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 7-20 in the reply filed on 7/17/2026 is acknowledged. The traversal is on the ground(s) that a search can completed with a serious burden. This is not found persuasive because Group I is directed to a composition, whereas Group II is directed to a method of reducing uremic toxins or preventing renal deficiency in felines.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-6 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 7/17/2026.
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 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 7-8 and 15-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Anon, Life Extension For Your Pet, Life Extension, April 2001 accessed at https://www.lifeextension.com/magazine/2001/4/report_pets?srsltid=AfmBOopEsCMHCz0U8vv_uTgWeoog4aphiUWCNcVvPycD8CoMUIMM0QnC (LIFE EXTENSION) and United States Patent Application Publication No. 2015/0257599 (NG) (see IDS of 7/17/2024).
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As to claims 7-8 and 16-17, LIFE EXTENSION teaches nutritional requirements for cat food (pg. 2, first full paragraph)/ LIFE EXTENSION teaches that betaine can be added and improves kidney health (see pg. 5, third full paragraph). It would have been obvious to add betaine to a feline with renal deficiency as LIFE EXTENSION teaches betaine facilitates good kidney health. The administration of betaine would naturally reduce uremic toxins.
LIFE EXTENSION is silent as to adding fermentable fibers.
However, NG teaches a pet flavor tablet which may contain fructo-oligosaccharides (FOS) (i.e. a fermentable fiber and would include short-chain fructo-oligosaccharides) and beta-glucan as a digestion aid [0052].
It would have been obvious to one skilled in the art to add the fructo-oligosaccharides of NG to LIFE EXTENSION to improve digestion.
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The uremic toxins reduced by the administration of betaine would naturally include P-cresol sulfate.
Claims 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over LIFE EXTENSION and NG as applied to claim 7 and 16, respectively above, and further in view of ANON, 2013, "Oats", THE NUTRITION SOURCE, Harvard School of Health, April 2013, https://www.hsph.harvard.edu/nutritionsource/food-features/oats/OATS (OATS) (see IDS of 7/17/2024) .
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As noted above, LIFE EXTENSION teaches the benefits of adding betaine to cat food. NG teaches a pet flavor tablet which may contain fructo-oligosaccharides (FOS), betaine and beta-glucan [0052].
The references above are silent as to beta glucan being oat fiber.
However, OATS teaches that beta-glucan can be obtained via oats. The primary type of soluble fiber in oats is beta-glucan, which has been researched to help slow digestion, increase satiety, and suppress appetite (see OATS and HEALTH).
It would have been obvious to one skilled in the art to modify the references above so as to include obtain beta-glucan from oats, as OATS teaches the primary type of soluble fiber in oats is beta – glucan and helps with digestion of foods.
Claims 10, 12-14, 20 are rejected under 35 U.S.C. 103 as being unpatentable over LIFE EXTENSION and NG, as applied to claim 7 and 16 above, and further in view of United States Patent Application Publication No. 2015/0216217 (DEVAUX) (see IDS of 7/17/2024) .
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As to claim 10, LIFE EXTENSION teaches the benefits of adding betaine to cat food. NG teaches a pet flavor tablet which may contain fructo-oligosaccharides (FOS), betaine and beta-glucan [0052].
However, LIFE EXTENSION and NG are silent as to the amount of beta glucan that can be added.
DEVAUX teaches that beta glucan can be added in an amount of 0.4 to 3.0% in liquid/wet formulations [0012] which can be used as a stabilizer in food [0191].
It would have been obvious to modify the references above to add beta glucan as taught by DEVAUX, as DEVAUX teaches beta glucan serves as stabilizers for the food product.
Additionally, it would be obvious to vary the amounts of betaine and beta glucan in order to achieve the desired stabilization of the food product.
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As to claims 12-14, 20, the reference above are silent as to the amount of betaine that can be added to the pet food.
DEVAUX teaches betaine can also be added in an amount of 0.05 to 1.5% to stabilize food products [0056]- [0061]. Thus the betaine encompasses the claimed amount.
It would have been obvious to modify the reference above to administer betaine as taught by DEVAUX, as DEVAUX teaches that they serve as stabilizer for food. Additionally, it would be obvious to vary the amounts of betaine and beta glucan based on the needed level of stabilization.
Claims 11 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over LIFE EXTENSION and NG, as applied to claims 7 and 16 above, and further in view of Fahey et al., Effects of short-chain fructooligosaccharides and galactooligosaccharides, individually and in combination, on nutrient digestibility, fecal fermentative metabolite concentrations and large bowel microbial ecology of healthy adult cats, J Anim. Sci. 89:1736-1384 (FAHEY) (see IDS of 7/17/2024), and United States Patent Application Publication No. 2015/02116217 (DEVAUX).
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The reference above are silent as to the amount of scFOS.
FAHEY teaches that scFOS exert positive effects on select indices in animals. The scFOS is administered in an amount of 0.5% (abstract and pg. 1377). It would have been obvious to modify the references above to administer scFOS in an amount of 0.5%, as FAHEY teaches they provide a positive effect on the gut.
It would have been obvious to add scFOS to the food product of the references above to obtain the desired digestion-related health benefits.
The references above are also silent as to the amount of beta glucan.
DEVAUX teaches that beta glucan can be added in an amount of 0.4 to 3.0% in liquid/wet food formulations [0013].
It would have been obvious to modify the references above to add beta glucan as taught by DEVAUX, as DEVAUX teaches beta glucan serves as stabilizers for the food product.
As to the ratio of the two products, the ratio would vary based on the level of stabilization need from the beta glucan (see DEVEAUX, [0012]) and desired health benefits needed from the scFOS (abstract and pg. 1377). Moreover, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("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 of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
Relevant Art Not Relied Upon
WO-9847392 teaches a food product that can be consumed by cats (pg. 4, lines 20-25) that may comprise comprising betaine (pg. 5, lines 10-15), beta glucan (pg. 5, lines 15-20), and oligosaccharides (pg. 6, lines 1-5).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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