DETAILED ACTION
Background
The amendment dated May 28, 2026 (amendment) amending claims 1, 4-6, 11 and 15 has been entered. Claims 1-15 as filed with the amendment have been examined.
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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
In claim 1, at line 3 after “dry kibble pieces” replace [[of]] with --in--.
Appropriate correction is required.
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.
Claims 1-15 are 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.
In claim 1, The recited percentage (%) of individual dry kibble pieces in a serving is indefinite for lacking % units. Is the recited % a weight %, a volume % or a % in some other unit of measure such as a number of pieces?
The Office interprets the recited % of individual dry kibble pieces as being a weight % (wt%), based on the total weight of a serving of the dry kibble pieces.
In claims 7 and 10, the recited “moisture content” is indefinite for lacking a proper denominator or basis. Is the moisture content a wt%, based on the total weight of the dry kibble?
The Office interprets the recite moisture content as being a wt% moisture, based on the total weight of the dry kibble.
The recited percentage (%) of donut-shaped dry kibble pieces in a serving in each of claims 11 and 15 is indefinite both for lacking % units. Regarding units, is the recited % a weight % of pieces, a volume % of pieces or a % in some other unit of measure such as a number of pieces?
The Office interprets the recited % of individual dry kibble pieces as being a weight % (wt%), based on the total weight of a serving of the dry kibble pieces.
Claims 2-4, 7-10 and 12-14 are rejected as depending from a rejected base claim.
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 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over (i) EP0088574 A1 to Smith et al. (Smith) and over (ii) Smith in view of US 2023/0148630 A1 to Trassy et al. (Trassy), of record.
Unless otherwise indicated, Office interprets all recited %s as weight %s. The Office interprets all claimed %s of donut-shaped dry kibble pieces as being a weight %, based on the total weight of all the pieces of a serving of the dry kibble pieces.
Unless otherwise stated, all dimensions are interpreted as average dimensions for a sample of dry kibble pieces.
Regarding instant claims 1, 9, 11 and 15, Smith at Abstract discloses an animal food (at page 1, lines 1-13) a dry dog food (dry kibble pieces) suitable for small dogs (“small adult dog”) and formulated for use as a dog food (“dispensing a serving of dry kibble to a small adult dog”). The Office considers the claimed dogs weighing up to about 11 kg as including the small dogs disclosed in Smith. Smith at page 3, lines 9-18 discloses cushion shaped (“donut-shaped”) dry kibble pieces as “100 wt% of individual donut-shaped dry kibble pieces, based on the weight of a serving of dry kibble” (claims 1, 9, 11 and 15); Further, at page 7, lines 9-23, Smith discloses the dry kibble pieces 1 (FIG. 1) having the donut-shape shell having a horizontal cross section defining an internal space 6 (FIG. 2). In addition, Smith discloses that the proportions of its donut-shaped dry kibble pieces as its outer portion can vary in shape.
Further and regarding instant claims 2-4 and 14, Smith at page 3, lines 9-18 discloses donut-shaped dry kibble pieces which have an average thickness from about 3 mm to about 8 mm diameter (“average diameter”), usually about 5 mm (claim 4). Further, Smith discloses that the diameter (“average diameter”) is such that the thickness is ¼ to 2/3rd its edge length (“average diameter”) or from about 0.8 cm (3/2X of 5 mm) to about 3.0 cm (4X of 8 mm), which all of the claimed average diameter of from about 1.3 cm to about 2.0 cm in claims 1 and 11 lies within; the claimed average diameter of from about 1.3 cm to about 1.6 cm in claims 2, 4 and 14 lies within; and the claimed average diameter of from about 1.6 cm to about 2.0 cm in claim 3 lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Smith would have desired to form its dry kibble pieces to have the claimed average diameter of from about 1.3 to about 2.0 cm in claims 1 and 11, or from about 1.3 to about 16 cm as in claim 2, 4 and 14, or from about 1.6 to 2.0 cm as in claim 3, because Smith discloses that the claimed average diameter sizes are suitable for making desirable dry kibble pieces for dogs.
Still further, the Office considers the donut-shaped dry kibble pieces of Smith at FIG. 2 to be substantially the same thing as the claimed invention. Accordingly, absent a clear showing as to how the dimensions the donut-shaped dry kibble pieces of Smith differ from that as claimed, the Office considers the donut-shaped dry kibble pieces of Smith at FIG. 2 (6) to have an inner space or average inner-hole diameter from about 3 mm to about 8 mm as in claims 1 and 11. See MPEP 2112.01.I.
Smith does not provide the dimensions of its donut-shaped dry kibble pieces as an average inner-hole diameter from about 3 mm to about 8 mm.
Trassy at [0008]-[0009] discloses a highly aerated pet food that can slow down food intake by an animal, wherein at [0037] the pet food comprises elements ("dry kibble pieces") having a central hole and (at [0039] a substantially circular cross-section with an external diameter ("average diameter") of from about 10 mm to about 20 mm and an internal diameter ("average inner-hole diameter") of about 2 to about 12 mm, within which range the claimed average inner-hole diameter of from about 3 to about 8 mm lies within. See MPEP 2144.05.I.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Trassy for Smith to shape its donut-shaped dry kibble pieces to have an average inner-hole diameter from about 3 mm to about 8 mm. Both references disclose ring shaped dry kibble pieces and methods for using them as dry dog food. The ordinary skilled artisan in Smith would have desired to proportions its donut-shaped dry kibble pieces in any fashion to include any use, including making its donut-shaped dry kibble pieces having an average inner-hole diameter from about 3 mm to about 8 mm so as to slow down intake of the food by dogs as in Trassy.
Regarding instant claims 5-6, 8, 10 and 12, the donut-shaped dry kibble pieces of Smith and method of feeding a small adult dog disclosed in Smith appear to be substantially the same thing as the claimed dry kibble pieces and method of us. Accordingly, absent a clear showing as to how the method of feeding dry kibble pieces and the small adult dog in Smith differs from that of the method and dog as claimed, the Office considers the method and the dry kibble pieces disclosed in Smith at Abstract, page 1, lines 1-13, page 3, lines 9-18, FIG. 1, FIG. 2 and page 7, lines 9-23 to comprise each of:
A method wherein a small adult dog eating the donut-shaped dry kibble pieces exhibits a reduced feeding speed and increased eating duration on average compared to the feeding speed of the same volume of a comparative solid round dry kibble having the same composition as the dry kibble and having a diameter of about 1 cm or less and a thickness of about 8 mm as in claim 5;
a method wherein during feeding, the small adult dog exhibits a lower frequency of labored swallowing and increased chewing duration on average compared to when the small adult dog is feeding on the same volume of a comparative solid round dry kibble having the same composition as the dry kibble and having a diameter of about 1 cm or less and a thickness of about 8 mm as in claim 6;
a dry kibble having an average stiffness from about 40 N/mm to about 120 N/mm as in claims 8 and 12; and,
a method wherein the small adult dog has an average oral cavity area from about 12 cm2 to about 22 cm2 as in claim 10. See MPEP 2112.01.I.
Further regarding instant claim 12 and regarding instant claim 7, at page 9, lines 16-18 Smith discloses donut-shaped dry kibble having a moisture content of 10 wt%, based on the total weight of the donut-shaped dry kibble.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over EP0088574 A1 to Smith et al. (Smith), alone and Smith taken in view of US 2023/0148630 A1 to Trassy et al. (Trassy) as applied to claim 11 above, and further in view of US 2002/0081356 A1 to Bebiak et al. (Bebiak).
As applied to claim 11, Smith at Abstract, page 1, lines 1-13, page 3, lines 9-18, FIG. 1, FIG. 2 and page 7, lines 9-23 and Smith as modified by Trassy at [0008]-[0009] and [0039] discloses a dry kibble comprising from about 20 wt% to about 100 wt% donut-shaped dry kibble pieces having an external diameter of from about 1.3 to 2.0 cm, an average inner-hole diameter of from about 3 to about 8 mm, and an average thickness of about 3 mm to about 5 mm.
Smith and Smith as modified by Trassy does not disclose a dry kibble is formulated for small adult dogs and that is packaged with indicia indicating that the dry kibble is for small adult dogs.
Bebiak discloses at Abstract a method for customizing pet food comprising (at [0010]) inputting pet weight, breed, age, food shape and form and other information including medical history into a database storing nutritional information. At [0011], Bebiak discloses generating a customized pet food formula and assembling printed material (“indicia”) indicating what dog the product is intended for. At [0017]-[0018], Bebiak discloses donut-shaped product as dry kibble pieces having a desired moisture content of from about 5 wt% to about 15 wt%.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Bebiak for Smith or Smith as modified by Trassy to formulate a dry kibble for small adult dogs and package it with indicia indicating that the dry kibble is for small adult dogs. All references disclose donut-shaped dry kibble designed specifically for dogs. The ordinary skilled artisan in Smith would have desired to formulate its dry kibble for a dog of any size and age as in Bebiak and to label the package for its custom food for that particular dog as in Bebiak.
Response to Arguments
11. In view of the amendment dated May 28, 2026, the following rejections have been withdrawn as moot:
The provisional rejections of claims 1-3, 6-8 and 10-14 on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 9-14 of copending Application No. 18/635,499;
The rejections of claims 5-6 and 11-15 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the “comparative” kibble in
claims 5 and 6; in regard to the recited percentage (%) of donut-shaped dry kibble pieces in each of for lacking a basis or denominator in claims 11 and 15; and, in regard to the recited “average thickness of 3 cm to 5 cm” for a donut-shaped dry kibble pieces in claim 11;
The rejection of claim 7 under 35 U.S.C. 103 as being unpatentable over US2025/0122476 A1 to Janousek et al. in view of US 2023/0148630 A1 to Trassy et al., Wall, T. “Kibble tech matches dog, cat food shape to pets’ biology” downloaded on February 20, 2026 from https://www.petfoodindustry.com/print/content/15466344 (2019) and US 2017/0150740 A1 to Miyamoto et al.;
The rejections of claims 11-12 and 14-15 under 35 U.S.C. 103 as being unpatentable over US 2023/0148630 A1 to Trassy et al.;
The rejection of claim 12 under 35 U.S.C. 103 as being unpatentable over US 2023/0148630 A1 to Trassy et al. and US 2017/0150740 A1 Miyamoto et al.; and,
The rejection of claim 13 under 35 U.S.C. 103 as being unpatentable over US 2023/0148630 A1 to Trassy et al. and US2002/0081356 A1 to Bebiak et al.
The positions taken in the remarks accompanying the amendment dated May 28, 2026 (Reply) have been fully considered but are respectfully not found persuasive for the following reasons:
Regarding the position taken in the Reply that the claims are clear because claims 1, 9, 11 and 15 recited a percentage as a percent of individual dry kibble pieces in a serving and that "20% to 100% of individual dry kibble pieces" in a serving is the clearest way to word this limitation, respectfully the rejected claims do not make clear that a serving is a number of pieces. As recited the claim recites a % of pieces in a serving; however, a serving could be a number of pieces, the amount of pieces in a given volume, like a cup, or the amount of pieces in a given unit of weight, like an ounce. The Office would consider a recitation of "20% to 100% of the number individual dry kibble pieces in a serving" as reasonably clear and definite.
Regarding the position taken in the Reply that Trassy teaches away from the instant claims because the claims set forth much thinner kibble pieces, which would have the opposite effect of providing the "full-bowl effect," respectfully Trassy is not relied upon for disclosing the thickness of a piece of dry kibble.
Regarding the position taken in the Reply that the instant specification provides evidence of unexpected results, respectfully the comparisons urged in the instant specification at [0027] and [0058] and FIGs 3, 5, 7, 8 and 9 compare to the invention a reference kibble having solid round pieces and do not consider the closest cited art or the art of Trassy. The closest art of Smith discloses donut-shaped dry kibble pieces; and Trassy discloses cylindrical pieces.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/ Examiner, Art Unit 1791
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