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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-14 and new claim 20, in the reply filed on Jan. 12, 2026 is acknowledged. The traversal is on the grounds that there is no undue burned in examining both Group I and Group II claims. Applicant further argues that the groups of claims are not so unrelated as would require a burned beyond that of the normal burdens of examination.
This argument has been considered, but not found persuasive. MPEP § 808.02 recites that for the purposes of the initial requirement of a restriction, a serious burden on the examiner may be prima facie shown if the examiner shows by appropriate explanation either separate classification, separate status in the art, or a different field of search as defined in MPEP § 808.02. Since the Examiner has shown a different classification for the two groups of claims, a burden for examining both groups has been shown.
The requirement is still deemed proper and is therefore made FINAL.
Claims 15-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected apparatus, there being no allowable generic or linking claim.
Claim Objections
Claim 5 is objected to because of the following informalities: Claim 5 repeats “the sterile containers” at the end of line 2. This appears to be a typographical error. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2-4, 10, 13 and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 recites the limitation "the solid animal feed components including edible fungi and plant and/or animal protein" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim as there is no previous recitation of solid animal feed components including edible fungi and plant and/or animal protein. It is suggested to amended to positively recite that the solid animal feed components comprise edible fungi and plant and/or animal protein (e.g. “wherein the solids animal feed components comprise edible fungi and plant and/or animal protein, and are mixed with….”).
Claim 2 recites “the mixture has a dry mass content of less than 55%, however, there is no unit of measure associated with the numerical value and therefore it is not clear how the dry mass content is measure.
Claim 3 recites that the mixture comprises less than or equal to 1% by weight animal proteins, and then later in the claim recites that the mixture provides a vegan wet food product free of animal feed components. It is not clear how the product can be free of animal components with it can comprise up to 1% by weight animal proteins, which is not free of animal components.
Claim 4 is included as it depends from rejected claim 2
Claim 10 recites the limitation "the sauce base" in line 4. There is insufficient antecedent basis for this limitation in the claim as there is no previous recitation of a sauce base, only a sauce or sauce components. Further, it is not clear what makes up the sauce base. Is it just the sauce components and water, or is it the sauce components, water and the additional ingredients recited. The claim recites adding the sauce components to water dispersing a predetermined amount of….in water and mixing…”. Since the predetermined amount of the claimed ingredients are dispersed in the water and not the water with the sauce components, are the predetermined amount of the claimed ingredients the sauce components, or additional ingredients? If they are additional ingredients it is suggested to make that clear (e.g. wherein the predetermined amount of….is dispersed in the water comprising the sauce components to form a sauce base, and mixing the sauce base for at most 10 minutes).
Claims 13 and 20 recite the steps of comminuting and scaling, however, it is not clear where these steps fall within the claimed method 1. Are these steps related to preparing the solid animal feed components? If so, it should be clear what the solid animal feed components are prepared by comminuting and scaling to form a non-aqueous component. Additionally, claim 13 recites mixing cold water with ingredients to form an aqueous component (is this the sauce?) and mixing the aqueous component and the non-aqueous component together in the process reactor. It is not clear if these components refer to the solid animal feed components and the sauce of claim 1 as claim 1 recites that the solid animal feed components and the sauce are mixed in a process reactor. The claim needs to make clear the relationship between the non-aqueous component and the solid feed component and the aqueous component and the sauce, for example, by saying preparing the solid animal feed components by comminuting…. and preparing the sauce by mixing cold water…
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hogan et al. (US Patent No. 4,800,093; Jan. 24, 1989).
Regarding claim 1, Hogan discloses a method for manufacturing a wet food product for animals (i.e. a high moisture animal food having a moisture content of greater than about 45% by weight (col 1 lines 30-35, claim 1) comprising mixing solid animal feed components (e.g. the meat and biomass) with the remaining ingredients, which corresponds to applicant’s claimed sauce or sauce components (Example 2: col 7 lines 40-50; Example 3: col 8 lines 30-40), in a heating unit, which corresponds to applicant’s claimed temperature-controllable process reactor, to form a mixture, and sterilizing the mixture by heat treatment in the process reactor as Hogan teaches heating the mixture to a temperature of 120C (Example 2: col 7 lines 40-50; Example 3: col 8 lines 30-40).
Regarding claim 14, Hogan teaches a wet food product for animals manufactured by the method of claim 1 (col 1 lines 30-35, claim 1, See Examples 2-3).
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.
Claims 2-4, 10-13 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. (US Patent No. 4,800,093; Jan. 24, 1989) as applied to claim 1 above, and further in view of Zaune-Figlar et al. (WO 2021/224434 A1; using US equivalent US 2023/0172231 A1).
Regarding claim 2, Hogan teaches that the mixing step includes solid components comprising edible fungi and plant and/or animal protein that are mixed with additional ingredients, or sauce components, that include starch (e.g. ground corn), vitamins, minerals and flavor enhancers (e.g. gum, meal, animal products) in the process reactor to form a mixture (See Examples 2-3).
Hogan teaches that the mixture comprises edible fungi in an amount of 5% in Sample A (Table in Example 2), which falls within the claimed range of 5-20% by weight.
Hogan further teaches that the mixture has less than 10% by weight plant proteins as Sample A (Table in Example 2) does not include any plant proteins, which meets the claimed range of less than 10% as it includes 0. Samples B and C (Example 3) further include 10% plant material from soy meal, ground corn, and wheat midds, which all contain a portion of protein, and therefore Samples B and C also are considered to meet the claimed less than 10% by weight plant proteins.
The examiner notes that the claimed amount of plant proteins and animal proteins are in the alternative. Therefore, as Hogan meets the claimed amount of plant proteins, the claimed amount of animal proteins is not required.
Further, it would have been obvious to one of ordinary skill in the art to formulate a composition comprising a desired amount of edible fungi, plant proteins, and animal proteins based upon the teachings of Hogan and further depending on the desired flavor and nutrition.
Hogan teaches that the sterilized mixture by heat treatment produces a high moisture animal food having a moisture content of greater than about 45% by weight (col 1 lines 30-35, claim 1), which means that the dry mass content is less than about 55% by weight, thus falling within the claimed range of less than 55%.
With respect to the water activity, Hogan fails to specifically teach the water activity of the mixture, however, as Hogan teaches the mixture having a similar moisture content and similar ingredients as claimed, it would have been obvious to one of ordinary skill in the art that the water activity would be similar as claimed. Further, it is well within the ordinary skill in the art to vary the amount and types of ingredients to determine an optimum water activity for the mixture.
While Hogan teaches the components in the mixture as described above, Hogan fails to specifically teach the inclusion of oil.
Zaune discloses a method for manufacturing a complete pet food, wherein the pet food comprises oil as a source of fat ([0026]). Zaune teaches that fats are necessary for the provision of essential fatty acids, wherein they are the main source of energy for the animal and promote the absorption of fat-soluble vitamins ([0026]).
As it is well known in the art to manufacture a pet food product further comprising oil, it would have been obvious to one of ordinary skill in the art to further add oil to the pet food of Hogan in order to provide essential fatty acids and energy to the animal as taught by Zaune.
Regarding claim 3, as stated above with respect to claim 2, Hogan teaches that the mixture has less than 10% by weight plant proteins as Sample A (Table in Example 2) does not include any plant proteins, which meets the claimed range of less than 10% as it includes 0. Samples B and C (Example 3) further include 10% plant material from soy meal, ground corn, and wheat midds, which all contain a portion of protein, and therefore Samples B and C also are considered to meet the claimed less than 10% by weight plant proteins. Hogan also teaches that the mixture can comprise less than 15% by weight starch and less than 15% by weight oil, minerals, vitamins and flavor enhancers (See Tables in Examples 2 and 3).
However, all the Samples in Hogan contain animal components and therefore do not meet the claimed less than 1% by weight animal proteins.
Zaune, as stated above, teaches a method for manufacturing a complete pet food, and further teaches that the pet food can be vegan and free of animal components ([0044]). Therefore, the pet food of Zaune is free of animal feed components and comprises less than 1% by weight animal proteins. Zaune discloses that the vegetarian-based pet food is more environmentally friendly ([0004]-[0005]).
It would have been obvious to one of ordinary skill in the art to have the pet food of Hogan comprise less than 1% by weight of animal protein and be free of animal feed components in order to provide a vegetarian pet food product as taught by Zaune, wherein the pet food is environmentally friendly and can provide similar nutrition. Having the pet food of Hogan be free of animal components is obvious to one of ordinary skill in the art is a vegetarian pet food product was desired.
As stated in MPEP 2144.04 II(A): Omission of an element and its function is obvious if the function is not desired. As it is well known in the art to provide a pet food being free of animal feed components, it would have been obvious for the pet food of Hogan to also be free of animal components if desired.
Zaune teaches that the vegetarian pet food comprises plants that provide protein, wherein the plants can be pea, soy, wheat, sunflower, rapeseed, chickpea, lupin, peanut, chia, and buckwheat ([0029]). Hogan further teaches the presence of soy meal (e.g. soy protein) and wheat midds (e.g. wheat protein) (Example 3).
Regarding claim 4, as stated above, Hogan teaches that the mixture comprising animal components, wherein the mixture is packed into a flexible type container (col 5 lines 54-68).
Hogan teaches that the amount of animal products (liver + whole chicken carcass + beef lungs + liver + poultry meal) in the Samples range from 70% in Sample A to 24% in Samples B and C (See Examples 2 and 3). All of the animal components in the Samples are known to comprise protein. It would have been obvious to one of ordinary skill in the art to vary the amount of each animal component to arrive at a desired animal protein content. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: 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. "Where 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)
Hogan also teaches that the mixture can comprise less than 15% by weight starch, oil, minerals, vitamins and flavor enhancers (See Tables in Examples 2 and 3).
Regarding claim 10, Hogan teaches sauce components comprising water, minerals, vitamins, starch (e.g. from corn and wheat), hydrocolloid, plant protein (e.g. ground corn) and flavor enhancers (See Tables in Examples 2 and 3), wherein all the ingredients are added to a heating unit and mixed together in the heating unit. As stated above with respect to claim 2, Zaune further renders obvious the addition of plant oil.
Hogan, however, fails to specifically teach preparing a sauce first by combining water with a predetermined amount of a hydrocolloid mixture, starch, plant protein, plant oil, minerals, vitamins, and flavor enhancers and mixing the sauce base for at most 10 minutes before mixing with the solid animal feed components inside the heating unit.
However, as stated in MPEP 2144.04 IV (C), selection of any order of performing process steps is obvious in the absence of new or unexpected results. In the instant case, mixing the sauce components beforehand for a predetermined amount of time is not expected to change the mixture if all the ingredients with mixed together at the same time in the heating unit. Therefore, the claimed step of preparing the sauce is merely an obvious variant over the method of Hogan.
Regarding claim 11, Hogan teaches that the mixture comprises edible fungi in an amount of 5% in Sample A (Table in Example 2), which falls within the claimed range of 5-20% by weight.
Hogan further teaches that the mixture has less than 10% by weight plant proteins as Sample A (Table in Example 2) does not include any plant proteins, which meets the claimed range of less than 10% as it includes 0. Samples B and C (Example 3) further include 10% plant material from soy meal, ground corn, and wheat midds, which all contain a portion of protein, and therefore Samples B and C also are considered to meet the claimed less than 10% by weight plant proteins.
The examiner notes that the claimed amounts of proteins of animal origin, starch, hydrocolloid, and plant oil all include 0 and therefore these components do not have to be present.
However, all the Samples in Hogan contain animal components and therefore do not meet the claimed less than 0.1% by weight animal proteins.
Zaune, as stated above, teaches a method for manufacturing a complete pet food, and further teaches that the pet food can be vegan and free of animal components ([0044]). Therefore, the pet food of Zaune is free of animal feed components and comprises less than 0.1% by weight animal proteins. Zaune discloses that the vegetarian-based pet food is more environmentally friendly ([0004]-[0005]).
It would have been obvious to one of ordinary skill in the art to have the pet food of Hogan comprise less than 0.1% by weight of animal protein and be free of animal feed components in order to provide a vegetarian pet food product as taught by Zaune, wherein the pet food is environmentally friendly and can provide similar nutrition. Having the pet food of Hogan be free of animal components is obvious to one of ordinary skill in the art is a vegetarian pet food product was desired.
As stated in MPEP 2144.04 II(A): Omission of an element and its function is obvious if the function is not desired. As it is well known in the art to provide a pet food being free of animal feed components, it would have been obvious for the pet food of Hogan to also be free of animal components if desired.
Further, Zaune teaches the pet food comprising seeds in an amount of 1% by weight ([0042]-[0044]), while the claim requires 0.5% by weight. It would have been obvious to one of ordinary skill in the art to further include seeds in the pet food of Hogan depending on the desired nutrition and flavor. It would have been obvious to further vary the amount of seed depending on the desired nutrition and flavor. This is merely routine experimentation that is well within the ordinary skill in the art.
Hogan further teaches a hydrocolloid mixture in an amount of 1% by weight, thus falling within the claimed range of 2% by weight or less (See Examples 2 and 3).
Hogan teaches 1.2% by weight vitamins and minerals, thus falling within the claimed range of 1-2% by weight (See Examples 2 and 3).
With respect to the amount of flavor enhancers, the examiner notes that a wide variety of ingredients can be considered flavor enhancers. Hogan in Examples 2 and 3 teaches many ingredients that can add flavor, including ground corn in an amount of 2% by weight, which falls within the claimed range. Therefore, it is well within the ordinary skill in the art to vary the amount of flavor enhancers desired.
Hogan further teaches 22.8% by weight water (Examples 2 and 3), which is lower than the claimed 30-50% by weight. However, it is well within the ordinary skill in the art to vary the amount of water depending on the desired amount of moisture providing by the pet food. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: "Where 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)
As stated above, Hogan teaches that the mixture comprises edible fungi in an amount of 5% in Sample A (Table in Example 2), which falls within the claimed range of 5-20% by weight. Hogan, however, fails to teach that the edible fungi is of the genus Pleurotus.
Zaune also teaches that the pet food can comprise fungi as part of the protein component, wherein the fungi can be of the genus Pleurotus ([0013]).
As Zaune teaches that such genus of fungi is known to be useful in a pet food composition, it would have been obvious to have the fungi of Hogan be of the genus Pleurotus. This is merely substitution of one known edible fungi for another to yield the predictable result of providing a non-animal protein source.
Regarding claim 12, Hogan teaches that the pet food can comprise corn in an amount of 2% by weight (See Example 3), which is lower than the claimed 5% by weight.
Zaune further teaches a fiber component comprising fruits and vegetables, wherein the fiber component is present in an amount of 5% by weight.
It would have been obvious to one of ordinary skill in the art to further add fruits and vegetables in a similar amount as taught by Zaune to the food of Hogan in order to provide a sufficient amount of fiber to the pet food.
Regarding claim 13, Hogan teaches comminuting edible fungi to a particle size corresponding to a particle size of mince (e.g. grinding to produce a ground particle). Hogan is considered to render obvious scaling the fungi to a predetermined amount as Hogan uses a specific amount in the food product. Hogan teaches mixing the fungi with other ingredients to manufacture a non-aqueous component (col 7 lines 39-45).
As stated above with respect to claim 10, Hogan teaches sauce components comprising water, minerals, vitamins, starch (e.g. from corn and wheat), hydrocolloid, plant protein (e.g. ground corn) and flavor enhancers (See Tables in Examples 2 and 3), wherein all the ingredients are added to a heating unit with the fungi and mixed together in the heating unit. Additionally, as stated above, Zaune renders obvious the addition of plant oil ([0026]).
Hogan, however, fails to specifically teach preparing an aqueous component first by combining water with a hydrocolloid mixture, starch, plant protein, oil, minerals, vitamins, and flavor enhancers before mixing with the non-aqueous component inside the heating unit.
However, as stated in MPEP 2144.04 IV (C), selection of any order of performing process steps is obvious in the absence of new or unexpected results. In the instant case, mixing the sauce components beforehand is not expected to change the mixture if all the ingredients with mixed together at the same time in the heating unit. Therefore, the claimed step of forming an aqueous component is merely an obvious variant over the method of Hogan.
It would have been obvious to use cold water in the aqueous component to ensure hot water does not negatively affect the other ingredients.
Hogan further teaches mixing all the components together in the heating unit, that can be configured as a slow cooker, and cooking the mixture for an amount of time. With respect to the specific temperature, time and pressure, it would have been obvious to vary the processing conditions depending on the amount of mixture to be cooked and desired outcome. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: "Where 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)
It further would have been obvious to continuous stir the mixture while cooking in order to ensure even cooking/heating.
Hogan further teaches that the sterilizing can be performed after the cooking is finished (col 5 lines 40-66). With respect to the specific temperature, time and pressure, it would have been obvious to vary the processing conditions depending on the amount of mixture to be cooked and desired outcome. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: "Where 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)
Hogan teaches that the mixture is aseptically packaged by weight after sterilization into preformed bags (col 5 lines 60-66). With respect to the packing being a single-phase hot or cold packing process at 85 C or less, it would have been obvious to use a single-phase packing process at a desired temperature in order to efficiently package the sterilized mixture. The examiner notes that claimed limitation “bringing about a phase transition of a homogenous mass from a high viscosity to a semisolid cohesive mass during the packing, the mass being structured by heat-reversible biopolymers and taking on a shape of the packaging” is highly dependent upon the exact ingredients and amounts. As the prior art renders obvious to use of the same ingredients as claimed in similar amounts and further teaches the use of flexible packaging, it would have been obvious that a phase transition would occur during packing due to a change in temperature and further would have been obvious that the mass takes the shape of the packaging as it is filled into a flexible packaging and sealed.
Regarding claim 20, Hogan teaches comminuting edible fungi to a particle size corresponding to a particle size of mince (e.g. grinding to produce a ground particle). Hogan is considered to render obvious scaling the fungi to a predetermined amount as Hogan uses a specific amount in the food product. Hogan teaches mixing the fungi with other ingredients to manufacture a non-aqueous component (col 7 lines 39-45).
While Hogan teaches mixing with other ingredients, Hogan fails to teach mixing with vegetables as claimed. However, as stated above, Zaune teaches a vegetable pet food, wherein fungi and plant protein can make up the protein component ([0004]-[0005], [0029], [0044]). Therefore, it would have been obvious to one of ordinary skill in the art to mix the fungi with vegetable in the method of Hogan in order to provide a more vegetarian pet food as taught by Zaune.
As stated above with respect to claim 10, Hogan teaches sauce components comprising water, minerals, vitamins, starch (e.g. from corn and wheat), hydrocolloid, plant protein (e.g. ground corn) and flavor enhancers (See Tables in Examples 2 and 3), wherein all the ingredients are added to a heating unit with the fungi and mixed together in the heating unit.
Hogan, however, fails to specifically teach preparing an aqueous component first by combining water with a hydrocolloid mixture, starch, plant protein, oil, minerals, vitamins, and flavor enhancers before mixing with the non-aqueous component inside the heating unit.
However, as stated in MPEP 2144.04 IV (C), selection of any order of performing process steps is obvious in the absence of new or unexpected results. In the instant case, mixing the sauce components beforehand is not expected to change the mixture if all the ingredients with mixed together at the same time in the heating unit. Therefore, the claimed step of forming an aqueous component is merely an obvious variant over the method of Hogan.
It would have been obvious to use cold water in the aqueous component to ensure hot water does not negatively affect the other ingredients.
Hogan further teaches mixing all the components together in the heating unit and cooking the mixture for an amount of time. With respect to the specific temperature, time and pressure, it would have been obvious to vary the processing conditions depending on the amount of mixture to be cooked and desired outcome. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: "Where 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)
It further would have been obvious to continuous stir the mixture while cooking in order to ensure even cooking/heating.
Hogan further teaches that the sterilizing can be performed after the cooking is finished (col 5 lines 40-66). With respect to the specific temperature, time and pressure, it would have been obvious to vary the processing conditions depending on the amount of mixture to be cooked and desired outcome. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: "Where 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)
Hogan teaches that the mixture is aseptically packaged by weight after sterilization into preformed bags (col 5 lines 60-66). With respect to the packing being a single-phase hot or cold packing process at 85 C or less, it would have been obvious to use a single-phase packing process at a desired temperature in order to efficiently package the sterilized mixture. The examiner notes that claimed limitation “bringing about a phase transition of a homogenous mass from a high viscosity to a semisolid cohesive mass during the packing, the mass being structured by heat-reversible biopolymers and taking on a shape of the packaging” is highly dependent upon the exact ingredients and amounts. As the prior art renders obvious to use of the same ingredients as claimed in similar amounts and further teaches the use of flexible packaging, it would have been obvious that a phase transition would occur during packing due to a change in temperature and further would have been obvious that the mass takes the shape of the packaging as it is filled into a flexible packaging and sealed.
Claims 5 and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. (US Patent No. 4,800,093; Jan. 24, 1989) as applied to claim 1 above.
Regarding claim 5, Hogan further teaches aseptically packing the sterilized mixture into containers and sealing the containers after filling with the sterilized mixture (col 5 lines 60-66). Hogan fails to specifically state that the containers are sterile, however, as the mixture has been sterilized prior to packaging, it would have been obvious for the containers to be sterile and further for the sealing process to be sterile.
Regarding claim 7, Hogan teaches that the heat treatment comprises heating to a sterilization temperature and maintaining the sterilization temperature for a period of time, wherein the temperature is 120 C, thus falling within the claimed range of 110-130 C (See Examples 2 and 3, col 5 lines 40-66).
With respect to the sterilization period being at most 10 minutes, Hogan fails to specifically teach such time, however, it would have been obvious to one of ordinary skill in the art to vary the time depending on the desired amount of sterilization and microbiological stabilization (col 5 lines 40-66). Further, the time for sterilization would depending on the amount of product being sterilized. As stated in MPEP 2144.05: "Where 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)
Regarding claim 8, Hogan teaches teach treating the mixture as described above, but fails to specifically teach the pressure of heat treatment. As Hogan fails to teach a pressure, it would have been obvious that the heat treatment was conducted at atmospheric pressure, which is about 1 bar. It further would have been obvious to maintain the heating unit of Hogan at a desired pressure depending on the processing time for the heat treatment. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: "Where 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)
Regarding claim 9, Hogan teaches that mixture can be cooked prior to sterilization that can occur before packaging (col 5 lines 40-66). Hogan teaches that the mixture can be cooked for 30 to 240 minutes (col 5 lines 51), which overlaps the claimed range of 5 to 40 minutes. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
With respect to the temperature being at most 90 C, Hogan fails to teach such temperature, however, it would have been obvious to vary the temperature for cooking in Hogan. This is merely routine experimentation that is well within the ordinary skill in the art. As stated in MPEP 2144.05: 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. "Where 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)
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Hogan et al. (US Patent No. 4,800,093; Jan. 24, 1989) as applied to claim 5 above, and further in view of Sandkuehler et al. (US 2018/0045631 A1; Feb. 15, 2018).
Regarding claim 6, as stated above, Hogan teaches aseptically packing the sterilized mixture into containers and sealing the containers, but fails to teach that the sealing comprises detectable ultrasound sealing and the sterile containers are comprised of plastic material bags or tubular bags or tubular film bags or pouch bags or film bags.
Sandkuehler discloses the use of film pouches or bags for package containers ([0013]), wherein the film bags can be used for pet food and further sealed using ultrasound sealing ([0020]).
Therefore, as it is known in the art to use a film pouches or bags for packaging pet food that can further be sealed using ultrasound sealing, it would have been obvious for the packaging of Hogan to be a film pouch or bag that is sealed using ultrasound as Sandkuehler teaches that such containers and sealing are suitable for pet food products. This is merely substitution of known containers and known sealing means and would have been obvious to use in the method of Hogan to yield the same predictable result.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791