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 .
Specification
The disclosure is objected to because of the following informalities: The first paragraph of the specification should be updated to reflect the latest Application, 18/227787 granted as USPN 12,102102. Appropriate correction is required.
Claim Objections
Claim 3 is objected to because of the following informalities: line 3 of the claim should recite “or any combination of two or more thereof”, and not “and any combination of two or more thereof”. Appropriate correction is required.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Anderson (U.S. Patent Application No. 2009/0004338) in view of Mohilef (USPN 5,897,893) and Tepper (U.S. Patent Application No. 2004/0126462), all made of record by Applicant.
Regarding Claims 1-3 and 5, Anderson teaches a pet treat comprising a meat mixture including one or more auxiliary ingredients, formed into portions, and at least one strip comprising rawhide shaped into a chew stick, as Anderson teaches a rawhide stick with attached beef jerky (Ex. 3 and Figure 3), and teaches ingredients comprising meat such as beef liver and beef, therefore teaching the claimed meat base made from beer, and caramel color and other ingredients formed into a mixture, therefore teaching the claimed auxiliary ingredients, where the meat mixture is positioned in one portion on an external surface of the chew stick, thereby forming a pet treat, (Paragraphs 53-59 and Figure 3). Anderson teaches a “rawhide stick with attached beef jerky” (Paragraph 12), therefore teaching the one portion disposed on the outside or outer surface of the chew stick.
Anderson teaches the rawhide strip was formed by taking bleached 5mm strips, and die cutting 6”x2” strips, and also teaches the rawhide fraction can take many different shapes including a rolled rope or a knotted bone shape, and teaches where the rolled rope is very thin (Paragraph 12), therefore reading on a chew stick having an elongate shape and stick-shaped appearance having a uniform circumference. It is noted that Applicant does not define or limit what is meant by a “stick-shape”. It is also noted in the specification where Applicant discusses the elongated stick-shaped appearance, it is disclosed that the raw hide can be twisted to form the previously mentioned shape (Paragraph 24). Therefore, the Examiner cannot ascertain a significant difference between the shape of Applicant’s chew stick and that taught in the art. Therefore, a rawhide sheet formed into a stick shaped appearance would have been obvious to one of ordinary skill in the art before the effective filing date of the invention in light of the above teachings of Anderson. It is also submitted that the particular shape would appear to constitute a design choice that would have been within the purview of one of ordinary skill in the art at the time that the invention was made, absent persuasive evidence that a particular configuration was significant, in light of the above teachings of the prior art, and in light of the fact that the particular shape would not appear to materially affect the function of the component. See MPEP 2144.04 IVB.
Anderson teaches a meat portion adhered to a stick of dried rawhide, and teaches where the pet treat can be made in the shape of a bone or other shape, and also teaches a dried meat fraction such beef jerky that is applied to the rawhide, as set forth above, but do not specifically teach a plurality of meat mixture portions, spaced apart from each other, on the outer surface of the chew stick, wherein each of the meat mixture portions surrounds the circumference of the chew stick.
Mohilef teaches a pet treat resembling a dog bone comprising meat portions (referred to as the outer layer) wrapped around a solid dry bone-like material (Col. 2, lines 35-40) and teaches that animals enjoy chewing on bones (Column 1, lines 20-25). Mohilef teaches the solid dry bone-like material can be rawhide (Column 2, lines 60-65) and teaches the outer layer needs to be palatable to an animal and has to substantially conform to the bone-like material and surrounds the bone-like material and that one or more layers can be used and can be configured to surround the outer surface of the bone core or cover only a portion of the length such that the bone-like material can be partially exposed (Column 3, lines 5-30). Mohilef teaches the meat portion can be dried beef jerky type product (Column 3, lines 35-45 and Example 2) and teaches slipping an outer layer around the bone core and then drying the product (Column 4, lines 15-40). Therefore, in this way, Mohilef teaches wrapping or surrounding the meat portions around a solid dry-bone-like material that can be rawhide, where the meat portions can surround the entire circumference of the chew stick and cover the entire outer surface of the chew stick.
Since Anderson teaches a solid chew pet treat comprising a meat portion attached, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to vary the positioning of the meat portion to have it wrapped around the solid and dry rawhide interior in order to further simulate a bone with meat attached in order to be a desirable pet treat for animals, as taught by Mohilef.
Anderson in view of Mohilef may not specifically teach a plurality of meat mixture portions in the claimed configuration.
Tepper teaches dried rawhide shapes with attached meat portions for pet treats and teaches similar meat portion/rawhide chew stick configuration as Anderson and teaches multiple meat portions adhered to the rawhide chew stick, for example 3 or 4 meat portions positioned substantially equal distance from each other on a simulated dog bone (Fig. 5 and 9). Therefore, the claimed pet treat comprising a plurality of meat mixture portions spaced apart from each other on the outer surface of the chew stick would have been obvious in light of the teachings of Tepper and the fact that Tepper teaches having multiple meat portions on a rawhide bone shaped product as desired and depending on the size of the rawhide bone (Para 37 and 58).
Regarding Claim 4, Anderson in view of Mohilef does not specifically teach where the meat mixture portions are each from a different meat mixture formulation.
Tepper teaches the multiple meat portions can have the same or different flavorings including the claimed types of meat (Para 46 and 39). Therefore, the claimed plurality of meat mixture portions each from a different meat mixture formulation would have been obvious in light of the teachings of Tepper and the fact that Tepper teaches having multiple meat portions on a rawhide bone shaped product as desired and depending on the size of the rawhide bone (Para 37 and 58), where the individual meat portions can be from the same or different meat and/or flavorings. Increasing the number of meat portions on a rawhide stick would have been well within the skill of one of ordinary skill in the art in light of the above teachings of the prior art and would not expect to amount to a patentable distinction. Furthermore, it has been held that “mere duplication of parts has no patentable significance unless a new and unexpected result is produced. See MPEP 2144.04 VIB.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-10 of U.S. Patent No. 10,842,170. Although the claims at issue are not identical, they are not patentably distinct from each other because the granted patent recites claims to a process of making a pet treat, where the resulting pet treat encompasses the subject matter of the pet treat recited in the instant claims. Therefore, the process claims recited in the prior granted patent render obvious the pet treat claims recited in the instant application.
Claims 1-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-17 of U.S. Patent No. 11,712,049. Although the claims at issue are not identical, they are not patentably distinct from each other because the granted patent recites claims to a pet treat, which overlaps with the pet treat recited in the instant claims. Therefore, the claims to the pet treat recited in the prior granted patent render obvious to one of ordinary skill in the art the pet treat claims recited in the instant application.
Claims 1-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-17 of U.S. Patent No. 12,102102. Although the claims at issue are not identical, they are not patentably distinct from each other because the granted patent recites claims to a pet treat, which overlaps with the pet treat recited in the instant claims. Therefore, the claims to the pet treat recited in the prior granted patent render obvious to one of ordinary skill in the art the pet treat claims recited in the instant application.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 6/15/2026
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