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 following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Mao et al (WO 2016/176466), or alternatively over Mao et al (WO 2016/176466) in view of Pettelot et al (US 2009/0098267).
Regarding claims 1, 4-5, 7, and 9, Mao et al (Mao) teaches of a wet pet food with enhanced palatability, i.e. both a wet food palatability enhancer and wet food, comprising: a meaty mass, i.e. restructured meat; at least 0.1%, including 0.1-3% yeast extract, i.e. a decomposition palatability agent; typically, 0.02-3% of a carbonyl component preferably selected from a group including reducing sugars such as lactose, glucose and xylose; and at least 0.01%, including 0.01-3%, amino acid component selected from the group including glycine (paragraphs 19, 32, 39, 40, 48-50, 62, 101, and claims 1, 4-5, and 7-8).
Regarding the wet food palatability enhancer as not including a Maillard reaction product as recited in claim 1, Mao teaches that the Maillard component added is a precursor which forms the Maillard flavor substance during sterilization (paragraphs 39, 40, and 44), thus, the Maillard flavor precursor product, i.e. the product before sterilization, would not comprise a Maillard reaction product and the claimed product is considered encompassed or at least obvious over the teachings of the prior art.
Mao is not specific to the amino acid as free glycine as recited in claim 1, however as Mao exemplifies the glycine as an ingredient (paragraphs 101 and 117), the glycine is considered to be individually present and not contained in another ingredient, such as a peptide or protein. Thus, the use of free glycine is considered encompassed or at least obvious over the teachings of the prior art. It is further noted that to use a known form of a disclosed ingredient would have been obvious and well within the purview of one of ordinary skill in the art when forming the product of Mao.
Mao is not specific to the phosphorus content of the wet pet food palatability enhancer as 1% or less by dry weight as recited in claim 1, however as Mao does not require phosphorus in the food, a product without phosphorus is considered encompassed or alternatively obvious over the teachings of Mao. To form the product of the prior art as disclosed with only the disclosed and required components would have been a clear and obvious suggestion of the prior art.
Alternatively, Pettelot et al (Pettelot) teaches that the use of 0.1-1% phosphate, which is a source of phosphorus, in wet pet food reacts synergistically with Maillard reaction flavor precursors including amino acids and reducing sugars, for improved palatability (abstract and paragraphs 43, 44, 66 and 68-70).
It would have been obvious to one of ordinary skill in the art for the wet pet food with enhanced palatability of Mao to comprise 0.1-1% phosphate by total weight for enhanced palatability in view of Pettelot. As Mao teaches of the wet pet food comprising: 30-100% meaty mass, i.e. restructured meat; and optionally 10-70% sauce comprising at least 80% water, wherein the meaty mass comprises 45-80% water (paragraphs 35, 54, 58-60, and 62) the composition of Mao encompasses one with 65% dry weight. Thus, the product of Mao in view of Pettelot would comprise about 0.15-1.5% phosphate and the product of the prior art would have a phosphorus content overlapping that of the claimed range.
Regarding claims 2 and 3, as Mao teaches of a wet pet food with enhanced palatability, i.e. a wet food palatability enhancer, comprising: typically, 0.02-3% of a carbonyl component preferably selected from a group including reducing sugars such as lactose, glucose and xylose; and at least 0.01%, including 0.01-3% amino acid component selected from the group including glycine, the teachings of Mao encompass or at least make obvious a product that comprises ratios overlapping those as claimed.
Regarding claim 6, Mao teaches of the wet pet food, i.e. a wet food palatability enhancer, comprising: 30-100% meaty mass, i.e. restructured meat; and optionally 10-70% sauce comprising at least 80% water, wherein the meaty mass comprises 45-80% water and 5-50% protein (paragraphs 35, 54, 58-60, and 62), and thus encompasses a product with 100% meaty mass having 65% dry weight and 5-50% protein. Thus, the product of Mao encompasses one comprising about 7.7-77% protein by dry weight.
Regarding claim 8, it is noted that the claimed product is to the palatability enhancer without Maillard reaction components and not directed to a product after a Maillard reaction. Regardless, as discussed above, Mao teaches the wet pet food, i.e. a wet food palatability enhancer, comprising: 0.02-3% of a carbonyl component preferably selected from a group including reducing sugars such as lactose, glucose and xylose, wherein the carbonyl component reacts with an animo acid in the Maillard reaction. Although Mao is not specific to the content of reducing sugars after Maillard reaction, as the total amount disclosed encompasses less than 0.05%, the product of Mao, whether fully or partially reacted, would encompass the composition as claimed. Additional reference is made to Pettelot which shows it was known to partially or fully react the amino acids with the reducing sugars, wherein the amount that remains is dependent upon the thermal reaction conditions (paragraph 47).
Regarding the claimed ranges it is generally noted that the prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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 percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. Additionally, regarding claim 9 it is noted that as no amount of the Maillard reaction product has been claimed in the wet pet food, the pet food is not limited to a specific phosphorus content as recited in claim 1.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Mao et al (WO 2016/176466) in view of Pettelot et al (US 2009/0098267).
Regarding claim 10, as discussed above, Mao teaches of a decomposition product using a yeast derived ingredient. Mao is silent to the palatability agent as also comprising a protein hydrolysate using a chicken derived raw material as recited in claim 10.
Pettelot teaches that some flavoring or taste factors commonly used in food industry, which are preferably hydrolyzed prior include processed poultry extracts (paragraph 46).
It would have been obvious for the palatability enhanced product of Mao to also comprise hydrolyzed poultry, i.e. a protein hydrolysate using a chicken derived raw material for its known flavor benefit as show by Pettelot.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 2014/0227386 teaches that free amino acids including glycine were known palatability enhancers in pet food.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 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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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
Prosecution Insights