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 after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114.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 12/18/2025 has been entered.
Claim status
The examiner acknowledged the amendment made to the claims on 11/14/2025.
Claims 29, 31-35, 37-38, 40-41 and 43-48 are pending. Claims 29, 31-35 and 45-47 are currently amended. Claims 30, 36, 39 and 42 remain cancelled. Rest of claims are previously presented. Claims 29, 31-35, 37-38, 40-41 and 43-48 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Objections
Claims 33-35 are objected to because of the following informalities: “wherein the four or more botanical ingredients” should read “wherein the three or more botanical ingredients”. Appropriate correction is required.
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.
Claims 29, 31-35, 40-41 and 44-47 are rejected under 35 U.S.C. 103 as being unpatentable over Weisman US Patent No. 5,141,755 (hereinafter referred to as Weisman) in view of Henry US Patent Application Publication No. 2016/0145567 A1 (hereinafter referred to as Henry), Jewell WO 2020/091813 A1 (hereinafter referred to as Jewell, Khoo US Patent Application Publication No. 2017/0239314 A1 (hereinafter referred to as Khoo), and Lopez Mas US Patent Application Publication No. 2010/0210586 A1 (hereinafter referred to as Lopez Mas).
Regarding claims 29, 31-35 and 45-47, Weisman teaches a pet (e.g., dogs or cats) food composition, the pet food composition comprising, inter alia, protein, fat, 0.05-5% (or narrowly 2%) pectin, and 0.001-15% a flavoring (e.g., barbecue, fish, cheese, garlic, etc.) (column 1, line 6-8, column 2, line 16-21; column 4, line 16-18 and 56-62). Weisman teaches that pectin serves to assist in removing fatty plaques from the inside walls of arteries (column 2, line 48-49).
Weisman teaches pectin but is silent regarding that the pectin is extracted from lime peel.
Henry teaches that two major sources of pectins are, for example, from citrus peel (mostly lemon and lime) or apple peels, and can be obtained by extraction thereof (0095).
Both Weisman and Henry are directed to pectin. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Weisman by using the pectin extracted from lime peel with reasonable expectation of success, for the reason that prior art has established that pectin extracted from lime peel is a major source of pectin.
Weisman in view of Henry teaches a pet food composition that comprises 0.05-5% a lime peel extract (e.g., pectin extracted from lime peel). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Weisman is silent regarding that the pet food composition comprises cinnamon, green tea, pomegranate extract, ginger extract, tulsi extract or the amounts thereof.
Jewell teaches a pet food composition (e.g., a dietary composition for a companion animal such as dogs and cats, 0020; 0120-0121) comprising, inter alia, protein, fat, and a botanical selected from the group consisting of green tea, fenugreek, tulsi extract and mixture thereof (0020; 0033;0109), wherein the botanical is present in any amount that is effective in treating inflammation in a companion animal, for example, each of green tea, fenugreek, tulsi extract is present in the composition at greater than about 0.001 wt% or 0.001-1 wt%, or greater than 0.2 wt% green tea, or greater than about 0.001 wt% tulsi extract (0021;0033; 0120-0122).
Khoo teaches a pet (dogs or cat, 0004) food composition comprising an effective amount of ginger extract to prevent, ameliorate or treat inflammation in a pet (0005; 0012). In some embodiments, Khoo teaches 0.5-1.5% ginger extract is present in the pet food composition (0045-0046; 0101-0102). Further Khoo teaches that the pet food composition comprises an antioxidant such as citrus pulp, broccoli, and green tea (0050), and an flavorant such as cinnamon (0119).
Lopez Mas teaches that compounds in pomegranate known as punicalagins have powerful antioxidants and anti-inflammatory effects (0016). Lopez further teaches that it is suitable to incorporate punicalagins-containing pomegranate extract in a pet (e.g., dog, Example 5) food (dry or wet), and the amount of the pomegranate extract in a dog food is 0.04-0.5% (e.g., 400-5000 mg/kg) to exert anti-inflammatory (e.g., antioxidant) effect (0084; Example 5).
Weisman, Jewell, Khoo and Lopez Mas are all directed to pet food. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Weisman by including greater than 0.2% green tea, greater than about 0.001 wt% tulsi extract, 0.5-1.5% ginger extract, or 0.04-0.5% pomegranate extract in the pet food composition of Weisman for delivering anti-inflammatory or antioxidant effect. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined green tea, (tulsi extract), ginger exact and pomegranate extract with reasonable expectation of success, for the reason that "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06. In the instant case, prior art has established that each of the green tea, (tulsi extract), ginger extract and pomegranate extract has anti-inflammatory effect on a pet thus one of the ordinary skill in the art would have been motivated to combine them for the same purpose.
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Weisman by including cinnamon in the pet food composition for flavoring purpose. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established that cinnamon can be added to a pet food composition for flavoring purpose.
The amounts of green tea, tulsi extract, ginger extract and pomegranate extract as disclosed by Jewel, Khoo and Lopez Mas overlap with the range as recited in claims 29 and 45-47. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
On the amount of cinnamon in the pet food composition: Khoo as recited above teaches cinnamon functions as a flavorant in the pet food composition (0119), and Weisman teaches including 0.001-15% a flavoring (e.g., barbecue, fish, cheese, garlic, etc.) in the pet food composition. While prior art does not specify the proportion of the cinnamon in the pet food composition, the proportion of it is a conventional result effective variable in the food art. In other words, one of ordinary skill in the art would have varied the amount of cinnamon depending on the intensity of flavor favored by a pet. As such, the proportion of the cinnamon recited in the claims 29 and 45-47 is merely an obvious variant of the prior art.
It is noted that claims 46-47 recite that the botanical component “consists essentially of” cinnamon, green tea, pomegranate extract, ginger extract, (tulsi extract), and lime peel extract. In the instant case, Weisman in view of Henry teaches a lime peel extract (e.g., pectin) for assisting in removing fatty plaques from the inside walls of arteries; Weisman in view of Jewel as recited above teaching including green tea only or the combination of green tea and tulsi extract for anti-inflammatory effect; Weisman in view of Khoo introduces ginger extract for anti-inflammatory effect and cinnamon for flavoring; and Weisman in view of Lopez Mas introduces pomegranate extract for antioxidant/anti-inflammatory effect . As such, modified Weisman meets claims 46-47.
Further, since all the claimed ingredients (e.g., cinnamon, green tea, pomegranate extract, ginger extract, (tulsi extract), and lime peel extract) are known ingredients of a pet food composition, and the functions of each of the ingredients in the pet food composition are also known by the prior art, therefore, one skilled in the art could have used any combination of the ingredients including the combination as claimed by known method with no change in their respective functions, and the combination would have yielded nothing more than predictable results to a skilled in the art, absent a clear showing of the contrary.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. In the instant case, similar to Levin, applicant is claiming a new recipe or formulas of pet food which involve the elimination of common ingredients. However, where every ingredients recited in the claims is known to be present in a pet food composition for a specific purpose, applicant has not by a proper showing established a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function.
Regarding claim 40, Weisman in view of Jewell as recited above teaches a pet food composition comprising greater than 0.2% green tea,. Since green tea is low on caffeine (e.g., up to 25 mg caffeine per gram of green tea), and prior art meets the caffeine amount as recited in claim 40. Note that Jewell does not specify caffeine as an active ingredient of the dietary composition in his/her disclosure.
Regarding claim 41, Weisman in view of Jewell as recited above teaches a pet food composition comprising greater than 0.2% green tea. Given that green tea contains ~30% polyphenols (00108), claim 41 is met by prior art.
Regarding claim 44, Weisman in view of Khoo teaches including 0.5-1.5% ginger extract in the pet food composition. Weisman in view of Khoo is silent regarding the amount of gingerols and/or derivatives in the pet food composition. However, Khoo teaches that gingerols and derivative thereof (e.g., 10-gingerol, 6-gingerol, 6-shogaol, 8-gingerol, 8-shogaol, etc.) are among other active compounds of ginger to treat the inflammatory disorder of a pet (0104, 0005). Khoo further teaches that the extract of ginger could be prepared from fresh or dried ginger root by extraction with different solvents (0102). Therefore, one of ordinary skill in the art would have been motivated to use ginger extract with different amount of active compounds including gingerols or derivatives thereof such that the extract of ginger could effectively perform the anti-inflammatory effect. As such, the amount of gingerols and/or derivatives as recited in the claim is merely an obvious variant of the prior art.
Claims 37-38 and 48 are rejected under 35 U.S.C. 103 as being unpatentable over Weisman in view of Henry, Jewell, Khoo and Lopez Mas as applied to claim 29 or claim 45 above, and further in view of Haines US Patent Application Publication No. 2006/0127505 A1 (hereinafter referred to as Haines).
Regarding claim 37-38 and 48, Weisman in view of Henry, Jewell, Khoo and Lopez Mas as recited above teaches a pet food composition comprising green tea, tulsi extract, ginger extract and pomegranate for anti-inflammatory effect, and a flavorant such as cinnamon. Weisman in view of Henry, Jewell, Khoo and Lopez Mas is silent regarding type-A polymer.
Haines teaches an anti-inflammatory composition for dogs or cats comprises, inter alia, a polyphenol such as a type-A polymers of polyphenol (0003 and 0049; 0053) 0004).
Both Weisman and Haines are directed to compositions for dogs or cats. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Weisman by including type-A polymers of polyphenol with other anti-inflammatory agents (e.g., green tea, tulsi extract, ginger extract and pomegranate extract) with reasonable expectation of success, for the reason that it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06. In the instant case, prior art has established that green tea, tulsi extract, ginger extract, pomegranate extract and type-A polymers of polyphenol are all anti-inflammatory agents for pet thus one of the ordinary skill in the art would have been motivated to combine them.
On the amount of type-A polymers in the pet food composition: where prior art has established that type-A polymers of polyphenol is for delivering anti-inflammatory effect to a pet, one of ordinary skill in the art would have been motivated to manipulate the amount of it so as to ensure that it could effectively prevent, ameliorate or treat inflammation. As such, the proportion of type-A polymers as recited in claim 38 is merely an obvious variant of the prior art.
Claims 43 and 48 are rejected under 35 U.S.C. 103 as being unpatentable over Weisman in view of Henry, Jewell, Khoo and Lopez Mas as applied to claim 29 or claim 45 above, and further in view of Jackson WO 2020/131007 A1 (hereinafter referred to as Jackson).
Regarding claims 43 and 48, Weisman in view of Henry, Jewell, Khoo and Lopez Mas as recited above teaches a pet food comprising catechin (e.g., green tea) but is silent regarding that the pet food composition comprising ellagic acid.
Jackson teaches including a polyphenol such as ellagic acid, gallic acid, protocatechuic acid, catechin, etc. in a pet food composition for targeted modulation of the endocannabinoid system of a pet (e.g., companion animal) (0005; 0007).
Both Weisman and Jackson are directed to pet food compositions. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Weisman by including ellagic acid in the pet food composition of Weisman for targeted modulation of the endocannabinoid system of a pet.
Response to Arguments
Applicant's arguments filed 11/14/2025 have been fully considered and the examiner’s response is shown below:
The 35 USC 112 (d) rejection of claims 31-32 is withdrawn in view of amendment made to the claims.
Applicant argues on page 7 of the Remarks that Jewell in view of Khoo fails to teach lime peel and/or lime peel extract.
The argument is considered but found moot over the new ground of rejection set forth in the instant office action.
Applicant argues on page 8 of the Remarks that there is evidence of unexpected result. In particular, applicant argues that the pet food composition as claimed is effective in treating atopic dermatitis in canine, which is not taught by Jewell or Khoo.
The argument is considered but found unpersuasive because prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art. "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In the instant case, where cited arts in combination arrive at the composition as claimed, then the effect of treating atopic dermatitis is within the teaching of the prior art.
Further, the demonstrated results may be germane to the patentability of a method of treating atopic dermatitis by applying the composition as claimed, they are not germane to the patentability of the composition per se, for the reason that claims are directed to a composition the scope of the claim only requires those ingredients as recited, nothing more.
For the reasons set forth above, applicant arguments on 8-10 of the Remarks regarding other secondary references Vondran, Haines, and Jackson failing to cure the deficiency of Jewell and Khoo are not persuasive, either. Further note that Vondran is no longer relied upon in the instant office action.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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, NIKKI H 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHANGQING LI/Primary Examiner, Art Unit 1791