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 .
This office action is in response to the application filed on July 6, 2023. The earliest effective filing date of the application is January 6, 2021.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-10, 31, 37, and 38, in the reply filed on October 30, 2025 is acknowledged.
Claims 11, 12, and 15-22 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Priority
The present application is a 371 National Stage Application of PCT/ US2021/012368 which has a filing date of January 6, 2021.
Information Disclosure Statement
The IDS filed September 26, 2025 has not been considered because it is a duplicate of the IDS filed on January 4, 2024, which has been considered.
Status of Application
Claims 1-12, 15-22, 31, 37, and 38 were originally presented and subject to a restriction requirement. Claims 1-12, 15-22, 31, 37, and 38 are pending; claims 11, 12, and 15-22 are withdrawn; claims 13, 14, 23-30, and 32-36 are canceled. Claims 1-10, 31, 37, and 38 are presented for examination.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because:
Reference characters "410" and "412" have both been used to designate the outer casing in Fig. 8 as described in [0078] of the instant specification.
Reference characters "510" and "515" have both been used to designate the cavity in Fig. 9 as described in [0079] of the instant specification.
Reference characters "2410" and "2412" have both been used to designate the outer casing in Fig. 18 as described in [00114] of the instant specification.
Reference characters "2510" and “2515" have both been used to designate the cavity in Fig. 19 as described in [00115] of the instant specification.
Reference characters "3410" and "3412" have both been used to designate the outer casing in Fig. 28 as described in [00131] of the instant specification.
Reference characters "3510" and "3515" have both been used to designate the cavity in Fig. 29 as described in [00132] of the instant specification.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because:
Reference character “412” has been used to designate both the outer casing and jerky material in Fig. 8 as described in [0078] of the instant specification.
Reference character “510” has been used to designate both the molded outer shell and the molded cavity in Fig. 9 as described in [0079] of the instant specification.
Reference character “2412” has been used to designate both the outer casing and vegetable and/or fruit material or other dried and cured animal flesh in Fig. 18 as described in [00114] of the instant specification.
Reference character “2510” has been used to designate both the molded outer shell and the molded cavity in Fig. 19 as described in [00115] of the instant specification.
Reference character “3412” has been used to designate both the outer casing and jerky material in Fig. 28 as described in [00131] of the instant specification.
Reference character “3510” has been used to designate both the molded outer shell and the molded cavity in Fig. 29 as described in [00132] of the instant specification.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference signs mentioned in the description: 432 (Fig. 7), 2432, 2110 (Fig. 17), and 3432 (Fig. 27).
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference characters not mentioned in the description: 614 (Fig. 10), 2614 (Fig. 20), and 3614 (Fig. 30).
The drawings are objected to because Fig. 7 includes the reference character 314, while 314 is described in the specification as being the bone shaped pet treat as shown in Fig. 6 [0075].
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains the implied phrase of “The present disclosure related generally” in lines 1 and 7-8. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The disclosure is objected to because of the following informalities:
[00110] recites “cylinder shaped assembly 214 as shown in FIG. 12” in line 4, should read “cylinder shaped assembly 2014 as shown in FIG. 12.”
[00112] recites “the sheets 2110 and 2112” in line 2, should read “the sheets 210 and 2112.”
[00122] recites “sheet 10” in the second to last line, should read “sheet 310,” as recited in the first line.
[00124] recites “the pet-chew 314” in the second to last line; it seems as though the referenced pet-chew should be that of 3014, 3114, 3214, or 3314, as the sheets 310 and 312 are included in those pet-chews.
[00126] recites “cylinder shaped pet chew 314” in the second to last line, should read “cylinder shaped pet chew 3014.”
[00127] recites “cylinder shaped assembly 314 as shown in FIG. 22” in line 4, should read “cylinder shaped assembly 3014 as shown in FIG. 22.”
[00129] recites “sheets 3110 and 3112” in line 2, should read “sheets 310 and 3112.”
Appropriate correction is required.
Claim Objections
Claims 1, 3, 6, and 38 are objected to because of the following informalities:
Claim 1 has a period at the end of “ingredients” in line 3, should be a comma or should recite a conjunction such as “and” or “or.”
Claim 3 recites “the grain-base material” in lines 1-2, should read “the grain-based material” to align with the earlier claim language.
Claim 6 recites “pommelo” in line 7, should read either “pomelo” or “pummelo.”
Claim 38 recites “present in the amount” in line 2, should read “present in an amount.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10, 31, 37, and 38 are 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 1 recites the limitation "the pet treat" in line 2. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination, “the pet treat” will be interpreted as “the pet chew” as recited in the preamble of the claim.
Claims 4 and 5 recite that the first sheet is “substantially free” of either rawhide or wheat or rice. The term “substantially” is a relative term which renders the claims indefinite. The term “substantially free of” is not defined by either claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. What amount of the component present in the composition would qualify as the composition being “substantially free of” the component? Trace amounts? A fraction of a percent? One percent? Five percent? Thus, the claims are rendered indefinite.
Claim 38 recites the limitation "the amount" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 38 refers to a percentage, 4 wt.%, without defining the basis of the percentage. It is not clear if the percentage is based on the total mass of the total composition of the pet chew, the mass of the second sheet, or something else. As such, the claim fails to distinctly claim the subject matter of the invention and is therefore indefinite. For the purposes of examination, the percentage will be interpreted on a basis of the mass of the second sheet.
Claims 2, 3, 6-10, 31, and 37 are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 102
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 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 1-7, 9, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chen et al. (US Patent 8,900,649; listed on IDS dated Jan. 1, 2024), herein after referred to as Chen.
Regarding claims 1 and 3, Chen discloses a pet chew comprising:
an outer layer (i.e., a first sheet) configured to be shaped into a cylindrical shape having knots at both ends (i.e., configured to be shaped into the pet chew) (claim 1) which comprises pumpkin (a type of squash) (i.e., a grain-based material) with one or more auxiliary ingredients (col. 2 lines 26-31 and 36-52), and
an inner layer (i.e., a second sheet) (claim 1) comprising an animal-product jerky (i.e., a meat based composition) (claim 2).
The pumpkin (squash) as disclosed by Chen is considered to be the grain-based material as claimed because instant claim 3 recites that squash is a specific material of the grain-based material.
Regarding claim 2, Chen discloses that the inner layer (i.e., second sheet) comprises chicken (claim 3).
Regarding claims 4 and 9, Chen discloses that the outer layer (i.e., first sheet) is free of rawhide (claim 7).
Regarding claims 5 and 10, Chen discloses that the outer layer (i.e., first sheet) is free of wheat (col. 2 lines 8-10).
Regarding claim 6, Chen discloses that the auxiliary ingredients comprise sweet potato (col. 2 lines 4 and 36-52).
Regarding claim 7, Chen discloses that the auxiliary ingredients include salt (col. 2 lines 36-52).
Claim Rejections - 35 USC § 103
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.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (US Patent 8,900,649), as applied to claim 1 above, and further in view of Carrillo et al. (US PG Pub. 2013/0029011), herein after referred to as Carrillo.
Chen discloses the pet chew as set forth above with regard to claim 1.
Chen is silent as to that the one or more auxiliary ingredients include a health ingredient selected from the group consisting of glucosamine, chondroitin, flax seed, calcium, parsley seed, peppermint, chlorophyll, vitamin E, L-carnitine, lycopene, or mixtures thereof.
Carrillo, in the same field of invention, teaches a pet treat comprising an inner and outer portion and where the pet treat includes a health ingredient selected from the group consisting of glucosamine, chondroitin, flax seed, calcium, parsley seed, peppermint, chlorophyll, vitamin E, L-carnitine, and lycopene (Abstract; [0017]). Carrillo offers the motivation that the inclusion of these health ingredients promote dental care, skin and coat health, activity, digestive care, immunity, and/or general health balance in the pet consuming the treat [0016]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the pet chew of Chen by incorporating the health ingredient such as glucosamine of Carrillo as the auxiliary ingredient, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of promoting health improvements in the pet consuming the treat.
Claims 31, 37, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (US Patent 8,900,649), as applied to claim 2 above, and further in view of Weinberg et al. (US PG Pub. 2012/0082762), herein after referred to as Weinberg.
Chen discloses the pet chew as set forth above with regard to claim 2.
Regarding claim 31, Chen is silent as to that the second sheet further comprises an antioxidant rich material selected from a group consisting of acai berries, blueberries, blackberries, spinach, brown rice, quinoa, chia seeds, flax seeds, wheat grass, pumpkin, salmon, kiwi, and asparagus.
Weinberg, in the same field of invention, teaches a jerky pet treat comprising chicken [0046] and salmon [0047]. The salmon taught by Weinberg is considered to be an antioxidant rich material since salmon is recited in the instant claim as being a suitable antioxidant rich material.
Therefore, as it was known in the art to produce a pet chew with a meat based composition comprising chicken and salmon, it would have been obvious to one of ordinary skill in the art to have made a pet chew as claimed, by incorporating the salmon of Weinberg, as an antioxidant rich material as claimed, into the chicken based inner layer (i.e., second sheet) of Chen, as Weinberg teaches that salmon is known to be added to meat based pet chews.
Regarding claim 37, Chen teaches that the meat is chicken breast jerky (claim 3).
Regarding claim 38, modified Chen teaches that the salmon (i.e., antioxidant rich material) is blended evenly with the other ingredients (i.e., chicken) (Weinberg: [0049]), thereby teaching that there are equal amounts of each ingredient. Since there are only two ingredients (chicken and salmon), it is expected that the salmon is present in an amount of 50 wt.%. This amount lies within the claimed range of at least 4 wt.%.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Harbour et al., US PG Pub. 2017/0181448, teaches a pet chew with a plant based mixture comprising the grain-based material as instantly claimed (claims 17 and 26), lycopenes [0029], and auxiliary ingredients including a binding agent, a moisturizing compound, a salt, a sugar, an acid, a mold inhibitor, a flavoring compound, an aroma compound, and/or a coloring compound (claim 22)
Stern (US PG Pub. 2008/0118606 and US Patent 9,968,117) and Stern et al. (US PG Pubs. 2013/0142936 and 2020/0214258) all teach a similar pet chew to that as claimed, including two sheets forming a pet chew wherein one sheet is plant based and the second sheet is meat based. The figures disclosed in each of these references are also substantially similar to, if not the same as, the figures supplied in the instant application.
Kazemzadeh, US Patent 5,773,070, teaches a jerky pet treat.
Phelps et al., US PG Pub. 2009/0311390, teaches a pet food treat comprising a meat base that comprises the additional ingredients of a binding agent, a moisturizing compound, a salt, a sugar, an acid, a mold inhibitor, a flavoring and aroma compound, and/or a coloring compound (claim 3).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 8:00-5:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571)-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791