DETAILED ACTION
Amendments made May 11, 2026 have been entered.
Claims 1, 4-7, 9-13, 15-21 and 23-25 are pending.
Claims 16-20 have been withdrawn.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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 11, 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.
Claims 1, 4-7, 11-13, 15, 21, and 23-25 are rejected under 35 U.S.C. 103 as being unpatentable over Badri et al (WO 2020/081079) in view of Sunvold et al (US 2016/0249646).
Regarding claims 1, 4, 6-7, 11-13, and 15, Badri et al (Badri) teaches a pet food composition (abstract) comprising: about 10-30% fat (paragraph 29); about 20-45% protein, most preferably about 25-30% (paragraph 26); about 0.5-3.0%, preferably 0.5-1.5% crude fiber (paragraph 44); and about 25-55% carbohydrate (paragraph 32) each respectively based on total weight of the food composition. Thus, the weight ratio of most preferred ranges of the protein to crude fiber in the composition of Badri is about from about 16.7:1 (25:1.5) to about 120:1 (60:0.5).
Badri is silent to the pet food as comprising a short chain fatty acid as recited in claims 1 and 13.
Sunvold et al (Sunvold) teaches a pet food composition comprising: protein, carbohydrates, and fat, wherein the food comprises a palatant including short chain fatty acids for improving the food acceptance or preference by the animal (abstract, paragraphs 42 and 56, and claim 6). Sunvold teaches increasing the animal preference of pet food is a never end goal of pet food manufacturers (paragraph 3).
Regarding the pet food as comprising a short chain fatty, it would have been obvious to one of ordinary skill in the art for the pet food of Badri to comprise one or more short chain fatty acids to improve the food acceptance or preference by the animal which is a never end goal of pet food manufacturers, as taught by Sunvold.
Regarding claim 5, as Badri teaches the dietary fiber is one or more fibers including crude fiber, and dietary fiber which is insoluble and/or soluble fiber (paragraphs 34-41), the teachings of Badri encompass a pet food product as claimed.
Regarding claim 21, Badri teaches insoluble to soluble fiber in a weight range of about 8:1 to about 14:1 (abstract and paragraph 2).
Regarding claim 23, Badri teaches the food comprises about 1.0-10.0% ash (paragraphs 47 and 48).
Regarding claims 24 and 25, as discussed above the food disclosed by Badri would comprise by a weight ratio of most preferred ranges of the protein to crude fiber in the composition of about from about 16.7:1 (25:1.5) to about 120:1 (60:0.5) which is considered to encompass, or alternatively make obvious the claimed ranges.
Regarding the claimed ratios of protein to crude fiber, Badri discloses a product which necessarily results in overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Badri et al (WO 2020/081079) in view of Sunvold et al (US 2016/0249646), further as evidenced by Li et al (Compositions of amino acids in feed ingredients for animal diets, Springer-Verlag September 2010, pages 1159-1168).
As discussed above, Badri teaches of a pet food composition comprising: about 20-45% protein, preferably about 25-30% protein (abstract and paragraph 26). Badri teaches that the protein can be supplied from a variety of sources including: meats, meat by products, fish, poultry, dairy proteins, eggs, soybean meal, cottonseed, peanut meal (paragraphs 24 and 25). Badri is silent to the amino acids within the protein, however, as evidenced by Li et al (Li) the proteins disclosed by Badri, including casein (a dairy protein), corn grain, cotton seed meal, fish meal, meat and bone meal, peanut meal, poultry by product meal and soybean meal all contained the amino acids glycine and proline (Table 3). Thus, the composition taught by Badri encompasses the product as recited in clams 9 and 10.
Response to Arguments
Applicant's arguments filed May, 11, 2026 have been fully considered but they are not persuasive.
Applicant argues that although Badri teaches protein and crude fiber as neither Badri nor Sunvold are specific to the ratio between the two, to experiment with a ratio of protein and crude fiber would not have been obvious and there is no effective result for the ratio taught and thus, there would be no motivation to modify the references to achieve the claimed ratio. Applicant further argues that the range calculated by the office has no basis, and may represent a genius that would not make obvious the species claimed. These arguments are not convincing as they do not consider the position of record. As stated previously, and above, the teachings of Badri teach crude fiber and protein which necessarily produce a product having a fiber to protein ratio overlapping the claimed range. In other words, even if not explicitly stated, the product of the prior art would have a protein to crude fiber ratio since both protein and crude fiber are disclosed. Thus, the teachings of Badri encompass the range claimed and no modification is being made. It is additionally noted that the preferred range of fiber and protein was used for the calculation, thus, the resulting ratio cited by the office is a direct result of the preferred teachings of the prior art. Furthermore, the position of record is not one of result effective variables, but rather of an overlapping disclosed composition.
Applicant argues that the claimed composition provides for unexpected results of decreased proteolytic and oxidative metabolites (putrefaction metabolites), and increased beneficial short chain fatty acids in felines as seen in the instant specification Example A compared to Comp 1. This argument is not convincing at least because: 1) it is not commensurate in scope with the claims; and 2) the results do not appear unexpected.
Further regarding point 1), the evidence is limited to one example composition (Example a) which is tested only on felines, and thus does not represent the breadth of the claims which is a food for any pet, and which may contain 25-50% protein and 0.5-2% dietary fiber. There is no reasoning or explanation as to why the one example would cover the scope of the claims and/or as to when the critical point would cease, thus potentially distinguishing the claims from the prior art.
Further regarding point 2):
Wernimont et al (Specialized Dietary Fibers Alter Microbiome Compositions and Promote fermentation Metabolism in the Lower Gastrointestinal Tract of Healthy Adult Cats” Nutritional Microbiology page 1807, June 13, 2019 https://pmc.ncbi.nlm.nih.gov/articles/PMC6574043/pdf/nzz040.p20-045-19.pdf) fiber was known to decrease putrefaction metabolites in cats (Results and Conclusion), and thus to increase the fiber and obtain that result is not unexpected.
Diehl (Episode 32 “Everything you’ve wanted to know about fiber for your pets” Podcasts pages 1-8 May 11, 2021 https://www.morrisanimalfoundation.org/article/episode-32-fiber-for-dogs-and-cats) shows that the ingestion of fiber contributes to increased beneficial short chain fatty acids (see section 0.03.52.9, 0.07.15.6, and 0.08.22.4), and thus to increase the fiber and obtain that result is not unexpected.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hall et al (Changes in the Fecal Metabolome Are Associated with Feeding Fiber Not Health Status in Cats with Chronic Kidney Disease Metabolites 2020, pages 1-20 https://pmc.ncbi.nlm.nih.gov/articles/PMC7407581/pdf/metabolites-10-00281.pdf)
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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