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 without traverse of Group I, Claims 1-10 in the reply filed on 11/19/2025 is acknowledged. Claims 11-20 were cancelled by Applicant.
Claim Objections
Claims 5, 9 and 10 are objected to under 37 CFR 1.75(c) as being in improper form because a multiple dependent claim cannot depend from any other multiple dependent claim. See MPEP § 608.01(n). Accordingly, the claims have not been further treated on the merits.
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 1-4, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Stephens (USPN 091176) in view of Memon (2020) and Mediani (2022).
Regarding Claims 1-4 and 8, Stephens teaches an “animal meat flour” made by grinding up animal meat such as beef, mutton or other animal substance, removing skin, bones, fat and refuse material, separating the meat into small or very thin pieces and drying by exposure to sun’s rays or in a drying room and then grinding the same into a desired fineness so as to make a flour from meat (Column 1, Paragraphs 4-5 and Column 2, Paragraphs 1-6). Since Stephens teaches the animal meat flour only includes the ground meat powder, Stephens teaches the flour comprising a ground meat powder at a concentration of at least 70% by mass. Stephens teaches the animal fibers and tissues are retained so that what nutriment they contain is not lost (Column 1, Paragraphs 1-3).
However, Stephens does not teach wherein at least 50% of the powder by mass has a particle size of at least 75 microns and up to 850 microns or at least 10 microns and up to 1,000 microns. The Examiner is treating the limitation of “flour” as having a conventional meaning in the art.
Memon teaches that the reported range of particle size for wheat flour is in between 90-440 microns (Page 2, Column 1, Paragraph 1), where such a range is encompassed by or overlaps with the claimed range. Therefore, since Stephens teaches the dried meat is ground in a “flour”, and Memon teaches that typical particle size for wheat flour is in a particular disclosed range, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the meat flour of Stephens to have an average particle size in the claimed range in light of the teachings of Memon. In addition, since Stephens teaches that the dried animal tissues and fibers are ground to a desired particle size into a flour and teaches the use of the animal flour in various culinary operations (Column 2, Paragraphs 1-2), it would have been within the skill of one of ordinary skill in the art to have determined an optimal particle size for the ground animal flour, depending on the desired food applications. Where "the difference between the claimed invention and the prior art is some range or other variable within the claims...Applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.” In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir.1990). MPEP 2144.05 III. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the average particle size of the meat flour involves only routine skill in the art. MPEP 2144.05 II.
Regarding the claimed parameters of the animal flour, Stephens in view of Memon is silent as to the particular claimed parameters.
Mediani teaches a comprehensive review of drying meat content and associated effects and changes and discusses content of fat, protein of various dried meats including sun-dried beef and teaches 24.28% by weight fat, 5.99% by weight moisture, 61.95% by weight protein and negligible carbohydrates (Table 4), where the fat and protein contents are within or very close to the claimed ranges. Therefore, while Mediani does not indicate the calories per gram, since fat and protein content are within the claimed ranges with no appreciable carbohydrates, one of ordinary skill in the art would have reasonably expected a comparable caloric content. Since Stephens teaches dried beef and an amount of fat within the claimed range, one of ordinary skill in the art would have reasonably expected a comparable amount of cholesterol and saturated fat as claimed.
Mediani also teaches one of the critical elements regulating microbial growth and enzymatic activity in dried food is water availability and location and teaches that in dried products, the water activity contents are often less than 0.7 as it is responsible for microbial stability to prevent microbial growth and cites some exemplary dried beef products having a water activity of 0.65 to .68 (Page 18). Therefore, since Mediani teaches the importance of a water activity below 0.7 for microbial safety and limiting microbial growth and teaches exemplary dried beef products having a water activity of 0.65, this is seen to render obvious to one of ordinary skill in the art Applicant’s claimed upper range of 0.6. Where "the difference between the claimed invention and the prior art is some range or other variable within the claims...Applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.” In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir.1990). MPEP 2144.05 III. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the average particle size of the meat flour involves only routine skill in the art. MPEP 2144.05 II. Furthermore, it has been found that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I. One of ordinary skill in the art would have been motivated by the teachings of Mediani to keep the water activity below 0.7 of the dried meat flour in order to ensure microbial safety of the product.
Regarding the mineral contents recited in Claims 1-4, Stephens teaches the nutriment of the animal tissues and fibers is retained by the processing method, as set forth above, and Mediani teaches that meat is an excellent source of minerals that include iron, zinc, potassium, phosphorus, copper, selenium, calcium and sodium, among others (Page 37). Therefore, one of ordinary skill in the art would have reasonably expected that the dried beef flour of the prior art would have retained comparable levels of minerals as claimed, absent teachings to the contrary. Therefore, the claimed parameters of the dried beef flour would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, for the reasons set forth above and the native presence of the claimed minerals in meat.
Regarding the surface-area-to-volume ratio claimed for the ground meat powder, Stephens in view of Memon and Mediani do not teach the limitation, although the prior art does teach grinding the dried meat into a flour product, where the Examiner has established that wheat flour, as an example, typically has a particle size within the claimed range. Therefore, since the prior art teaches a finely ground meat flour from beef, one of ordinary skill in the art would have reasonably expected a comparable surface area to volume ratio as claimed, absent teachings to the contrary. Where "the difference between the claimed invention and the prior art is some range or other variable within the claims...Applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.” In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir.1990). MPEP 2144.05 III. The specific surface-area-to-volume ratio for the ground meat powder not met by any reference here because Applicant has chosen to describe his product with physical characteristics that are beyond measurement by this Office and as a practical matter, the Patent Office is not equipped to manufacture products and then obtain prior art products and make physical comparisons therewith. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972) at 59 CCPA 1041. Since the above reference teaches a flour that is a dry, solid powder comprising of ground meat powder from beef, it would be expected, absent any evidence to the contrary, that the composition would meet the claimed limitations. Furthermore, it has been found that “[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency’ under 35 U.S.C. 102, on prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same...[footnote omitted].” The burden of proof is similar to that required with respect to product-by-process claims. In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (quoting In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)). MPEP 2112.V.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Stephens (USPN 091176) in view of Memon (2020) and Mediani (2022), and further in view of iQi NPL (2022).
Regarding Claims 6 and 7, Stephens in view of Memon and Mediani are taken as cited above and teach dried meat flour comprising various animal fibers and tissues, but does not specifically teach where the ground meat powder consists of chicken, or where the flour comprises fat, protein, calories, cholesterol contents as claimed although Stephens does not limit the dried meat powder to any particular type of animal and teaches the nutriment in the ground animal flour is retained, as set forth above.
iQi NPL teaches of spray-dried chicken meat powder made from chicken carcasses, necks and skins, which are concentrated after the removal of bones and fat and teaches that the nutritional quality of the protein is retained, where the agglomerated powder is free flowing and dissolves easily, and has a protein content of 75% by weight and 12% fat by weight (Pages 1-3), where the protein and fat contents are within the ranges claimed for fat and slightly higher than the range for protein. Since the Therefore, while iQi NPL does not indicate the calories per gram, since fat and protein content are within or very close to the claimed ranges with no appreciable carbohydrates, one of ordinary skill in the art would have reasonably expected a comparable caloric content. Since iQi NPL teaches dried chicken and an amount of fat within the claimed range, one of ordinary skill in the art would have reasonably expected a comparable amount of cholesterol and saturated fat as claimed.
Regarding the mineral contents recited in Claim 7, as set forth above, Stephens teaches the nutriment of the animal tissues and fibers is retained by the processing method and Mediani teaches that meat is an excellent source of minerals that include iron, zinc, potassium, phosphorus, copper, selenium, calcium and sodium, among others (Page 37). Therefore, one of ordinary skill in the art would have reasonably expected that the dried chicken flour of the prior art would have also retained comparable levels of minerals as claimed, absent teachings to the contrary. Therefore, in light of the teachings of the prior art, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the ground meat powder of the prior art to have consisted of chicken or beef and to have possessed the claimed parameters in light of the teachings of the prior art and the known use of these types of animals to make dried ground animal powder or flour.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following USPN are all directed to dried meat powders, and have been made of record by the Examiner: USPN 5,059,445, 4,215,153, 3,959,517, 3,955,011, 3,922,372, 1,536,308, 1,517,445, 1,372,527, 1,005,539, 678,283, and 658,248.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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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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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 12/21/2025