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 .
DETAILED ACTION
The Amendments filed on 5/26/2026 has been received and entered.
Claims 1-3 and 5-19 are pending. Claims 1-3, 5-10, 15, and 17-19 are examined on the merits. Claims 11-14 and 16 are withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Any rejection not reiterated below are hereby withdrawn.
Election/Restrictions
Applicant’s election of Group I (Claims 1-10, 15, and 17-19), the species fish oil, sodium chloride, a thickener, in the reply filed on 1/14/2026 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Claims 11-14 and 16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 1/14/2026.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/19/2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
Claim Rejections - 35 USC § 102
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 8, 9, 10, and 19 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Fukui (AU 2007360026 A1). This is a new rejection.
Fukui teaches a granular jelly beverage for medication comprising 0.1 to 15% fish oil and 0.1 to 5.0% agar (Claim 1). It is noted that the reference does not teach that the composition can be used in the manner instantly claimed, however, the intended use of the claimed composition does not patentably distinguish the composition, per se, since such undisclosed use is inherent in the reference composition. In order to be limiting, the intended use must create a structural difference between the claimed composition and the prior art composition. In the instant case, the intended use does not create a structural difference, thus the intended use is not limiting.
“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). See also MPEP § 2112.01 with regard to inherency and product-by-process claims.
Claim Rejections - 35 USC § 103
Claim(s) 1-3, 5-10, 15, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Yim et al. (CN 103536579 B). This is not a new rejection.
Yim et al. teaches a microcapsule made of agar and filling material is fish oil with loading substance glycerol (page 13, last paragraph, page 14, lines 1-2). The micro-capsule disclosed by weight micro-capsule can contain about 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, or 90% (page 13, paragraph 5), which would render the bioactive material within the 15% weight range. A bioactive component of The nutritional supplement can be designed for human or animal, recommendation given based on food intake of an individual. species such considerations are typically based on different factors, such as described above, age, and sex, and these factors are known or common technique by those skilled in the art to determine. A component feed in one example, these supplements are disclosed useful animals, the animals such as, but not limited to, livestock (e.g., pigs, chicken, cow, goat, horse, etc.), and domestic pets (for example, cats, dogs, birds, etc.) ( page 19, last paragraph). the food is a baked food, edible dry noodles (pasta), a meat product, a frozen dairy product, a milk product, a cheese product, an egg, seasoning, soup powder, snack food, a nut product, a plant protein product, a hard candy, a soft candy, a poultry product, processing of juice, granulated sugar (e.g., white or brown), a sauce, a gravy, a syrup, a nutritional bar (nutritionalbar), beverage, beverage powder, a jam or jelly, a fish product, or pet companion food (pct companion food) (page 21, paragraph 3). Carrier include sodium chloride solution (page 20, paragraph 6). EPA and DHA is obtained from dietary sources (e.g., oily fish). known rich diet of fish oil with multiple kinds of beneficial effect with respect to heart disease, cancer, arthritis, allergies, and other chronic diseases. clinical test of epidemiology has display, increasing the dietary intake of ω -3 fatty acid in the form of fish or fish oil supplement can reduce the different risk factors associated with cardiovascular disease (page 22, paragraph 2) and prevention of inflammation ( page 22, paragraph 1). These compositions (including nutritional supplements, delivery device and drug formulation) disclosed can typically by oral administration (page 23, paragraph 5). A micro-capsule of the "effective amount" can be in pure form or (wherein such form) in the form of a pharmaceutically acceptable salt, and with or without a pharmaceutically acceptable excipient, carrier, or other additive (page 23, paragraph 2). These compositions can be added to food, no substantial degradation in the food preparation process (page 21, paragraph 5). Water is the additive for adding to agar (page 24, paragraph 2, example 1). Water would inherently have a water activity level from 0.45-0.7 because water has the same activity.
However, Yim et al. does not teach water in range of 6-24% w/w, sodium chloride in range of 0.4-1.6 % w/w, agar in range of 1.4-9.6% w/w, glycerol in range of 20-36% w/w, coloring agent is caramel or carbon black.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to make a composition comprising water in range of 6-24% w/w, sodium chloride in range of 0.4-1.6 % w/w, agar in range of 1.4-9.6% w/w, glycerol in range of 20-36% w/w of the active agent combination for the following reasons. The reference does teach the composition for pet food. Yim et al. teaches a microcapsule made of agar and filling material is fish oil with loading substance glycerol (page 13, last paragraph, page 14, lines 1-2). The micro-capsule disclosed by weight micro-capsule can contain about 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, or 90% (page 13, paragraph 5), which would render the bioactive material within the 15% weight range. Carrier include sodium chloride solution (page 20, paragraph 6). Additionally, the amount of a specific ingredient in a composition that is used for a particular purpose (the composition itself or that particular ingredient) is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. "[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). Thus, optimization of general conditions is a routine practice that would be obvious for a person of ordinary skill in the art to employ. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results, especially within the ranges taught by the reference. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient amount would have been obvious at the time of applicant’s invention.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add coloring to pet food because pet food are usually brown or caramel in color. One would have been motivated to make pet food with color for the expected benefit of making the pet food look more palatable for the animal. Absent evidence to the contrary, there would have been a reasonable expectation of success in making the claimed invention from the combined teachings of the cited references.
Response to Arguments
Applicant argues that the amounts are not taught.
In response to Applicant’s argument, Yim et al. teaches a microcapsule made of agar and filling material is fish oil with loading substance glycerol (page 13, last paragraph, page 14, lines 1-2). The micro-capsule disclosed by weight micro-capsule can contain about 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, or 90% (page 13, paragraph 5), which would render the bioactive material within the 15% weight range. Carrier include sodium chloride solution (page 20, paragraph 6). The amounts can be adjusted for the pet size and weight. Additionally, the amount of a specific ingredient in a composition that is used for a particular purpose (the composition itself or that particular ingredient) is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. "[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). Thus, optimization of general conditions is a routine practice that would be obvious for a person of ordinary skill in the art to employ. It would have been customary for an artisan of ordinary skill to determine the optimal amount of each ingredient to add in order to best achieve the desired results, especially within the ranges taught by the reference. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient amount would have been obvious at the time of applicant’s invention.
Applicant argues that caramel color is not taught.
In response to Applicant’s argument, pet food are caramel in color. As for the prevention of light penetration, the pet food is in paper bags. A disclosure of the exact mechanism of action is not required. The reference teaches the compositions can be added to food, no substantial degradation in the food preparation process (page 21, paragraph 5). Therefore, an artisan of ordinary skill would clearly see that this reference shows that stability is a characteristic considered was known in the art at the time of the invention.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Catheryne Chen Examiner Art Unit 1655
/ANAND U DESAI/Supervisory Patent Examiner, Art Unit 1655
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