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 .
Prosecution Reopened
In view of the Pre-Appeal Brief filed on 1/2/26, PROSECUTION IS HEREBY REOPENED. New grounds of rejection are set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
{ 4 }
Claims 47-63, 65, and 66 are pending and have been examined on the merits.
Withdrawn Rejections
The 112 (b) rejection of claim 59 has been withdrawn due to the amendment on 12/2/25.
The 103(a) rejection of claim 58 over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556) as applied to claim 47 above and in further view of Yamka et al. (US 2013/0281533) and Shirakura et al. (JP 2012153614) Machine Translation 2012 has been withdrawn and new rejection has been made above.
16. The 103(a) rejections of claims 59-61 over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556), Yamka et al. (US 2013/0281533) and Shirakura et al. (JP 2012153614) Machine Translation 2012 have been withdrawn and a new rejection has been made above.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 47 is rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556).
Regarding Claim 47: Seguin-Laur discloses a pet food containing grains including amaranth and quinoa [abstract; 0019]. Seguin-Laur discloses that the grains can be included at about 1 to about 20% in the pet food [0022]. Seguin-Laur discloses a pet food composition containing chondroitin and glucosamine [0054; Ex. 4].
Seguin-Laur does not disclose egg shell membrane in the pet food and at about 0.5% to 8%.
Seguin-Laur does not disclose wherein the pet food composition has a weight ratio of quinoa to amaranth to egg shell membrane (quinoa : amaranth : egg shell membrane) of from about 1:10:8 to about 10:10:1.
Järvenpää discloses the inclusion of egg shell membranes to a pet food [abstract; 0019; 0020]. Järvenpää discloses that the pet food can contain the egg shell membrane at 0.1 to 15%; 1 to 4% [0020]. Järvenpää discloses the egg shell membrane as promoting the health of cartilage and joints [0052; 0059]. Järvenpää discloses that the egg shell membrane contains collagen, chondroitin sulfate, glucosamine and hyaluronic acid [0026; 0027; 0052].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the pet food composition of Seguin-Laur to include egg shell membranes as in Järvenpää in order to improve the joint health of animals consuming the pet food. Further it would have been obvious to include egg shell membrane in that Seguin-Laur includes chondroitin and glucosamine which are beneficial in promoting joint health and since the composition of egg shell membrane contains chondroitin and glucosamine.
Regarding the amounts amaranth and quinoa although Seguin-Laur does not explicitly disclose individually that the composition contains amaranth and quinoa, Seguin-Laur does disclose including grains including amaranth and quinoa at about 1 to about 20% in the pet food and therefore one of ordinary skill in the art would have included such grains such that the total about 1 to about 20%.
Although Seguin-Laur and Järvenpää does not explicitly disclose the recited ratios one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the ranges taught by Seguin-Laur and Järvenpää overlap the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 48-52, and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556) as applied to claim 47 above and in further view of Ursin et al. (US 2008/0260929).
Regarding Claims 48-52, 55: Seguin-Laur as modified discloses as discussed above in claim 47. Seguin-Laur discloses the inclusion of omega-3 fatty acids [0021].
Seguin-Laur does not disclose the pet food further comprising: from about 0.1 to about 10 wt.% of a fatty acid comprising a polyunsaturated fatty acid (claim 48); wherein the polyunsaturated fatty acid comprises an omega-3 fatty acid, an omega-6 fatty acid, or a combination of two or more thereof (claim 49); wherein polyunsaturated fatty acid comprises an omega-3 fatty acid selected from linolenic acid, stearidonic acid, eicosatetraenoic acid, eicosapentaenoic acid, docosapentaenoic acid, docosahexaenoic acid, and a combination of two or more thereof (claim 50); wherein the omega-3 fatty acid comprises alpha-linolenic acid (claim 51); wherein the polyunsaturated fatty acid comprises an omega-6 fatty acid selected from linolenic acid, calendic acid, eicosadienoic acid, arachidonic acid, docosadienoic acid, adrenic acid, osbond acid, tetracosatetraenoic acid, tetracosapentaenoic acid, and a combination of two or more thereof (claim 52).
Ursin discloses adding an oil containing polyunsaturated fatty acids (PUFAs) to a pet food at about 3 to about 15% [0066]. Ursin discloses that the oil comprises omega-3 and omega-6 fatty acids [0022]. Ursin discloses a corn oil having a ratio of omega-3 to omega-6 fatty acids of from about 0.5%: 1 to about 10:1, from about 5:1 to about 10:1, and at least about 5:1 [0022]. Ursin discloses including the oil in animal food and specifically pet food [0025; 0063; 0065]. Ursin discloses alpha-linolenic acid, stearidonic acid, EPA, and DHA [abstract; 0018; 0021]. Ursin discloses alpha-linolenic acid [0021]. Ursin discloses the presence of gamma linolenic acid [0021].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include 3 to 15% polyunsaturated fatty acids (PUFAs) to a pet food as in Ursin to provide desirable health benefits [0037]. Further, it would have been obvious to provide the omega-3 and omega-6 fatty acids as in Ursin to deliver beneficial healthy fats to animals.
Although Ursin does not explicitly disclose about 0.1% to about 10% polyunsaturated fatty acid one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ursin overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ursin does not explicitly disclose about 0.5%: 1 to about 10:1, from about 5:1 to about 10:1, and at least about 5:1omega-3 to omega-6 fatty acids one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ursin overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 53 and 54 are rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556) and Ursin et al. (US 2008/0260929) as applied to claim 52 above and in further view of Knutzon et al. (US 5,968,809).
Regarding Claims 53 and 54: Seguin-Laur as modified discloses as discussed above in claim 52. Seguin-Laur does not disclose wherein the polyunsaturated fatty acid comprises an omega-6 fatty acid selected from linolenic acid, arachidonic acid, and a combination of two or more thereof (claim 53); wherein the pet food composition has a weight ratio of linolenic acid to arachidonic acid of from about 12:1 to about 50:1 (claim 54).
Knutzon discloses gamma-linolenic acid at 0.2 to 30% and ARA at 0.3% to 30% [col. 6, lines 7-11]. Knutzon therefore discloses where the gamma-linolenic acid to ARA can be 12:1 to about 30:1 where the gamma- linolenic acid is at 12-30% and ARA at 1%.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include gamma-linolenic acid and ARA and at the amounts as in Knutzon in order to provide the desirable fatty acids to the pet food.
11. Claims 56 and 57 are rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556) and Ursin et al. (US 2008/0260929) as applied to claim 49 above and in further view of Yamka et al. (US 2013/0281533).
Regarding Claims 56 and 57: Seguin-Laur discloses a pet food formulation containing 5 to 30% protein; 1 -25% fat, 5-25% fiber [0035; 0036].
Seguin-Laur does not disclose from about 1 to about 18 wt.% of insoluble fiber, and from about 0.5 to about 8 wt.% of soluble fiber (claim 56); wherein the food composition has a weight ratio of soluble fiber to insoluble fiber of from about 0.2:1 to about 10:1 (claim 57).
Yamka discloses a pet food composition including insoluble and soluble dietary fibers [0022; 0023; claim 18]. Yamka discloses insoluble fiber at 15 to 30% and soluble fiber at 1 to 10% [claim 18].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include the soluble and insoluble fiber content as in Yamka in order to aid in digestive health.
Although Seguin-Laur does not explicitly disclose about 2 to about 10%, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Seguin-Laur overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Yamka does not explicitly disclose about 1 to about 18 wt.% of insoluble fiber, and from about 0.5 to about 8 wt.% of soluble fiber one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yamka overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
12. Claim 58 is rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556) as applied to claim 47 above and in further view of Yamka et al. (US 2013/0281533) and Wedekind et al. (US 2013/0337080).
Regarding Claim 58: Seguin-Laur as modified discloses a pet food composition containing egg shell membrane as discussed above in claim 47. Seguin-Laur discloses that the composition can contain a coating [pg. 6, lines 23-28].
Seguin does not disclose that the coating contains the egg shell membrane.
Seguin-Laur does not disclose lysine.
Järvenpää discloses an egg shell membrane feed supplement as disclosed above in claim 47. Järvenpää discloses that the egg shell membrane containing feed supplement can be provided in the form of a powder, granule, pellets, tablets, capsules, gel paste, emulsion, liquid [0036; 0040; claim 28].
Yamka discloses a pet food composition containing lysine [Tables 1, 2; claim 18].
Wedekind discloses a dietary feed supplement containing chondroprotective agents for the administration to mammals and includes animals typically considered as pets/companion animals (horses, dogs) [abstract; 0084; 0097; claim 1]. Wedekind discloses NEM as containing, glucosamine, chondroitin sulfate, hyaluronic acid, and collagen [0004; 0030; 0164]. Wedekind discloses that the dietary supplement/chondroprotective agents can be provided in the form of a powder, a dispensable powder, and an effervescent powder; a capsule including both soft or hard gelatin capsules or non-animal derived polymers, a lozenge; a sachet; a sprinkle; a reconstitutable powder or shake; a troche; pellets; granules; liquids; suspensions; emulsions; or semisolids and gels. Alternatively, the dietary supplement may be incorporated into a food product or powder for mixing with a liquid, or administered orally after only mixing with a non-foodstuff liquid. As will be appreciated by a skilled artisan, the dietary supplements, in addition to being suitable for administration in multiple dosage forms, may also be administered with various dosage regimens [0078]. Wedekind discloses that the supplements can be made by (1) dry mixing, (2) direct compression, (3) milling, (4) dry or non-aqueous granulation, (5) wet granulation, or (6) fusion. See, e.g., Lachman et al., The Theory and Practice of Industrial Pharmacy (1986). Other methods include, e.g., prilling, spray drying, pan coating, melt granulation, granulation, wurster coating, tangential coating, top spraying, extruding, coacervation and the like [0081]. Wedekind discloses providing a commercial equine diet and applying the dietary supplement as a top dressing to the feed [0086]. Since the dietary supplement contains egg shell membrane, since the dietary supplement is applied on top of the feed, and since coating means a covering or deposit or layer applied to the surface of a food substrate, Wedekind therefore discloses coating an animal food with egg shell membrane.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include lysine in its formulation as in Yamka in order to provide an essential amino acid in the diet.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include egg shell membrane in the coating as in Wedekind in order to provide a measurable dosage form of the chondroprotective agent/dietary supplement containing egg shell membrane.
13. Claims 59-61 are rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556), Wedekind et al. (US 2013/0337080) and Yamka et al. (US 2013/0281533).
Regarding Claim 59: Seguin-Laur discloses a pet food containing grains including amaranth and quinoa [abstract; 0019]. Seguin-Laur discloses that the grains can be included at about 1 to about 20% in the pet food [0022]. Seguin-Laur discloses a pet food formulation containing 5 to 30% protein; 1 -25% fat, 5-25% fiber [0035; 0036]. Seguin-Laur discloses that the composition can containing a coating [pg. 6, lines 23-28]. Seguin-Laur discloses a pet food composition containing chondroitin and glucosamine [0054; Ex. 4].
Seguin does not disclose that the coating contains the egg shell membrane.
Seguin-Laur does not disclose from about 1 to about 9 wt.% of insoluble fiber; and from 0.2 to about 4% soluble fiber.
Järvenpää discloses the inclusion of egg shell membrane to a pet food [abstract; 0019; 0020]. Järvenpää discloses that the pet food can contain the egg shell membrane at 0.1 to 15%; 1 to 4% [0020]. Järvenpää discloses the egg shell membrane as promoting the health of cartilage and joints [0052; 0059]. Järvenpää discloses that the egg shell membrane contains collagen, chondroitin sulfate, glucosamine and hyaluronic acid [0026; 0027; 0052].
Wedekind discloses a dietary feed supplement containing chondroprotective agents for the administration to mammals and includes animals typically considered as pets/companion animals (horses, dogs) [abstract; 0084; 0097; claim 1]. Wedekind discloses NEM as containing, glucosamine, chondroitin sulfate, hyaluronic acid, and collagen [0004; 0030; 0164]. Wedekind discloses that the dietary supplement/chondroprotective agents can be provided in the form of a powder, a dispensable powder, and an effervescent powder; a capsule including both soft or hard gelatin capsules or non-animal derived polymers, a lozenge; a sachet; a sprinkle; a reconstitutable powder or shake; a troche; pellets; granules; liquids; suspensions; emulsions; or semisolids and gels. Alternatively, the dietary supplement may be incorporated into a food product or powder for mixing with a liquid, or administered orally after only mixing with a non-foodstuff liquid. As will be appreciated by a skilled artisan, the dietary supplements, in addition to being suitable for administration in multiple dosage forms, may also be administered with various dosage regimens [0078]. Wedekind discloses that the supplements can be made by (1) dry mixing, (2) direct compression, (3) milling, (4) dry or non-aqueous granulation, (5) wet granulation, or (6) fusion. See, e.g., Lachman et al., The Theory and Practice of Industrial Pharmacy (1986). Other methods include, e.g., prilling, spray drying, pan coating, melt granulation, granulation, wurster coating, tangential coating, top spraying, extruding, coacervation and the like [0081]. Wedekind discloses providing a commercial equine diet and applying the dietary supplement as a top dressing to the feed [0086]. Since the dietary supplement contains egg shell membrane, since the dietary supplement is applied on top of the feed, and since coating means a covering or deposit or layer applied to the surface of a food substrate, Wedekind therefore discloses coating an animal food with egg shell membrane.
Yamka discloses a pet food composition including insoluble and soluble dietary fibers [0022; 0023; claim 18]. Yamka discloses insoluble fiber at 15 to 30% and soluble fiber at 1 to 10% [claim 18].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include egg shell membrane in the coating as in Wedekind in order to provide a measurable dosage form of the chondroprotective agent/dietary supplement containing egg shell membrane.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include the soluble and insoluble fiber content as in Yamka in order to aid in digestive health.
Although Seguin-Laur does not explicitly disclose about 2 to about 10% dietary fiber, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Seguin-Laur overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Yamka does not explicitly disclose about 1 to about 9 wt.% of insoluble fiber, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of insoluble fiber for use in pet food and for helping to regulate digestive health, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Although Yamka does not explicitly disclose from about 0.5 to about 4 wt.% of soluble fiber one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yamka overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claims 60 and 61: Seguin-Laur as modified discloses as discussed above in claim 59. Seguin-Laur does not disclose wherein the pet food composition has a weight ratio of quinoa to amaranth of from about 1:12 to about 12:1, the pet food composition having a weight ratio of quinoa to egg shell membrane of from about 1:10 to about 12:1, and the pet food composition having a weight ratio of amaranth to egg shell membrane of from about 1:10 to about 12:1 (claim 60); wherein the pet food composition has a weight ratio of quinoa to amaranth to egg shell membrane (quinoa : amaranth : egg shell membrane) of from about 1:10:8 to about 10:10:1 (claim 61).
Seguin-Laur discloses that the grains can be included at about 1 to about 20% in the pet food [0022]. Järvenpää discloses that the pet food can contain the egg shell membrane at 0.1 to 15%; 1 to 4% [0020].
Although Seguin-Laur and Järvenpää does not explicitly disclose the recited ratios one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the ranges taught by Seguin-Laur and Järvenpää overlap the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
14. Claims 62, 63, and 65 are rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556), Yamka et al. (US 2013/0281533) and Jewell (US 2016/0287543).
Regarding Claim 62, 63, and 65: Seguin-Laur discloses a pet food containing grains including amaranth and quinoa (ancient grains) [abstract; 0019]. Seguin-Laur discloses that the grains can be included at about 1 to about 20% in the pet food [0022]. Seguin-Laur discloses a pet food formulation containing 5 to 30% protein; 1 -25% fat, 5-25% fiber [0035; 0036]. Seguin-Laur discloses that the composition can containing a coating [pg. 6, lines 23-28].
Seguin does not explicitly disclose an alpha-amino acid.
Seguin does not disclose egg shell membrane.
Seguin-Laur does not disclose from about 1 to about 8 wt.% of omega-3 fatty acid; and from about 1 to about 15 wt.% of omega-6 fatty acid, wherein the food composition has a weight ratio of omega-3 fatty acids to omega-6 fatty acids of from about 0.5:1 to about 7:1, and all weight percentages are based on the total weight of the pet food composition on a dry matter basis.
Seguin-Laur does not disclose wherein the pet food composition has a weight ratio of quinoa to amaranth to egg shell membrane (quinoa : amaranth : egg shell membrane) of from about 1:10:8 to about 10:10:1.
Järvenpää discloses the inclusion of egg shell membrane to a pet food [abstract; 0019; 0020]. Järvenpää discloses that the pet food can contain the egg shell membrane at 0.1 to 15%; 1 to 4% [0020]. Järvenpää discloses the egg shell membrane as promoting the health of cartilage and joints [0052; 0059].
Yamka discloses a pet food composition containing lysine [Tables 1, 2; claim 18].
Jewell discloses pet food containing at least 1% omega-3 and at least 3% omega-6 fatty acids [0217]. Jewell discloses EPA (omega-3)[0030]. Jewell discloses arachidonic acid (ARA) (omega-6) [0030].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include lysine in its formulation as in Yamka in order to provide an essential amino acid in the diet.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include egg shell membrane as in Järvenpää in order to provide chondroprotective effects to the pet food.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include the soluble and insoluble fiber content as in Yamka in order to aid in digestive health.
At the effective filing date in would have been obvious to one of ordinary skill in the art to modify the composition of Seguin-Laur to include at least 1% omega-3 and at least 3% omega-6 fatty acids as in Jewell in order to provide a desirable amount of beneficial fatty acids to the pet food. As the range of Jewell allows for there to be 3% omega-3 and 3% omega-6 fatty acids it would have been obvious that the fatty acids would have been provided in a 1:1 ratio as encompassed by the claims.
Although Jewell does not explicitly disclose 1 to about 8 wt.% of omega-3 fatty acid; and from about 1 to about 15 wt.% of omega-6 fatty acid one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the ranges taught by Jewell overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Seguin-Laur and Järvenpää does not explicitly disclose the recited ratios one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the ranges taught by Seguin-Laur and Järvenpää overlap the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
15. Claim 66 is rejected under 35 U.S.C. 103 as being unpatentable over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556), Yamka et al. (US 2013/0281533) and Jewell (US 2016/0287543) as applied to claim 62 above and in further view of Gross et al. (US 2018/0279648).
Regarding Claim 66: Seguin-Laur discloses as discussed above in claim 62. Seguin Laur discloses the inclusion of omega-3 fatty acids (PUFA). Seguin Laur does not disclose alleviating pruritus, erythema, alopecia, or skin and ear secretion in atopic dermatitis canine.
Gross discloses pet food composition containing omega-3, and omega-6 fatty acids for treating atopic dermatitis pruritus, erythema, or alopecia [0022-0030; 0034]. Gross discloses long chain PUFAs [0037].
At the effective filing date of the invention it would have been obvious that the modified composition of Seguin-Laur would have been effective for treating skin conditions in pets as disclosed in Gross since as modified Seguin Laur discloses a pet food composition containing omega-3 and omega-6 fatty acids and since Gross discloses compositions containing omega-3 and omega-6 fatty acids as contributing to alleviating skin conditions.
Response to Arguments
16. The 112 (b) rejection of claim 59 has been withdrawn due to the amendment on 12/2/25.
17. The 103(a) rejection of claim 58 over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556) as applied to claim 47 above and in further view of Yamka et al. (US 2013/0281533) and Shirakura et al. (JP 2012153614) Machine Translation 2012 has been withdrawn and new rejection has been made above.
18. The 103(a) rejections of claims 59-61 over Seguin-Laur et al. (US 2011/0236533) in view of Järvenpää et al. (US 2018/0014556), Yamka et al. (US 2013/0281533) and Shirakura et al. (JP 2012153614) Machine Translation 2012 have been withdrawn and a new rejection has been made above.
19. In the Pre-Appeal Conference Brief, on pages 2-3, the Applicants asserted that examiner used improper hindsight to reach the combination of amaranth and quinoa from over 6 million combinations of grains. The Applicants assert that Seguin-Laur teaches away from the amounts of quinoa and amaranth at from about 1 to 10% each. The Applicants assert that the amounts of grains recited in the claims is significantly less than the 64-74% disclosed in Seguin-Laur.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The Seguin-Laur reference discloses pet food comprising the germination seeds or grains. The disclosure of grains is in the title and is the main focus of the invention. It is not hindsight reasoning to select the specific types of grains especially where Seguin- Laur discloses the claimed grains as within the scope of the invention.
Regarding the teaching away argument, a prior art reference that "teaches away" from the claimed invention is a significant factor to be considered in determining obviousness; however, "the nature of the teaching is highly relevant and must be weighed in substance. A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). Furthermore, "the prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed.." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). In this case, Seguin-Laur does not teach away because it discloses a carbohydrate content of 10% to 90% [0023]. Further Seguin-Laur does acknowledge amaranth as a preferred grain [0023]. Further if a grain is provided in germinated form, Seguin-Laur discloses the germinated gain at about 1% to about 20% and discloses germinated seeds or grains as including quinoa and amaranth [0019; 0022]. Further, the claims do not limit the inclusion of other grains or ingredients. Further rice is in the same category as amaranth and quinoa.
On pages 3-4, the Applicants assert that Seguin-Laur and Järvenpää do not disclose ratios of amaranth, quinoa, and egg shell membrane. The Applicants assert unexpected results in that there are substantial reductions of pruritus in pets that consume the instant pet food. The Applicants assert that the presence/absence of the amaranth/quinoa mixture made the difference.
In regards to the obviousness rejections, in order to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).
Further, Applicants arguments are not commensurate with the scope of the claims. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., an effect on pruritus or calprotectin) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Pertinent Prior Art
19. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Skodda (US 11/191814) discloses a pet food supplement formulation containing collagen, hyaluronic acid, glucosamine [abstract; col. 5, lines 24-40; col. 6, lines 27-36]. Skodda discloses adding the supplement by sprinkling over or applying to the pet food [col. 11, lines 42-62].
Conclusion
20. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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