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 .
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 on May 27, 2026. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 submissions filed on 05/07/2026 and 5/27/2026 have been entered.
Response to Amendment
Applicant's amendment and argument filed 05/07/2026, in response to the final rejection, are acknowledged and have been fully considered. Any previous rejection or objection not mentioned herein is withdrawn.
Claims 1-3, 5-10, and 12-17 are pending of which claims 12-15 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/18/2025.
Claims 1-3, 5-10, and 16-17 are being examined on the merits.
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.
These rejections are maintained with slight modifications due to the amendments filed on 05/07/2026.
Claims 1-3, 5-10 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Dennis Jewell and Mathew Jackson (WO2022140211A1) hereinafter Jackson and Mirja Kaizer Ahmmed et. al. (Omega-3 phospholipids in Pacific blue mackerel (Scomber australasicus) processing by-products, Food Chemistry 353 (2021) 129451). This was a new rejection based on the amendments filed on 02/17/2026.
Regarding claims 1 and 10, Jackson teaches of a pet food composition which shows that the test food composition decreases various inflammatory cytokine levels (see 0075). Jackson teaches wherein the composition can comprise of omega-3 fatty acids found from mackerel (see 0041) and teaches the composition can also comprise of additives such as preservatives (see 0062).
Jackson teaches the omega-3 fatty acid may comprise linolenic acid, stearidonic acid, eicosatetraenoic acid, eicosapentaenoic acid, docosapentaenoic acid, docosahexaenoic acid, or a combination of two or more thereof (see 0035).
Regarding claim 5, Jackson teaches the composition can contain protein, fat, carbohydrates (see 0049) and protein in an amount from about 20 wt.% to 45 wt.% (see 0051 and 0053).
Regarding claim 6, Jackson teaches the composition can contain carbohydrates in an amount from about 10 to about 70 weight % (see 0056).
Regarding claim 7, Jackson teaches the composition can contain fat in an amount from 10 wt% to 20 wt% (see 0059).
Jackson does not specifically teach that the mackerel oil is from a Southern Ocean mackerel derived from waters south of 20 degrees south latitude and the Southern Ocean mackerel oil comprises at least 3% of eicosatetraenoic acid, at least 1% of stearidonic acid, at least 8% of eicosapentanaeoic acid, at least 15% of docosahexaenoic acid, and at least 2% of docosapentaenoic acid.
Ahmmed’s general disclosure is about omega-3 phospholipids in Pacific blue mackerel (see abstract).
Ahmmed teaches “Blue mackerel is a pelagic and moderately oily fish mostly found to a depth of 200 m in the ocean. Mackerel is considered as a sustainable fish species and is commercially harvested and processed all over the world. This fish is one of the major processed fish species that is used in a wide range of canned, dried and smoked products. As a result, the fish processing industry generates a massive amount of by-product material, including head, skin, roe, viscera, male gonad, and frame bone, corresponding to ~50% of the body weight of the whole fish (Zuta, Simpson, Chan, & Phillips, 2003). The co-product material is utilized in products that have low revenue, such as animal feed and plant fertilizers. Fish processing by-products have an oil content of between 1.4 and 40.1% (Zuta et al., 2003) depending on the organ and species” (see page 2, 3rd para.).
Ahmmed teaches that parts of the Pacific blue mackerel oil contain eicosatetraenoic acid (ETA), stearidonic acid (SDA), eicosapentanaeoic acid (EPA), docosahesaenoic acid (DHA) and docosapentanoic acid (DPA) and shows their distributions in different parts of the fish (see table 3) and teaches it is a high protein source (see table 1).
Ahmmed teaches that “marine polyunsaturated fatty acids (PUFA), especially n3-PUFA, eicosapentaenoic acid (C20:5, EPA), docosapentanoic acid (C22:5, DPA) and docosahexanoic acid (C22:6, DHA) play an important role in human health, including in cardiovascular health, non-alcoholic fatty liver disease, brain development and neuroprotection, and respiratory tract (Yalagala, Sugasini, Dasarathi, Pahan, & Subbaiah, 2019; Zhang, Xu, Wang, & Xue, 2019). These diseases are closely related to oxidative stress. Hippocampal neurons can be damaged due to the accumulation of free radicals generated during lipid metabolism. The n3-PUFA has the ability to prevent oxidative deterioration and neural apoptosis of brain (Zhang, Xu, Wang, & Xue, 2019). de Godoy et al. (2018) investigated the effect of n-3 phospholipid on hydrogen peroxide (H2O2) induced oxidative stress in PC12 cells and the result found decreasing trend of oxidative stress as a result of increasing total antioxidant capacity (T- AOC) and superoxide dismutase (SOD) levels. Phospholipids with n3- PUFA act as natural antioxidants, which inhibit lipid peroxidation (Ahmmed, Ahmmed, Tian, Carne, & Bekhit, 2020). In nature, n-3 fatty acids are found in both triacylglycerol (TAG) and phospholipid form, of which the phospholipid form has attracted considerable attention due to its potential involvement in brain health (Ahmmed, Ahmmed, Tian, Carne, & Bekhit, 2020; Echeverría, Valenzuela, Catalina Hernandez- Rodas, & Valenzuela, 2017).
Therefore, it would have been obvious to persons having ordinary skill in the art to use Pacific blue mackerel (Scomber australasicus) in the composition taught by Jackson because it is a sustainable mackerel source with high nutritional value due to high protein contents and many nutrients and healthy fatty acids which can contribute to a healthy diet.
It would have also been obvious to create a pet food composition with mackerel oil and to optimize the omega-3 fatty acids and omega-6 fatty acid content to be at the recited amounts because the mackerel oil already is already high in omega-3 fatty acids and low in omega-6 fatty acids. It is known to those skilled in the art and from what can be appreciated from that of Jackson’s teachings that omega-3 fatty acids can help against pro-inflammatory cytokines whereas omega-6 fatty acids are usually increase these which would only exacerbate inflammatory conditions. Thus, increasing the omega-3 fatty acids to at least 30% and the omega-6 to no more than 5% is prima facie obvious. Optimizing the amount of mackerel oil would have also been obvious as mackerel fish oils are known for being high in beneficial omega-3 fatty acids which is described by Ahmmed for having many beneficial properties because of the high EPA and DHA content. Also, one could combine each fish part listed in table 1 of Ahmmed’s teaching to arrive at the number of fatty acids in the mackerel oil.
Additionally, as discussed in MPEP section 2144.05(II)(A), “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” The references teach the use of each of the ingredients in a food composition. Varying the concentration of ingredients within a pet food composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameter, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
Regarding claims 8-9, pertaining to wherein the composition is a main meal or supplement would have been obvious given the prior art especially since the art is directed to pet food compositions intended for having the same anti-inflammatory effects. Regarding claims 10-11, pertaining to wherein the composition is intended to treat a disease, these limitations are merely intended uses for the composition and do not structurally or functionally change the composition in any meaningful way.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Dennis Jewell and Mathew Jackson (WO2022140211A1) hereinafter Jackson and Mirja Kaizer Ahmmed et. al. (Omega-3 phospholipids in Pacific blue mackerel (Scomber australasicus) processing by-products, Food Chemistry 353 (2021) 129451) as applied to claims 1-3, 5-10 and 16 above, and further in view of Ferreira et. al. (The chemical composition and lipid profile of the chub mackerel (Scomber colias) show a strong seasonal dependence: Contribution to a nutritional evaluation, Biochimie 178 (2020) 181-189). This was a new rejection based on the amendments filed on 02/17/2026.
Jackson and Ahmmed teach the claimed invention however do not teach wherein the Southern Ocean mackerel oil is derived from mackerel farmed from waters south of 40 degrees latitude.
Ferreira teaches that “Chub mackerel (Scomber colias) is known as a privileged source of important fatty acids, particularly DHA [12], and other nutrients, such as vitamin B12 and Se, that are critical to the maintenance of a healthy brain activity [13,14]. As such, the consumption of this pelagic fish contributes to ensure the adequate levels of these compounds and to the preservation of a healthy neuronal tissue and a normal cognitive activity. In fact, chub mackerel is already considered a food of high nutritional value due to high protein contents, but also because its composition includes multiple compounds with major physiological roles. These include, for example, vitamin D that regulates calcium and phosphorus absorption and promotes the normal immune system function, and other nutrients, like potassium, phosphorous and zinc, as well as other n-3 PUFA other than DHA, including EPA, 18:3n-3, 18:4n-3, 22:5n-3 [12]”.
“In view of this, chub mackerel has a huge upgrading potential, not only because it has a high nutritional value, but also because it is currently considered as a sustainable marine resource (see page 182, left column).
Additionally, Ferreira teaches that the omega-3 content is very high when compared to omega-6 content (see table 4 specifically 18:2, 18:3, 20:4, 20:5, 22:6) and that chub mackerel lipid profile may ensure multiple important health benefits (see conclusions, page 187).
Therefore it would have been obvious to persons having ordinary skill in the art to use Chub mackerel (Scomber colias) in the composition taught by Jackson because it is a sustainable mackerel source with high nutritional value due to high protein contents and many nutrients and healthy fatty acids which can contribute to a healthy diet. The applicant recites in instant paragraph 0014 that the other mackerel species to be included in the term “Southern Ocean Mackerel” can be representatives of the Scomber, Grammatorcynus, Acanthocybium and Trachurus genus. Additionally, Scomber colias are typically found in waters from 46 degrees North to 65 degrees South and this would be below 40 degrees South as claimed. The fish coming from farmed waters would have been obvious given the prior art.
Response to Arguments
Applicant's arguments filed 05/07/2026 have been fully considered but they are not persuasive. The applicant argues that their invention is not the same as Jackson’s because Jackson teaches a composition which includes two or more omega-3 polyunsaturated fatty acids present in amounts at least about 0.5% based on the weight of the pet food composition and wherein the two or more medium chain saturated fatty acids are at least 36% by weight of these fatty acids. The applicant argues that the present composition does not contain two or more medium chain saturated fatty acids that are at least 36% by weight of the total amount of medium chain saturated fatty acids and omega-3 polyunsaturated fatty acids. The applicant uses “comprising” claim language which allows for the inclusion of other components.
The applicant argues that persons having skill in the art would not be motivated by Jackson or Ferreira to reduce the amount of or to remove the medium chain saturated fatty acids. The Office does not articulate any motivation to do so because these limitations are not claimed or required in the current claims. Inclusion of such fatty acids is permissible because the claims as currently amended allow it.
Conclusion
Currently no claims are allowed.
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JACOB A BOECKELMANExaminer, Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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