DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of Group II, Claims 13-20 in the reply filed on April 27, 2026 is acknowledged. The traversal is on the grounds that Nakase et al. does not teach a composition that is flexible. This is not found persuasive because the technical feature is the pet treat comprising at least 25% by weight animal fat, at least 15% by weight water and at least 10% by weight gelatin.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-12 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on April 27, 2026.
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 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Nakase et al. (US 2019/0008184 – IDS filed August 6, 2024).
Regarding claims 13-15, Nakase et al. disclose a method of making a pet food (i.e., treat) composition comprising from 5% to 89.5% by mass fats and oils, 0.5% to 10% by mass of gelling agent, 10% to 80% by mass of a humectant and 0% to 35% by mass water ([0070]) comprising the steps of: (a) homogeneously mixing the pet food ingredients including a gelling agent, a humectant, fats and oil, and water; and (b) forming the mixture into grains having a shape ([0081], [0085]). While Nakase et al. does not exactly disclose the claimed amount of a fats and oils, gelling agent and water, in the case where the claimed ranges overlap or lie inside ranges disclose by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Nakase et al. is silent with respect to making a flexible pet food (i.e., treat). However, given Nakase et al. disclose a method of making a pet food (i.e., treat) substantially similar the method of claim wherein the pet food composition comprises the claimed components, inherently the pet food (i.e. treat) would be flexible.
Nakase et al. is silent with respect to shelf-stability. However, given Nakase et al. disclose a pet food having a water activity (Aw) of 0.80 or less ([0079]), inherently the pet food (i.e., treat would be shelf-stable).
Nakase et al. disclose wherein the fats and oils are selected from a group consisting of palm oil, beef tallow, lard, chicken oil, milk fat, cacao butter, coconut oil, palm kernel oil and modified oil ([0052]). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used any of the fats and oils in the pet food, including beef tallow, lard, chicken oil or combinations thereof with a reasonable expectation of success of producing a pet food that is solid at room temperature and has excellent shape retainability.
Nakase et al. disclose wherein the gelling agent is selected from a group consisting of gelatin, agar, carrageenan, pectin, locust bean gum, xanthan gum, guar gum, gum arabic, taraya gum, karaya gum, alginic acid, tara gum and starch ([0054]). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have used any of the disclose gelling agents in the pet food, including gelatin, with a reasonable expectation of success of producing a pet food with good shape retainability ([0055]).
Nakase et al. disclose wherein the humectant is selected from a group consisting of glycerin, saccharides and sugar alcohol ([0061]-[0062]). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used glycerin as the humectant in the pet food with a reasonable expectation of success of limiting the moisture activity of the pet food and contributing to palatability ([0061]-[0062]).
Regarding claim 16, Nakase et al. disclose all of the claim limitations as set forth above. Nakase et al. disclose shaping the pet food composition into a plate shape and cutting the formed composition into a columnar shape (i.e., strips) ([0085]).
Given Nakase et al. disclose a columnar shape (i.e., strip), inherently shape would have a tope and bottom surface, a thickness defined between the top and bottom surface, a first edge and a second edge, a width defined between the first edge and the second edge a leading end and a trailing end and a length defined between the leading and trailing ends.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Nakase et al. (US 2019/0008184 – IDS filed August 6, 2024) as applied to claim 16, and further in view of Weinberg et al. (US 20170273336).
Regarding claim 17, Nakase et al. disclose all of the claim limitations as set forth above. While Nakase et al. disclose a step of shaping the pet food (i.e., treat) into strips, the reference is silent with respect to forming a roll.
Weinberg et al. teach a pliable dog chew formed into various shapes ([0023], [0025]). Weinberg et al. teach an embodiment where the dog chew is rolled ([0034]/Figure 3). Weinberg et al. teach forming the dog chew material into sheets and then rolling the sheets into the shape of a cylinder ([0042], [0047]).
Nakase et al. and Weinberg et al. are combinable because they are concerned with the same field of endeavor, namely edible compositions for dogs. Given Weinberg et al. teach is was known to form edible and pliable dog products into a rolled shape from a sheet, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have shaped the dog food strips of Nakase et al. into a roll shape with a reasonable expectation of success.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Nakase et al. (US 2019/0008184 – IDS filed August 6, 2024) as applied to claim 16, and further in view of Ducharme (US 4,910,038).
Regarding claim 18, Nakase et al. disclose all of the claim limitations as set forth above. While Nakase et al. disclose a step of shaping the pet food into strips, the reference does not disclose forming the strip using a sheet roller.
Ducharme teaches jerky-type pet treats formed into desired shapes using a sheeting roll (i.e. pair of sheeting rollers-C6/L11-15). Ducharme teaches forming a ribbon (i.e. strip) of suitable width and thickness (C6/L11-15).
Nakase et al. and Ducharme are combinable because they are concerned with the same field of endeavor, namely, pet food formed into desired shapes. Given Nakase et al. disclose shaping pet food into strips, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have formed the strips of Nakase et al. using a sheeting roll with a reasonable expectation of obtaining strips of uniform width and thickness.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Nakase et al. (US 2019/0008184 – IDS filed August 6, 2024) in view of Ducharme (US 4,910,038) as applied to claim 18, and further in view of Chen et al. (US 8,900,649).
Regarding claim 19, modified Nakase et al. disclose all of the claim limitations as set forth above. While the combination of Nakase et al. and Ducharme disclose a pet food formed into strips using a sheet roller, the reference is silent with respect to feeding two layers including a support material and the pet food into a sheet roller to form a layered product.
Chen et al. teach a layered pet chew comprising an outer layer and an inner layer wherein the outer and inner layers are laminated and rolled into a cylindrical shape (Abstract, C1/L35-41). Chen et al. teach an outer layer (i.e., support material) comprising potato and/or sweet potato and bone powder (C2/L4-8). Chen et al. teach the outer layer provides good chewability and durability (C2/L10-17).
Nakase et al., Ducharme and Chen et al. are combinable because they are concerned with the same field of endeavor, namely, forming dog food compositions. Given Ducharme et al. teach that it was known to use a sheet roller to form dog food sheets or strips, since Chen et al. teach that layered dog treats having an outer layer provide good chewability and durability for a formed dog food, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have layered the dog food of Nakase et al. with an outer layer as taught by Chen et al. by passing the outer layer and the dog food layered together using a sheet roller as taught by Ducharme to produced a layered pet food having good chewability and durability.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Nakase et al. (US 2019/0008184 – IDS filed August 6, 2024) as applied to claim 13, and further in view of Garcia Martinez (US 20080003270).
Regarding claim 20, Nakase et al. disclose all of the claim limitations as set forth above. While Nakase et al. disclose a step of shaping the pet food (i.e., treat), the reference is silent with respect to a rope shape.
Garcia Martinez teaches a chewable and edible product for companion animals formed into any shape or design (Abstract). Garcia Martinez teaches edible products shaped into cylindrical rope shapes ([0019], Figure 1).
Nakase et al. and Garcia Martinez are combinable because they are concerned with the same field of endeavor, namely edible compositions for pets. Given Garcia Martinez teaches it was known to form chewable and edible products for pets into any shape or design, including rope shapes, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have formed the pet food of Nakase et al. into a rope shape with a reasonable expectation of success.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
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