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 .
DETAILED ACTION
Status of the application
Claims 1-16 are pending in this application.
Claims 1-16 have been rejected.
Claim Rejections - 35 USC § 103
3. 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.
4. 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.
5. 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 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.
6. Claim(s) 1, 2, 9 and 10 are rejected under 35 U.S.C. 103 as being
unpatentable over Higgs et al. (US 20030072866 A1) in view of NPL Osada et al. (See applicants filed machine translation as D2 NPL Osada et al. ,1963, pgs. 41-46 as machine English translation and posted both English and JP versions total posted 13 pages on 12/09/2024) and further in view of Makoto et al. (JP H09-252751; filed by the applicant on 12/09/2024).
7. Regarding claims 1, 9 Higgs et al. discloses a food composition comprising a source of unhydrolyzed animal offal in combination with oilseed from plant material as blended mixture food composition which can be considered as first composition (at least claims 1, 3 of Diggs et al.) and it can be supplemented with minerals comprising phosphorous and essential ammino acid comprising cystine (at least in [0247], 0252], 0257], [0262], at least in Tables 7, 11, 15, 19).
Higgs et al. is silent about first container filled with the first composition but does not comprise cystine and second container filled with the second composition comprises cystine but does not comprise reducing sugar.
It is to be noted that if we interpret claims 1, 9, it is understood that cystine amino acid and reducing sugar and/or phosphorous are not compatible to be together.
NPL Osada et al. discloses that the decomposition of cystine is affected by the inorganic phosphorous and the formation of hydrogen sulfide increases proportionately with an increase in quantity of the inorganic phosphoric acid (at least lines 8-10, 34, in the first page of NPL Osada et al.).
One of ordinary skill in the art would have been motivated to consider teachings from NPL Okada et al. to keep cystine separately from fish and/or meat livestock component containing mineral supplement comprising phosphorous ([0262], at least in Table 19) and to process the components separately with a reasonable expectation of success to avoid the generation of hydrogen sulfide due to the reaction between cystine and phosphorous (at least lines 8-10, 34, in the first page of NPL Osada et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Higgs et al. to consider supplementing with amino acid comprising at least cystine separately immediately prior to consumption because the decomposition of cystine is effected by the inorganic phosphorous and the formation of hydrogen sulfide increases proportionately with an increase in quantity of the inorganic phosphoric acid (at least lines 8-10, 34, in the first page of NPL Osada et al.).
8. Regarding claims 2 and 10, Higgs et al. also discloses that the protein concentrate is co-processed animal offal with oilseeds for use in fish or other non-human animal diet (at least in claim 4 of Higgs et al.). Higgs et al. also discloses that it can be supplemented with minerals comprising phosphorous ([0247], 0252], 0257], [0262], at least in Tables 7, 11, 15, 19).
9. Claims 3, 11 are rejected under 35 U.S.C. 103 as being unpatentable over Higgs et al. (US 20030072866 A1) in view of NPL Osada et al. filed by the applicant on 12/09/2024) as applied to claims 1, 9 and further in view of Makoto et al. (JP H09-252751; filed by the applicant on 12/09/2024) as applied to claim 1 and 9 and as evidenced by Doring et al. US 2002/0022744 A1.
10. Regarding claims 3, 11, Higgs et al. is silent about pH of second
composition comprising cystine.
Doring et al. discloses that a mixture of a solution of cystine in aqueous sulfuric acid and of an aqueous solution of a base by simultaneous metering into a mixing container the solution of cystine and the solution of the base; the metering taking place in such a way that the mixture in the container has a pH between 1.0 and 7.0 ([0007]) and the pH is can be kept constant within a range from 1.0 to 7.0 ([0013]) by adjusting the metering of acid and base as desired which for a particular purpose e.g. desired need to be considered for specific food (e.g. having acidic, neutral or basic) composition. It is within the skill of one of ordinary skill in the art to optimize the proportion of base and acid and desired solubility to have desired pH containing cystine in the second composition. The disclosed range value of pH overlaps the claimed pH 3 to 9 of claims 3, 11. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Higgs et al. to consider supplementing with amino acid comprising at least cystine separately at a certain pH including the disclosed pH range which overlaps with the claimed pH range which covers broadly acidic to neutral and basic pH values to obtain the desired effect e.g. desired need to be considered for specific food (e.g. having acidic, neutral or basic) composition.
Absent showing of unexpected results, the specific amount of pH of cystine in the second composition is not considered to confer patentability to the claims. As the solubility, intended need are variables that can be modified, among others, by adjusting the amount of pH, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of pH in Higgs et al., to amounts, including that presently claimed, in totain the desired effect e.g. desired concentration as soluble /or crystallized form of cystine for desired need to be considered for specific food ( e.g. having acidic, neutral or basic) composition. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable range involves only routine skill in the art. (In re Aller, 105 USPQ 223).
11. Claim(s) 4, 5, 8.12, 13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Higgs et al. (US 20030072866 A1) in view of NPL Osada et al. (See applicants filed machine translation as applied to claims 1, 9 and further in view of Makoto et al. (JP H09-252751; filed by the applicant on 12/09/2024).
12. Regarding claims 4,5, 12, 13, Higgs et al. is silent about heating condition and separate heating first container filled with the first composition and second container filled with the second composition to perform claimed high temperature sterilization.
Makoto et al. discloses that the presence of some causative ingredients containing food composition are responsible for participating in feeling bad taste, unwanted browning reaction etc. and not maintaining a feeling of fresh and, therefore, arranged to be treated and kept separately (at least Abstract and page 2, under Technical Field, [0001]) to be mixed immediately prior to consumption. Makoto et al. discloses the method and system which keeps them separately by that after filling the ingredients and the source in the suitable container separately and then after filling, sterilized under high temperature heat sterilization process is performed under the heat treatment of about 1 to 50 minutes, in the temperature range of between 105 -140 °C is performed.
13. Regarding claims 8, 16, Makoto et al. discloses that the containers are bisected by many means , e.g. one of them is sealing which can be weakly sealed to the extend necessary (page 5 last paragraph) which permits to be separated at the time of sterilization and transportation etc. (page 6 lines 8-11) and then folding the pouch removing the sealing jig (at least on page 6 lines 8-11 and last page, third paragraph from bottom and (at least last page, under Brief description of drawings, first paragraph, Fig 1 and at least last three paragraphs of last page) prior to consumption. This meets claim limitation of “wherein the container filled with the first composition and the container filled with the second composition are connected”.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Higgs et al. in view of NPL Osada et al. in order to make separately processed sterilized cystine and the component comprising phosphorous followed by mixing immediately prior to consumption in order to avoid the decomposition of cystine by the inorganic phosphorous and the formation of hydrogen sulfide increases proportionately with an increase in quantity of the inorganic phosphoric acid (at least lines 8-10, 34, in the first page of NPL Osada et al.).
14. Claims 6,7, 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Higgs et al. (US 20030072866 A1) in view of NPL Osada et al. (See applicants filed machine translation on 12/09/24) as applied to claims 1, 9 and further in view of Makoto et al. (JP H09-252751; filed by the applicant on 12/09/2024) as applied to claims 1, 9 and further in view of Dean et al. CA 2792390 A1.
15. Regarding claims 6,7,14,15, Higgs et al. discloses animal feed composition.
Higgs et al. are silent about the feed including pet animals like dogs and cats.
Dean et al. discloses that an animal feed composition comprising animal fat, animal protein, vegetable proteins etc., with the amino acid cystine as supplement can be used for pet animals e.g. dogs, cats (at least on page 3, 8) also in the form of animal feed kibbles (at least in Abstract, page 17).
One of ordinary skills in the art before the effective filling date of the claimed invention would have been motivated to modify Higgs et al. in view of NPL Osada et al. with the teaching of Dean et al. who teaches that this nutritionally enriched protein containing feed composition is suitable for pet food e.g. for dogs, cats (at least on page 3, 8) also and is enjoyable as animal feed kibbles shape (at least in Abstract, page 17).
Conclusion
16. One pertinent prior art by Chen et al. CN 1830273 A discloses that the addition of the additives e.g. sugar cystine, cysteine, mineral salt and so on, which will affect the quality of the product and will affect at least the flavor of the food product ( at least in second paragraph above “Disclosure”) which causes the bad smell like rotten egg smell when milk is used as food (at least in second paragraph above “Disclosure”), however, the bad smell and its intensity can vary depending on the type of food.
17. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
Prosecution Insights