because Zemel teaches a base food composition, which may comprise grains ([0205]) and organ meats ([0203]) and comprising copper in amounts as indicated by AAFCO, AAFCO teaches that the minimum copper requirements are within the claimed total copper concentration range, and Thixton teaches that copper occurs naturally in grains and organ meats, as further evidenced by NIH. Thus, it is expected that one of ordinary skill in the art would have been able to achieve at least the AAFCO minimum amounts of copper by routine experimentation with various amounts of the natural copper sources disclosed by Zemel (e.g., organ meats and grains).
It is noted that the instant specification at paragraph [0017] provides the following on chelated copper:
As used herein, the term, "chelated copper" is defined to include supplemental, man- made, and/or synthetically produced copper in the +1 and/or +2 oxidation state where the charged copper includes the formation of at least one coordinate bond between the charged copper and a ligand, chelant, chelator, chelating agent, and/or sequestering agent. In some aspects, the chelated copper may include, for example, copper sulfate, copper acetate, copper carbonate, copper complexed with amino acids (e.g., copper glycinate), copper complexed with polysaccharides, and/or copper proteinate.
Copper sources not so categorized as “chelated copper” are construed as non-chelated copper. Grains and organ meats are thus sources of non-chelated copper.
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 inherently 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 pomace, 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.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Zemel et al. in view of Thixton, as evidenced by AAFCO and NIH 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 Thixton 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.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103:
Applicant’s arguments filed on 12 February 2026 with respect to claims 1-4 and 7-16 (p. 9 ¶ 4 – p. 12), claim 5, (p. 13, ¶ 1), and claim 6 (pp. 13-14, bridging ¶) have been considered but are moot because the new ground of rejection does not rely on EFSA as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argued that EFSA and, regarding claim 6, Friesen, do not disclose adding at least one ingredient to provide a copper source that is non-chelated copper, and where a total copper concentration in said pet food is the non-chelated copper (i.e., the features set forth in amended claim 1) to remedy the deficiency of Zemel. In view of the present amendments, a new ground of rejection under 35 U.S.C. § 103 has been made as presented hereinabove.
Applicant’s arguments, see p. 14, ¶ 2 – p. 15, ¶ 2, filed 12 February 2026, with respect to the rejection of claims 17-20 under 35 U.S.C. § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground of rejection is made in view of Zemel and Thixton as evidenced by AAFCO and NIH as presented hereinabove.
It is noted that Applicant submits that the features of the independent claims have been searched by the Examiner and, therefore, should not require any further search and consideration, resulting in the independent claims being allowed (p. 12, last ¶; p. 15, ¶ 2).
In response, the scope of the claims has been changed by the amendments. A change in scope requires further search and consideration because a prior art search is conducted in view of the scope of the instant claims.
Claims 1-6 and 8-20 are rejected under 35 U.S.C. § 103 as presented hereinabove.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Williams (US 3,284,211 A) teaches a method of preparation of a pet food (col. 1, lines 10-12) comprising combining meat meal, cornmeal, wheat red dog, fish meal, ground wheat, de-hulled soybean meal, feeding oatmeal, dry tomato pomace, dried whole whey, animal fat preserved with DHA 2%, flaked soybean hulls, brewer's dried yeast, vitamin A palmitate, vitamin E supplement, vitamin D2 supplement, calcium pantothen- ate, niacin, riboflavin supplement, 0.5% salt, traces of manganese oxide, potassium iodide, ferrous carbonate, cobalt carbonate, copper oxide and zinc oxide, and a U.S. certified color (col. 2, lines 28-42). The pet food does not comprise non-chelated copper.
Alinovi (Alinovi, C. (2016, May 31). The Origin Of Current Omega Fatty Acid Standards In Pet Food. Truth about Pet Food. Retrieved on July 28, 2026 from https://truthaboutpetfood.com/the-origin-of-current-omega-fatty-acid-standards-in-pet-food/) teaches an omega-6 fatty acid to omega-3 fatty acid ratio of 10:1 or less (pp. 3-4, bridging ¶) and benefits of keeping the ratio lower than the AAFCO 30:1 maximum (pp. 2-3).
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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