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 .
Applicants' arguments, filed August 3, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
This action is made NON-FINAL.
Claims
Claim Rejections - 35 USC § 103 – Obviousness (New)
1 ) Claims 52-61, 63-67 and 70-71 are rejected under 35 U.S.C. 103 as being unpatentable over Pan et al. (US 20200375934).
Pan et al. discloses a method for weight loss comprising orally administering a composition comprising a therapeutically effective amount of medium chain triglycerides to the animal, where the medium chain triglycerides include caprylic acid. The medium-chain fatty acids are caproic acid (comprising six carbon atoms or C6:0), caprylic acid (comprising eight carbon atoms or C8:0, octanoic), capric acid (comprising ten carbon atoms or C10:0, decanoic) and lauric acid (comprising twelve carbon atoms or C12:0). The medium-chain fatty acids are mainly (e.g., at least 98%) in the form of triglycerides. In one embodiment, the medium chain fatty acids of the medium chain triglycerides can include at least 50% caprylic acid of the total medium chain fatty acids that are present. In another embodiment, the medium chain fatty acids of the medium chain triglycerides can include at least 90% caprylic acid of the total medium chain fatty acids that are present (paragraph 0025). Generally, pet food composition can comprise protein, carbohydrates, fat, and ash. In various embodiments, the pet food compositions comprise from about 15% to about 50% crude protein, and from about 5% to about 40% fat. The compositions may further comprise from about 10% to about 60% carbohydrate. The composition may further comprise from about 0.1% to about 15% ash. The composition may optionally include isoflavones (flavonoid), 1-carnitine (instant claims 63-64), conjugated linoleic acid (omega-6 fatty acid), an omega-3 fatty acid, antioxidants (including vitamin E, vitamin C, selenium, and/or polyphenols (instant claims 70-71), arginine, and mixtures thereof. suitable omega-3 fatty acids include eicosapentaenoic acid (EPA), docosahexaenoic acid (DHA), alpha-linolenic acid (ALA), and mixtures thereof. In one embodiment, the omega-3 fatty acids can range from about 0.2 wt % to about 3 wt % of the composition. In some embodiments, the omega-3 fatty acids are at least about 0.2 wt %.The omega-3 fatty acid can be selected from the group consisting of eicosapentaenoic acid (EPA), docosahexaenoic acid (DHA), alpha-linolenic acid (ALA), and mixtures thereof. The composition can be a pet food, such as a wet pet food, a semi-moist pet food, or a dry pet food, e.g., kibble (paragraph 0030). The pet food compositions disclosed herein can optionally include additional ingredients, such as starches. Suitable starches include a grain such as corn, rice, wheat, barley, oats, potatoes, peas, beans, cassava, and the like, and mixtures of these grains, and can be included at least partially in any flour (paragraph 0040).
Pan et al. differ from the instant claims insofar as they do not exemplify a composition. However, Pan et al. do disclose combining the components together to make a balanced pet food.
Therefore, it would have been obvious to one of ordinary skill in the art prior to filing the instant application to have added a digestible starch to the compositions comprising a fat, protein and fiber because it is suggested to add starch to the pet food compositions.
In regards to the ratio of Caprylic and capric acids, caprylic acid may be added in an amount of at least 90 of the medium chain triglycerides. Therefore, it would have been obvious to have used decanoate in an amount of about 4% or less. It is well-settled, however, that even a slight overlap in range establishes a prima facie case of obviousness. Accordingly, since an overlap plainly exists here, it would have been obvious to have selected values within the overlap. See MPEP 2144.05. Therefore, the ratio of octanoic acid to decanoic acid having a weight ratio of 200:1 to about 500:1 is obvious.
In regards to the ketogenic ratio, the amounts of fat, protein and carbohydrate overlap the amounts recited in the instant claims. Therefore, the ketogenic ratio would also overlap. It is well-settled, however, that even a slight overlap in range establishes a prima facie case of obviousness. Accordingly, since an overlap plainly exists here, it would have been obvious to have selected values within the overlap. See MPEP 2144.05. Therefore, the ketogenic ratio is obvious.
In regards to the omega-3 and omega 6 ratio, the ratio encompasses a 1:1 ratio. It would have been obvious to have used a 1:1 ratio when using the two in mixtures.
2) Claim 62 is rejected under 35 U.S.C. 103 as being unpatentable over Pan et al. (US 20200375934) in view of Nonaka et al. (JP 2000247900).
Pan et al. are discussed above and differ from the instant claims insofar as they do not disclose a lignin or the type of lignin that may be used.
Nonaka et al. disclose an antibacterial agent that can inhibit periodontal disease bacteria, tooth decay bacteria, or Streptococcus pyogenes, from proliferating without disturbance of the sound balance of intestinal flora. The antibacterial agent comprises lignin. The antibacterial agent comprising lignin suppresses the growth of oral harmful bacteria in humans, companion animals, and/or industrial animals, and may be incorporated into, food, pet food, feed, and the like (paragraph 0001). Lignin includes coniferyl alcohol, coumaryl alcohol, and sinapyl alcohol.
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used coniferyl alcohol, coumaryl alcohol, and sinapyl alcohol as the lignin in the pet food of Pan et al. motivated by the desire to inhibit periodontal disease bacteria, tooth decay bacteria, or Streptococcus pyogenes, from proliferating without disturbing the sound balance of intestinal flora.
3) Claims 68-69 is rejected under 35 U.S.C. 103 as being unpatentable over Pan et al. (US 20200375934) in view of Jackson et al. (WO 2017117091).
Pan et al. is discussed above and disclose that the composition may comprise a fiber. Pan et al. differ from the instant claims insofar as they do not disclose the type of fiber.
Jackson et al. disclose a pet food having a fiber source. a high solubility fiber source and low solubility fiber source, and a polyphenol source; wherein the matrix is adapted to deliver the polyphenol source to the lower gastrointestinal (GI) tract of a mammal after ingestion by the mammal. The fiber component comprises pecan shells. The fiber source having polyphenols chemically or physically bound thereto is not available for digestion or absorption in the upper gastrointestinal (GI) tract. These fiber-bound polyphenols bypass the upper GI tract and arrive intact to the colon of the animal. The polyphenols are released and create post biotics. Post- biotics are absorbed across the colon and distributed systemically where they have pleiotropic effects, including immune modulation which helps to treat IBD and improve the inflammatory response. One benefit of the use of a low solubility fiber source (e.g. lignin), which is poorly soluble in the mammalian lower GI tract, is that it provides for stool bulking.
It would have been obvious to one of ordinary skill in the art prior to filing the instant application to have used fibers such as pecan shell and lignin because they increase stool bulking and may also be used as a vehicle for releasing post biotics.
Obvious-Type Double Patenting (Maintained)
1) Claims 52-71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4, 6-9, 11, 15, 17, 19-20 and 23 of copending Application No. 17/250,440 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as they both recite pet foods comprising fat comprising medium chain triglycerides, protein, carbohydrates and fiber with ketogenic ratio. The instant claims differ from the copending claims insofar as the instant claims are genus claims and do not recite the amounts in the first independent claims. Therefore the instant claims are obvious over the copending claims. In regards to the ratio, the ratio of the instant claims are encompassed by that of the copending claims because the copending claims do no limit the amount of each component.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicants respectfully defer these issues until the application is otherwise in condition for allowance. Since this has not occurred, the rejection is maintained.
2) Claims 52-71 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 34-53 of copending Application No. 18/335,194 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are coextensive insofar as they both recite pet foods comprising fat, protein, carbohydrates and fiber. The instant claims differ from the copending claims insofar as the instant claims are genus claims and do not recite the amounts in the first independent claims. However, the amounts are recited in the dependent claims and overlap those of the copending claims. Therefore the instant claims are obvious over the copending claims. In regards to the ratio, the ratio of the instant claims are encompassed by that of the copending claims because the copending claims do no limit the amount of each component.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicants respectfully defer these issues until the application is otherwise in condition for allowance. Since this has not occurred, the rejection is maintained.
Conclusion
Claims 52-71 are rejected.
No claims allowed.
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/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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