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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 18, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
36, 40-49, 56
Withdrawn claims:
47-48
Previously canceled claims:
1-35, 37, 50-52, 54-55
Newly canceled claims:
38-39, 53
Amended claims:
36
New claims:
56
Claims currently under consideration:
36, 40-46, 49, 56
Currently rejected claims:
36, 40-46, 49, 56
Allowed claims:
None
It is noted that claim 49 is designated as “(Withdrawn)”. However, claim 49 is currently a part of prosecution due to dependence on claim 36. Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 56 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 56 recites the limitation “wherein the at least two omega-3 polyunsaturated fatty acids are present in an amount of from about 0.2% to about 0.5%”. It is unclear if this recitation is limiting the amount of each fatty acid or the total amount of fatty acids. In a case where the limitation refers to the amount of each fatty acid, the limitation renders the claim indefinite. Because claim 36 requires that the total amount of omega-3 fatty acids be 0.2 to 0.5%, the upper limit of 0.5% in claim 56 would then require that the second fatty acid be present in an amount less than the minimum 0.2%. For the purposes of examination, it is presumed that the limitation of claim 56 applies to the total amount of omega-3 polyunsaturated fatty acids.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 56 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 56 recites the at least two omega-3 being present in “an amount of from about 0.2% to about 0.5%”. However, claim 36, upon which claim 56 depends, recites that the at least two omega-3 are present “in a total amount of from about 0.2% to about 0.5%”. Thus, claim 56 fails to further limit the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 36, 38-39 and 43-45 are rejected under 35 U.S.C. 103 as being unpatentable over Zicker (US 2006/0002985 A1).
Regarding claim 36, Zicker teaches feline diet compositions comprising at least one sulfur containing amino acid or antioxidant and at least one omega-3 fatty acid ([0006]), where the list of acceptable amino acids or antioxidants include betaine ([0007]) and omega-3 fatty acids include a combination of docosahexaenoic acid and eicosapentaenoic acid ([0009]), which are known to be unbranched fatty acids with at least 20 carbons. Zicker also teaches that the omega-3 fatty acids are present in the diet composition at an amount of at least 0.05 wt.% ([0026]), which encompasses the claimed range of “from about 0.2% to about 0.5%”. Zicker also teaches that the test composition comprises 0.026% of DHA and 0.024% of EPA ([0037]; Table 2), which equates to a ratio of EPA to DHA of 1:1.08, which falls within the claimed range of “about 1:5 to about 5:1”.
Although Zicker does not teach the amount of betaine in the composition, Zicker does teach that another suitable amino acid or antioxidant is methionine that is included in an amount from about 0.8 wt.% to about 2.0 wt.% ([0007]), which overlaps with the claimed range of “about 0.3 to about 0.8%”.
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 betaine as the sulfur containing amino acid or antioxidant at an amount of 0.8 wt.% to about 2.0 wt.% in place of the methionine. One of ordinary skill would have been able to make this substitution because betaine and methionine are both sulfur containing amino acid or antioxidant compositions as taught by Zicker and would have achieved predictable results. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
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
The preamble recitation “for cats and dogs” is interpreted as the intended use of the claimed invention. MPEP §2111.02(II) states if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). The recitation of use for the pet food composition does not result in a manipulative difference to the composition as claimed. As such, the preamble does not carry patentable weight.
Regarding claim 43, Zicker teaches all elements of claim 36 as described above. Zicker also teaches that omega-3 fatty acids are found in fish oil ([0019]).
Regarding claim 44, Zicker teaches all elements of claim 36 as described above. Zicker also teaches the omega-3 fatty acid mixture comprising alpha-linolenic acid ([0009]).
Regarding claim 45, Zicker teaches all elements of claim 36 as described above. Zicker also teaches alpha-linolenic acid included at an amount of 0.279 wt.% ([0037], Table 2), which one of ordinary skill would recognize lies within the range of “about 0.3% to about 1%”.
Claims 40-42 and 46 are rejected under 35 U.S.C. 103 as being unpatentable over Zicker (US 2006/0002985 A1) in view of Smith (US PGPub 2018/0169048 A1)(IDS Reference filed 04/18/2023).
Regarding claim 40, Zicker teaches all elements of claim 36 as described above.
Zicker does not teach wherein the weight ratio of betaine to the at least two omega-3 fatty acids is from about 1:1 to about 2.5:1.
However, in the same field of endeavor of pet food, Smith teaches of a therapy with one or more omega-3 fatty acids (Abstract) comprising betaine in an amount of 1 to 6 g ([0078]) and a total omega-3 dosage of 0.4 to 15 g ([0035]), equivalent to a betaine to fatty acid ratio of 0.066:1 to 15:1, which encompasses the claimed range of “1:1 to about 2.5:1”.
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 Zicker with the use of a ratio of betaine to omega-3 fatty acids as taught by Smith. One of ordinary skill would have been motivated to make this modification because Smith teaches that the composition can be used to treat cognitive impairment in subjects (Abstract) including animals ([0183]).
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 41, Zicker teaches all elements of claim 36 as described above.
Zicker does not teach wherein the weight ratio of betaine to the at least two omega-3 fatty acids is from about 1.3:1 to about 2.0:1.
However, in the same field of endeavor of pet food, Smith teaches of a therapy with one or more omega-3 fatty acids (Abstract) comprising betaine in an amount of 1 to 6 g ([0078]) and a total omega-3 dosage of 0.4 to 15 g ([0035]), equivalent to a betaine to fatty acid ratio of 0.066:1 to 15:1, which encompasses the claimed range of “1.3:1 to about 2.0:1”.
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 Zicker with the use of a ratio of betaine to omega-3 fatty acids as taught by Smith. One of ordinary skill would have been motivated to make this modification because Smith teaches that the composition can be used to treat cognitive impairment in subjects (Abstract) including animals ([0183]).
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 42, Zicker teaches all elements of claim 36 as described above.
Zicker does not teach wherein the weight ratio of betaine to the at least two omega-3 fatty acids is about 1.7:1.
However, in the same field of endeavor of pet food, Smith teaches of a therapy with one or more omega-3 fatty acids (Abstract) comprising betaine in an amount of 1 to 6 g ([0078]) and a total omega-3 dosage of 0.4 to 15 g ([0035]), equivalent to a betaine to fatty acid ratio of 0.066:1 to 15:1, which encompasses the claimed value of “1.7:1”.
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 Zicker with the use of a ratio of betaine to omega-3 fatty acids as taught by Smith. One of ordinary skill would have been motivated to make this modification because Smith teaches that the composition can be used to treat cognitive impairment in subjects (Abstract) including animals ([0183]).
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 46, Zicker teaches all elements of claim 36 as described above.
Zicker does not teach wherein the weight ratio of betaine to the total amount of EPA and DHA is from about 1:2 to about 5:1.
However, in the same field of endeavor of pet food, Smith teaches of a therapy with one or more omega-3 fatty acids (Abstract) comprising betaine in an amount of 1 to 6 g ([0078]) and a total omega-3 dosage of 0.4 to 15 g ([0035]), equivalent to a betaine to fatty acid ratio of 0.066:1 to 15:1, which encompasses the claimed range of “about 1:2 to about 5:1”. Smith also teaches that the omega-3 fatty acid is a combination of EPA and DHA ([0028]).
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 Zicker with the use of a ratio of betaine to omega-3 fatty acids as taught by Smith. One of ordinary skill would have been motivated to make this modification because Smith teaches that the composition can be used to treat cognitive impairment in subjects (Abstract) including animals ([0183]).
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.
Claim 49 is rejected under 35 U.S.C. 103 as being unpatentable over Zicker (US 2006/0002985 A1) in view of Katz (Katz, Elisa. “Answers: Do Cats Need Dietary Fiber?” Hare Today, published May 4, 2019 [accessed online November 17, 2025] https://hare-today.com/feline-nutrition/answers/answers-do-cats-need-dietary-fiber).
Regarding claim 49, Zicker teaches all elements of claim 36 as described above. Zicker also teaches that cat food comprises ≥ 30% protein (which overlaps with the claimed range of “about 10% to about 40%”) and ≥ 10% fat (which falls within the claimed range of “about 9 or more weight%”).
Zicker does not teach the composition comprising from about 0.1 to about 10% by weight of fiber.
However, in the same field of endeavor, Katz teaches that the natural diet of cats comprises about 0.55% fiber (p. 2, ¶ 4).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to include fiber in an amount taught by Katz in the composition of Zicker. One of ordinary skill would be motivated to make this modification because Katz teaches that the amount of fiber matches the natural diet of cats (p. 2, ¶ 4).
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.
Response to Arguments
Claim Objections: Applicant has overcome the objections to the claims based on amendments in the Claims. Accordingly, the objections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claim 38 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 36, 38, 39, and 43-45 over Zicker: Applicant’s arguments filed February 18, 2026 have been fully considered but they are not persuasive.
Applicant reiterated the argument that Zicker expressly teaches that methionine functions using the sulfur compound and that one of ordinary skill would not substitute betaine for the methionine because betaine lacks sulfur. Applicant further argued that Zicker and Mavromichalis do not teach or suggest replacing methionine with betaine with reasonable expectation or success (remarks, p. 6, ¶ 2- p. 7, ¶ 3).
This argument has been considered. However, the Examiner maintains that one of ordinary skill would not immediately assume that betaine was added to the list in error. The Examiner asserts that although betaine is mischaracterized as containing sulfur, one of ordinary skill would recognize that betaine was purposefully included in the list of suitable amino acids and antioxidents. Thus, one would recognize that betaine is a valid alternative to the other sulfur-containing amino acids listed and would be an art equivalent of methionine. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Additionally, MPEP §2123(I) states “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989) and “The court held that the prior art anticipated the claims even though it taught away from the claimed invention. ‘The fact that a modem with a single carrier data signal is shown to be less than optimal does not vitiate the fact that it is disclosed.’” Celeritas Technologies Ltd. v. Rockwell International Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522-23 (Fed. Cir. 1998).
Applicant argued that the pet food of the claimed invention provided unexpected synergistic benefits, and that the specification provides data to affirm such finding (Remarks, p. 7, ¶ 4- p. 9, ¶ 1).
This argument has been considered. However, MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “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).” At present, the data provided by the instant specification is not commensurate in scope with the claimed invention. The examples provided in the instant specification recite the exact amount moisture, protein, fat, fiber, and ash present in the food composition (Table 1 and 3). Because the amounts of these are held constant, there is insufficient data to show that these compounds would not have an impact on the pet food composition of the claim 36. Thus, the data is not commensurate in scope with the claimed invention.
Claim Rejections – 35 U.S.C. §103 of claims 40-42 and 46 over Zicker and Smith; claim 49 over Zicker and Katz:
Applicant’s arguments filed February 18, 2026 have been fully considered but they are not persuasive.
This argument has been considered. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Examiner maintains that Smith is adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious. Applicant's arguments as related to claim 36 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 36, 40-46, 49 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
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