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 .
The Amendment filed April 2, 2026 has been entered. Claims 1-20 are pending. Claim 9 has been amended. Claims 13-20 are withdrawn as being directed to nonelected inventions.
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 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over De Ratuld (US 2014/0242215 A1; August 28, 2014).
Regarding claim 1, Ratuld discloses an animal digest composition having enhanced palatability, wherein the animal digest composition is dried and comprises dried animal digest particles ([0050], [0136]).
Ratuld discloses that the animal digest composition is dried to have a moisture content of about 1 to about 8% ([0136]), which overlaps the claimed range of about 3% or less. 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)
Ratuld further teaches that additional pet food ingredients and palatability enhancers can be mixed with the digest material in step d3) before the drying step d6) ([0119]), wherein the pet food ingredients and palatability enhancers include fat or lipids ([0058]-[0059]). Ratuld teaches that animal digests having enhanced palatability can be mixed with fat prior to application to pet food ([0169]). Ratuld discloses examples wherein 6% fat is applied to pet food ([0220]) and therefore would have been obvious to mix the 6% fat with digest material prior to application to food. It further would have been obvious to mix the 6% fat with the digest material in step d3) and further dry the composition to form particles in step d6) as Ratuld teaches that fat and lipids can be added in step d3).
Additionally, as Ratuld teaches that fat and lipids are palatability enhancers, it would have been obvious to one of ordinary skill in the art determine the optimum amount of fat in the animal digest particles depending on the desired palatability and flavor of the composition. 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)
With respect to the claimed volume diameter particle size distribution, Ratuld teaches that the liquid digest has a particle size lower than 500 microns before it is spray dried ([0214], [0227]), but fails to specifically teach the claimed volume diameter particle size distribution.
As Ratuld teaches particles having a size lower than 500 microns, it would have been obvious to one of ordinary skill in the art that after the drying process, the particle size would be even smaller. Further, one of ordinary skill in the art can vary the processing conditions, such as the grind size and spray drying time, to result in a desired particle size distribution. This is merely routine experimentation that is well within the ordinary skill in the art and would have been obvious absent a showing that the claimed volume diameter particle size distribution produces new or unexpected results.
Ratuld does not teach the presence of silicon dioxide flow aid and therefore the composition of Ratuld is considered to devoid of silicon dioxide flow aid.
Regarding claims 2-5, as stated above with respect to claim 1, Ratuld teaches that the liquid digest has a particle size of lower than 500 microns, but fails to specifically teach the claimed particles sizes and percentages of particles having such claimed particle sizes.
However, as Ratuld teaches particles having a size lower than 500 microns, it would have been obvious to one of ordinary skill in the art that after the drying process, the particle size would be even smaller. Further, one of ordinary skill in the art can vary the processing conditions, such as the grind size and spray drying time, to result in a desired particle size distribution. This is merely routine experimentation that is well within the ordinary skill in the art and would have been obvious absent a showing that the claimed particles sizes and percentages of particles having such claimed particle sizes produces new or unexpected results.
Regarding claim 6, Ratuld teaches that the dried animal digest composition is completely devoid of the silicon dioxide flow aid and is also devoid of a chemical flow aids such as clay, fly ash, quicklime, zeolite, silicates, stearates, diatomaceous earth, bamboo shoot, pea fiber, pea hull, citrus fiber, cellulose powder, or microcrystalline cellulose.
Regarding claim 7, as stated above with respect to claim 1, Ratuld teaches that additional pet food ingredients and palatability enhancers can be mixed with the digest material in step d3) before the drying step d6) ([0119]), wherein the pet food ingredients and palatability enhancers include fat and protein ([0058]-[0059], [0062]-[0064]). Therefore, it would have been obvious to mix fat and protein with the digest material in step d3) and further dry the composition to form particles in step d6) as Ratuld teaches that fat and lipids can be added in step d3).
Additionally, as Ratuld teaches that fat and protein are palatability enhancers, it would have been obvious to one of ordinary skill in the art determine the optimum amount of fat and protein in the animal digest particles depending on the desired palatability, flavor and nutrition of the composition. 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)
Regarding claim 8, Ratuld teaches that the animal digest particles are prepared from animal tissue that can be liver ([0052]-[0053]).
Ratuld further teaches Examples 1 and 2 using liver as the animal tissue for preparing the liquid digest that is then spray dried into particles, and therefore Ratuld teaches that 100% of animal tissue used to prepare the dried animal digest particles can be from liver tissue ([0213]-[0228]).
Regarding claim 9, Ratuld teaches that the animal tissue used to prepared the dried animal digest particles is clean, undecomposed animal tissue ([0050]). Ratuld further teaches that partially defatting tissue can be used ([0050]).
While, Ratuld fails to specifically teach that the animal tissue is pre-processed to remove animal fat, as Ratuld teaches clean tissue free of hair, horns, teeth, hooves, and feather and teaches defatted tissue ([0050]), it would have been obvious to pre-process the animal tissue to remove fat.
Regarding claim 10, Ratuld teaches that the animal digest composition as described above with respect to claim 1 comprises 100% of the dried animal digest particles as the animal digest is mixed with additional ingredients/palatability enhancers and further dried to form the dried animal digest particles.
Regarding claim 11, Ratuld further teaches that the dried animal digest composition can comprise 60% by weight of the dried animal digest particles and 40% by weight of an additive that can be a pyrophosphate compound ([0220], [0228]), thus falling within the claimed ranges of 25-99.99% dried particles and 0.01-75% additive.
Regarding claim 12, as stated above with respect to claim 1, Ratuld teaches that additional pet food ingredients and palatability enhancers can be mixed with the digest material in step d3) before the drying step d6) ([0119]), wherein the pet food ingredients and palatability enhancers include yeast ([0062]-[0067]). Therefore, it would have been obvious to mix yeast with the digest material in step d3) and further dry the composition to form particles in step d6) as Ratuld teaches that yeast can be added in step d3) as a palatability enhancer.
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejection from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejection have been fully considered but were not found persuasive.
Applicant argues on page 7 that Ratuld does not teach or suggest the animal fat content of about 16% by weight or less, or the volume diameter particle size distribution as claimed. Applicant states that these limitations produce unexpected results which are not taught or suggested by Ratuld.
With respect to the animal fat content, applicant argues on pages 8-9 that the 6% fat disclosed in Ratuld is relative to the total weight of the pet food and would not have been obvious to add to the digest particles as the resulting digest composition would have a much higher fat content than 16 wt%.
This is not found persuasive as the examiner recognizes that the 6% fat is with respect to the kibble and not the digest particles. However, as Ratuld suggests that 6% fat is a suitable amount, it would have been obvious to have the digest composition as a whole comprise 6% fat. The examiner is not relying upon 6% fat to be combined with 0.9% animal digest as argued, but that the digest composition as a whole, comprising a mixture of pet food ingredients and palatability enhancers, comprises 6% fat. As stated above, Ratuld further teaches that additional pet food ingredients and palatability enhancers can be mixed with the digest material in step d3) before the drying step d6) ([0119]), wherein the pet food ingredients and palatability enhancers include fat or lipids ([0058]-[0059]). Therefore, Ratuld teaches that animal digests having enhanced palatability can be mixed with fat prior to application to pet food ([0169]).
As Ratuld suggests that 6% fat is a suitable percentage for enhacing palatability, e.g. Ratuld discloses examples wherein 6% fat is applied to pet food ([0220]), it would have been obvious to mix a similar amount of fat with digest material prior to application to food. It further would have been obvious to mix the fat with the digest material in step d3) and further dry the composition to form particles in step d6) as Ratuld teaches that fat and lipids can be added in step d3).
Additionally, as stated above in the rejection, determining an optimum amount of an ingredient is obvious to one of ordinary skill in the art absent a showing of criticality. 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)
Applicant argues on page 9 that the fat content provides an unexpected result of preventing clogging of machinery and a person of ordinary skill would have no motivation to optimize the fat content of the dry animal digest particles in order to reduce clogging of pneumatic pipes based on the teachings in Ratuld.
This is not found persuasive. The examiner notes that the claims include 0% fat (e.g. 16% or less) and therefore since the digest particles of Ratuld do not have to have fat, Ratuld meets the claimed limitation. However, if one wanted to add fat, it is well within the ordinary skill in the art to determine the optimum amount. The instant specification does not provide any criticality for the claimed range and merely states that a lower fat is desired. No criticality has been demonstrated to show that a high fat clogs machinery and therefore this argument is not found persuasive.
Further, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
With respect to the particle size distribution, applicant argues that Ratuld does not teach a particles size of less than 500 microns and further fails to teach the claimed particle size distribution.
This is not found persuasive. The examiner recognizes that Ratuld teaches that the liquid digest has a particle size lower than 500 microns before it is spray dried ([0214], [0227]), but fails to specifically teach the claimed volume diameter particle size distribution.
As Ratuld teaches particles having a size lower than 500 microns, it would have been obvious to determine a desired particle size distribution. One of ordinary skill in the art can vary the processing conditions, such as the grind size and spray drying time, to result in a desired particle size distribution. This is merely routine experimentation that is well within the ordinary skill in the art and would have been obvious absent a showing that the claimed volume diameter particle size distribution produces new or unexpected results.
Applicant further argues on pages 10-11 that Examples in the specification show that a composition having a fat content within the claimed range and particle size distribution within the claimed range did not cause clogging, whereas a composition with a fat content about 16% caused clogging.
This is not found persuasive as Figure 2 shows that DAD1 and DAD2 both have similar particle size distributions. The difference between DAD1 and DAD2 are slightly higher fat content in DAD1. However, DAD1 and DAD2 were dried using different processing parameters, such as different temperatures and pressures. Further, Comparative DAD was processed using a completely different apparatus. Therefore, it appears as though the process by which the dried animal digest particles are made is critical is reducing clogging.
Further, it is noted that the features upon which applicant relies (i.e., clogging) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Again, as Ratuld suggests dried animal digest particles having a variable fat content, a moisture content overlapping the claimed range, and all particles having a size less than 500 microns, Ratuld renders obvious the claimed composition for the reasons stated above. It is well within the ordinary skill in the art to vary processing conditions to result in a desired particle size and vary a fat content to result in a desired compositional profile. This is merely routine experimentation.
For the reasons stated above a 103 rejection is maintained.
Conclusion
No claims are allowed.
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.
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.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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