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 .
Status of the Application
The status of the claims stands as follows:
Claims currently under consideration: 1-15
Currently rejected claims: 1-15
Allowed claims: None
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.
Claims 1, 2, and 6-15 are rejected under 35 U.S.C. 103 as being unpatentable over Gierhart et al. (U.S. 5,186,964) in view of Cox et al. (U.S. 2005/0123585 A1) and Scaglione et al. (U.S. 5,000,973).
Regarding claim 1, Gierhart et al. discloses a dry pet food composition (C2, L29-L32, L48-L49) comprising about 0.01-2 wt.% (C3, L48-L52) of a polyphosphoric acid salt (C2, L51-L53, L66 – C3, L6) that may be incorporated into a coating applied to the dry pet food composition (C3, L35-L47).
Gierhart et al. does not disclose the polyphosphoric acid salt as being pentaphosphate.
However, Cox et al. discloses an edible pet product ([0001]) that may comprise a phosphate component ([0045]) that is a polyphosphate having an “average chain length of 3 or greater“, including average chain lengths of 7 phosphorus atoms ([0048]). Scaglione et al. discloses a pet food product containing a pyrophosphate salt (Abstract) and suggests the phosphate salt may be pentaphosphate (specifically, Mn+2PnO3n+1, where n is 5) (C10, L61 - C11, L24).
It would have been obvious to one having ordinary skill in the art to produce the composition of Gierhart et al. comprising pentaphosphate as the polyphosphoric acid salt. Since Gierhart et al. discloses generally that preferred components are “polyphosphoric acid salts, including but not limited to sodium acid pyrophosphate” (C3, L1-L6), a skilled practitioner would be motivated to consult Cox et al. and Scaglione et al. to determine other polyphosphoric acid salts suitable for use in pet foods. Since Cox et al. discloses that polyphosphate chains beyond three phosphorous atoms generally consist of a mixture of chain lengths, including 3 and 7 atoms on average as examples ([0048]) and Scaglione et al. discloses pentaphosphate in particular for use in a pet food product (Abstract, C11, L23-L24), a skilled practitioner would find the incorporation of pentaphosphate into the product of Gierhart et al. to be obvious.
As for claim 2, Gierhart et al. discloses the composition as further comprising protein, fat, and carbohydrates (C3, L22-L26).
As for claim 6, Gierhart et al. discloses that the compositions are nutritionally balanced and “commercially sold” (C3, L31-L32), where commercially available pet foods most typically are complete food products, which renders such a formulation obvious.
As for claim 7, Gierhart et al. discloses the composition is formulated for a feline (C4, L15 – L29).
As for claim 8, Gierhart et al. discloses the polyphosphoric acid salt may comprise about 0.05-2 wt.% of the composition (C3, L48-L56), which renders inclusion of pentaphosphate at concentrations ranging from about 0.1-1 wt.% obvious.
As for claim 9, Gierhart et al. discloses the polyphosphoric acid salt is present in the coating (C3, L35-L47).
Regarding claim 10, Gierhart et al. discloses a method for increasing the palatability of dry pet food (C6, L53-L60) comprising incorporating about 0.01-2 wt.% (C3, L48-L52) of a polyphosphoric acid salt (C2, L51-L53, L66 – C3, L6) that may be incorporated into a coating applied to the dry pet food composition (C3, L35-L47).
Gierhart et al. does not disclose the polyphosphoric acid salt as being pentaphosphate.
However, Cox et al. discloses an edible pet product ([0001]) that may comprise a phosphate component ([0045]) that is a polyphosphate having an “average chain length of 3 or greater“, including average chain lengths of 7 phosphorus atoms ([0048]). Scaglione et al. discloses a pet food product containing a pyrophosphate salt (Abstract) and suggests the phosphate salt may be pentaphosphate (specifically, Mn+2PnO3n+1, where n is 5) (C10, L61 - C11, L24).
It would have been obvious to one having ordinary skill in the art to perform the process of Gierhart et al. comprising incorporating pentaphosphate as the polyphosphoric acid salt into the pet food composition. Since Gierhart et al. discloses generally that preferred components are “polyphosphoric acid salts, including but not limited to sodium acid pyrophosphate” (C3, L1-L6), a skilled practitioner would be motivated to consult Cox et al. and Scaglione et al. to determine other polyphosphoric acid salts suitable for use in pet foods. Since Cox et al. discloses that polyphosphate chains beyond three phosphorous atoms generally consist of a mixture of chain lengths, including 3 and 7 atoms on average as examples ([0048]) and Scaglione et al. discloses pentaphosphate in particular for use in a pet food product (Abstract, C11, L23-L24), a skilled practitioner would find the incorporation of pentaphosphate into the process of Gierhart et al. to be obvious.
As for claim 11, Gierhart et al. discloses the composition as being extruded (C6, L53-L54).
As for claim 12, Gierhart et al. discloses the polyphosphoric acid salt is present in the coating (C3, L35-L47).
As for claim 13, Gierhart et al. discloses the composition is a cat food (C4, L15 – L29).
As for claim 14, Gierhart et al. discloses that the compositions are nutritionally balanced and “commercially sold” (C3, L31-L32), where commercially available pet foods most typically are complete food products, which renders such a formulation obvious.
As for claim 15, Gierhart et al. discloses the polyphosphoric acid salt may comprise about 0.05-2 wt.% of the composition (C3, L48-L56), which renders inclusion of pentaphosphate at concentrations ranging from about 0.1-1 wt.% obvious.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Gierhart et al. (U.S. 5,186,964) in view of Cox et al. (U.S. 2005/0123585 A1) and Scaglione et al. (U.S. 5,000,973) as applied to claim 2 above, and further in view of Mao et al. (U.S. 2016/0235094 A1).
Regarding claims 3-5, Gierhart et al., Cox et al., and Scaglione et al. effectively disclose the dry pet food composition of claim 2.
The cited prior art does not disclose the composition as comprising about 5-70 wt.% protein (claim 3), about 5-50 wt.% fat (claim 4), or about 5-60 wt.% carbohydrate (claim 5).
However, Mao et al. discloses a dry pet food composition comprising 20-90 wt.% carbohydrates, 10-50 wt.% protein, and 0-40 wt.% fat ([0022]-[0025]).
It would have been obvious to one having ordinary skill in the art to produce the dry pet food composition of Gierhart et al. having macronutrient concentrations that fall within the claimed ranges. Since Gierhart et al. discloses that the composition comprises protein, fat, and carbohydrates (C3, L22-L26) but does not disclose suitable concentrations, a skilled practitioner would be motivated to consult Mao et al. to determine suitable concentrations for the disclosed macronutrients. Since the disclosed concentration ranges overlap the claimed concentration ranges, the claimed ranges of about 5-70 wt.% protein (claim 3), about 5-50 wt.% fat (claim 4), and about 5-60 wt.% carbohydrate (claim 5) would be obvious to a skilled practitioner.
Conclusion
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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