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 Claims
Claims 1-15 are presented for examination on the merits for patentability.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03/18/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement was considered by the Examiner.
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 1-2, 4, 6, and 8-15 are rejected under 35 U.S.C. 103 as obvious over Slusarczyk et al. (US 2016/0235091 A1), hereinafter Slusarczyk, in view of Merrick et al. (US 2006/0062892 A1, cited in the IDS), hereinafter Merrick.
Slusarczyk teaches a product comprising at least three layers: a solid food based material, a liquid-based substance, and an encapsulate material, wherein the liquid core and shell can act as a delivery vehicle for functional ingredients and/or organoleptic enhancers (Abstract; Claim 1).
Regarding Claim 1, Slusarczyk teaches the food product comprises a kibble solid food material (Claim 2). Slusarczyk expressly teaches preparing a product comprising a gelatin capsule filled with an oil-based oral care supplement for cats (Example 1). The capsule is moistened and coated with ground dry cat kibble. The dry kibble comprises varying amounts of moisture, protein, fat, and fiber, which overlaps with the claimed ranges Table in [0071].
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Slusarczyk also teaches embodiments wherein the coated capsules are mixed with conventional food products, such as cereal or kibble [0060].
The food product of Slusarczyk contains the solid food material with a moisture content of less than about 10% (Claim 3). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use the same kibble for coating as for mixing with the coated capsule for convenience. Therefore, both the ground and the solid kibble for mixing will have a moisture content of less than about 10%, which renders obvious the semi-moist kibble in Claim 1. The moisture ranges also overlaps and thereby also renders obvious the moisture ranges in Claims 2 and 4.
Slusarczyk does not teach the dehydrated vegetables, but welcomes the addition of vegetable flavoring and vegetable carbohydrates ([0029], [0042]).
Merrick is in the same field and teaches pet food comprising dry kibble coated with a dried natural gravy, and mixed with pieces of dried vegetable or fruit, and pieces of dried meat, making it with Slusarczyk (Abstract; Claim 1; Example 1). Merrick teaches freeze-dried or dehydrated vegetables, but that dehydrated vegetable pieces are used to reduce costs ([0005], [0009]).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to add the dehydrated vegetables of Merrick in the pet food of Slusarczyk. it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose, the idea of combining them flows logically from their having been individually taught in the prior art. See In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) MPEP 2144.06. This is a situation where elements of references are combined in a predictable manner so that the elements retain their function. As such, the artisan would enjoy a reasonable expectation of success. Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding Claim 6, Merrick teaches that the preferred moisture content of the dried vegetable is between 2-4%, which is within the claimed range [0009].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Merrick with that of Slusarczyk and combine the vegetable having a moisture taught by Merrick. An improvement in the art would have been obvious if “it is likely the product not of innovation but of ordinary skill and common sense.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Finding workable or optimal ranges is generally understood as within the capabilities of the ordinary artisan. See Pfizer Inc. v. Apotex Inc., 82 USPQ2d 1321 (Fed. Cir. 2007) (discovery of an optimum value of a variable in a known process is usually obvious.). The idea that optimizing an ordinary variable does not by itself constitute a patentable advance was also stated in In re Geisler, 43 USPQ2d 1362: “…“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). Only if the “results of optimizing a variable” are “unexpectedly good” can a patent be obtained for the claimed critical range. In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8 (CCPA 1977); see also In re Dillon , 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed.Cir. 1990) (in banc).” Note MPEP §2144.05(II)(A) on this issue. Likewise, optimization of a range or other variable within the claims flows from the “normal desire of scientists or artisans to improve upon what is already generally known.” In re Peterson, 65 USPQ2d 1379, 1382.
Regarding Claims 8 and 10, Slusarczyk comprehends the need for nutritionally complete dry pet food products and aims to provide such product containing functional agents including vitamins and antioxidant preservative ([0004]-[0006], [0019], [0024]).
Regarding Claim 9, the instant disclosure does not provide a definition to “animal digest”, but relates that the animal digest coating “can optionally contain a fat” [0048]. Slusarczyk teaches the encapsulate materials inter alia animal fat [0035].
Regarding Claims 11 and 15, Slusarczyk teaches embodiments wherein the solid food product or mixture including a solid food product, is cooked, baked, fried, extruded, or processed prior to being used in the liquid core and shell product [0050]. SLUSA teaches embodiments wherein the capsules coated with ground kibble are mixed with kibble [0060]. Merrick has taught mixing the kibble the dehydrated vegetable (Example 1). Specifically, regarding Claim 15, Merrick expressly teaches extrusion and drying of the kibble, which is coated with dry gravy, which the Examiner also interprets to include the dry meal, and then combining with the dried vegetable pieces (Example 4). Merrick also comprehends alterations and modifications of the invention [0022].
Neither Slusarczyk nor Merrick expressly teaches adding the dried meal with the vegetables first before adding the dried kibble. However, regarding the order of steps, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to modify the steps as needed, for example if one desires for the vegetable pieces to appear the same and therefore partially coated with the dry meal.
Furthermore, the Examiner notes that the Applicant does not disclose the criticality of the steps. The instant situation is amenable to the type of analysis set forth in Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious). Thus the claimed variation of steps would have been obvious to a skilled artisan.
Unless Applicant demonstrates the criticality of the order of addition and that the prior art is not the same product as the instant application, changes in sequence of adding ingredients has been rendered to be prima facie obvious Note MPEP § 2144.04 [R-1] In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious).
Slusarczyk in view of Merrick have taught the features in Claims 12-14.
Claims 3 and 5 are rejected under 35 U.S.C. 103 as obvious over Slusarczyk in view of Merrick, as applied to Claims 1-2, 4, 6, and 8-15, and further in view of Sunvold et al. (US 2010/0303966 A1), hereinafter Sunvold.
The teachings of Slusarczyk and Merrick have been set forth supra. Neither references teaches the amounts of the dried kibble, ground kibble, and dehydrated vegetables.
Regarding Claims 3 and 5, Sunvold is also in the field of animal feed and teaches coated kibble (Abstract). The pet food of Sunvold comprises from 25% to 99.9% of an extruded core at less than 12% moisture content, and from 0.1 % to 75% of a coating coated onto the extruded core, forming a coated kibble. These amounts overlap with the claimed amounts. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Sunvold with that of Slusarczyk and use the amounts of core and coating taught by Sunvold as starting amounts for the dried kibble and ground kibble taught by Slusarczyk, and modifying as desired. Finding workable or optimal ranges is generally understood as within the capabilities of the ordinary artisan. See Pfizer Inc. v. Apotex Inc., 82 USPQ2d 1321 (Fed. Cir. 2007) (discovery of an optimum value of a variable in a known process is usually obvious.). The idea that optimizing an ordinary variable does not by itself constitute a patentable advance was also stated in In re Geisler, 43 USPQ2d 1362: “…“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). Only if the “results of optimizing a variable” are “unexpectedly good” can a patent be obtained for the claimed critical range. In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8 (CCPA 1977); see also In re Dillon , 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed.Cir. 1990) (in banc).” Note MPEP §2144.05(II)(A) on this issue. Likewise, optimization of a range or other variable within the claims flows from the “normal desire of scientists or artisans to improve upon what is already generally known.” In re Peterson, 65 USPQ2d 1379, 1382.
Claim 7 is rejected under 35 U.S.C. 103 as obvious over Slusarczyk in view of Merrick, as applied to Claims 1-2, 4, 6, and 8-15, and further in view of Yamamoto et al. (US 2018/0213822 A1), hereinafter Yamamoto.
Regarding Claim 7, neither Slusarczyk nor Merrick teaches dried vegetable pieces in the claimed amount.
Yamamoto also teaches pet food containing puffed granules, dried vegetables, dried meat, and in which the moisture content thereof is 10% by mass or less (Abstract). Yamamoto relates the increasing desire for healthful pet food, and the requirement for pet food with a healthy impression that the pet food is nutritionally well-balanced and good for pet's health [0003].
Yamamoto teaches pet food compositions wherein the total content of the small pieces of dried vegetables is preferably in a range of 16 to 20% by mass and more preferably in a range of 3% to 10% by mass with respect to the total content of the pet food [0123]. Yamamoto teaches that pet food which did not contain dried vegetable had a poor healthy impression, whereas those with dried vegetables had favorable healthy impression and palatability ([0179]-[0180]; Table 3).
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It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Yamamoto with Slusarczyk and Merrick, and add dehydrated vegetables in the Yamamoto also teaches pet food containing puffed granules, dried vegetables, dried meat, and in the amount taught by Yamamoto to obtain a pet food product that has favorable healthy impression and palatability
From the teachings of the prior art, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the reference, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Corrigan et al. (US 2011/0027417 A1) discloses adjusted pet food kibble and a process for dusting a pet food kibble comprising providing a pet food kibble in the form of a core matrix, providing a powder comprising a first component that can comprise an active ingredient, such as probiotic microorganism particles, and dusting the powder onto the petfood kibble to form a dusted kibble (Abstract).
Galovski et al. (WO 2019/040814 A1) teaches a freeze-dried pet food meal bar that is 100% nutritionally complete consisting of more than 30% crude protein, 35% crude fat, less than 20% carbohydrate and less than 10% moisture.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the 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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/JANICE Y SILVERMAN/Examiner, Art Unit 1792
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