DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 03/05/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-22
Withdrawn claims: None
Previously cancelled claims: None
Newly cancelled claims: None
Amended claims: 1, 11, 16
New claims: 21-22
Claims currently under consideration: 1-22
Currently rejected claims: 1-22
Allowed claims: None
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.
Claim 22 is rejected under 35 U.S.C. 112(b) 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 22 recites that the “dry yeast extract has a mass weighted average of from about 50 µm to about 1000 µm”. However, the claim does not recite what feature of the dry yeast extract the “of from about 50 µm to about 1000 µm” is intended to measure (e.g., particle size, particle diameter). Therefore, the claim is indefinite.
For the purpose of this examination, the feature represented by the recited measurement is considered to be the particle size of the dry yeast extract.
Claim Rejections - 35 USC § 103
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 1-21 are rejected under 35 U.S.C. 103 as being unpatentable over Niceron (WO 2013/007639; IDS citation) in view of Didzbalis (US 2007/0071860; previously cited).
Regarding claims 1 and 11, Niceron teaches a pet food composition (corresponding to dry pet food) comprising a core (corresponding to dried particles or pieces) (page 18, lines 21-24); and an external coating (page 19, lines 13-19), wherein the external coating comprises: (a) fat-based layer disposed on the core (page 19, lines 13-15); and (b) a covering layer (corresponding to palatability-enhancing compositions as a dry powder for dusting) disposed on the fat-based layer. Niceron teaches that the fat can be mixed with a palatability-enhancing composition and applied to the kibble concurrently or that a dry palatability-enhancing composition can be dusted on top of the fat-based layer (page 19, lines 17-19); therefore, it is within the ambit of a skilled practitioner to determine the mixing and application of dry and liquid palatability-enhancing ingredients in multiple coatings. Niceron discloses that palatability-enhancing ingredients can be mixed with the fat-based layer (page 19, lines 19-21) and that proteinaceous matter (corresponding to amino acids) (page 14, lines 3-4) is required in the coating composition (Abstract) in an amount of about 5-50 wt.% (page 14, lines 3-4 ), which overlaps the claimed content of proteinaceous matter in the fat-based layer. Since fat alone can be sprayed directly onto the core (page 19, lines 13-15), the fat-based layer does not require water meaning the water content would be 0 wt.%, which falls within the claimed content of water in the fat-based layer. Since the proteinaceous matter comprises 5-50 wt.% of the fat-based layer, then the fat comprises 50-95 wt.% of the fat-based layer, which falls within the claimed fat content of the fat-based layer.
Niceron also teaches that a dusting of a palatability-enhancing composition may be applied to the fat-based layer (page 19, lines 17-19) which can include yeast extract (page 10, lines 7-9) and pyrophosphates (page 15, lines 9-10 and lines 14-19) dried to a powder (page 18, lines 1-2), rendering the claimed dried yeast extract obvious. Niceron discloses a coating in a total amount of 8 wt.% (corresponding to 6 wt.% poultry fat and 2 wt.% of a dry palatability enhancing composition) (page 23, lines 20-21). As such, the core would comprise 92 wt.% of the pet food composition, which places the core content and coating content within the claimed ranges. Niceron also discloses that the pet food composition has a total water content of less than about 15% (page 18, lines 21-23), which falls within the claimed total water content range.
Although Niceron does not specifically disclose the covering layer as comprising the claimed amounts of dry yeast extract and edible phosphate salts, the disclosed concentrations for the two layers of the coating relative to the total composition would provide a basis for determining a suitable amount of phosphate salts and dry yeast extract in the coating layer, thereby rendering the claimed amounts of dry yeast extract and edible phosphate salts in the covering layer as obvious. Phosphate salts in the palatability enhancing composition are about 0.01-75 wt.% (page 15, lines 22-23). As such, for a layer of 2 wt.% dry palatability enhancing composition, phosphate salt content range would be 0.0002-1.5 wt.% in the overall pet food composition, which overlaps the claimed phosphate salt content range in the overall pet food composition. Yeast extract in the palatability enhancing composition is about 0.01-99 wt.% (page 16, lines 7-9). As such, for a layer of 2 wt.% dry palatability enhancing composition, yeast extract content range would be 0.0002-1.98 wt.% in the overall pet food composition, which overlaps the claimed yeast extract content range in the overall pet food composition.
In regards to the overlapping ranges disclosed or suggested by Niceron as described above, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Niceron also discloses that the external coating is applied to the core comprising dry pet foods (corresponding to “dry nutritionally-balanced cat foods”) (page 20, lines 15-17, 20-21), which are “widely known and used in the art” (page 5, line 14). Niceron does not teach that the core comprises the contents of carbohydrates, starch, protein, and fat recited in lines 3-7 of present claims 1 and 11.
However, Didzbalis teaches “a nutritionally balanced pet food” as is known in the art contains carbohydrates in a concentration of 35-50 wt.%, protein in concentration of 15-35 wt.%, and fat in a concentration of 3-20 wt.% [0044]. These disclosed concentrations of carbohydrates, protein, and fat fall within the claimed carbohydrate, protein, and fat concentrations in the core recited in present claims 1 and 11.
It would have been obvious for a person of ordinary skill in the art to have modified the core of Niceron to have the carbohydrate, protein, and fat contents taught by Didzbalis. Since Niceron discloses that its core comprises a nutritionally-balanced pet food known in the art (page 20, lines 15-17, 20-21; page 5, line 14), but does not disclose the composition of such a pet food, a skilled practitioner would have been motivated to consult an additional reference such as Didzbalis in order to determine a suitable pet food, thereby rendering the claimed concentrations of carbohydrates, protein, and fat in the claimed core of the pet food composition obvious. In regard to the core comprising the claimed amount of starch, Niceron discloses that carbohydrates may be starches (page 11, lines 11-12). It would have been obvious to have selected the starch of Niceron as the carbohydrate of Didzbalis since Didzbalis does not specify a type of carbohydrate in its composition. As such, the 35-50 wt.% carbohydrate in the core disclosed by Didzbalis may comprise starches disclosed by Niceron so that the core comprises 35-50 wt.% starches, which falls within the claimed starch concentration in the core.
Regarding claims 2 and 12, Niceron teaches the inventions as disclosed above in claims 1 and 11, including phosphate salts in the palatability enhancing composition are about 0.01-75 wt.% (page 15, lines 22-23) and the overall pet food composition contains 2 wt.% of a palatability enhancing composition in the overall pet food composition (page 23, lines 20-21). As such, the pet food composition containing 2 wt.% palatability enhancing composition would contain 0.0002-1.5 wt.% phosphate salt, which overlaps the claimed range. The selection of a value within the overlapping range renders the claimed range obvious. MPEP §2144.05.I.
Regarding claims 3, 4, 13, and 14, Niceron teaches the inventions as disclosed above in claims 1 and 11, including the pyrophosphates comprising tetrasodium pyrophosphate, trisodium pyrophosphate, disodium pyrophosphate, tetrapotassium pyrophosphate, tripotassium pyrophosphate, dipotassium pyrophosphate, or a combination thereof (page 15, lines 14-19).
Regarding claims 5 and 15, Niceron teaches the inventions as disclosed above in claims 1 and 11, including yeast extract (page 10, lines 7-9) in an amount of 0.01-99% by weight of the covering layer (page 16, lines 7-9) and the concentration of phosphate salts to be 0.01-55% by weight of the covering layer (page 15, lines 22-23). Therefore, Niceron discloses amounts of yeast extract and phosphate salt which provide a range of weight ratios of yeast extract to phosphate salts that at least overlaps the claimed ratio ranges recited in present claims 5 and 15 (e.g., a covering layer comprising 66 wt.% yeast extract and 11 wt.% phosphate salt has a weight ratio of yeast extract to phosphate salt of 6:1). The selection of a value within the overlapping range renders the claimed range obvious. MPEP §2144.05.I.
Regarding claim 6, Niceron teaches the inventions as disclosed above in claim 1, including the palatability-enhancing composition in the covering layer comprising hydrolyzed protein (corresponding to digests) (page 9, lines 4-5; page 10, lines 25-27) in the amount of 0.5- 80% by weight of the covering layer (page 15, line 31-page 16, line 1), which encompasses the claimed range. The selection of a value within the encompassing range renders the claimed range obvious. MPEP §2144.05.I.
Regarding claim 7, Niceron teaches the inventions as disclosed above in claim 1, including the core is formed by steaming and cooking the ingredients at an elevated temperature and pressure during extrusion (page 18, lines 12-18). The combination of Niceron and Didzbalis discloses starch as the carbohydrate in the core (Niceron, page 11, lines 11-12; Didzbalis [0044]). Therefore, the starch in the core of the pet food composition is gelatinized by being steamed and cooked during extrusion so that the final pet food composition comprises gelatinized starch in its core as presently claimed.
Regarding claim 8, modified Niceron teaches the inventions as disclosed above in claim 1, including the core of the pet food composition comprises protein (Didzbalis [0044]). Niceron discloses protein to be animal proteins (page 11, lines 3-5). Therefore, 100 wt.% of the protein in the core is of animal origin, which falls within the claimed concentration.
Regarding claim 9, modified Niceron teaches the inventions as disclosed above in claim 1, including the core of the pet food composition comprises carbohydrates in a concentration of 35-50 wt.%, protein in concentration of 15-35 wt.%, and fat in a concentration of 3-20 wt.% (Didzbalis [0044]) and that the core may comprise other ingredients such as minerals, preservatives, and antioxidants (Niceron, page 10, lines 19-22; page 20, lines 4-10). Based on the amounts of carbohydrates, protein, and fat in the core disclosed by Didzbalis [0044], 53-100 wt.% of the core has been accounted so that 0-47 wt.% of the core has not been accounted. It would have been obvious to have included the additional ingredients disclosed by Niceron (page 20, lines 9-10) in the core in order to account for the remaining 0-47 wt.% of the core. As such, the inclusion of minerals, preservatives, and antioxidants from an amount of 0 wt.% to an amount of 47 wt.% in the core, which falls within the claimed concentration, is rendered obvious.
Regarding claim 10, Niceron teaches the inventions as disclosed above in claim 1, including fat alone can be sprayed directly onto the core (page 19, lines 13-15), so that the fat-based layer does not require water. Therefore, the water content in the fat-based layer would be 0 wt.%. Since the proteinaceous matter comprises 5-50% of the fat-based layer (page 14, lines 3-4 ), then the fat comprises 50-95 wt.% of the fat-based layer. Therefore, the total concentration of fat, water, and proteinaceous matter in the fat-based layer is 55-100 wt.%, which encompasses the total concentration of fat, water, and proteinaceous matter in the fat-based layer. The selection of values within the encompassing ranges renders the claimed ranges obvious. MPEP §2144.05.I.
Regarding claims 16, 17, and 20, Niceron teaches a pet food composition (corresponding to dry pet food) comprising a core (corresponding to dried particles or pieces) (page 18, lines 21-24); and an external coating (page 19, lines 13-19), wherein the external coating comprises: a covering layer in the form of a dusting of a palatability-enhancing composition (page 19, lines 17-19). Niceron teaches that the palatability enhancing composition may include yeast extract (page 10, lines 7-9), pyrophosphates (page 15, lines 9-10 and lines 14-19), and hydrolyzed protein (corresponding to animal digest) (page 9, lines 4-5; page 11, lines 3-5; page 15, lines 27-28) dried to a powder (page 17, line 30- page 18, line 2). Therefore, the claimed yeast extract being dry is rendered obvious. Niceron discloses that the pet food composition may further comprise a fat-based coating layer in addition to the covering layer and the core (page 23, lines 20-21), wherein the combination of the fat-based coating layer and the covering layer create an external coating on the pet food composition (page 19, lines 11-17). Niceron discloses that the external coating is present in a total amount of 8 wt.% of the pet food composition (corresponding to 6 wt.% poultry fat and 2 wt.% of a dry palatability enhancing composition) (page 23, lines 20-21). As such, the core would comprise 92 wt.% of the pet food composition, which places the core content and external coating content within the claimed ranges. Niceron also discloses that the pet food composition has a total water content of less than about 15% (page 18, lines 21-23), which falls within the claimed total water content range.
Although Niceron does not specifically disclose the covering layer as comprising the claimed amounts of dry yeast extract, edible phosphate salts, and hydrolyzed protein based on the total weight of the pet food composition, the disclosed concentration for the coating layer relative to the total composition would provide a basis for determining a suitable amount of phosphate salts, dry yeast extract, and hydrolyzed protein in the coating layer. Phosphate salts in the palatability enhancing composition are about 0.01-75 wt.% (page 15, lines 22-23). As such, for a layer of 2 wt.% dry palatability enhancing composition, the phosphate salt content range would be 0.0002-1.5 wt.% in the overall pet food composition, which overlaps the claimed phosphate salt content range in the overall pet food composition recited in present claims 16 and 17 and encompasses the claimed phosphate salt content range in the overall pet food composition recited in present claim 20. Yeast extract in the palatability enhancing composition is about 0.01-99 wt.% (page 16, lines 7-9). As such, for a layer of 2 wt.% dry palatability enhancing composition, the yeast extract content range would be 0.0002-1.98 wt.% in the overall pet food composition, which overlaps the claimed yeast extract content range in the overall pet food composition recited in present claims 16 and 20. Hydrolyzed protein in the palatability enhancing composition is about 0.01-99 wt.% (page 15, lines 31-32). As such, for a layer of 2 wt.% dry palatability enhancing composition, the hydrolyzed protein content range would be 0.0002-1.98 wt.% in the overall pet food composition, which overlaps the claimed hydrolyzed protein content range in the overall pet food composition recited in present claim 16.
Wherein the prior art teaches or suggests a range which overlaps or encompasses the claimed range, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Niceron also discloses that the external coating is applied to the core comprising dry pet foods (corresponding to “dry nutritionally-balanced cat foods”) (page 20, lines 15-17, 20-21), which are “widely known and used in the art” (page 5, line 14). Niceron does not teach that the core comprises the contents of carbohydrates, starch, protein, and fat recited in lines 3-7 of present claim 16.
However, Didzbalis teaches “a nutritionally balanced pet food” as is known in the art contains carbohydrates in a concentration of 35-50 wt.%, protein in concentration of 15-35 wt.%, and fat in a concentration of 3-20 wt.% [0044]. These disclosed concentrations of carbohydrates, protein, and fat fall within the claimed carbohydrate, protein, and fat concentrations in the core.
It would have been obvious for a person of ordinary skill in the art to have modified the core of Niceron to have the carbohydrate, protein, and fat contents taught by Didzbalis. Since Niceron discloses that its core comprises a nutritionally-balanced pet food known in the art (page 20, lines 15-17, 20-21; page 5, line 14), but does not disclose the composition of such a pet food, a skilled practitioner would have been motivated to consult an additional reference such as Didzbalis in order to determine a suitable pet food, thereby rendering the claimed concentrations of carbohydrates, protein, and fat in the claimed core of the pet food composition obvious. In regard to the core comprising the claimed amount of starch, Niceron discloses that carbohydrates may be starches (page 11, lines 11-12). It would have been obvious to have selected the starch of Niceron as the carbohydrate of Didzbalis since Didzbalis does not specify a type of carbohydrate in its composition. As such, the 35-50 wt.% carbohydrate in the core disclosed by Didzbalis may comprise starches disclosed by Niceron so that the core comprises 35-50 wt.% starches, which falls within the claimed starch concentration in the core.
Regarding claims 18 and 19, Niceron teaches the inventions as disclosed above in claim 16, including the pyrophosphates comprising tetrasodium pyrophosphate, trisodium pyrophosphate, disodium pyrophosphate, tetrapotassium pyrophosphate, tripotassium pyrophosphate, dipotassium pyrophosphate, or a combination thereof (page 15, lines 14-19).
Regarding claim 21, Niceron teaches the inventions as disclosed above in claim 16, including yeast extract (page 10, lines 7-9) in an amount of 0.01-99% by weight of the covering layer (page 16, lines 7-9) and the concentration of phosphate salts to be 0.01-55% by weight of the covering layer (page 15, lines 22-23). Therefore, Niceron discloses amounts of yeast extract and phosphate salt which provide a range of weight ratios of yeast extract to phosphate salts that at least overlaps the claimed ratio ranges recited in present claim 21 (e.g., a covering layer comprising 66 wt.% yeast extract and 11 wt.% phosphate salt has a weight ratio of yeast extract to phosphate salt of 6:1). The selection of a value within the overlapping range renders the claimed range obvious. MPEP §2144.05.I.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Niceron (WO 2013/007639; IDS citation) in view of Didzbalis (US 2007/0071860; previously cited) as applied to claim 16 above, and further in view of Tricarico (US 2011/0200705).
Regarding claim 22, Niceron teaches the invention as describe above in claim 16, including that the pet food composition comprises dry yeast extract (page 10, lines 7-9; page 18, lines 1-2).
The combination of Niceron and Didzbalis does not teach that the dry yeast extract has a mass weighted average particle size of from about 50 µm to about 1000 µm.
However, Tricarico teaches an animal food composition [0002], [0033] comprising dry yeast extract [0063], [0067]. Tricarico teaches that the dry yeast extract may have a particle size of 62.5-500 µm (corresponding to 0.0625 mm-0.5 mm), while larger and smaller particle sizes may also be used [0067]. This disclosed particle size range of 62.5-500 µm is considered to fall within the claimed range, especially wherein in stating that the dried yeast “is ground into fine particles having a particulate size” ranging from 62.5-500 µm, Tricarico at least suggests that all of the dry yeast extract particles may have a particle of 62.5-500 µm.
It would have been obvious for a person of ordinary skill in the art to have modified the dry yeast extract of Niceron to have a mass weighted average particle size of 62.5-500 µm as taught by Tricarico. Since Niceron discloses that its pet food composition comprises dry, powdery yeast extract (page 10, lines 7-9; page 18, lines 1-2), but does not disclose a particle size for a yeast extract in a pet food composition, a skilled practitioner would have been motivated to consult an additional reference such as Tricarico in order to determine a suitable particle size for dry, powdery yeast extract in a pet food composition, thereby rendering the claimed particle size obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-20 over Niceron and Didzbalis: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Niceron discloses that the preferred yeasts are “brewer’s yeast, molasses yeast, and by-products thereof” in page 16, lines 5-6; and that Niceron does not provide any specific examples or further teachings regarding yeast extract. For these reasons, Applicant argued that Niceron is not enabling (Applicant’s Remarks, page 7, 1st paragraph under section II – page 8, 2nd paragraph).
However, in response to Applicant’s assertions that Niceron discloses that the preferred yeasts are “brewer’s yeast, molasses yeast, and by-products thereof and that Niceron is not enabling, ”it is known in the art that yeast extracts are made from brewer’s yeast and baker’s yeast as evidenced by page 151, 1st-2nd paragraphs of Tao (Tao et al., “Yeast Extract: Characteristics, Production, Applications and Future Perspectives”, 2023, Journal of Microbiology and Biotechnology, 33(2), pages 151-166). Therefore, the by-products of brewer’s yeast which Niceron discloses as being the preferred yeasts in page 16, lines 5-6 include yeast extract as disclosed in page 10, lines 9-10. Therefore, Niceron shows preference for the claimed yeast extracts. Also, the fact that Niceron specifically discloses yeast extracts combined with the fact that the use of yeast extracts as food additives is well-known in the art means that Niceron is enabling for the use of yeast extract in its pet food composition.
Furthermore, in response to Applicant’s assertion that Niceron does not provide any specific examples or further teachings regarding yeast extract, “[d]isclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994). “The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).” MPEP 2123.II. Applied to the present situation, even though Niceron uses brewer’s yeast in its examples, Niceron does not teach away from using yeast extract as Niceron broadly and preferably discloses yeast extract as being present in the pet food composition (page 10, lines 5-10; page 16, lines 5-6).
Applicant argued that brewer’s yeast and yeast extract are not interchangeable. Applicant pointed to the Declaration filed in parent application US 15/024,971 and Exhibit B filed in the present application on 07/18/2025 as demonstrating that animals preferred the diet with yeast extract over diets with brewer’s yeast. For this reason, Applicant argued that a skilled practitioner would find no motivation to include yeast extract in the compositions of Niceron without any disclosure of a pet food comprising yeast extract. Applicant argued that the Examiner’s failure to recognize these demonstrated differences between brewer’s yeast and yeast extract is a procedural error that runs contrary to established law (Applicant’s Remarks, page 8, 3rd paragraph).
However, as stated in the “Response to Arguments” section of the Non-Final Office Action filed 10/04/2019 in the parent application US 15/024,971, “Given that the prior art had established that yeast extract was flavorful, it would have been obvious to select yeast extract from the list of yeast ingredients that Niceron discloses as being palatability enhancers”. As stated in the “Response to Amendment” section of the Non-Final Office Action filed 09/05/2025 for the present application, “the present claims do not require any level of palatability to be obtained by the claimed pet food composition as a whole or by any individual component of the pet food composition. The claims merely require the recited ingredients to be present in the recited concentrations. The present specification broadly describes the function of the yeast extract as enhancing palatability (specification, page 18, lines 12-15). Therefore, the only function of the claimed yeast extract that may be gleaned from the present disclosure is that of enhancing palatability of a pet food composition, which is the same function for the brewer’s yeast and the yeast extract taught by Niceron (page 10, lines 5-10; page 16, lines 7-12). As such, the degree of palatability enhancement is irrelevant, especially wherein Niceron is shown to broadly disclose the inclusion of yeast extract in the pet food composition at the claimed concentrations. Therefore, not only are brewer’s yeast and yeast extracts functional equivalents, but the inclusion of yeast extract is rendered obvious by the broad disclosure of Niceron.” Furthermore, a skilled practitioner would find sufficient motivation to include yeast extract in the compositions of Niceron since Niceron explicitly states that yeast extract may be used in its pet food compositions.
Due to the presence of these responses by the Examiners in the aforementioned Office Actions and the reiteration of the responses here, the Examiner has demonstrated the appropriate level of recognition of the demonstrated differences between brewer’s yeast and yeast extract; therefore, Applicant’s assertion of “procedural error” is not supported.
Applicant then argued that Niceron teaches away from the presently claimed range of yeast extract. Applicant argued that the Examiner ignored the amount of brewer’s yeast taught by Niceron in Examples 2 and 7 as Examples 2 and 7 compare control diets and experimental diets containing brewer’s yeast. Applicant pointed to a comparison between Control Diet 2 containing 0.5 wt.% brewer’s yeast and Experimental Diet 2 containing 0.25 wt.% brewer’s yeast. Applicant pointed to a comparison between Control Diet 7 containing 0.3 wt.% brewer’s yeast and Experimental Diets 7a and 7b both containing 0.15 wt.% brewer’s yeast. Applicant argued that a skilled practitioner would understand that an increase in brewer’s yeast results in a decrease in palatability due to these comparisons showing that the cats preferred the Experimental Diets containing less brewer’s yeast than the respective Control Diets. For this reason, Applicant argued that Niceron includes portions that would lead away from the claimed yeast extract concentration (Applicant’s Remarks, page 8, 4th paragraph – page 10, 2nd paragraph).
However, the Examiner points out that in both Examples 2 and 7, Niceron is comparing diets not containing amino acids (i.e., Control Diets) with diets containing amino acids (i.e., Experimental Diets) wherein the diets containing amino acids were shown to be more palatable than diets not containing amino acids. Due to the presence of amino acids in the Experimental Diets and the absence of amino acids in the Control diets, these Examples do not provide sufficient basis to determine that the concentration of brewer’s yeast is the cause of the difference in palatability between the Control and Experimental Diets and thus, the results of these diets do not sufficiently support Applicant’s argument that increased levels of brewer’s yeast results in decreased palatability of the pet food composition.
Furthermore, as described above in the rejections of claims 1, 11, and 16, Niceron discloses that the concentration of yeast extract in the palatability enhancing composition is about 0.01-99 wt.% (page 16, lines 7-9). As such, for a layer of 2 wt.% dry palatability enhancing composition, the yeast extract content range would be 0.0002-1.98 wt.% in the overall pet food composition, which overlaps the claimed yeast extract content range in the overall pet food composition. Therefore, Niceron provides support for a yeast extract concentration that overlaps the claimed concentration, thereby rendering the claimed range obvious.
Applicant then argued that Didzbalis does not cure the aforementioned deficiencies of Niceron. Applicant argued that the composition of Didzbalis does not include additional components such as yeast and amino acids such that a skilled practitioner would not find motivation to combine the disclosures of Didzbalis and Niceron to arrive at the claimed invention (Applicant’s Remarks, page 10, 3rd-4th paragraphs).
However, Niceron is shown to render the claimed yeast extract obvious as described in the claim rejections and in the responses written above. Therefore, Didzbalis is continued to be relied on merely for its disclosure regarding the carbohydrates, starch, protein, and fat content of the core of the pet food composition. Since the prior art has been shown to render the present claims obvious, Applicant’s arguments have been shown to be unpersuasive and the rejections of the claims are maintained as written herein.
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 Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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/KELLY P KERSHAW/Examiner, Art Unit 1791
Prosecution Insights