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 of Group I, claims 1-12, in the reply filed on January 14, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 13-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim.
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.
Claim 9 is 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 9 recites the limitation "the animal tissue" in line 1. There is insufficient antecedent basis for this limitation in the claim as there is no disclosure of animal tissue in claim 1.
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.
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.
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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.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791