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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 5-6 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Balaz et al [US 4,055,681], as evidenced by Schulze [US 2,690,011] or, in the alternative, under 35 U.S.C. 103 as obvious over Balaz et al, in view of Gumudavelli et al [US 2015/0374014A1] and Kimihiko [JP 2002238469A].
Balaz et al teach a dry-type pet food composition (title) made by extruding, expanding/aerating, cooling, and cutting (Figure 3, #11, 32, 14, 15), cutting the expanded and cooled extrudate with a dicer (Figure 3, #15) such as the dicer of Schulze US 2,690,11 (column 6, line 26). Schulze disclosing that the dicer created “small cubes” (column 2, line 34). The act of dicing the extrudate sheet naturally producing uncut surfaces on the top and bottom of the cubes and cut surfaces on the four sides of the cubes of Balaz et al.
The system of Balaz et al would have inherently provided the claimed product properties, including four faces with at least 10% openings, two faces with less than 8% openings, and a cross section opening ratio of 0.4-2; due to the use of the same materials and processing steps as those used by applicant, namely extrusion, expansion, cooling, and cutting (Figure 5 of application).
In the instance that Balaz et al do not inherently possess the claimed properties:
Kimihiko et al teach a pet food product (abstract) made by a system using extrusion, expansion, and cutting (Figure 3), comprising cut surfaces with many openings or voids (Figure 5, #14), a uncut surface with no openings or voids (Figure 5, #12), and the product made by cutting an extrudate after it has expanded and cooled (page 2, paragraph 0008).
Gumudavelli et al teach an aerated pet treat (title) comprising air bubbles which make up at least 10% of the interior matrix of the product (paragraph 0006), the product having a hard crunchy exterior and a squishy spongey interior with bubbles (paragraph 0021), the product made by aerating the mixture (paragraph 0023), and shaping into a cube (paragraph 0027).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed opening ratios into the invention of Balaz et al, in view of Kimihiko et al and Gumudavelli et al, since all are directed to pet food products, since Balaz et al already included an expanded/aerated product with cut and uncut surfaces but simply did not mention the amount of openings, since pet food products commonly included air bubbles which make up at least 10% of the interior matrix of the product (paragraph 0006) and the product having a hard crunchy exterior and a squishy spongey interior with bubbles (paragraph 0021) as shown by Gumudavelli et al, since extruded pet food products also commonly included cut surfaces with many openings or voids (Figure 5, #14) and uncut surfaces with no openings or voids (Figure 5, #12) as shown by Kimihiko et al, and since the claimed openings ratios would have been used during the course of normal experimentation and optimization procedures due to factors such as the size and type of pet meant to consume the pet food, the types and amounts of ingredients used, the degree of heating in the extruder, the degree of cooling of the extrudate, and/or the desired degree of interior softness and exterior crunchiness in the pet food product of Balaz et al, in view of Kimihiko et al and Gumudavelli et al.
In conclusion, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Response to Arguments
Applicant's arguments filed 1/29/26 have been fully considered but they are not persuasive.
The declaration under 37 CFR 1.132 filed 1/29/26 is insufficient to overcome the rejection of claims 1, 5-6 based upon Balaz et al because: the declaration is based upon the hardness of the product. However, 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., hardness) are not recited in the rejected claim(s). 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). In addition, the comparison to Kimihiko et al appears to have used a different composition, and not the composition used by Kimihiko et al.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sakoda, Akimoto, Nguyen teach methods of making pet food.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DREW E BECKER whose telephone number is (571)272-1396. The examiner can normally be reached 8am-5pm Monday-Friday.
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/DREW E BECKER/Primary Examiner, Art Unit 1792