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 .
Response to Amendment
In applicant’s reply on 10/10/2025, the claims were amended. Based on these amendments, revised rejections under 35 U.S.C. 103 can be found below.
Claim Rejections - 35 USC § 103
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.
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.
The factual inquiries 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 2-3, 5, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Nadeau (US 2014/0242228 A1) in view of Miyamoto (US 2017/0143005 A1) found in applicant’s IDS filed 11/07/2023, further in view of Saylock (US 2011/0111102 A1) found in applicant’s IDS filed 11/07/2023.
Regarding Claim 2, Nadeau teaches a wet pet food product (chunk and gravy composition Par. 0036)
comprising a solid pet food component (food product of restructured meat pieces and meat analogue pieces Par. 0007)
comprising a mixture of a first hydrocolloid (alginate may be a hydrocolloid Par. 0028)
and protein (protein containing composition Par. 0006)
wherein the protein is in particulate form (prepared by grinding Par. 0025; defatted soy flour, corn flour Par. 0027)
alginate in 0.5-3% on a wet weight basis (alginate at a weight % level as compared to the total weight of the pet food composition within the range of from about 0.5 to about 3% Par. 0038)
a moisture content of 55.2% (Table 7). As the product is the wet pet food product, the solid pet food component is within the wet food product as the solids in gravy or solids in jelly product as described below. With this in mind, on a wet basis the moisture of the solid component would be the same as the entirety of the wet pet product.
and a second hydrocolloid comprising one or more of carrageenan, cassia, xanthan, pectin, alginate, agar gum, cellulose, methylcellulose, guar gum, gellan gum, galactomannans, konjac gum, carob gum, starch, modified starch, waxy starch, Arabic gum, karaya gum, tara gum, gum ghatti, gelatin, or any other hydrocolloid from a microbial, plant or animal source (salts mixed with guar gum Par 0030)
wherein the second hydrocolloid in 0.05-25% of the wet pet food product on a wet weight basis (guar gum 0.33% food product Table 7 Pg. 7)
and the solid pet food component of the wet pet food product is in a gravy or in a jelly to form a wet pet food product that is a solids in gravy product or a solids in jelly product (food product combined with gravy to provide a chunk and gravy composition Par. 0036)
Nadeau does not teach 5 to 30% protein on a wet weight basis, the first hydrocolloid is curdlan, or the curdlan is 2-4% of the wet pet food product on a wet weight basis, or a moisture content of at least 69%.
Regarding the thickener (alginate) is 2-4% of the wet pet food product on a wet weight basis, Nadeau teaches the alginate is present from about 0.5 to about 3% (Par. 0038, see above). As Nadeau discloses an overlapping range, it would have been obvious to one having an ordinary skill in the art to modify Nadeau to have 2-4% thickener (alginate). It would have been prima facie case of obviousness to have selected the overlapping range (i.e. 2- about 3%) from the taught range (0.5 to about 3% as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Miyamoto, in the same field of endeavor, teaches curdlan and alginate as suitable thickeners in the food art (Par. 0036). As they are taught as equivalents known for the same purpose, it would have been obvious to one having ordinary skill in the art to substitute the curdlan of Miyamoto for the alginate of Nadeau. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). See MPEP 2144.06 II.
Miyamoto does not teach 19-28% by weight protein in wet food product, or a moisture content of at least 69%.
Saylock, in the same field of endeavor, teaches 5 to 30% protein on a wet weight basis (19-28% by weight protein in wet food product Par. 0100)
a moisture content of from about 45% to about 80% (meat emulsion can be formulated to contain from about 45% to about 80% by weight moisture Par. 0051; meat emulsion may be conveyed directly to canning operation Par. 0069).
Regarding a moisture content of at least 69%, Saylock discloses a moisture content of from about 45% to about 80% (Par. 0051, see above). As this range overlaps with the claimed moisture content, it would have been obvious to one having an ordinary skill in the art to modify Saylock to have a moisture content of at least 69%. It would have been prima facie case of obviousness to
have selected the overlapping portion of the range (i.e. moisture content of between 69% to about 80%) from the taught moisture content of from about 45% to about 80% (as seen above). In re Werthein, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I)
It would have been obvious to one having ordinary skill in the art to modify the invention of Nadeau with the protein and moisture content of Saylock. One would have been motivated to make this modification to have a product with an appearance similar to meat (Saylock Abstract).
Regarding Claim 3, Nadeau also teaches the protein is derived from one or more of poultry, pork, beef, lamb, fowl, game, fish, crustaceans, shellfish, larvae, worm, insects, yeast, plant, algae, microalgae, seaweed, fungi, microorganisms or maize gluten powder (pork liver, chicken, Par. 0025; defatted soy flour, corn flour Par. 0027)
each in the form of one or more of meal, powder, slurry or the whole native material, optionally wherein the protein is a low functional protein (prepared by grinding Par. 0025; defatted soy flour, corn flour Par. 0027)
Regarding claim 7, Nadeau further teaches the solid pet food component has a hardness greater than 150±20 g/g when measured in the form of chunk via a Texture Analyzer (Food composition A 1850g, Texture Food composition B 700g Table 17; using a TA-TX2 texture analyzer Par. 0088).
Response to Arguments
Applicant's arguments filed 10/10/2025 have been fully considered but they are not persuasive.
Applicant argues the applied references fail to teach claim 2 as amended. The revised rejection above shows that Saylock teaches a moisture content of from about 45% to about 80% (Par. 0051; meat emulsion may be conveyed directly to canning operation Par. 0069). This overlaps with the claimed range of at least 69%, and therefore renders the claimed range obvious.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792