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 Claim
Claims 1-20 are pending and under examination in this application.
Drawings
The drawings are objected to because reference character 0701 used in Figs. 7, 9, 10 and 11, and reference character 0702 used in Fig. 10 are not discussed in the specification in relation to these figures. The reference character 0701 is discussed in relation to Figs. 12 and 13, and reference character 0702 is discussed in relation to Fig. 7, but these reference characters are not discussed again in the specification when the other Figs. 7, 9, 10 and 11 are discussed.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: Fig. 19 reference characters 1900 and 1904, Fig. 20 reference characters “Fluid I” and “Fluid II”.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 4 and 7-15 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.
Claim 4 recites, “wherein a cross-section outline shape of said tube body part is any one of: a closed curve, a closed circle.” The claim then has the limitation, “wherein said cross section outline shape is selected from the group consisting of: an oval, a rounded-triangle, a rounded-rectangle, a polygon, an Arabic “8” and an irregular shape.” First it is unclear what the differences between a closed curve and a closed circle are, if any. Further, it is unclear whether or how any of the listed shapes in the second limitation belong to the category of either a closed curve or a closed circle. For example, a person of ordinary skill in the art would understand a polygon to be defined as a collection of straight lines and not as a closed curve or a closed circle.
Claims 7, 13, and 15 recite the following: claim 7 lines 5-6, “wherein said naturally-collagen-rich material comprise at least 50% collagen in composition”; claim 13 lines 3-5, “composition material comprises 20-50% plant ingredient… and any one of: 30%-99% meat ingredient, 30-99% meat by-product ingredient and 30%-99% meat and meat by-product combination ingredient”; claim 15 line 3, “wherein said plant-based composition material comprises at least 50% plant ingredient.” It is unclear what the percentages for these limitations are based on, e.g. by weight of the edible pet chew, or something else. For the purpose of examination, the basis of these percentages will be by weight of the edible pet chew.
Claims 9, 13 and 15 recite, “a chemical ingredient.” However, it is unclear what a chemical ingredient is. The specification does not give a definition for a chemical ingredient and the claims do not further define a chemical ingredient. For the purpose of examination, “a chemical ingredient” will be viewed as any ingredient.
Claim 11 recites, “wherein said naturally-collagen-rich material is a corium layer of animal skin material.” It is unclear if “a corium layer of animal skin material” is the same as “corium layer of animal skin” in claim 7 or if it is a different ingredient. Additionally, if it is a different ingredient than what is outlined in claim 7 then there is an issue with the language of claim 7. Claim 7, which claim 11 depends from, limits the naturally-collagen rich material to only those ingredients listed in the closed group. Therefore, for the purpose of examination, “a corium layer of animal skin material” will be viewed as the same ingredient listed in claim 7, specifically, the “corium layer of animal skin.”
Claim 13 lines 3-5 recite, “composition material comprises 20-50% plant ingredient… and any one of: 30%-99% meat ingredient, 30-99% meat by-product ingredient and 30%-99% meat and meat by-product combination ingredient.” However, there cannot be up to 99% of the meat ingredient in the composition if there is also 20-50% plant ingredient by weight.
Claim 14 recites the limitations "said plant ingredient" in line 1, “said meat ingredient” in line 7, and “said meat by-product ingredient” in line 10. There is insufficient antecedent basis for these limitations in the claim. For the purpose of examination, claim 14 will be interpreted as depending from claim 13, instead of claim 8 as noted in the claim.
Claims 8, 10 and 12 are included in the rejection because they depend from a rejected base claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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 1-6 and 19-20 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Xu, US 20140255553.
Regarding claim 1, Xu discloses an edible pet chew (Abstract, [0004]). It is noted that Figure 3 of the instant application, shown below, shows the claimed pet chew and finned tubular component. This figure is reproduced below to help clarify how the prior art is being interpreted.
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Fig-3 Instant Application
Xu teaches the pet chew has a finned tubular component (see Figs. 4 and 15 of Xu) formed from a finned tubular extrudate (extruding a composition with an extruder; [0035], [0042], Figs. 4 and 15).
Xu teaches wherein said finned tubular extrudate comprises a fin and a tube body part (see Figs. 4, 15 and annotated Fig. 4 below that highlights character A, the fin) where the fin extends on a surface of said tube body part along a length of said tube body part (see Figs. 4, 15 and annotated Fig. 4 below where the fin extends along the length of the tube).
Xu discloses wherein said finned tubular component is made of a compositional material (a meat based material comprising at least a meat ingredient and a plant ingredient, claim 1; or an edible material member comprising at least 25% or at least 50% animal hide ingredient, claims 25, [0184]; or an edible material comprising a plant based material, claim 19, [0124]) and is formed by extrusion process (extruding a composition with an extruder; [0035], [0042], [0051]). The finned tubular pet chew has an opening at each end (see Figs. 4 and 15).
Regarding the recitation “formed from a... extrudate” and “formed by extrusion process” does not limit the claim, but is merely directed towards process steps to make the final product instead of the final product itself. See MPEP 2113.I. Therefore, if the product in the product-by-process recitation in claim 1, is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. Regardless, as shown by the above rejection, the process of the prior art meets the claimed limitation.
Regarding claim 2, Xu discloses the edible pet chew of claim 1, as discussed above. The pet chew wherein said fin and said tube body part are integrally formed (pet chew 0400 formed from sheet 0201, Fig. 4 and pet chew 1500 formed from sheet 0201 Fig. 15, [0149], [0172]), wherein said fin is a thin piece sticking out from said tube body part (see Annotated Fig. 4, character A below).
Xu teaches an average thickness and an average width of said fin are in a ratio less than 1:3. See Annotated Fig. 4 of Xu below, where the thickness, represented by character T, is smaller than 1/3 of the width of the fin, which is represented by character L, or in other words the average thickness and average width of said fin are in a ratio of less than 1:3. This is within the claimed ratio of less than 1:3.
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Xu Annotated Fig. 4
Xu teaches wherein an extremity of the width of said fin is attached to said surface of said tube body part (see character W and the left side of the line that represents the width, which shows the area of the figure where the fin is attached to said surface of said tube body part) and where the opposite extremity of the width of said fin is free (see character W and the right side of the line that represents the width, showing the opposite extremity of the width of said fin which is free and not attached to the tube body part).
Regarding claim 3, Xu teaches the edible pet chew of claim 2, as discussed above. The pet chew fin is in a sheet-like form (pet chew with a chewy sheet or sheet form; [0019], [0029], Fig. 4). Xu discloses the average thickness of said fin (sheet material) is in a range between 0.1 mm to 5 mm or more typically 0.5 mm to 2.5 mm [0019], which is within the claimed range of 0.2 mm and 10 mm.
The pet chew fin of Xu sticks out at a slant from said tube body (see Annotated Fig. 4 above, the shaded gray area that shows the slant of the fin from said tube body, which is in-between the solid black circle highlighting the tube body and the solid black line highlighting the fin and noted by character A).
Xu discloses an overall length of said fin is substantially equal to an overall length of said tube body (see Fig. 4 and Fig. 15 where the length of the fin runs along the overall length of the tube body).
Regarding claim 4, Xu discloses the pet chew of claim 1, as discussed above. Xu teaches a cross-section outline shape of said tube body part is any one of a closed circle, where the shape is selected from the group consisting of an oval (see Figs. 4 and 15).
Regarding claim 5, Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches wherein said tubular component is rawhide free (a single chewy sheet of meat based material composition, where the formula is free of animal hide material; [0139], [0144-0145], claim 13).
Regarding claim 6, Xu teaches the edible pet chew of claim 1, as discussed above. Xu teaches the finned tubular extrudate is formed by co-extrusion (deliver the meat based material and the edible material into a co-extrusion extruder; [0051]), wherein said fin is made of a first material (meat based material outer layer 0201; Fig. 15), wherein said tube body part is made of a second material (edible material member inner stick material 1501; Fig. 15), wherein said fin and said tube body part are formulated differently (fin is meat based and tube body part is made of an edible material member that is a plant based material stick, [0172], Fig. 15).
Regarding the recitation “said finned tubular extrudate is formed by co-extrusion” does not limit the claim, but is merely directed towards process steps to make the final product instead of the final product itself. See MPEP 2113.I. Therefore, if the product in the product-by-process recitation in claim 6, is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. Regardless, as shown by the above rejection, the process of the prior art meets the claimed limitation.
Regarding claim 19, Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches the finned tubular extrudate pet chew 0400 is manipulated into a final product shape consisting of a twisted tube shape, having a twist to the tube (Fig. 4).
Regarding claim 20, Xu discloses the edible pet chew of claim 1, as discussed above. Xu teaches the finned tubular component of claim 1 serves as a first component, where a second edible material component (edible material member) is assembled together with the first component (meat based material member) in a pre-determined relationship (co-extruded multiple layer structure) to form a final product (Abstract, [0155], [0186], claims 16-17).
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 7-16 are rejected under 35 U.S.C. 103 as being unpatentable over Xu, US 20140255553.
Regarding claims 7-8 and 10-12, Xu teaches the edible pet chew of claim 1, as discussed above. Xu discloses the composition material (edible material) is a mixture, as required by claim 7, where the mixture comprises at least 25% or at least 50% of an animal hide ingredient (claim 25, [0038], [0090], [0184], [0214]).
Xu does not specifically state that the animal hide ingredient is a naturally-collagen-rich material comprising at least 50% collagen in its composition, as required by claim 7 and is selected from the group consisting of a corium layer of animal skin, as required by claims 7 and 11 (see 112(b) for claim 11 above). However, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to use any layer of the animal hide/skin for the animal hide ingredient, including the corium layer of animal skin, with the composition as taught by Xu. See MPEP 2144.08. Thus, modified Xu teaches the composition comprises a naturally-collagen-rich material comprising at least 50% collagen in its composition, as required by claim 7, where the naturally-collagen rich material is selected from a corium layer of animal skin, as required by claims 7 and 11.
Modified Xu teaches the collagen-based composition material (edible material) comprises at least 25% or at least 50% naturally-collagen-rich material (animal hide ingredient; claim 25, [0184]). This overlaps the claim 7 range of 20-90%, claim 10 range of 25-90% and claim 12 range of 50-90% of naturally-collagen-rich material, and is within the claim 8 limitations of the naturally-collagen-rich material accounting for the number one proportion ingredient in a constitution of said collagen-based composition material by weight, wherein the number one proportion is larger than any other individual ingredient proportion in the composition. 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(I).
Regarding claim 9, modified Xu discloses the pet chew of claim 7, as discussed above. Xu teaches the collagen-based composition material (edible material selected from a plant and animal hide based material) further comprises any one of 25-50% plant ingredient by weight (claim 25, [0184]). This is within the claimed range of at least 20% plant ingredient by weight.
Regarding claim 13, Xu discloses the pet chew of claim 1, as discussed above. Xu teaches the composition material is a mixture wherein said composition material is a meat-based composition material (a chewy sheet of meat based material; [0036], claim 1).
Xu discloses wherein said meat-based composition comprises 15-50% plant ingredient ([0036], claim 11). This overlaps the claimed plant ingredient of 20-50%. 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(I).
Xu teaches the meat-based composition material comprises a chemical ingredient (a humectant such as glycerin; [0125], [0127]) and includes at least 33.3% meat ingredient ([0036], claim 1, claim 3). This overlaps the claimed meat ingredient of 30-99%. See MPEP 2144.05(I).
Regarding claim 14, modified Xu discloses the edible pet chew of claim 13, as discussed above. See the above 112(b) rejection for claim 14 dependency. Xu teaches said plant ingredient comprises plant ingredients selected from potato (potato starch), sweet potato, tapioca, rice (rice flour), plant derived material, a plant protein (the plant proteins of wheat protein isolate, corn protein isolate and soybean protein), and a plant starch [0089], [0126], [0131], [0140-0141], [0180].
Xu teaches wherein said meat ingredient is selected from a group consisting of: livestock flesh (animal flesh), bovine flesh (bovine meat), porcine flesh (porcine meat), poultry flesh (poultry meat), fish flesh (fish) ([0086], [0088], claim 3).
Xu discloses where said meat by-product ingredient is selected from the group consisting of: esophagus (animal esophagus), animal pizzle, lung, spleen, kidney and liver ([0086], [0138], claim 3).
Regarding claim 15, Xu teaches the edible pet chew of claim 1, as discussed above. Xu discloses said composition material is a mixture, wherein said composition material is a plant-based composition material (a plant based material; [0124], claim 19). Xu teaches wherein said plant-based composition material comprises over 50% plant ingredient by weight ([0124,], claim 19). This is within the claimed range of at least 50% plant ingredient.
Xu also discloses the meat-based material composition further includes a chemical ingredient (an additive; [0125]), but does not specifically state that the plant-based material includes a chemical ingredient. Xu teaches a chemical (an additive) is introduced into the chewy sheet to provide sufficient rigidity and strength in the finished product [0125].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to further incorporate the teachings of Xu for the meat based material by including a chemical (an additive) in the plant-based composition material as claim because when a chemical (an additive) is introduced into the chewy sheet, the chemical helps provide sufficient rigidity and strength in the finished product, as recognized by Xu [0125].
Regarding claim 16, Xu teaches the edible pet chew of claim 1, as discussed above. Xu discloses the pet chew is a collagen-based chew comprising a meat ingredient of pizzle at typically 33.3-75% ([0099], claim 3). It is noted in the instant specification paragraph [0012] that animal pizzle inherently contains at least 50% collagen. Thus, Xu teaches the collagen-based pet chew comprises at least between 16.65-37.5% collagen (33.3-75% pizzle; [0099], claim 3). This overlaps the claimed range of at least 25% collagen constituent by weight as a whole. See MPEP 2144.05(I) and MPEP 2112.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Xu, US 20140255553 as applied to claim 1 above, and further in view of Schildgen et al., US 20070113796.
Regarding claim 17, Xu discloses the edible pet chew of claim 1, as discussed above. Xu does not state the pet chew comprises a glucosamine compound or chondroitin compound.
Schildgen teaches a pet chew manufactured by extrusion that has one or more nutraceutical agent(s) that impart a health benefit to a pet (Abstract, [0029]). Schildgen discloses nutraceutical agents can be added to the pet chew, specifically glucosamine compound (glucosamine) in the range of 2-7% and chondroitin compound (chondroitin) in the range of 3-9% [0027]. This is within the claimed range of at least 0.2% glucosamine compound and at least 0.1% chondroitin compound.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu to incorporate the teachings of Schildgen by having the pet chew comprise the claimed amount of glucosamine and chondroitin because having one or more nutraceutical agents in the pet chew imparts health benefits to the pet, as recognized by Schildgen (Abstract, [0029]).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Xu, US 20140255553 as applied to claim 1 above, and further in view of Frudakis et al., US 6165474.
Regarding claim 18, Xu discloses the pet chew of claim 1, as discussed above. However, Xu does not teach a coating layer or basting layer on a surface of the finned tubular component.
Frudakis teaches an edible pet chew (rawhide chew toy) for delivering nutrients to pets (C3 L5-7). Frudakis discloses a coating applied using a basting solution (C3 L25-32; C4 L29-39). The pet chew (rawhide chew) is manually hand dipped to apply the basting layer to the desired area (C4 L55-65). Frudakis teaches using a basting layer (basting solution) to coat a pet chew adheres the substance to the chew (C3 L25-32).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Xu by applying the basting layer of Frudakis on the surface of the finned tubular component because using a basting layer (basting solution) to coat a pet chew adheres the substance to the chew and ensures it is applied to the desired area, as recognized by Frudakis (C3 L25-32; C4 L29-39).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE GERLA whose telephone number is (571)270-0904. The examiner can normally be reached Mon.-Wed. and Fri. 7-12 pm; Th. 7-2pm.
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/S.R.G./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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