DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5, 6 and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 5 and 6, it is unclear what is meant by the soy sauce is added based on a dehydrated soy sauce weight. Once added to the wet pet food the soy sauce would not be dehydrated but would be in liquid, that is wet form. Is this to say that the soy sauce when added is dehydrated?
Regarding claim 15, it is unclear what would constitute a Maillard catalyst. Applicant’s specification provides no further information as to any particular catalyst that would be present.
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.
Claims 1 – 4, 8, 11 – 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Chun CN 102429104 as further evidenced by Thomas (Health Benefits of Naturally Brewed Soy Sauce) in view of Clark et al. US 5,786,598.
Regarding claims 1 and 3, Chun discloses a wet pet food system which comprises a wet pet food (paragraph [0004]) including a chunks-in-gravy (paragraph [0017]) (mix with seasoning sauce) (paragraph [0050]) and soy sauce (paragraph [0009]) which as further evidenced by Thomas is an antioxidant (page 6).
Claim 1 differs from Chun as further evidenced by Thomas in the wet pet food contained in a sealed pouch constructed of monomaterial polypropylene.
Clark discloses that it was well known and established to sterilize food (col. 3, on 8 – 11) but that when sterilization is done by autoclaving the contents of a container can be damaged by heat and that it is difficult to monitor the temperature at enough points to assure that every part of every package in a batch process has received enough heat to achieve adequate sterilization (col. 2, ln 22 – 25 and 45 – 60). Clark further discloses that by packaging products in monomaterial, i.e., monolayer polypropylene pouches (col. 1, ln 52 – 57 and col. 7, 42 – 51) sterilization can be done with high-intensity short-duration pulses of incoherent polychromatic light (col. 8, ln 6 – 22) thereby avoiding the difficulty of temperature monitoring and possible damage caused by heat to products undergoing sterilization. To therefore modify Chun as further evidenced by Thomas and contain the wet pet food in a sealed pouch constructed of a monomaterial of monolayer polypropylene to avoid the difficulty of temperature monitoring and possible damage caused by heat to products undergoing sterilization as taught by Clark would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 2, Chun as further evidenced by Thomas in view of Clark discloses the sealed pouch would be constructed of monomaterial polypropylene (‘598, col. 1, ln 52 – 57 and col. 7, 42 – 51) which is recyclable.
Regarding claim 4, since Chun as further evidenced by Thomas in view of Clark has disclosed the sealed pouch as claimed it would be expected that the sealed pouch would be more permeable to oxygen than an aluminium barrier pouch.
Regarding claim 8, Chun as further evidenced by Thomas in view of Clark has disclosed the sealed pouch as claimed, therefore it would be expected that the wet pet food would be shelf stable within the sealed pouch for at least about 9 months.
Regarding claims 11 and 12, Chun as further evidenced by Thomas in view of Clark disclose the chunks would include about 30 wt% (fish meat 30kg per 100 kg total) (‘104, paragraph [0027]).
Regarding claim 13, Chun as further evidenced by Thomas in view of Clark disclose the protein includes plant protein extract (pea) (‘104, paragraph [0016]). That is, after processing the peas as part of the product, it would have been obvious that protein would have been extracted therefrom - thus teaching plant protein extract.
Regarding claim 14, Chun as further evidenced by Thomas in view of Clark disclose the wet pet food contains soy sauce (‘104, paragraph [0009]) and no other antioxidants are disclosed to be present in the wet pet food, which is to say that Chun as further evidenced by Thomas in view of Clark disclose that the antioxidant consists essentially of soy sauce.
Regarding claim 15 Chun as further evidenced by Thomas in view of Clark disclose the wet pet food would include soy sauce which contains Maillard reaction precursors (sugars) and catalysts (free amino acids) (Thomas, page 3, nutritional profile).
Claim 16, is seen to be the obvious method of preparing a wet food (‘104, paragraph [0025] – [0049]) and packaging the wet pet food of Chun as further evidenced by Thomas in view of Clark as set forth in claim 1.
Regarding claim 17, since Chun as further evidenced by Thomas in view of Clark have disclosed the wet pet food as claimed it would be expected that the soy sauce would be included in the wet pet food at a sufficient concentration to substantially offset visible oxidation that would otherwise be caused by oxygen and water permeability of the sealed pouch.
Regarding claim 19, Chun as further evidenced by Thomas in view of Clark disclose the wet pet food contains soy sauce (‘104, paragraph [0009]) and no other antioxidants are disclosed to be present in the wet pet food, which is to say that Chun as further evidenced by Thomas in view of Clark disclose no other antioxidant is added to the wet pet food other than the soy sauce.
Claims 5, 6, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Chun CN 102429104 as further evidenced by Thomas in view of Clark et al. US 5,786,598 in view of Chen et al. CN 112006159 in view of Mitchell US 5,601,864 as further evidenced by Winning et al. US 2016/0198747.
Regarding claims 5, 6, and 18, Chun as further evidenced by Thomas in view of Clark disclose the wet pet food would include soy sauce (‘104, paragraph [0009]). Once it was known to include soy sauce in the wet pet food it is not seen that patentability would be predicated on the specific amount of soy sauce that would be included absent strong and compelling evidence that the amount of soy sauce was critical.
Generally, 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. Where 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. 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. Nevertheless, Chen discloses that it was well established and conventional in the art to include soy sauce in pet food compositions in the amount (weight percentage) (paragraph 0009]) of between 1 wt% to 2 wt% (paragraph [0047] and [0038]) as a nutritional functional ingredient (paragraph [0010]) which, as evidenced by Thomas above, would function as an antioxidant thereby making it an obvious matter of choice and/or design to the ordinarily skilled artisan to have included soy sauce in the wet pet food in the claimed amounts to act as an antioxidant. Regarding the soy sauce being a dehydrated soy sauce, Mitchell discloses that dehydrated soy sauce has an advantage of acting as a protein extracting agent and further imparts, that is, acts as a flavour enhancer (col. 4, ln 60 – 65) and increases product shelf life (col. 5, ln 26 – 30) and therefore it would have been an obvious matter of choice and/or design to the ordinarily skilled artisan to have modified Chun as further evidenced by Thomas in view of Clark and include a dehydrated soy sauce in the wet pet food as taught by Chen and Mitchell. Winning provides further evidence that it was known to include dehydrated soy sauce (paragraph [0134]) preferably in a particulate form (powdered) (paragraph [0113]) in pet food products (cat food) (paragraph [0221]).
Claims 7, 9, 10, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Chun CN 102429104 as further evidenced by Thomas in view of Clark et al. US 5,786,598 in view of Koschak et al. US 5,004,624.
Claim 7 differs from Chun as further evidenced by Thomas in view of Clark in the weight percent of water included in the wet pet food.
Claims 9, 10, and 20 differ from Chun as further evidenced by Thomas in view of Clark in the ratio of chunks and gravy present in the sealed pouch.
Koschak discloses a wet pet food (having a free gravy) (col. 1, ln 9 – 11) and that wet pet foods would typically have about 60% water content or intermediately about 40% (col. 1, ln 26 – 39). Koschak further discloses initially the wet pet food must be prepared with an excess of liquid since the liquid/gravy will be infused into the chunks until equilibrium and a desired water activity based on the ratio of gravy (liquid) to chunks (solids) is achieved in order to avoid spoilage (col. 2, ln 65 – col. 3, ln 25). This is to say that Koschak is disclosing the percentage of water as well as the ratio of chunks and gravy present would be a result effective variable which the ordinarily skilled artisan would have routinely and conventionally optimized to achieve the desired results. Where 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. 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 this instance the percentage of water and ratio of chunks to gravy (MPEP § 2144.05 II.A.). Therefore it would have been an obvious matter of choice and/or design to the ordinarily skilled artisan to choose an appropriate percentage of water and the ratio of chunks to gravy to achieve the desired results. Nevertheless, to obtain optimal results Koschak discloses it is preferred for a wet pet food to include water in the range of 40 wt% to 80 wt% (40 – 60) and to have the chunks to gravy at a weight ratio of 1 part chunks (solids) to 1.5 parts gravy (col. 3, ln 44 – 59) (col. 7, ln 1 – 20). Further regarding claim 20, Chun as further evidenced by Thomas in view of Clark in view of Koschak disclose the wet pet food would include a thickener (locust bean gum) ((‘624 col. 7, ln 39 – 42).
Conclusion
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/C.S./
Chaim SmithExaminer, Art Unit 1791 24 June 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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