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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 July 10, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-28, 34-38
Withdrawn claims:
24-28
Previously canceled claims:
30, 33
Newly canceled claims:
29, 31-32
Amended claims:
1, 3-10, 17, 22-23
New claims:
36-38
Claims currently under consideration:
1-23, 34-38
Currently rejected claims:
1-23, 34-38
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 1-23, 34-38 are rejected under 35 U.S.C. 103 as being unpatentable over Repholz (US 4,954,061 A)(IDS Reference filed 4/12/2023) in view of Chandler (US 4,777,058 A) (IDS Reference filed 4/12/2023), Kuerzinger (US 2020/0337335 A1) (IDS Reference filed 4/12/2023), Ichihashi (US 2016/0219905 A1) (IDS Reference filed 4/12/2023), and She (US 2010/0310750 A1) (IDS Reference filed 4/12/2023).
Regarding claim 1, Repholz teaches a dual-textured animal food product (col. 6, lines 12-13) comprising an outer component (col. 6, line 56; Fig. 12, #110) and an inner component (col. 6, line 41; Fig. 12, #100). Fig. 12 shows a food product where the inner component (#100) is partially surrounded by the outer component (#110).
Regarding the composition of the outer component, Repholz teaches that the outer portion comprises a combination of any of a vegetable protein source, amylaceous ingredients, cereal grains or starch, fats, water and an animal protein source (col. 8, lines 44-49). Repholz discloses that the vegetable protein source may be soybean flour (i.e., a legume; col. 8, line 32). Repholz also teaches that the outer component comprises about 10% by weight to about 30% by weight of vegetable protein source and about 20% by weight to about 60% by weight amylaceous ingredient (col. 8, lines 62-65). This corresponds to a total of about 30% to about 90% by weight of a cereal grain and legume, which encompasses the claimed range of “75-85% by weight”. Although Repholz does not teach the ground wheat comprises starch having amylose at 20-30% by weight of the starch, wheat inherently comprises about 25% by weight amylose. Evidence to support this is provided by the instant specification ([0033], wheat starch consists of lower amounts of amylose, average about 25% by weight). Repholz also teaches that the outer component comprises up to about 25% by weight of an animal protein source (col. 8, lines 66-67), which encompasses the claimed range of “5-10% by weight”.
Regarding the composition of the inner component, Repholz teaches that the inner component comprises up to about 15% by weight of fat (col. 8, line 10), and that the fat is animal fat (i.e., animal-derived grease; col. 17, lines 32-54). Repholz further teaches that the inner component comprises up to 25% animal protein (col. 8, line 8), which overlaps with the claimed range of “3% or more by weight”. Repholz also teaches that the inner component may include preservatives (col. 8, lines 1-2).
Regarding the moisture content of the outer and inner components, Repholz teaches that the overall moisture content of the food is about 10% to about 35% (col. 16, lines 54-55).
Regarding the hardness of the outer and inner components, Repholz teaches that the outer portion is harder than the inner portion (col. 6, lines 50-57).
Repholz does not teach the hardness or moisture content of the outer portion, the hardness or moisture content of the inner portion or the inner portion comprising lactic acid and where the animal protein is animal meat.
Regarding the moisture content of the outer and inner portions, Chandler teaches of an animal food product with a crunchy shell at least partially surrounding a deformable core (i.e., a dual-textured food; col. 2, lines 3-4). Chandler further teaches that the shell (i.e., outer portion) has a moisture content of about 12% (which falls in the claimed range of “8-12% by weight”; col. 2, lines 11-12) and the core (i.e., inner portion) has a moisture content ranging from about 5% to about 20% (which encompasses the claimed range of “11-18% by weight”; col. 2, lines 14-16).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz to have the moisture contents of each portion as taught by Chandler. One of ordinary skill would have been motivated to make this modification because Chandler teaches the moisture content of the outer shell being about 12% of less renders the shell biologically stable against spoilage (col. 5, lines 50-52) and the moisture content of the inner portion is high enough to be injected into the outer portion but low enough that the core retains its shape once injected (col. 3, lines 37-41).
Regarding the inner portion comprising lactic acid, Kuerzinger teaches of a pet food composition (Title) comprising 0.001% to 10% by weight of a preservative ([0051]) that can include lactic acid ([0049], [0051]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to use lactic acid as taught by Kuerzinger as a preservative in the composition of Repholz. One of ordinary skill would have been motivated to make this modification because Kuerzinger teaches that lactic acid is used to preserve the food and increase the acceptance of the food by animals ([0048], [0051]). One of ordinary skill would have recognized that combining the animal grease of Repholz and lactic acid of Kuerzinger would result in an amount of the combination of greater than 0.001% to less than about 25% (0.001%-10% lactic acid plus up to about 15% by weight of fat), which encompasses the claimed range of “2.5-3.5% by weight”.
Regarding the inner portion comprising animal meat, Ichihashi teaches of a pet food (Abstract) comprising animal-derived protein from the muscle of beef, pork, chicken, and fish (i.e., animal meat; [0025]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the unspecified meat protein of Repholz with an animal protein that is a meat as taught by Ichihashi. One of ordinary skill would expect this substitution to yield the predictable result of providing an animal protein source in the food that is from meat. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another art equivalent yields predictable results to one of ordinary skill in the art, see MPEP § 2143(B).
Regarding the hardness of the outer and inner components, She teaches of a cat food (i.e., pet food, Abstract) with a texture having a maximum compressive force of less than 2 lb-f (equivalent to 8.89 Newtons; [0068]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz with the hardness as taught by She. One of ordinary skill in the art would have been motivated to make this modification because She teaches that that a hardness of 8.89 Newtons is palatable to many animals ([0005]).
Although the cited prior art does not explicitly disclose the hardness factor of the inner and outer components, one of ordinary skill would have applied the upper limit of 8.89 Newtons from She to the outer portion (which overlaps with the claimed range of 3-10 Newtons). One of ordinary skill would have arrived at the claimed hardness for the inner portion during routine optimization because Repholz teaches that the inner portion is less hard than the outer portion. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed hardness would thus be obvious.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 2, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz teaches that the product is coated with animal grease and flavoring (col. 16, line 59).
Repholz does not teach the coating comprising lactic acid.
However, in the same field of endeavor, Kuerzinger teaches the composition includes from 0.001% to 10% by weight of a preservative ([0051]) that may be lactic acid ([0049], [0051]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add lactic acid as taught by Kuerzinger to the pet food with animal grease coasting as taught by Repholz. One of ordinary skill would have been motivated to make this modification because Kuerzinger teaches that lactic acid preserves the food and increases the acceptance of food ([0048], [0051]).
Regarding claims 3-6, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above.
Repholz does not teach wherein the outer portion has a hardness factor of 3.5-7 Newtons (claim 3); outer portion has a hardness factor of 5.5 Newtons (claim 4); inner portion has a hardness factor of 1.5-7 Newtons (claim 5); or the inner portion has a hardness factor of 4.5 Newtons (claim 6).
Regarding the hardness of the outer and inner components, She teaches of a cat food (i.e., pet food, Abstract) with a texture having a maximum compressive force of less than 2 lb-f (equivalent to 8.89 Newtons; [0068]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz with the hardness as taught by She. One of ordinary skill in the art would have been motivated to make this modification because She teaches that that a hardness of 8.89 Newtons is palatable to many animals ([0005]).
Although the cited prior art does not explicitly disclose the hardness factor of the inner and outer components, one of ordinary skill would have applied the upper limit of 8.89 Newtons from She to the outer portion (which overlaps with the claimed range of 3-10 Newtons). One of ordinary skill would have arrived at the claimed hardness for the inner portion during routine optimization because Repholz teaches that the inner portion is less hard than the outer portion. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed hardness would thus be obvious.
Regarding claims 7 and 8, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above.
Repholz does not teach wherein the outer portion comprises a moisture content of 10-12% by weight of the outer portion (claim 7) or at 12% by weight (claim 8).
Chandler teaches of an animal food product with a crunchy shell at least partially surrounding a deformable core (i.e., a dual-textured food; col. 2, lines 3-4). Chandler further teaches that the shell (i.e., outer portion) has a moisture content of about 12% (which falls in the claimed range of “10-12% by weight” (claim 7) and “12% by weight” (claim 8); col. 2, lines 11-12).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz to have the moisture contents of each portion as taught by Chandler. One of ordinary skill would have been motivated to make this modification because Chandler teaches the moisture content of the outer shell being about 12% of less renders the shell biologically stable against spoilage (col. 5, lines 50-52) and the moisture content of the inner portion is high enough to be injected into the outer portion but low enough that the core retains its shape once injected (col. 3, lines 37-41).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 9 and 10, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above.
Repholz does not teach wherein the inner portion comprises a moisture content of 15-17% by weight of the inner portion (claim 9) or 16% by weight (claim 10).
Chandler teaches of an animal food product with a crunchy shell at least partially surrounding a deformable core (i.e., a dual-textured food; col. 2, lines 3-4). Chandler further teaches that the core (i.e., inner portion) has a moisture content ranging from about 5% to about 20% (which encompasses the claimed range of “15-17% by weight” (claim 9) and “16% by weight” (claim 10); col. 2, lines 14-16).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz to have the moisture contents of each portion as taught by Chandler. One of ordinary skill would have been motivated to make this modification because Chandler teaches the moisture content of the outer shell being about 12% of less renders the shell biologically stable against spoilage (col. 5, lines 50-52) and the moisture content of the inner portion is high enough to be injected into the outer portion but low enough that the core retains its shape once injected (col. 3, lines 37-41).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 11, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz also teaches the outer component comprising cereal grains (col. 8, lines 44-49) that may be corn (col. 9, line 6).
Regarding claim 12, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz also teaches that the vegetable protein may be soybean and soybean meal (col. 8, line 32).
Regarding claim 13, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above.
Repholz does not teach wherein the animal-derived protein may be beef.
However, in the same field of endeavor, Ichihashi teaches that the animal-derived protein maybe be muscle of beef ([0025]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the unspecified meat protein of Repholz with an animal protein that is a meat as taught by Ichihashi. One of ordinary skill would expect this substitution to yield the predictable result of providing an animal protein source in the food that is from meat. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another art equivalent yields predictable results to one of ordinary skill in the art, see MPEP § 2143(B).
Regarding claim 14, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz also teaches that the outer portion may include vitamins (col. 8, lines 55-56).
Regarding claim 15, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz also teaches that the inner portion may include vitamins (col. 7, line 68).
Regarding claim 16, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz teaches that the product has the storage of characteristics of dry food (col. 1, lines 55-57), which is known in the art to be a shelf-stable product.
Claim 17 is a product-by-process claim. MPEP §2113 states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
The structure imparted by the process of claim 17 is a food product having an outer portion partially surrounding and in contact with an inner portion.
Regarding claim 17, Repholz teaches a dual-texture animal food product (col. 6, lines 12-13) comprising an outer component (col. 6, line 56; Fig. 12, #110) and an inner component (col. 6, line 41; Fig. 12 #100) wherein the inner portion is in contact with and partially surrounded by the outer portion (Fig. 12). Repholz also teaches that the inner portion comprises starchy material (i.e., starch; col. 7, line 58) and a vegetable protein source (i.e., plant protein; col. 8, line 63). Repholz teaches that the product has the storage of characteristics of dry food (col. 1, lines 55-57), which is known in the art to be a shelf-stable product.
The remainder of the limitations of claim 17 are relied on as discussed above in the rejection of claim 1.
Regarding claim 18, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 17 as described above. Repholz also teaches the outer component comprising cereal grains (col. 8, lines 44-49) that may be corn (col. 9, line 6).
Regarding claim 19, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 17 as described above. Repholz also teaches that the vegetable protein may be soybean and soybean meal (col. 8, line 32).
Regarding claim 20, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 17 as described above. Repholz also teaches that the inner portion may include vitamins (col. 7, line 68).
Regarding claim 21, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 17 as described above.
Although the cited prior art does not explicitly teach the ratio of the hardness factor of the inner portion and the hardness factor of the outer portion, Repholz teaches that the outer portion is harder than the inner portion (col. 6, lines 50-57). One of ordinary skill would have arrived at the claimed proportion of hardness during routine optimization. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed hardness ratio would thus be obvious.
Regarding claim 22, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 17 as described above.
Repholz does not teach wherein the outer portion comprises a moisture content of 8-12% by weight of the outer portion.
Chandler teaches of an animal food product with a crunchy shell at least partially surrounding a deformable core (i.e., a dual-textured food; col. 2, lines 3-4). Chandler further teaches that the shell (i.e., outer portion) has a moisture content of about 12% (which falls in the claimed range of “8-12% by weight”; col. 2, lines 11-12).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz to have the moisture contents of each portion as taught by Chandler. One of ordinary skill would have been motivated to make this modification because Chandler teaches the moisture content of the outer shell being about 12% of less renders the shell biologically stable against spoilage (col. 5, lines 50-52) and the moisture content of the inner portion is high enough to be injected into the outer portion but low enough that the core retains its shape once injected (col. 3, lines 37-41).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 23, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 17 as described above.
Repholz does not teach wherein the inner portion comprises a moisture content of 15-17% by weight of the inner portion.
Chandler teaches of an animal food product with a crunchy shell at least partially surrounding a deformable core (i.e., a dual-textured food; col. 2, lines 3-4). Chandler further teaches that the core (i.e., inner portion) has a moisture content ranging from about 5% to about 20% (which encompasses the claimed range of “15-17% by weight”; col. 2, lines 14-16).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Repholz to have the moisture contents of each portion as taught by Chandler. One of ordinary skill would have been motivated to make this modification because Chandler teaches the moisture content of the outer shell being about 12% of less renders the shell biologically stable against spoilage (col. 5, lines 50-52) and the moisture content of the inner portion is high enough to be injected into the outer portion but low enough that the core retains its shape once injected (col. 3, lines 37-41).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 34, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 1 as described above. Repholz also teaches in Example I a first extruded material that is the outer portion comprising 16 wt% ground whole wheat (i.e., a cereal grain; col. 17, Table line 25). Although Repholz does not teach the ground wheat comprises starch having amylose at about 20-30% by weight of the starch, wheat inherently comprises about 25% by weight amylose. Evidence to support this is provided by the instant specification ([0033], wheat starch consists of lower amounts of amylose, average about 25% by weight).
Regarding claim 35, Repholz in view of Chandler, Kuerzinger, Ichihashi, and She teach all elements of claim 11 as described above. Repholz also teaches in Example I a first extruded material that is the outer portion comprising 16 wt% ground whole wheat (i.e., a cereal grain; col. 17, Table line 25).
Regarding claim 36, Repholz teaches that the outer portion comprises amylaceous ingredients in an amount of 20 to 60% by weight (col. 8, lines 61-65) and that the amylaceous ingredient can include cereal grains such as corn (col. 9, l. 1-6). Although Repholz does not teach whether the corn is whole corn, one of ordinary skill would recognize Repholz’s broad disclosure of ground corn to encompass whole corn. Thus, Repholz teaches the outer portion comprising 20 to 60% by weight hole corn, which encompasses the claimed range of “40-45% by weight”.
Regarding claim 37, Repholz teaches that the outer portion comprises amylaceous ingredients such as cereal grains (col. 8, l. 44-48), where the cereal grains can be wheat (col. 9, l. 1-6). Although Repholz does not teach that the wheat is wheat middling, one of ordinary skill would recognize that Repholz’s broad disclosure of foodstuffs having a preponderance of starch, including wheat, would encompass a wheat middling.
Although Repholz does not teach including wheat middling in an amount of 3-8% by weight of the outer portion, Repholz does state that the relative presence of the ingredients in the outer shell is within the discretion of one of ordinary skill in the art (col. 8, l. 59-62). One of ordinary skill in the art would have adjusted the amount of wheat middling during routine optimization to arrive a composition with the desired starch profile. MPEP §2144.05(II)(A) states “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.” "[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Thus, the claimed range would be obvious.
Regarding claim 38, Repholz teaches that the outer portion comprises amylaceous ingredients such as cereal grains (col. 8, l. 44-48), where the cereal grains can be wheat (col. 9, l. 1-6). Although Repholz does not teach that the wheat is whole wheat, one of ordinary skill would recognize that Repholz’s broad disclosure of foodstuffs having a preponderance of starch, including wheat, would encompass whole wheat.
Although Repholz does not teach including whole wheat in an amount of 3-8% by weight of the outer portion, Repholz does state that the relative presence of the ingredients in the outer shell is within the discretion of one of ordinary skill in the art (col. 8, l. 59-62). One of ordinary skill in the art would have adjusted the amount of whole wheat during routine optimization to arrive a composition with the desired starch profile. MPEP §2144.05(II)(A) states “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.” "[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Thus, the claimed range would be obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-23, 34, and 35 over Repholz, Chandler, Kuerzinger, Ichihashi, and She: Applicant’s arguments filed July 10, 2026 have been fully considered but they are not persuasive.
Applicant argued that one of ordinary skill in the art would not have added acid catalyst directly into an animal fat matrix (Remarks, p. 8, ¶ 3-5).
This argument has been considered but is not persuasive. The Examiner maintains that a person of ordinary skill in the art would have found it obvious to include the lactic acid preservative of Kuerzinger in the composition of Repholz with a reasonable expectation of success to arrive at the claimed invention. Kuerzinger discloses that the pet food can comprise a fat ([0023]). Thus, one of ordinary skill would recognize that adding the lactic acid to a composition comprising animal fat would have a reasonable expectation of success.
Additionally, MPEP §2141(IV) “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” Applicant’s statement that one of ordinary skill would be discouraged from adding lactic acid to animal grease is unfounded. The Applicant has not provided any evidence to support that the prior art teaches away from the claimed combination.
Applicant argued that there is no reasonable expectation of success in combining the animal grease and lactic acid because the combination would lead to a pet food that chemical degraded (Remarks, p. 9, ¶ 1-2).
This argument has been considered but is not persuasive. Kuerzinger teaches that the composition comprising a pH stabilizer prevents lipid spoilage ([0011]). Thus, One of ordinary skill would have had a reasonable expectation of success in combining the anima grease portion with a lactic acid. Additionally, MPEP §2141(IV) “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” Applicant’s statement that one of ordinary skill would be discouraged from adding lactic acid to animal grease is unfounded. The Applicant has not provided any evidence to support the allegation that one of ordinary skill would not have had a reasonable expectation of success in combining Repholz and Kuerzinger to arrive at the claimed invention.
Applicant further argued that there is no rationale for combining Repholz and Chandler because Repholz already discloses a shell that is biologically stable (Remarks, p. 10, ¶ 1- p. 11, ¶ 1).
This argument has been considered but is not persuasive. Although Repholz does not state the need for improvement upon the biological stability of the product, Repholz does not preclude further improvements to the composition. Thus, the Examiner maintains that one of ordinary skill would have modified the composition of Repholz with moisture content as taught by Chandler because Chandler teaches the moisture content of the outer shell being about 12% of less renders the shell biologically stable against spoilage (col. 5, lines 50-52) and the moisture content of the inner portion is high enough to be injected into the outer portion but low enough that the core retains its shape once injected (col. 3, lines 37-41).
New claims 36-38: Applicant’s arguments with respect to new claims 36-38 have been fully considered but they are not persuasive for the reasons described above in the 35 USC 103 rejection of the claims.
The rejections of claims 1-23, 34-38 have been maintained herein.
Conclusion
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
Prosecution Insights