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 .
This office action was written in response to the Applicants Remarks filed 12/16/25. Claims 1-26 are pending and have been examined on the merits.
Withdrawn Rejections
The 112(b) of claims 2, 8-10, 12-22, and 25 have been withdrawn due to the amendments to the claims.
The 103(a) rejections of claims 3, 4, 6, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Forte et al. (US 2009/0246320), Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation), and Cheuk et al. (EP 1241950) have been withdrawn due to the amendments to the claims.
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 11 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.
Regarding claim 11, the claims recite “the pet food produced by the method”. This is confusing language. Claim 1 is already established as a method claim. However, the introduction of the phrase “the pet food produced by the method”, inserts confusion as it appears to be product by process language. Further the claims containing the product by process language fail to recite an actual method step.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 1, 2, 8, 9, 11, 12, 13, 14, 17, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950).
Regarding Claims 1, 2, 11, 12, 13: Brent discloses a coated pet food with a core and coating. Brent discloses that the pet food can be semi-moist having a moisture content of from about 16% to about 92%, and 16% to 50% [abstract; col. 3, lines 5-11]. Brent discloses the core further comprising a chelant [col. 27. Table Exs. 22-26]. Brent discloses that the core has an animal protein [col. 4, lines 50-53; 61-67] and protein contents of 53.95%, 28.53%, 66.93%, 53.9%, 62.86%, 56.01%, 50.47%, 42.16%, 100%, 50%, and 100% [Ex. 22-26; 30-36]. Brent discloses that the coating contains maltodextrin, a dextrin [col. 7, lines 8-11]. Brent discloses that the coating can comprise other starches [col. 7, lines 12-20]. Brent discloses animal plasma at about 2% to about 4% [Ex. 22-27, 30-33]. Brent discloses starches which are glucose containing carbohydrates [col. 6, lines 50-67].
Brent discloses cooking the edible core ingredients with steam [col. 19, Ex 1-7]. Brent discloses heat setting (drying) the coated cores [col. 20, Ex. 1-7].
Although the reference does not disclose the moisture content at 15 to 50%, 19-25% (claim 12), one having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range taught by Brent overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Brent does not disclose wherein the coating comprises an esterified dextrin and an esterified starch.
Brent does not disclose an emulsifier and emulsifier selected from the group consisting of diacetyl tartaric acid esters of mono- and diglycerides, lecithin, mono- and diglycerides, a stearoyl lactate, acetyl esters of monoglycerides, ethoxylated mono- and diglycerides, glycerol monostearate, lactyl esters of monoglycerides, polyglycerol esters, propylene glycol monostearate, polysorbate 60, succinyl monoglyceride, sorbitan monostearate, and sucrose esters.
Brent does not disclose a blood plasma content of at least 6 wt.%;
Van Gijssel discloses a degraded and cross linked starch in a coating for food products and that it can be used in a wide variety of foods and in different applications [abstract; pg. 4 paragraphs 1-3; and last paragraph]. Van Gijssel discloses a composition that contains a coating or shell and that the coating contains esterified starches and dextrin [page 3, 5th paragraph, last paragraph; claims 8 and 11]. Van Gijssel discloses improvement in texture and crispness of the food products containing the coating [abstract].
Sunvold discloses pet food where the inner component can contain emulsifiers [0101; 0122]. Sunvold discloses that the emulsifiers can be diacetyl tartaric acid esters of mono- and diglycerides of fatty acids, sodium and calcium stearoyl-2-lactylates, mono- and diacetyl tartaric acid esters of mono- and diglycerides of fatty acids (DATEM) and sucrose esters of fatty acids, citric acid esters of mono- and diglycerides of fatty acids, lactic acid esters of mono- and diglycerides of fatty acids and polyglycerol esters, lecithins, polyglycerol esters and polysorbate esters [0046]. Sunvold discloses emulsifiers at .1% to about 2% [0046].
Cheuk discloses dried blood plasma at 7% in a pet food mixture [0033].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include an esterified starch and dextrin as in Van Gijssel in order to impart desirable textural properties in the finished product and to help protect the moist core.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include the emulsifiers including DATEM and at amounts as in Sunvold in order to help stabilize the pet food components.
Further it would have been obvious to modify the amount of blood plasma of Brent to include about 7% as in Cheuk in order to provide an alternative source of protein and fat to the pet food.
Although Sunvold does not explicitly disclose 0.5% to 1.1% DATEM one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Sunvold overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 8: Brent discloses as discussed above in claim 1. Brent does not disclose wherein the pet food has a resilience measured by Texture Profile Analysis of 0.14 or greater.
However, since Brent discloses the same limitations of claim 1 it would have been expected that the pet food would have had the same amount of resilience as claimed. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 9: Brent discloses as discussed above in claim 1. Brent does not disclose wherein the pet food has a cohesiveness measured by Texture Profile Analysis of 0.50 or greater.
However, since Brent discloses the same limitations of claim 1 it would have been expected that the pet food would have had the same amount of cohesiveness as claimed. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 14: Brent discloses as discussed above in claim 13. Brent discloses that the animal meat can be derived from muscle meat and meat by products [col. 7, lines 59-65].
Regarding Claim 17: Brent discloses as discussed above in claim 1. Brent does not disclose that the coating contains a chelant.
Sunvold discloses an animal kibble and coating and that the coating can contain chelates [0051].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method Brent to include a chelant in its coating as in Sunvold in order to help prevent precipitation of the ingredients in the coating.
Regarding Claim 22: Brent discloses as discussed above in claim 1. Brent discloses the core further comprising a yeast [col. 35, Iams Savory Sauce® ingredients].
Claims 5 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 1 above and in further view of Shi et al. (US 5,795,397).
Regarding Claims 5 and 10: Brent discloses as discussed above in claim 1. Brent does not disclose that the maltodextrin is esterified.
Shi discloses esterified maltodextrin and that the esterified maltodextrin has improved water dispersibility [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the maltodextrin of Brent for the esterified maltodextrin of Shi in order to improve the mixing and dispersion of the maltodextrin.
Regarding the amount of maltodextrin, Brent discloses that the coating can be up to 100% of a binder and names maltodextrin as a binder [col. 6, lines 25-67; col. 7, lines 1-11].
However, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of maltodextrin for producing a coating, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 13 above and in further view of Ikeda et al. JP H0870787 March 1993 Machine Translation.
Regarding Claims 14 and 15: Brent as modified discloses as discussed above in claim 13. Brent discloses the inclusion of meat by product.
Brent does not disclose animal protein comprising at least 50% organ meat(claim 14); animal protein comprising at least 15% viscera (claim 15).
Ikeda discloses a semi -moist pet food containing liver (organ meat) or viscera and that the animal organ meat or viscera represents at least 35% of the total weight of the raw material [0002; 5th page].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include liver or viscera at least about 35% as in Ikeda in order to provide flavor favorable to pets and to provide a cheaper but sustainable and palatable form of protein for the pet food.
Although Ikeda does not explicitly disclose at least 50% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ikeda overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 16 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 1 above and in further view of Lin et al. (US 2005/0037108).
Regarding Claim 16: Brent discloses as discussed above in claim 1. Brent does not disclose including at least about .3% tetrapotassium pyrophosphate.
Lin disclose adding palatability enhancers to pet food abstract. Lin discloses adding the palatability enhancer, tetrapotassium pyrophosphate, at 0.1% to 1.0% [abstract; 0023].
At the effective filing date of the invention it would have been obvious so one of ordinary skill in the art to modify the method of Brent to incorporate tetrapotassium pyrophosphate, at 0.1% to 1.0% as in Lin in order to provide a desirable enhancement of the palatability of the pet food.
One having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range taught by Lin overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Regarding Claim 23: Brent discloses as discussed above in claim 1. Brent does not disclose that the coating contains fat and at least one phosphate.
Lin disclose that it is known to add fat and phosphoric acid ( a phosphate) to a coating for pet food [0007]. Lin discloses animal fat and tetrapotassium pyrophosphate ( a phosphate) in a coating [0010; 0011].
At the effective filing date of the invention it would have been obvious to modify the method of Brent to include a fat and phosphate as in Lin in order to help enhance the palatability of animal feed or pet food.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 17 above and in further view of Young et al. (US 7,211,280).
Regarding Claim 18: Brent discloses as discussed above in claim 17. Brent does not disclose that the citrate is calcium citrate or sodium citrate.
Sunvold discloses an animal kibble and coating and that the coating can contain potassium citrate [0051].
Young discloses including calcium citrate in a pet food as a calcium source [col. 3, lines 7-12].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to further modify the method Brent to include calcium citrate as in Young in order to help prevent precipitation of the ingredients in the coating (Sunvold) and in order to supply a source of calcium (Young).
Claims 19, 20, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 1 above and in further view of Townsend et al. (US 2005/0181097).
Regarding Claim 19: Brent discloses as discussed above. Brent does not disclose wherein a water activity (Aw) of the edible pet food is from 0.7 to 0.8.
Townsend discloses a pet food having a water activity of .65 to .80 [0110].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to have a water activity of .65 to 80 as in Townsend since both disclose semi-moist pet food and the water activity would have been desirable for inhibiting the growth of unwanted microbes.
Although the reference does not disclose the water activity of .7 to .8, one having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range taught by Townsend overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Regarding Claims 20 and 21: Brent discloses as discussed above. Brent does not disclose further comprising at least one humectant (claim 20); wherein the at least one humectant is selected from glycol, glycerol, pectin, sodium carboxymethyl cellulose (CMC), and any combination thereof. (claim 21).
Townsend discloses including a humectant in the pet food [0095; 0108; 0115]. Townsend discloses propylene glycol or glycerin as humectants [0095].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include a humectant such as in Townsend in order to make the intermediate moisture containing product microbially stable.
Claims 24 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 1 above and in further view of Koehler (US 8,765,180).
Regarding Claim 24: Brent discloses as discussed above in claim 1. Brent does not disclose wherein the coating comprises an amount of at least one octenyl succinate hydrolyzed starch.
Koehler discloses starch octenyl succinate derivative (an esterified starch) in a coating as a hydrocolloid [col. 2, lines 48-52].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include starch octenyl succinate derivative as in Koehler in order to stabilize and disperse the other coating materials.
Regarding Claim 25: Brent discloses as discussed above in claim 24. Brent does not disclose wherein the octenyl succinate hydrolyzed starch constitutes from 1 to 4 wt. % of the edible pet food.
Koehler discloses starch octenyl succinate derivative (an esterified starch) in a coating at 0.5 to 50% [col. 4, lines 56-58].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include starch octenyl succinate derivative as in Koehler in order to stabilize and disperse the other coating materials.
Regarding the amount of octenyl succinate hydrolyzed starch, one having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the compositional range taught by Koehler overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation) and Cheuk et al. (EP 1241950) as applied to claim 1 above and in further view of Ray (US 2015/0320085).
Regarding Claim 26: Brent discloses as discussed above in claim 1. Brent does not disclose further comprising packing the pet food in a pack, wherein the pack comprises an airtight interior chamber, wherein the interior chamber comprises an amount of two or more gases, and wherein the two or more gases comprise at least 60 vol% nitrogen and at least 25 vol% carbon dioxide.
Ray discloses packaging pet food in containers that are sealed under modified atmosphere including nitrogen and carbon dioxide [0084; 0087; 0090].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include packaging under modified atmosphere and sealing as in Ray in order to provide the pet food in shelf stable form.
Although Ray does not disclose 60% nitrogen and at least 25% carbon dioxide, it does disclose the gases as the two that make up the modified atmosphere and therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the levels of nitrogen and carbon dioxide for preserving pet food, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Claims 3, 4, 6, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Bigeard et al. (US 2010/0136201), Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation), and Cheuk et al. (EP 1241950).
Regarding Claims 3, 4, 6, and 7: Brent discloses a coated pet food with a core and coating. Brent discloses that the pet food can be semi-moist having a moisture content of from about 16% to about 92%, and 16% to 50% [abstract; col. 3, lines 5-11]. Brent discloses the core further comprising a chelant [col. 27. Table Exs. 22-26]. Brent discloses that the core has an animal protein [col. 4, lines 50-53; 61-67] and protein contents of 53.95%, 28.53%, 66.93%, 53.9%, 62.86%, 56.01%, 50.47%, 42.16%, 100%, 50%, and 100% [Ex. 22-26; 30-36]. Brent discloses that the coating contains maltodextrin, a dextrin [col. 7, lines 8-11]. Brent discloses that the coating can comprise other starches [col. 7, lines 12-20]. Brent discloses animal plasma at about 2% to about 4% [Ex. 22-27, 30-33].
Brent discloses cooking the edible core ingredients with steam [col. 19, Ex 1-7]. Brent discloses coating the cores and heat setting (drying) the coated cores [col. 20, Ex. 1-7].
Although the reference does not disclose the moisture content at 15 to 50%, 19-25% (claim 12), one having ordinary skill in the art at the time the invention was made would have considered the invention to have been obvious because the range taught by Brent overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness.
Brent does not disclose an emulsifier.
Brent does not disclose wherein the drying is done at a temperature of at least 120°C.
Brent does not disclose wherein the coating comprises an esterified dextrin and an esterified starch.
Brent does not disclose a blood plasma content of at least 6 wt.%.
Brent does not disclose emulsifier selected from the group consisting of diacetyl tartaric acid esters of mono- and diglycerides (DATEM), lecithin, mono- and diglycerides, a stearoyl lactate, acetyl esters of monoglycerides, ethoxylated mono- and diglycerides, glycerol monostearate, lactyl esters of monoglycerides, polyglycerol esters, propylene glycol monostearate, polysorbate 60, succinyl monoglyceride, sorbitan monostearate, and sucrose esters (claim 6); DATEM (claim 7).
Sunvold discloses pet food where the inner component can contain emulsifiers [0101; 0122]. Sunvold discloses that the emulsifiers can be diacetyl tartaric acid esters of mono- and diglycerides of fatty acids, sodium and calcium stearoyl-2-lactylates, mono- and diacetyl tartaric acid esters of mono- and diglycerides of fatty acids (DATEM) and sucrose esters of fatty acids, citric acid esters of mono- and diglycerides of fatty acids, lactic acid esters of mono- and diglycerides of fatty acids and polyglycerol esters, lecithins, polyglycerol esters and polysorbate esters [0046].
Bigeard discloses forming semi moist feeds and discloses heating/extruding at a temperature of 130°C or more and venting during the extrusion step wherein the water in the pet food is drawn off during heating[abstract; 0042].
Van Gijssel discloses a degraded and cross linked starch in a coating for food products and that it can be used in a wide variety of foods and in different applications [abstract; pg. 4 paragraphs 1-3; and last paragraph]. Van Gijssel discloses a composition that contains a coating or shell and that the coating contains esterified starches and dextrin [page 3, 5th paragraph, last paragraph; claims 8 and 11]. Van Gijssel discloses improvement in texture and crispness of the food products containing the coating [abstract].
Cheuk discloses dried blood plasma at 7% in a pet food mixture [0033].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include the emulsifiers including DATEM and at amounts as in Sunvold in order to help stabilize the pet food components.
At the effective filing date of the invention it would have been obvious to modify the method of Brent to include drying at 130°C or more as in Bigeard in order to achieve the desired moisture content of the pet food and while maintaining a nutritional profile of the pet food.
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Brent to include an esterified starch and dextrin as in Van Gijssel in order to impart desirable textural properties in the finished product and to help protect the moist core.
Further it would have been obvious to modify the amount of blood plasma of Brent to include about 7% as in Cheuk in order to provide an alternative source of protein and fat to the pet food.
Response to Arguments
The 112(b) of claims 2, 8-10, 12-22, and 25 have been withdrawn due to the amendments to the claims.
The 103(a) rejections of claims 3, 4, 6, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Brent, Jr. (US 9,480,275) in view of Forte et al. (US 2009/0246320), Sunvold et al. (US 2012/0021094), Van Gijssel et al. (EP 1361802 2003 Machine Translation), and Cheuk et al. (EP 1241950) have been withdrawn due to the amendments to the claims.
Regarding the rejections, the Applicants assert that Brent is not concerned with bloom or preventing the formation of a white film on the pet food. The Applicants assert that this is found because Brent allows for the inclusion of titanium dioxide.
The Examiner disagrees because Brent discloses colorants in general and names other colorants to achieve different colors in pet food [Brent, col. 8, lines 61-67, col. 9, lines 1-60]. Further, Brent is concerned with the appearance of the pet food where it discloses providing the coating in way that keeps the pet food fresh, gives the food a fresh appearance and looks appealing to pets [col. 10, lines 7-20]. Therefore Brent is maintained.
20. The Applicants assert that Brent as modified does not disclose the amount of blood plasma because the amount disclosed is indicative of the amount in the core and not the amount in the pet food as a whole.
The Examiner notes that Brent has been modified by Cheuk which discloses 7% blood plasma in an overall pet food. Blood plasma is a source of high quality protein and amino acids and it would have been obvious to include the plasma in the amounts recited in order to provide essential nutrition to pets.
Regarding Sunvold, the Applicants assert that the emulsifier is added to the coating and not the inner component.
The Examiner disagrees. Sunvold discloses including emulsifiers in the pet food not just the coating [0034; 0046; 0051]. Further, the claims do not limit the coating to the core or the coating. The claim only requires that the emulsifier is present in the pet food. The pet food is the combination of the core and coating. Therefore, since the emulsifier is present in the coating it is considered to be present in the pet food.
Regarding Van Gijssel, the Applicants assert that one would not have modified the coating of Brent for the coating of Van Gijssel.
The Examiner maintains that the modification would have been obvious for the purpose of proving desirable textural properties in the end product.
Regarding the rejections of claims 3, 5, 6, 7, the arguments are moot in light of the amendment and the new art applied in response to the amendment.
Regarding the rejections of claim 5 and 10, the Applicants assert that Shi does not remedy the deficiencies of Brent and the other secondary references. The Applicants assert that Shi only discloses esterified maltodextrin and that increased water dispersibility is not a reason for the incorporation.
The Examiner disagrees and maintains that the inclusion of esterified maltodextrin is relevant because increasing dispersibility will help in providing an equal or homogenous mixture of the ingredients.
Regarding the rejection of claims 14 and 15, the Applicants assert that reliance on Ikeda does not remedy the deficiencies of the other references.
The Examiner maintains that Ikeda was relevant for the limitation it was included to teach. The Examiner maintains that Brent and secondary references were not deficient for the reasons discussed above.
Regarding the rejections of claims 16 and 23, the Applicants assert that reliance on Lin does not remedy the deficiencies of the other references. The Applicants also assert that Lin is drawn to dry to semi-moist pet foods and that Brent is drawn to moist to semi-moist pet foods and that therefore applying Lin would require altering the moisture content of Brent.
The Examiner maintains that Lin was relevant for the limitation it was included to teach. The Examiner maintains that Brent and secondary references were not deficient for the reasons discussed above. Further the references are overlapping in the relevant moisture content of their products with Brent encompassing pet food with a moisture of about 16 to 92% [Brent, abstract] and with Lin encompassing pet food with a moisture content of 50% or less [Lin 0014; 0023]. Their scopes are overlapping and therefore it would have been obvious to modify Brent with the teachings of Lin.
Regarding claim 18, the Applicants assert that Young does not correct the deficiencies of Brent and the other secondary references.
The Examiner maintains that Young was relevant to the limitation it taught and that the other references were not deficient for the reasons discussed above.
Regarding Claim 19, 20, and 21, the Applicants assert that Townsend does not correct the deficiencies of Brent and the other secondary references. The Applicants assert Townsend is relevant to pet food that can be held and not semi-moist pet food.
The Examiner notes that water activity does not provide a direct correlation with water/moisture content. Water activity is relevant to free water present and the higher the water activity the more likely the food is available for microbial contamination and degradation. It would have been obvious to modify the water activity to one that is within a range that does not promote microbial growth as recited.
Regarding Claims 24 and 25, the Applicants assert that Kohler disclosed creating a white coating and requires calcium carbonate. The Applicants assert that coating for coloring purposes is only contemplated by Kohler.
The Examiner disagrees and notes that the starch ocentyl succinate aids in dispersion and it would have been advantageous to add it in order to improve achieving a homogenous or even mixture of the ingredients in the pet food.
Regarding Claim 26 the Applicants assert that Ray does not remedy the deficiencies of Brent and the other secondary references.
The Examiner maintains the Ray met the limitations for which it was included and the Examiner maintains Brent and the secondary references were not deficient for the reasons discussed above.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793