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 .
DETAILED ACTION
Claims 1-33 are cancelled.
Claims 34-53 are pending in the current application.
Claims 52-53 are withdrawn from consideration (see discussion, below).
Claims 34-51 are examined in the current application.
Election/Restrictions
Claims 52-53 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the restriction requirement in the reply filed on December 22nd 2025.
Applicant's election with traverse of claims 34-50 in the reply filed on December 22nd 2025 is acknowledged. The traversal is on the grounds that there would not be any additional burden to examine the feline food recited in claim 51. The examiner respectfully agrees, and the restriction requirement between claims drawn to the pet food and feline food of Groups I and II is withdrawn and claims 34-51 are examined and claims 52 and 53 are withdrawn for reasons stated in the previous Office Action of 10/27/2025).
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 34-51 are rejected under 35 U.S.C. 103 as being unpatentable over Jackson et al., (WO 2021/127701 A1).
Regarding claims 34, 40 and 51: Jackson discloses a ketogenic pet food composition (i.e., feline food) comprising medium chain triglycerides (‘MCT’) comprising octanoate components with the energy density values (i.e., g/1000kcal) attributed to fat, protein, fiber and carbohydrates that overlap the values recited in claim 34 (see Jackson abstract; paragraphs [0018], [0030]-[0052], [0085], [0095]-[0099], [0106], [0114]-[0121] and [0142]). Therefore, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claims 35-38: In paragraph [0142], Jackson discloses over 50% of the energy is supplied by MCT having constituents octanoate and/or decanoate fatty acids with the preferred ratio of octanoate to decanoate from 0.99 to 0.01, which overlaps the claimed limitations.
Regarding claim 39: Jackson contemplates the presence of lauric acid (see Jackson paragraph [0021]).
Regarding claims 40-46: Jackson discloses the fat component may comprise omega-3 and omega-6 fatty acids (e.g., linoleic acid, alpha-linolenic acid) and oils that are known to comprise omega-3 and omega-6 fatty acids (e.g., fish oil, flaxseed oil, wheat germ oil, etc.) (see Jackson paragraphs [0092]-[0093]).
Regarding claims 47-50: While Jackson is silent with regards to the quantitative impact the ketogenic pet food has on the circulating albumin, circulating globulin, long-chain acycarnitines, osmotic regulators, phospholipids, sphingolipids, endocannabinoids, DHA content, blood urea concentration and creatinine concentration, Jackson discloses the ketogenic pet food is applicable to several indications or conditions, including, but not limited to, cancer, inflammatory bowel disease, diabetes, obesity, hyperglycemia, hypertriglyceridemia, chronic inflammation, antibiotic resistance of the gut microbiome, or pathogenic dysbiosis of the gut microbiome, neurological seizures, high blood glucose, metabolic stress, or combinations thereof. The administration of the pet food comprising the dietary' composition shifts the animal’s metabolism from glucose-converting metabolism to fat-burning metabolism (see Jackson paragraphs [0051], [0052], [0139] and [0140]). Given the fact the claimed benefits directly impact the conditions in Jackson, and since the claimed composition appears to be the same or similar to the composition in Jackson, it is Examiner position the claimed benefits recited in claims 47-50, are inherently present in the Jackson. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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