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 § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-12, 14-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over US 3394016 (Bidmead) in view of CN 113412885 (Yin).
Bidmead discloses a food flavoring composition to provide meat flavors. The composition comprises protein hydrolysates such as veggie, animal or fish hydrolysate, and yeast (col. 3, lines 1-5). The mixture contains thiamine and other ingredients and amino acids such as cysteine.
Regarding the amounts, Bidmead gives several examples where the amount of thiamine is within the claimed range, such as Example 2 at 1.71wt%. Additionally, in the same example cysteine is also 1.71wt%. Regarding the amount of hydrolysate, in the liquid examples, the amount is about 30wt% (28.63 in Example 2 and 30.94wt% in Example 3). Removing the water by drying, in the case of a forming a dry flavoring composition as suggested in Example 16, would result in an amount of hydrolysate above 50wt% and nearly 99wt%.
Bidmead discloses the addition of amino acids such as glycine, proline, valine and glutamic acid and the like, but does not specifically disclose arginine. Yin discloses a flavoring agent for dog food comprising meat substance (chicken), amino acids and sugars. The amino acids are selected from glycine, proline, cysteine, arginine and alanine and combinations thereof. A combination of arginine, cysteine and one or more of alanine and glycine is seen to be suggested by Yin based upon the limited listing of amino acids where 4 of the 5 listed by Yin are present in the claims and Yin clearly teaches that combinations of these amino acids may be used. Thus, one of ordinary skill, absent a showing of something unexpected, would have found it obvious to use cysteine, arginine, and either or both of alanine and glycine in combination. Bidmead discloses the addition of dextrose (example 7), but does not specify xylose or fructose. Yin also teaches reducing sugars which are considered processing aids and specifies that the reducing sugars may be glucose, xylose or a combination of these two in the amount of 4-5 g which is considered to overlap the claimed range of 0.1-10wt% based upon relative amounts. It would have been obvious to use a combination of cysteine and arginine and sugars as suggested by Yin in the flavoring composition of Bidmead with a reasonable expectation of providing a favorable flavor profile based upon the teachings of Yin.
Regarding claims 9 and 15, Bidmead discloses adjusting the pH of the mixture to between about 3.5 and 7.0 which falls within the claimed range (col. 3). The mixture is heated to 180-350F (col. 3) which overlaps the claimed range and presents a prima facie case of overlap.
Regarding claims 14 and 20, Example 47 discloses addition of the spray dried flavor in an amount of 0.5wt%, and Example 48 discloses 3.0wt%.
Claims 1-12, 14-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2007/109761 (Zulin) in view of CN 113412885 (Yin).
Zulin discloses a palatability enhancer for companion food products (abstract). One embodiment of an enhancer may comprise 10 to 90% by weight chicken byproducts digest; 2 to 15% by weight phosphoric acid, 75%; 0 to 10% by weight expansion water; 1 to 7% by weight sodium hydroxide; 0.5 to 10% by weight xylose 40% solution; 0 to 5% by weight 1-cysteine hydrochloride; 0.34% by weight sorbic acid 20% solution; 0 to 2% by weight thiamine; and 0.01% by weight mixed tocopherols [0065]. The range of the digest is seen to meet the limitation of the meat hydrolysate since Zulin discloses that commercially available protease may be added to the slurry to hydrolyze proteins, and later inactivated with heat, acid or another method, thus the proteins of the digest may be in hydrolyzed form [0066]. The range of the digest (meat hydrolysate, amino acid, xylose, and thiamine overlap the claimed ranges Examples of amino acids that can be used include, but are not limited to, alanine, glycine, cysteine, and the like and may be present in an amount of 0.1-60wt%. Zulin does not specifically disclose arginine. Yin discloses a flavoring agent for dog food comprising meat substance (chicken), amino acids and sugars. The amino acids are selected from glycine, proline, cysteine, arginine and alanine and combinations thereof. A combination of arginine, cysteine and one or more of alanine and glycine is seen to be suggested by Yin based upon the limited listing of amino acids where 4 of the 5 listed by Yin are present in the claims and Yin clearly teaches that combinations of these amino acids may be used. Thus, one of ordinary skill, absent a showing of something unexpected, would have found it obvious to use cysteine, arginine, and either or both of alanine and glycine in combination. Yin also teaches reducing sugars which are considered processing aids and specifies that the reducing sugars may be glucose, xylose or a combination of these two in the amount of 4-5 g which is considered to overlap the claimed range of 0.1-10wt% based upon relative amounts. It would have been obvious to use a combination of cysteine and arginine as suggested by Yin in the palatability enhancer of Zulin with a reasonable expectation of providing a favorable flavor profile based upon the teachings of Yin.
Regarding claim 5, the base of the enhancer may be vegetable base (claim 4) and may be soybean or yeast [0038] in amounts of at least about 15wt% which overlaps the claimed range. The additional materials are addressed above.
Regarding claims 9 and 15, Zulin discloses adjusting the pH of the mixture of to a pH of 2.5-10 and 6-9 (claims 11, 12) and heating the mixture from 60-180C (140-356F) (claims 9, 10), both of which overlap the claimed ranges and provide a prima facie case for obviousness.
Regarding claims 14 and 20, Zulin discloses coating standard dry dog food with 2wt% of the palatability enhancer prepared in Example 1 [0102].
Claims 1-4, 9-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over CN 113412885 (Yin) in view of US 2012/0213889 (Chiang) and US 10,561,162 (Lin).
Regarding claims 1-4 and 9-12, Yin teaches a flavoring agent for dog food with high palatability comprising:
meat substance 30 to 45g; 10 to 15g herbaceous substance; animal protease 0.05 to 0.2g; composite flavour protease 0.05 to 0.1g; lipase 0.02 ~ 0.03g; 4-5g of reducing sugar;
compound amino acid 2 ~ 4g; egg powder 1 ~ 1.5g; maltodextrin 10 ~ 12.5g; salt 3 ~ 5g; preservative 0.1 ~ 0.2g; adhesive 0.01 to 0.02g; and the rest is purified water. Looking to the examples for suggestive amounts in wt%, Embodiment III has 45/88.5g chicken meat which is 50.8wt% of meat. The amino acids may be present at 2-4g which is seen to overlap with the range of 0.1-10wt% of the composition based upon the relative amounts. The amino acids are selected from glycine, proline, cysteine, arginine and alanine and combinations thereof. A combination of arginine, cysteine and one or more of alanine and glycine is seen to be suggested by Yin based upon the limited listing of amino acids where 4 of the 5 listed by Yin are present in the claims and Yin clearly teaches that combinations of these amino acids may be used. Thus, one of ordinary skill, absent a showing of something unexpected, would have found it obvious to use cysteine, arginine, and either or both of alanine and glycine in combination. Yin also teaches reducing sugars which are considered processing aids and specifies that the reducing sugars may be glucose, xylose or a combination of these two in the amount of 4-5 g which is considered to overlap the claimed range of 0.1-10wt% based upon relative amounts.
The meat substance is not disclosed by Yin to be in the form of a protein (meat) hydrolysate. Chiang teaches a composition for enhancing the palatability in the form of animal digests that are used as palatability enhancers [0005] and teaches that animal digests are formed by generating protein hydrolysate followed by a Maillard reaction between the proteins produced by hydrolysis and reducing sugars [0006]. The hydrolyzed protein is reacted with the reducing sugars and the Maillard reaction products increase the palatability of the digest. Yin also teaches a Maillard reaction and the use of reducing sugars. It would have been obvious to provide the meat substance of Yin in the form of a meat hydrolysate as suggested by Chaing as Chiang clearly teaches that protein in the form of animal hydrolysates (animal digests) are frequently applied to the surface of animal foods to increase palatability and the resulting Maillard reaction with reducing sugars increases the palatability of the digest.
Yin and Chiang do not specifically disclose the addition of processing aids selected from vitamin B1 (thiamine) or mixed tocopherols. Yin does disclose that some of the herbal substances added to the flavoring agent include vitamins such as vitamin B, but does not expressly disclose adding vitamin B1. However, Lin discloses a palatability enhancer for animal feeds comprising amino acids, sugars, vitamins and flavorants (col. 2, lines 44-46). Specifically, and consistent with the disclosure of Yin, Lin discloses amino acids including cysteine and arginine, as well as alanine, aspartic acid, glycine in amounts of 0.05-5wt% (col. 2, lines 47-53). Further, Lin discloses sugars consistent with Yin such as xylose, glucose and fructose in amounts of 0.1-4wt% (col. 2, lines 53-58). Finally, Lin discloses vitamins may be added such as vitamin B1 (thiamine) in amounts of 0.01-0.5wt% which overlaps the claimed range of 0.1-10wt%, thus presenting a prima facie case for obviousness (col. 3, lines 3-10). It would have been obvious to one of ordinary skill to add vitamins such as vitamin B1 to the flavoring agent of Yin, as suggested by Lin, for the purpose of conferring the known benefits thereof to an animal feed in addition to the enhancement of the feed flavoring. Lin clearly discloses that addition of vitamins to animal feed via a palatability enhancer is known, thus one of ordinary skill would have found it obvious to add vitamins, such as vitamin B1, to the flavoring agent of Yin with a reasonable expectation of successfully providing beneficial vitamins to the animal.
Still further, Lin discloses the addition of one or more antioxidants into the mixture is typical. Optionally, the antioxidant is selected from BHA, BHT, propyl gallate, ethoxyquin, alpha tocopherol, beta tocopherol, gamma tocopherol, delta tocopherol, rosemary extract, ascorbic acid (vitamin C), ascorbyl palmitate, citric acid, tea extract or mixtures thereof (col. 3, lines 53-62). Thus, the addition of mixed tocopherols is seen to be obviated by Lin in an amount of 0.01-0.5wt% which overlaps the claimed range.
Further regarding claim 9, Yin teaches making a mixture of all the above cited ingredients and heating at one point to 110C (230F) and at another point to 90C (194F). Further, Yin teaches adjusting the pH to 5.5-7.0. The temperature of 194F is seen to meet the claimed “about 210-300F”. Applicant does not define “about” thus the term is considered to broadly encompass temperatures at within a reasonable closeness to that which is described by Yin. Moreover, even assuming “about” is approximately 10%, this would suggest a claimed range of 189-330F, thus 194F is reasonably considered to be within the approximation of the claimed range. Finally, Yin teaches stirring for 10-20 minutes which overlaps the claimed range of 20-100 minutes and is prima facie obvious.
Regarding claim 14, Yin teaches that the dosage of the flavor agent is 1-2wt% of the dog food to satisfy the attracting requirement.
Claim(s) 1-4 and 9-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over CN 108174969 (Liu) in view of US 10,561,162 (Lin).
Liu teaches a composition to improve the palatability of pet food. The composition comprises fermented pork liquid (hydrolyzed meat) (20-80wt%), reducing sugar (0.5-6wt%), amino acids (0.5-6wt%), yeast and water. The composition is heated at 100-110C (212-230F) for 1-3hrs (60-180 mins) (abstract). These ranges each either fall within or overlap with the claimed ranges and therefore as a whole, these ranges present a prima facie case for obviousness. The amino acids are preferably two or more selected from glycine, alanine, methionine, aspartate, arginine, and cysteine. Example 1 includes 1wt% arginine, and Example 2 includes 2wt% cysteine, 2wt% aspartate and 1wt% alanine. Based upon the limited number of amino acids disclosed, the express teaching that two or more are preferred, and the express demonstration of usage of arginine and cysteine, it would have been obvious to one of ordinary skill in the art to select a mixture of arginine and cysteine with a reasonable expectation of successfully forming a palatability enhancing material. The reducing sugars are two or more selected from glucose, xylose and ribose. Based upon the limited selection, and the teaching that two or more are used, it would have been obvious to select a combination of reducing sugars including xylose.
Liu does not specifically disclose the addition of processing aids selected from vitamin B1 (thiamine) or mixed tocopherols. Liu does disclose in the background technology that vitamins have been added to pet attractants, but does not expressly disclose adding vitamin B1. However, Lin discloses a palatability enhancer for animal feeds comprising amino acids, sugars, vitamins and flavorants (col. 2, lines 44-46). Consistent with the disclosure of Liu, Lin discloses amino acids including cysteine and arginine, as well as alanine, aspartic acid, glycine in amounts of 0.05-5wt% (col. 2, lines 47-53). Further, Lin discloses sugars consistent with Liu such as xylose, glucose and fructose in amounts of 0.1-4wt% (col. 2, lines 53-58). Finally, Lin discloses vitamins may be added such as vitamin B1 (thiamine) in amounts of 0.01-0.5wt% which overlaps the claimed range of 0.1-10wt%, thus presenting a prima facie case for obviousness (col. 3, lines 3-10). It would have been obvious to one of ordinary skill to add vitamins such as vitamin B1 to the palatability enhancer of Liu, as suggested by Lin, for the purpose of conferring the known benefits thereof to an animal feed in addition to the enhancement of the feed flavoring. Lin clearly discloses that addition of vitamins to animal feed via a palatability enhancer is known, thus one of ordinary skill would have found it obvious to add vitamins, such as vitamin B1, to the flavoring agent of Liu with a reasonable expectation of successfully providing beneficial vitamins to the animal. Still further, Lin discloses the addition of one or more antioxidants into the mixture is typical. Optionally, the antioxidant is selected from BHA, BHT, propyl gallate, ethoxyquin, alpha tocopherol, beta tocopherol, gamma tocopherol, delta tocopherol, rosemary extract, ascorbic acid (vitamin C), ascorbyl palmitate, citric acid, tea extract or mixtures thereof (col. 3, lines 53-62). Thus, the addition of mixed tocopherols is seen to be obviated by Lin in an amount of 0.01-0.5wt% which overlaps the claimed range.
Regarding claim 14, Liu teaches the palatability enhancer is added at 1-5wt% of the pet food.
Claim(s) 1-12, 14-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over CN 110463848 (Yin ‘848) in view of US 2017/0112167 (Cambou) and US 10,561,162 (Lin).
Yin ‘848 teaches a pet food additive including 2-20 parts amino acid, 2-40 parts reducing sugar, organic acid and phosphate. Yin ‘848 teaches that the amino acid may be a combination of acids selected from a list including arginine, cysteine, glutamic acid and glycine and specifically teaches a weight ratio of arginine, glutamic acid, glycine and cysteine of 1:1:1:1. The reducing sugars are glucose and fructose with a specific weight ratio of 1:1. Yin ‘848 states that when using arginine, glutamic acid, glycine and cysteine with glucose and fructose, a good meat flavor can be obtained.
Yin ‘848 teaches the addition of the flavoring to pet food but does not teach formation of a composition in combination with meat/veggie hydrolysate as claimed.
Cambou teaches a palatability enhancer comprising an amino acid and carbonyl composition mixture (PE) in combination with one or more palatability enhancing ingredients such as animal digests, veggie proteins and yeasts (hydrolysates) [0046, 0061, 0068-0069] to form a palatability-enhancing composition (PEC). Cambou forms the combination to be used as a palatability enhancer [0024-0025]. The amino acid/carbonyl component may be added in an amount of 0.1-99wt% of the overall PEC [0106] and the palatability-enhancing ingredients may also be present in an amount of 0.1-99wt% of the PEC [0112]. Cambou further discloses the addition of nutrients such as thiamine [0074].
It would have been obvious to form a palatability enhancer using the flavoring of Yin ‘848 further in combination with an animal digest or yeast (hydrolysate) as suggested by Cambou for the express purpose of forming a palatability enhancer that may contribute to the initial food appeal by its smell and taste [Cambou 0023]. Cambou teaches that preferred palatability enhancing ingredients include animal digests and yeasts and can be used in combination with an amino acid component to form an overall palatability enhancing composition. One of ordinary skill would have found it obvious to add the animal digest or yeast as an additional palatability enhancing ingredient to the amino acid/reducing agent combination of Yin ‘848 with a reasonable expectation of forming an effective palatability enhancing composition. Cambou also suggests overlapping ranges for the amounts of amino acids and anima digest/yeast. Cambou also gives an example in Table 18 of a poultry digest at 95wt% and PE of 5wt%. Cambou also suggests heating the mixture to 120C (248F) for 20 minutes [0178] and adjusting to a pH of 7.5. A pH of 7.5 is seen to meet the claimed pH range of “about 2.0 to 7.0”. It would have been obvious to perform the Maillard reaction at a temperature and pH commensurate with that disclosed [Cambou 0042]. Regarding claims 14 and 20, the amount of the composition added to a pet food may be adjusted depending upon the animal and the desired effect [Cambou 0027].
Yin ‘848 and Cambou do not specifically disclose the addition of processing aids selected from vitamin B1 (thiamine) or mixed tocopherols and amounts thereof. However, Lin discloses a palatability enhancer for animal feeds comprising amino acids, sugars, vitamins and flavorants (col. 2, lines 44-46). Consistent with the disclosure of Yin ‘848, Lin discloses amino acids including cysteine and arginine, as well as alanine, aspartic acid, glycine in amounts of 0.05-5wt% (col. 2, lines 47-53). Further, Lin discloses sugars consistent with Liu such as xylose, glucose and fructose in amounts of 0.1-4wt% (col. 2, lines 53-58). Finally, Lin, like Cambou, discloses vitamins may be added such as vitamin B1 (thiamine) in further specifies amounts of 0.01-0.5wt% which overlaps the claimed range of 0.1-10wt%, thus presenting a prima facie case for obviousness (col. 3, lines 3-10). It would have been obvious to one of ordinary skill to add vitamins such as vitamin B1 to the pet food additive of Yin ‘848 as modified by Cambou, as suggested by Lin, for the purpose of conferring the known benefits thereof to an animal feed in addition to the enhancement of the feed flavoring. Lin clearly discloses that addition of vitamins to animal feed via a palatability enhancer is known, thus one of ordinary skill would have found it obvious to add vitamins, such as vitamin B1, to the flavoring agent of Yin ‘848 with a reasonable expectation of successfully providing beneficial vitamins to the animal. Still further, Lin discloses the addition of one or more antioxidants into the mixture is typical. Optionally, the antioxidant is selected from BHA, BHT, propyl gallate, ethoxyquin, alpha tocopherol, beta tocopherol, gamma tocopherol, delta tocopherol, rosemary extract, ascorbic acid (vitamin C), ascorbyl palmitate, citric acid, tea extract or mixtures thereof (col. 3, lines 53-62). Thus, the addition of mixed tocopherols is seen to be obviated by Lin in an amount of 0.01-0.5wt% which overlaps the claimed range.
Claim(s) 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2013/007639 (Niceron) in view of US 10,561,162 (Lin).
Niceron teaches a palatability enhancer composition (PEC) comprising free amino acids for pet foods. The PEC may comprise 1-70 wt% of a mixture of amino acids (page 16). Amino acid combinations are set forth in Tables I-III have arginine in an overlapping range and alanine, glutamine, aspartic acid, glycine, phenylalanine, and histidine in overlapping ranges. Cysteine is listed as one or more amino acids that may be further included (claim 4) and may be provided in a preferred amount of 0.5-12wt% (page 15). It would have been obvious to use the amounts of arginine in combination with each of the other amino acids, including cysteine, as the combinations of amino acids are clearly taught for arginine and the acids listed in instant claim 2 and further suggested to include cysteine in an overlapping amount. Moreover, cysteine is specifically used in Example 6.
The PEC preferably comprises at least one animal digest, or yeast (hydrolysate). The animal digest and yeast (separately) may be present in an amount of 0.01-99%, preferably 0.5-80wt% of the PEC (pages 15-16). Preferred animal digests are poultry (page 15) and preferred yeasts are brewer’s yeast (page 16).
Niceron teaches the addition of ingredients that react together including carbohydrates for Maillard reactions and gives an example of fructose (pages 10-11). The amount of “reducing sugars”, which are considered carbohydrates with fructose as exemplary, is given as 0.6wt% (example 6).
Niceron does not specifically disclose the addition of processing aids selected from vitamin B1 (thiamine) or mixed tocopherols. Niceron does disclose the addition of nutrients in the form of vitamins including thiamine (pages 10-11). However, Lin discloses a palatability enhancer for animal feeds comprising amino acids, sugars, vitamins and flavorants (col. 2, lines 44-46). Consistent with the disclosure of Niceron, Lin discloses amino acids including cysteine and arginine, as well as alanine, aspartic acid, glycine in amounts of 0.05-5wt% (col. 2, lines 47-53). Further, Lin discloses sugars, consistent with Niceron, such as fructose in amounts of 0.1-4wt% (col. 2, lines 53-58). Finally, Lin discloses vitamins may be added such as vitamin B1 (thiamine) in amounts of 0.01-0.5wt% which overlaps the claimed range of 0.1-10wt%, thus presenting a prima facie case for obviousness (col. 3, lines 3-10). It would have been obvious to one of ordinary skill to add vitamins such as vitamin B1 to the pet food additive of Niceron, as suggested by Lin, for the purpose of conferring the known benefits thereof to an animal feed in addition to the enhancement of the feed flavoring. Lin clearly discloses that addition of vitamins to animal feed via a palatability enhancer is known, thus one of ordinary skill would have found it obvious to add vitamins, such as vitamin B1, to the flavoring agent of Niceron with a reasonable expectation of successfully providing beneficial vitamins to the animal. Still further, Lin discloses the addition of one or more antioxidants into the mixture is typical. Optionally, the antioxidant is selected from BHA, BHT, propyl gallate, ethoxyquin, alpha tocopherol, beta tocopherol, gamma tocopherol, delta tocopherol, rosemary extract, ascorbic acid (vitamin C), ascorbyl palmitate, citric acid, tea extract or mixtures thereof (col. 3, lines 53-62). Thus, the addition of mixed tocopherols is seen to be obviated by Lin in an amount of 0.01-0.5wt% which overlaps the claimed range.
Claim(s) 1-4, 9-13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over US 2012/0213889 (Chiang) in view of CN 110463848 (Yin ‘848) and US 10,561,162 (Lin).
Chiang teaches a method of making a palatability enhancer comprising an animal viscera (hydrolysate), amino acids (0.1-5wt%) and reducing sugars (0.1-5wt%) [0045-0049, 0052, 0053]. Chiang states that typical amino acids include glycine, alanine, cysteine, methionine, proline, and combinations thereof. Chiang also teaches that arginine can be added as an anti-gelling agent. Chiang teaches that the reducing sugars include xylose and fructose [0052].
Yin ‘848 teaches a pet food additive including 2-20 parts amino acid, 2-40 parts reducing sugar, organic acid and phosphate. Yin ‘848 teaches that the amino acid may be a combination of acids selected from a list including arginine, cysteine, glutamic acid and glycine and specifically teaches a weight ratio of arginine, glutamic acid, glycine and cysteine of 1:1:1:1. The reducing sugars are glucose and fructose with a specific weight ratio of 1:1. Yin ‘848 states that when using arginine, glutamic acid, glycine and cysteine with glucose and fructose, a good meat flavor can be obtained.
It would have been obvious to one of ordinary skill to add the amino acids of Chiang with the content and ratios taught by Yin ‘848 in combination with the ratio of reducing sugars as Yin ‘848 teaches this results in a good meat flavor. One of ordinary skill would have reasonably expected the amino acids in relative amounts taught by Yin ‘848 to provide a desirable flavor profile to the palatability enhancer of Chiang.
Chiang and Yin ‘848 do not specifically disclose the addition of processing aids selected from vitamin B1 (thiamine) or mixed tocopherols. Consistent with the disclosure of Chiang, Lin discloses amino acids including cysteine and arginine, as well as alanine, aspartic acid, glycine in amounts of 0.05-5wt% (col. 2, lines 47-53). Further, Lin discloses sugars, consistent with Chiang, such as fructose and xylose in amounts of 0.1-4wt% (col. 2, lines 53-58). Finally, Lin discloses vitamins may be added such as vitamin B1 (thiamine) in amounts of 0.01-0.5wt% which overlaps the claimed range of 0.1-10wt%, thus presenting a prima facie case for obviousness (col. 3, lines 3-10). It would have been obvious to one of ordinary skill to add vitamins such as vitamin B1 to the pet food additive of Chiang as modified by Yin ‘848, as suggested by Lin, for the purpose of conferring the known benefits thereof to an animal feed in addition to the enhancement of the feed flavoring. Lin clearly discloses that addition of vitamins to animal feed via a palatability enhancer is known, thus one of ordinary skill would have found it obvious to add vitamins, such as vitamin B1, to the flavoring agent of Chiang as modified by Yin ‘848 with a reasonable expectation of successfully providing beneficial vitamins to the animal. Still further, Lin discloses the addition of one or more antioxidants into the mixture is typical. Optionally, the antioxidant is selected from BHA, BHT, propyl gallate, ethoxyquin, alpha tocopherol, beta tocopherol, gamma tocopherol, delta tocopherol, rosemary extract, ascorbic acid (vitamin C), ascorbyl palmitate, citric acid, tea extract or mixtures thereof (col. 3, lines 53-62). Thus, the addition of mixed tocopherols is seen to be obviated by Lin in an amount of 0.01-0.5wt% which overlaps the claimed range.
Regarding claim 9, Chiang teaches hydrolyzing the meat viscera to form hydrolysates, and adding the reducing sugars and amino acids and heating up to 110C (230F) at a pH of about 7.3-8.5 [0082-0089]. An example of time is given in Example 1 of 200F for 60 minutes to allow Maillard flavor development. These ranges either overlap or fall within the claimed ranges, thus presenting a prima facie case for obviousness.
Regarding claim 14, Table 6 gives an example of using 1.5wt% of the palatability enhancer (animal digest) in pet food.
Claim(s) 13 is rejected under 35 U.S.C. 103 as being unpatentable over US 2012/0213889 (Chiang) in view of CN 110463848 (Yin ‘848) and US 10,561,162 (Lin) as applied to claim 9 above and further in view of US 2005/0037108 (Lin ‘108).
Chiang in view of Yin ‘848 and Lin teach the limitations of claim 9 as discussed above but does not expressly teach an overall content of the formed composition. Lin ‘108 teaches a palatability enhancing composition and further teaches preferred specifications for chicken viscera digest which comprises 16.5-40wt% protein, 3-30wt% fat, 4.8-6.5wt% moisture and 5.6-7.5wt% ash (Table 5). In Chiang, chicken viscera is mixed with additional ingredients and water is added (see for instance Table 3 and Table 4). It would have been obvious to one of ordinary skill to use the exemplary chicken viscera of Lin in the process of Chiang with a reasonable expectation of forming a palatability enhancer as Lin teaches the use of the chicken viscera for the same purpose as Chiang. The amount of moisture is expected to increase and the relative amounts of protein, fat and ash would adjust accordingly. Absent a showing of an unexpected result, it would have been obvious to modify the amounts of water added to reach the desired concentrations, gelling and viscosity.
Claim(s) 19 are rejected under 35 U.S.C. 103 as being unpatentable over CN 110463848 (Yin ‘848) in view of US 2017/0112167 (Cambou) and US 10,561,162 (Lin) as applied to claim 15 above, and further in view of US 4265913 (Eichelburg) and US 2023/0345971 (Ashie).
Yin ‘848, Cambou and Lin teach a palatability enhancer as discussed above but do not teach a profile of the mixture. Eichelburg teaches an oral ingesta with improved palatability for animals. Eichelburg teaches using commercially available yeast which includes a minimum of 45wt% protein, maximum 7wt% of moisture, and maximum 8wt% amount of ash (col. 4, lines 50-60). Cambou teaches that the PEC can be liquid which indicates a high level of moisture. And further states that water is added to form a slurry [0136]. The amount of moisture is expected to increase and the relative amounts of protein, and ash would adjust accordingly. It would have been obvious to use the yeast taught by Eichelburg as it is taught as a known and exemplary yeast and would reasonably be expected to be successful in forming a palatability enhancer in the combination of Yin ‘848, Cambou and Lin and the addition of water would have been obvious to adjust to form a liquid enhancer. Regarding the presence of fat, it is known that fat, particularly dairy fat, can provide good palatability enhancement in amounts up to about 5wt% as taught by Ashie [0002-0003]. It would have been obvious to one of ordinary skill to add dairy fat, up to 5wt%, to the palatability enhancer with a reasonable expectation of enhancing the palatability of the composition.
Claim(s) 13 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2007/109761 (Zulin) in view of CN 113412885 (Yin) as applied to claim 9 above and further in view of US 2005/0037108 (Lin ‘108).
Zulin and Yin teach the limitations of claim 9 as discussed above but does not expressly teach an overall content of the formed composition. Lin ‘108 teaches a palatability enhancing composition and further teaches preferred specifications for chicken viscera digest which comprises 16.5-40wt% protein, 3-30wt% fat, 4.8-6.5wt% moisture and 5.6-7.5wt% ash (Table 5). In Zulin, chicken viscera is mixed with additional ingredients (Example 1). It would have been obvious to one of ordinary skill to use the exemplary chicken viscera of Lin in the process of Zulin as modified by Yin with a reasonable expectation of forming a palatability enhancer as Lin teaches the use of the chicken protein for the same use as Zulin. The amount of moisture is expected to increase and the relative amounts of protein, fat and ash would adjust accordingly. Absent a showing of an unexpected result, it would have been obvious to modify the amounts of water added to reach the desired concentrations, gelling and viscosity.
Claim(s) 19 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2007/109761 (Zulin) in view of CN 113412885 (Yin) as applied to claim 15 above, and further in view of US 4265913 (Eichelburg) and US 2023/0345971 (Ashie).
Zulin and Yin teach a palatability enhancer as discussed above but do not teach a profile of the mixture. Eichelburg teaches an oral ingesta with improved palatability for animals. Eichelburg teaches using commercially available yeast which includes a minimum of 45wt% protein, maximum 7wt% of moisture, and maximum 8wt% amount of ash (col. 4, lines 50-60). Zulin discloses that the palatability enhancer may be dry or liquid form [0045] and a moisture content up to 90wt% (10% total solids) [0063], thus obviating the claimed moisture content. It would have been obvious to use the yeast taught by Eichelburg as it is taught as a known and exemplary yeast and would reasonably be expected to be successful in forming a palatability enhancer in the combination of Zulin and Yin and the addition of water would have been obvious to adjust to form a liquid enhancer. Regarding the presence of fat, it is known that fat, particularly dairy fat, can provide good palatability enhancement in amounts up to about 5wt% as taught by Ashie [0002-0003]. It would have been obvious to one of ordinary skill to add dairy fat, up to 5wt%, to the palatability enhancer with a reasonable expectation of enhancing the palatability of the composition.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Specifically, applicant amended the independent claims to require one of vitamin B1 or mixed tocopherols are present as processing aids at an amount of 0.1-10wt%. The rejections have been changed to add US 10,561,162 (Lin) which discloses the addition of vitamin B1 and mixed tocopherols in amounts that overlap the claimed ranges to a palatability enhancer. Additionally, Zulin and Bidmead are added for teaching thiamine added to flavoring compositions.
Applicant amended the independent claims as noted above and filed an affidavit by the first-named inventor Lingxiang Sun. Applicant refers to the affidavit in the response to each rejection which is summarized as follows: Applicant states that it was found that the addition of vitamin B1 broke down at the disclosed processing temperature range thereby forming sulfur-containing intermediates, which it was found helped with the acceleration of the Maillard reactions. A comparison in the affidavit was made between treats with or without the palatability enhancement and that the affidavit shows a comparison with or without the addition of mixed tocopherols. Applicant argues that it was found that the addition of Vitamin B1 strengthened and enriched the flavors of the final composition, thereby increasing the palatability of the final product and that the addition of mixed tocopherols made possible the final product that was not burnt. Thus, applicant summarizes that the claims are patentable because of a surprising and unexpected enhancement in palatability and manufacturability of the invention as claimed.
The affidavit and applicant’s accompanying arguments as summarized above have been considered, but are not found persuasive of patentability of the current claims. The affidavit submitted compares test samples of no added Vitamin B (standard diet), test treats with a weight percentage of 5.5 and test treats with a weight percentage of 8.5wt%. However, the affidavit does not indicate any of the other materials or their amounts present in the patentability enhancer and also do not indicate the amount of enhancer added relative to the treats in order to determine whether the testing compositions are commensurate in scope with the claimed subject matter. Also, the test appears to be for 0wt%, 5.5 wt% and 8.5 wt% Vitamin B. There are no testing parameters above 10wt% to demonstrate the unexpected result across the scope of the claimed range. Moreover, Lin discloses the addition of Vitamin B in an amount of 0.01-0.5wt% which overlaps with the claimed range and renders the range prima facie obvious and the affidavit has not sufficiently demonstrated that anything unexpected occurs across the scope of the claimed range. Still further, Zulin discloses an example of thiamine added at 0.2wt% (example 1) which falls within the claimed range. Finally, the effect of providing a cooked meat flavor appears to be known as evidenced by GB 1115610 which states on page 2, lines 86-90, that thiamine compounds show the effect of a cooked meat flavor which would reasonably be expected to be favorable to animals. Still further, US 3394016 (Bidmead) discloses thiamine combined with protein hydrosylate and amino acids where thiamine is in an amount of 1.71wt% and confers a beef flavor (Example 2) where thiamine is known for providing a beef flavor.
Regarding the addition of mixed tocopherols, the instant claims do not require the presence of tocopherols as currently claimed. The affidavit provides photos comparing the different between adding mixed tocopherols and without mixed tocopherols and the addition provides a smooth and mild effect during processing and avoided boiling over when adding 0.1-2wt%. If the unexpected result is the avoidance of boiling, the range of 0.1-2wt% is not commensurate with the claimed amount of .01-10wt%. Also, there is no indication of what other materials are present in the experiments, thus one cannot reasonable determine whether the experiments are commensurate in scope with the claims. Finally, Lin ‘162 discloses the addition of mixed tocopherols in an amount of 0.01-0.5wt% which overlaps the claimed range and provides a prima facie case for obviousness.
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 JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/ Primary Examiner, Art Unit 1793