DETAILED ACTION
The claims submitted January 9, 2026 have been entered.
Claims 1, 5, and 9-15 are pending.
Claims 5 and 13-15 have been withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 9, 2026 has been entered.
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 .
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.
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.
Notes:
The term “effective to enhance palatability” in claim 1 is defined in the instant specification paragraph 20 as improving the palatability of a food composition relative to an identical composition lacking the spinach/tomato”, and thus, a composition containing tomato and/or spinach would encompass a product with the claimed feature.
The term “reduced sugar” is defined in the instant specification paragraph 21 to mean that at least one of spinach or tomato reduces the amount of added sugar to a food composition relative to an identically formulated composition lacking the spinach/tomato while maintaining at least approximately the same palatability.
The term “wet” food is defined in the instant specification, paragraph 16 as having more than 20% moisture and/or a water activity of higher than 0.75.
The term “chunks” is defined in the instant specification paragraph 17 as “a plurality of separate food bodies”.
The term “gravy” is defined in the instant specification paragraph 17 as “a flowable edible composition… preferably has the form of a gel or a sol”. It is noted that the term does not require free flow, and encompasses flowable under pressure, such as would be exhibited with a gel.
Claims 1, 9, 10, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Rayner et al (US 2018/0220676) in view of Bennett et al (EP 1793685 B1).
Regarding claims 1, 10, and 12, Rayner et al (Rayner) teaches a pseudo-loaf composition comprising: about 60-74% water, chunks of restructured meat pieces, and gravy (abstract and paragraphs 35-37, 47, and 50-53), thus encompassing a wet food as instantly defined. Rayner teaches that the food is formulated for administration to a pet, including a cat (paragraphs 26, 48, 60, 63, and 67). Rayner teaches that vegetables, including tomatoes, spinach, and combinations thereof, can be added to the meat chunks in any suitable form, including dried, freeze dried, or frozen (paragraphs 32 and 51). As the food comprises tomatoes and spinach it would have an amount of spinach and tomatoes effective to enhance the palatability and/or reduce the sugar in the wet food as claimed (see the definitions noted above of effective to enhance palatability and reduce sugar). Rayner teaches that the vegetables can be added for nutrition, color, and aesthetic appearance (paragraph 32). Rayner teaches the wet food retorted and sealed in a container (paragraph 57).
Regarding the food as a chunks-in-gravy composition as recited in claim 1, as discussed above, Rayner teaches a pseudo-loaf composition comprising meat chunks and gravy. As the term “chunks” is defined in the instant specification paragraph 17 as “a plurality of separate food bodies”, and the pseudo-loaf product of Rayner comprises chunks, or pieces of meat (paragraph 53); and as the term “gravy” is defined in the instant specification paragraph 17 as “a flowable edible composition” and Raynor teaches the gravy mixed by standard means known in the art, including with stirring and heating a water slurry, i.e. a flowable edible composition (paragraph 54), the mixture of the chunks and gravy taught by Rayner (paragraph 56) would encompass chunks in gravy as claimed. The position is further supported as Rayner teaches the pseudo loaf type composition comprises chunks and gravy (abstract) and has “the eating characteristics of a chunk in gravy food composition” (paragraph 17).
Rayner is silent to the composition as comprising about 0.1-3.0% of each spinach and tomato as recited in claim 1, wherein the wet food does not comprise any added sugar as recited in claim 9.
Bennett et al (Bennett) teaches more appealing pet foods (title) including chunks in gravy (paragraph 7, 17, 62, and 65), comprising: up to about 5% grains and up to about 4%, preferably about 0.3-2% one or more vegetables selected from the group including spinach, tomatoes, and mixtures thereof (paragraphs 18, 33, 74, and 75, and claim 5). As the food comprises tomatoes and spinach it would have an amount of spinach and tomatoes effective to enhance the palatability and/or reduce the sugar in the wet food as claimed (see the definitions noted above). The position is further supported as it is disclosed that an effective amount can preferably be about 0.1-4.0% (paragraph 30) which is the same amount taught by Bennett; and as the invention of Bennett is to provide for appealing foods. Bennett teaches vegetables are selected for nutrition, color and aesthetic appearance (paragraph 75). As Bennett teaches of a wet pet food including chunks in gravy, wherein the chunks and gravy disclosed by Bennett are taught to have gravy comprising water and at least two ingredients selected from a group including vegetables and grains (paragraph 62), wherein the grains are included up to 5% (paragraph 74) and the vegetables are included up to about 4% (paragraph 75), the composition taught by Bennet comprises 91% or more gravy. As the gravy contains over about 90% water (paragraph 72), the product of Bennett thus comprises about 81.95% or more moisture (91% or more gravy in the product with over about 90% water = 81.95% water in the product composition) which encompasses a “wet” food as instantly claimed.
Regarding the composition as comprising about 0.1-3.0% of each spinach and tomato effective to enhance the palatability and/or reduce the sugar in the wet food as recited in claim 1, as discussed above, as the food of Rayner comprises tomatoes and spinach it would have an amount of spinach and tomatoes effective to enhance the palatability and/or reduce the sugar in the wet food as claimed. Further, regarding the amount, as Rayner teaches dried vegetables, including tomatoes, spinach, and combinations thereof, added to the meat chunks in any suitable form, including dried, freeze dried, or frozen (paragraphs 32 and 51), but is silent to the amount of vegetables for use, it would have been obvious to look to the art to determine an amount. As Bennett teaches the use of dried vegetables, including tomatoes and spinach, in pet food in an amount of up to 4% of the final food product (paragraph 75), it would have been obvious for the pet food of Rayner to comprise up to about 4% dried tomato and spinach, wherein the amount of each was varied within the range depending on the appearance, color, and/or nutrition (Rayner paragraph 32 and/or Bennett paragraph 75) desired from each respective ingredient. It is noted that the term “about” means near or close to and is not limited to only the recited numerical values and that there are only a limited number of choices when including both tomato and spinach up to about 4%, wherein each would be included from greater than 0, thus encompassing amounts such as about 0.1%, and less than about 4%, encompassing amounts of about 4.0% of each tomato and spinach respectively.
Regarding the wet food as free of added sugar as recited in claim 9, as Rayner teaches sugar and sweeteners as optional ingredients, which may (or may not) be included in the composition (paragraphs 37 and 41), the teachings of Rayner encompass, or at least make obvious the wet food as free of added sugar. To form the product of the prior art as disclosed, without additional non-required ingredients would have been obvious and well within the purview of one of ordinary skill in the art. The position of the office is further supported as the examples of Rayner encompass the wet food compositions free of added sugars.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Rayner et al (US 2018/0220676) in view of Bennett et al (EP 1793685 B1), further in view of Cambou et al (US 2017/0112167).
As discussed above, Rayner teaches a wet cat food comprising chunks and gravy. Rayner is silent to the wet food as further comprising soy sauce as recited in claim 11.
Cambou et al (Cambou) teaches of a palatability enhancer which is easy and effectively used for wet cat foods comprising an amino reactant selected from the group including soy sauce (abstract and paragraphs 5 and 42).
Regarding the pet food as further comprising soy sauce, it would have been obvious for the wet pet food of Rayner to comprise soy sauce in order to easily and effectively further enhance the palatability of the wet pet food in view of Cambou.
Claims 1, 9, 10, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ephraim et al (WO 2022/103836) in view of Bennett et al (EP 1793685 B1) and Rayner et al (US 2018/0220676).
Regarding claims 1, 10, and 12, Ephraim et al (Ephraim) teaches feeding a cat wet food with a 65-85% moisture composition comprising spinach and tomato (claims 37-39 and 45-47). As the food comprises tomatoes and spinach it would have an amount of spinach and tomatoes effective to enhance the palatability and/or reduce the sugar in the wet food as claimed (see the definitions noted above of effective to enhance palatability and reduce sugar). Ephraim teaches that wet pet foods have a higher amount of water and are usually present in a can or container and include chunk and gravy foods which are individual solid particles in the presence of a liquid gravy (paragraph 46-47), and thus the teachings of Ephraim encompass or at least make obvious a chunk in gravy wet cat food as instantly claimed. Ephraim also generally teaches that the food, is a pet food, including for felines (paragraphs 10 and 11), wherein the food comprises spinach and tomato (paragraphs 7, 10, 11, and 42). Ephraim teaches that the food is filled into a can, the lid is applied, the container is hermetically sealed, and then the can is placed into conventional equipment desired to sterilize the contents, generally at temperatures greater than 110C for an appropriate time (paragraph 49), and thus encompasses, or at least makes obvious the wet food retorted and sealed in the container as recited in claim 12.
Ephraim is not specific to the chunks in gravy as comprising meat or restructured meat pieces, wherein at least a portion of the spinach and tomato are in the chunks, and to the spinach and tomato as from about 0.1-3.0% of each spinach and tomato effective to enhance the palatability and/or reduce the sugar in the wet food as recited in claim 1, and the wet food as free of any added sugar as recited in claim 9.
Bennett et al (Bennett) teaches more appealing pet foods (title) including chunks in gravy (paragraph 7, 17, 62, and 65) comprising water and at least two ingredients selected from a group including: meat, soy, pasta, vegetables and grains (paragraph 62), wherein the grains are included up to 5% (paragraph 74) and the one or more vegetables are included up to about 4%, preferably from about 0.3-2% (paragraph 75). Bennett teaches that the meat was prepared in a manner known in the art and was formed as chunks which contain a variety of other ingredients in addition to meat, i.e. restructured meat (paragraphs 65 and 66). Bennett teaches that the product has a pleasant meaty aroma (paragraph 62). Bennett teaches the one or more vegetables selected from the group including spinach, tomatoes, and mixtures thereof (paragraphs 18, 33, 74, and 75, and claim 5). As the food comprises tomatoes and spinach it would have an amount of spinach and tomatoes effective to enhance the palatability and/or reduce the sugar in the wet food as claimed (see the definition noted above). The position is further supported as it is disclosed that an effective amount can preferably be about 0.1-4.0% (instant specification paragraph 30) which is the same amount taught by Bennett; and as the invention of Bennett is to provide for appealing foods. Bennett teaches vegetables are selected for nutrition, color and aesthetic appearance (paragraph 75). As Bennett teaches of a wet pet food including chunks in gravy, wherein the chunks and gravy disclosed by Bennett are taught to have gravy comprising water and at least two ingredients selected from a group including vegetables and grains (paragraph 62), wherein the grains are included up to 5% (paragraph 74) and the vegetables are included up to about 4% (paragraph 75), the composition taught by Bennet comprises 91% or more gravy. As the gravy contains over about 90% water (paragraph 72), the product of Bennett thus comprises about 81.95% or more moisture (91% or more gravy in the product with over about 90% water = 81.95% water in the product composition) which encompasses a “wet” food as instantly claimed.
Rayner et al (Rayner) teaches a pseudo-loaf composition comprising: about 60-74% water, chunks of restructured meat pieces, and gravy (abstract and paragraphs 35-37, 47, and 50-53). Rayner teaches that the food is formulated for administration to a pet, including a cat (paragraphs 26, 48, 60, 63, and 67). Rayner teaches that vegetables, including tomatoes, spinach, and combinations thereof, can be added to the meat chunks in any suitable form, including dried, freeze dried, or frozen (paragraphs 32 and 51). Rayner teaches that the vegetables can be added for nutrition, color, and aesthetic appearance (paragraph 32). As the term “chunks” is defined in the instant specification paragraph 17 as “a plurality of separate food bodies”, and the pseudo-loaf product of Rayner comprises chunks, or pieces of meat (paragraph 53); and as the term “gravy” is defined in the instant specification paragraph 17 as “a flowable edible composition” and Raynor teaches the gravy mixed by standard means known in the art, including with stirring and heating a water slurry, i.e. a flowable edible composition (paragraph 54), the mixture of the chunks and gravy taught by Rayner (paragraph 56) would encompass chunks in gravy as claimed. The position is further supported as Rayner teaches the pseudo loaf type composition comprises chunks and gravy (abstract) and has “the eating characteristics of a chunk in gravy food composition” (paragraph 17).
Regarding the chunks in gravy as comprising meat or restructured meat pieces as recited in claim 1, it would have been obvious for the chunks and gravy of Ephraim to include restructured meat pieces in view of Bennett in order to provide a meaty aroma and/or for its inherent nutritional value. To use a known chunk type, wherein chunks are disclosed would have been obvious to one of ordinary skill in the art.
Regarding at least a portion of the spinach and tomato as in the chunks, as discussed above, it would have been obvious for the chunks in gravy of Ephraim to comprise meat chunks in view of Bennett. As Ephraim teaches the food as comprising tomato and spinach, Bennett teaches the meat chunks generally comprise additional ingredients, and Rayner explicitly teaches that meat chunks can contain vegetables, including tomato and spinach, it would have been obvious for the chunks of the prior art to contain the disclosed vegetables, including tomato and spinach. To include a disclosed ingredient in a known manner would have been obvious to one of ordinary skill in the art.
Regarding the spinach and tomato as from about 0.1-3.0% of each spinach and tomato effective to enhance the palatability and/or reduce the sugar in the wet food as recited in claim 1, as discussed above, as the food of Ephraim comprises tomatoes and spinach it would have an amount of spinach and tomatoes effective to enhance the palatability and/or reduce the sugar in the wet food as claimed. Further, regarding the amount, as discussed above, it would have been obvious for the chunks of Ephraim to comprise spinach and tomato in view of Bennett and Rayner. It would have been further obvious for the tomato and spinach to be included in a known amount, including up to about 4% as taught by Bennett, wherein the amount of each was varied within the range depending on the aesthetics, color, and/or nutrition (Rayner paragraph 32 and/or Bennett paragraph 75) desired from each respective ingredient. It is noted that the term “about” means near or close to and is not limited to only the recited numerical values and that there are only a limited number of choices when including both tomato and spinach up to about 4%, wherein each would be included from greater than 0, thus encompassing amounts such as about 0.1%, and less than about 4%, encompassing amounts of about 4.0% of each tomato and spinach respectively.
Regarding the wet food as free of any added sugar as recited in claim 9, as Ephraim does not teach that sugar is required to be added (all), the teachings of Ephraim at least make obvious a product without added sugar as claimed. To form the product of the prior art as disclosed, without additional non-required ingredients would have been obvious and well within the purview of one of ordinary skill in the art.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Ephraim et al (WO 2022/103836) in view of Bennett et al (EP 1793685 B1) and Rayner et al (US 2018/0220676), further in view of Cambou et al (US 2017/0112167).
As discussed above, Ephraim teaches pet foods including chunks in gravy which is a wet food. Ephraim is silent to the wet food as further comprising soy sauce as recited in claim 11.
Cambou et al (Cambou) teaches of a palatability enhancer which is easy and effectively used for wet cat foods comprising an amino reactant selected from the group including soy sauce (abstract and paragraphs 5 and 42).
Regarding the wet food as further comprising soy sauce, it would have been obvious for the wet pet food of Ephraim to further comprise soy sauce in order to easily and effectively further enhance the palatability of the wet pet food in view of Cambou.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1 and 9-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 9, and 11-12 of copending Application No. 18/333,294 (‘294) as filed October 23, 2025 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because: ‘294 claims a method of making the instantly claimed product, wherein the method recited in ‘294 would result in a wet pet food, including one for cats in the form of chunks in gravy, comprising spinach and tomato in an amount effective to enhance palatability and/or reduce added sugar, i.e. encompassing about 0.1-3%, wherein at least a portion of the tomato and spinach are in the chunks (claim 1), wherein no other sugar is present (claim 9), the composition further comprises soy sauce (claim 11), and is retorted and sealed in a container (claim 12).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments in the remarks and declarations filed January 9, 2026 have been fully considered but they are not persuasive.
Applicant argues that the present invention provides unexpected results of palatability. It is noted that the Vanacker Declaration provides further details as to how the tests were conducted. The evidence of unexpected results is not convincing for at least the following reasons:
It appears the results show “significantly” enhanced palatability with the use of tomato or spinach alone (Examples 1 and 2, paragraphs 69 and 71), which does not support applicant’s argument that both tomato and spinach must unexpectedly be used to achieve enhanced palatability as claimed.
Paragraph 72, Table 3, which appears to be the only example with both spinach and tomato in the chunks does not provide evidence commensurate in scope with the breadth of the claims. The evidence is limited to the use of 4% spinach powder (outside the claimed range) or 2% tomato powder and 2% spinach flakes in chunks, or 1% tomato powder and 1% spinach flakes in chunks. The claims do not limit the form of the tomato or spinach, nor do the claims limit the compositional percentage of tomato or spinach to the exemplified values. In other words, the evidence is not sufficient to show the claimed range is critical, and that the result would occur through the breadth of the range.
The comparison does not compare the closest prior art of record which has a composition overlapping that as claimed.
Applicant argues in the remarks Rayner teaches away from the present invention because the pseudo-loaf of Rayner is not messy and is in a different food form then a traditional chunks in gravy. Applicant supports this position by noting that the pseudo loaf of Rayner has “the eating characteristics of chunk in gravy, but a loaf type appearance”; that Rayner exemplifies the food without any free gravy or gel; and that Rayner teaches the food is not messy like traditional chunk in gravy, but also unlike a loaf which is pasty, but rather friable and easily broken apart and readily consumed by the animal, and thus, would be equivalent to chunks in loaf as defined in the instant specification at paragraph 19, which showed unacceptable palatability. This argument is not convincing as it does not consider the full teachings of the reference, and the terms as defined in the instant specification. As stated above, the term “chunks” is defined in the instant specification paragraph 17 as “a plurality of separate food bodies”; and the term “gravy” is defined in the instant specification paragraph 17 as “a flowable edible composition… preferably has the form of a gel or a sol”. The term does not require free flow, and also may encompass flowable under pressure, such as would be exhibited with a gel. It is noted that the term does not require free flow, and encompasses flowable under pressure, such as would be exhibited with a gel which is the preferred gravy form. Additionally, it is disclosed in the instant specification that a chunks in gravy may be substantially unform without distinct layers (paragraph 44).
As the term “chunks” is defined in the instant specification paragraph 17 as “a plurality of separate food bodies”, and the pseudo-loaf product of Rayner comprises chunks, or pieces of meat (abstract and paragraph 53); and as the term “gravy” is defined in the instant specification paragraph 17 as “a flowable edible composition” and Raynor teaches the gravy mixed by standard means known in the art, including with stirring and heating a water slurry, i.e. a flowable edible composition (paragraph 54), the mixture of the chunks and gravy taught by Rayner which has chunks distributed in gravy (paragraph 56) would encompass chunks in gravy as claimed. The position is further supported as Rayner teaches the pseudo loaf type composition comprises chunks and gravy (abstract), has chunks distributed in gravy (paragraph 56), and has “the eating characteristics of a chunk in gravy food composition” (paragraph 17). Although applicant argues that the product form taught by Rayner is different, and teaches away from the claimed product form, it is unclear as to what the actual differences are. For the reasons stated herein, the product of Rayner appears to encompass the product as claimed.
Applicant further states Miller declaration paragraphs 4-6, that Rayner uses gravy and chunks in the manufacturing process, however, teaches a held together product and does not contain any free-flowing gravy, and thus is fundamentally different than a traditional chunk-in gravy food form having a free-flowing gravy. This argument is not convincing to withdrawn the rejection as it is not commensurate in scope with the claims. Nowhere in the claims or definition of the term is the gravy required to be free flowing. In fact, nowhere in the disclosure has the term “free flowing” been mentioned. The term “gravy” is defined in the instant specification paragraph 17 as “a flowable edible composition… preferably has the form of a gel or a sol”. The term does not require free flow, and also may encompass flowable under pressure, such as would be exhibited with a gel. It is noted that the term does not require free flow, and encompasses flowable under pressure, such as would be exhibited with a gel which is the preferred gravy form. Additionally, it appears the opinion in the declaration is based only on the final product and does not consider the semi-finished product of Rayner in processing which is disclosed as a combination of chunks in gravy (see for example, Rayner paragraph 56).
To emphasize the position of the office, citations regarding the gravy and meat chunks from the instant disclosure and Rayner are cited below:
Instant Disclosure
PG-Pub, US 2024/0000111
Rayner et al
US 2018/0220676
Gravy
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232
388
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194
322
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Chunks
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112
396
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Greyscale
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308
396
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Greyscale
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402
328
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40
320
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Applicant further argues in the Miller declaration that although Rayner teaches the use of various vegetables, there is no understanding that spinach or tomato provide any palatability benefit (paragraph 7). This argument is not convincing as the claims are directed to a product which is obvious over the teachings of the prior art. The claims are not directed to a method of adjusting palatability, but rather a product which is taught and obvious over the teachings in the prior art. Additionally, in the instant specification, paragraph 1 it was noted in the BACKGROUND [of the invention] that flavor enhancers, such as glutamic acid or its salts and various compounds are known in the art to be flavor enhancers; and that both spinach and tomato comprises glutamic acid.
Applicant argues that Rayner does not provide spinach or tomato in its gravy. This argument is not convincing as it is not commensurate in scope with the claims which recite at least a portion of the spinach and tomato in the chunks.
Applicant argues that Rayner does not teach vegetables in the chunks. This argument is not convincing as Rayner teaches that “vegetables can be added to the meat analog chunks” (paragraph 32).
Applicant argues that Bennett does not teach a “wet” food because Bennett is completely silent regarding wet pet foods or any disclosure that the food disclosed by Bennett would meet applicant’s definition of “wet” (instant paragraph 16 - having more than 20% moisture and/or a water activity of higher than 0.75), and that the calculations in the action do not represent the total food composition. This argument is not convincing as the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Additionally, as stated previously Bennett teaches of a wet pet food including chunks in gravy. The chunks and gravy disclosed by Bennett are taught to have gravy comprising water and at least two ingredients selected from a group including vegetables and grains (paragraph 62), wherein the grains are included up to 5% (paragraph 74) and the vegetables are included up to about 4% (paragraph 75). Thus, the composition taught by Bennet comprises 91% or more gravy. As the gravy contains over about 90% water (paragraph 72), the product of Bennett thus comprises about 81.95% or more moisture (91% or more gravy in the product with over about 90% water = 81.95% water in the product composition) which encompasses a “wet” food as instantly claimed.
Applicant argues that Bennett does not teach tomato and spinach within it’s chunks. It is noted that Bennett is not relied upon for teaching of the limitation as claimed, and the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant argues that combining Rayner and Bennett, in order to make a chunk in gravy composition would be to destroy Rayner. This argument is not convincing as the rejection is not made over the argued modifications. As discussed above, the teachings of Rayner are considered to encompass a chunk in gravy composition as claimed.
Applicant argues that the rejection cannot rely on obviousness of ranges because the prior art does not recognize the spinach and tomato as a palatant. This argument is not convincing. First it is noted that the references teach and/or at least suggest of an overlapping range to that as claimed and thus are considered to encompass the claimed range. Furthermore, the references do teach specific results in relation to the vegetables. Rayner teaches that the vegetables can be added for nutrition, color, and aesthetic appearance (paragraph 32); and Bennett teaches vegetables are selected for nutrition, color and aesthetic appearance (paragraph 75). Thus, to adjust the vegetables, including tomato and spinach, for their taught effects would have been obvious in view of the prior art.
Applicant argues that Bennett is limited to a dog food. This argument is not convincing as the teachings of Bennett are not relied upon for teaching a cat food which is only recited in claim 10. Regardless, it is noted that Bennett teaches the food for pets or companion animals (paragraphs 1 and 2), and the examiner takes official notice that the terms “pet” and “companion animal” were both known to encompass animals in addition to dogs, such as, and including cats. Regarding the compositions of Bennett exemplified with dog food, a reference is not limited to its exemplary embodiments. Further, “nonpreferred disclosures can be used. A nonpreferred portion of a reference disclosure is just as significant as the preferred portion in assessing the patentability of claims.” In re Nehrenberg, 280 F.2d 161, 126 USPQ 383 (CCPA 1960).
Applicant argues that Bennett never discloses any embodiment having both spinach and tomato in a pet food, but instead has multiple distinct teachings with tomato or spinach alone. This argument is not convincing as Bennett specifically claims tomato and spinach in combination (claim 5). It is noted that other vegetables may be included as well, however, the claim does not consist of tomato and spinach as the only vegetables.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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, Erik Kashnikow can be reached at 571-270-3475. 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.
KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792