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 .
Reopening of Prosecution After Appeal Brief
In view of the Appeal Brief filed on 11/24/2025, PROSECUTION IS HEREBY REOPENED. A new ground of rejection is set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
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 1-3 and 15-23 are rejected under 35 U.S.C. 103 as being unpatentable over Ray US 2017/0164631.
For convenience, the claimed ranges required by claim 1 are:
25-40% by dry weight of milk protein;
0.035%- 16.5% by dry weight lactose (35%X(0.1%) -55%X(30%) = 0.035%- 16.5%);
2.8%-22% by dry weight glucose (35%X(8%)- 55%X(40%)= 2.8%- 22%);
0.035%-11% by dry weight galactose (35%X(0.1%) -55%(20%)= 0.035%-11%);
14% -49.5% by dry weight galactooligosaccharide (35%X(40%)-55%(90%)= 14%-49.5%).
Regarding claim 1, Ray discloses a liquid milk product comprising 25% (w/w) solids ([0096]). It is noted that the solids of milk include at least proteins, carbohydrates and fats. It is noted that a liquid milk product can be considered a food ingredient.
Ray discloses that the liquid milk product comprises 1-10% (w/w) protein, the protein is milk protein ([0078], [0080]-[0082]).
Ray discloses that the liquid milk product comprises 0.05-3% (w/w) lactose ([0039])
Ray discloses that the liquid milk product comprises glucose in the range of 0.5-3% (w/w) ([0047]).
Ray discloses that the liquid milk product comprises galactose in the range of 0.05-3% (w/w) ([0053]).
Ray discloses that the liquid milk product comprises GOS (galactooligosaccharide) in the range of 0.9-10%(w/w) ([0056]).
To determine the dry weight of protein (i.e. weight of the protein/weight of total solids) see paragraphs [0032], [0142]- [0145].
Where the total solids are 25%(w/w) (i.e. 25g total solids/100g total weight) ([0096]) and protein is 1-10%(w/w) (i.e. 1g-10g protein/100g total weight) ([0078]), the dry weight % of protein is determined by: 1g protein/100g total weight X 100g total weight /25g total solids = 1g protein/25g total solids = 0.04 = 4%, 10g protein/100g total weight X 100g total weight/25g total solids = 10g protein/25g total solids = 0.4 = 40%
Therefore, protein can range from 4%-40% based on dry weight, overlapping the claimed range.
Where the total solids are 25%(w/w) (i.e. 25g total solids/100g total weight) ([0032]) and lactose is 0.05-3%(w/w) (i.e. 0.05g-3g lactose/100g total weight), the dry weight % of lactose is determined by: 0.05g lactose/100g total weight X 100g total weight/25g total solids = 0.05g lactose/25g total solids = 0.002 = 0.2% lactose, 3g lactose/100g total weight X 100g total weight/25g total solids = 0.12 = 12%
Therefore, lactose can range from 0.2% to 12% based on dry weight, overlapping the claimed range. As discussed above the claim requires 0.035%- 16.5% by dry weight lactose (35%X(0.1%) -55%X(30%) = 0.035%- 16.5%);
Where the total solids are 25%(w/w) (i.e. 25g total solids/100g total weight) and glucose is 0.5-3%(w/w) (i.e. 0.5g-3g glucose/100g total weight) ([0047], [0032]), the dry weight % of glucose is determined by: 0.5g glucose/100g total weight X 100g total weight/25g total solids = 0.02 = 2%, 3g glucose/100g total weight X 100 g total weight/25g total solids =0.12 = 12% glucose.
Therefore, glucose can range from 2% to 12% based on dry weight, overlapping the claimed range. As discussed above the claim requires 2.8%-22% by dry weight glucose (35%X(8%)- 55%X(40%)= 2.8%- 22%);
Where the total solids are 25%(w/w) (i.e. 25g total solids/100g total weight) and galactose is 0.05-3%(w/w) (i.e. 0.05g-3g/100g total weight) ([0053],[0032]), the dry weight % of galactose is determined by: 0.05g galactose/100g total weight X 100g total weight/25g total solids = 0.05g galactose/25g total solids = 0.002 = 0.2% galactose, 3g galactose/100g total weight X 100g total weight/25g total solids = 0.12 = 12%
Therefore, galactose can range from 0.2% to 12% based on dry weight, overlapping the claimed range. As discussed above the claim requires 0.035%-11% by dry weight galactose (35%X(0.1%) -55%(20%)= 0.035%-11%);
Where the total solids are 25%(w/w) (i.e. 25g total solids/100g total weight) and GOS is 0.9-10%(w/w) (i.e. 0.9g-10g GOS/100g total weight) ([0056], [0032]), the dry weight % of GOS is determined by: 0.9g GOS/100g total weight X 100g total weight/25g total solids= 0.9g GOS/25g total solids = 0.036 = 3.6% GOS, 10g GOS/100g total weight X 100g total weight/25g total solids = 0.4 = 40% GOS.
Therefore, GOS can range from 3.6% to 40% based on dry weight, overlapping the claimed range. As discussed above the claim requires 14% -49.5% by dry weight galactooligosaccharide (35%X(40%)-55%(90%)= 14%-49.5%).
Regarding claims 2 and 3, Ray discloses that the liquid milk product may comprise a total amount of fat which may be milkfat and/or vegetable oil in the range of 1-4% (w/w) ([0089], [0091], [0092]). Based on the total solids of 25% (w/w), the dry weight of the milk fat or vegetable oil is 4-16%.
Regarding claim 15, claim 15 is rejected for the same reasons given above as for claim 1.
Regarding claim 16, for convenience claim 16 requires that the food ingredient comprise:
0.35%-11% by dry weight lactose (35%X(1%) -55%X(20%) = 0.35%- 11%);
5.25%-19.25% by dry weight glucose (35%X(15%)- 55%X(35%)= 5.25%- 19.25%);
0.35%-5.5% by dry weight galactose (35%X(1%) -55%(10%)= 0.35%-5.5%);
24.5% -46.5% by dry weight galactooligosaccharide (35%X(70%)-55%(85%)= 24.5%-46.5%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 17, for convenience claim 17 requires that the food ingredient comprise:
0.35%-7.7% by dry weight lactose (35%X(1%) -55%X(14%) = 0.35%- 7.7%);
5.25%-15.95% by dry weight glucose (35%X(15%)- 55%X(29%)= 5.25%- 15.95%);
0.35%-4.4% by dry weight galactose (35%X(1%) -55%(8%)= 0.35%-4.4%);
24.5% -49.5% by dry weight galactooligosaccharide (35%X(70%)-55%(90%)= 24.5%-49.5%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 18, for convenience claim 18 requires that the food ingredient comprise:
0.045%-16.5% by dry weight lactose (45%X(0.1%) -55%X(30%) = 0.045%- 16.5%);
3.6%-22% by dry weight glucose (45%X(8%)- 55%X(40%)= 3.6%- 22%);
0.045%-11% by dry weight galactose (45%X(0.1%) -55%(20%)= 0.45%-11%);
22.5%-49.5% by dry weight galactooligosaccharide (45%X(40%)-55%(90%)= 18%-49.5%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 19 for convenience claim 19 requires that the food ingredient comprise:
0.45%-11% by dry weight lactose (45%X(1%) -55%X(20%) = 0.45%- 11%);
6.75%-19.25% by dry weight glucose (45%X(15%)- 55%X(35%)= 6.75%- 19.25%);
0.45%-5.5% by dry weight galactose (45%X(1%) -55%(10%)= 0.45%-5.5%);
22.5%-46.75% by dry weight galactooligosaccharide (45%X(50%)-55%(85%)= 22.5%-46.75%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 20, for convenience claim 20 requires that the food ingredient comprise:
0.45%-11% by dry weight lactose (45%X(1%) -55%X(14%) = 0.45%- 7.7%);
6.75%-15.95% by dry weight glucose (45%X(15%)- 55%X(29%)= 6.75%- 15.95%);
0.45%-4.4% by dry weight galactose (45%X(1%) -55%(8%)= 0.45%-4.4%);
31.5%-49.5% by dry weight galactooligosaccharide (45%X(70%)- 55%(90%) =31.5%-49.5%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 21, for convenience claim 21 requires that the food ingredient comprise:
0.050%-16.5% by dry weight lactose (50%X(0.1%) -55%X(30%) = 0.050%- 16.5%);
4%-22% by dry weight glucose (50%X(8%)- 55%X(40%)= 7.5%- 22%);
0.050%-11% by dry weight galactose (50%X(0.1%) -55%(20%)= 0.050%-11%);
20%-49.5% by dry weight galactooligosaccharide (50%X(40%)-55%(90%)= 20%-49.5%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 22, for convenience claim 22 requires that the food ingredient comprise:
0.50%-11% by dry weight lactose (50%X(1%) -55%X(20%) = 0.50%- 11%);
7.5%-19.25% by dry weight glucose (50%X(15%)- 55%X(35%)= 7.5%- 19.25%);
0.50%-5.5% by dry weight galactose (50%X(1%) -55%(10%)= 0.50%-5.5%);
25%-46.75% by dry weight galactooligosaccharide (50%X(50%)-55%(85%)= 25%-46.75%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Regarding claim 23, for convenience claim 23 requires that the food ingredient comprise:
0.50%-7.7% by dry weight lactose (50%X(1%) -55%X(14%) = 0.50%- 7.7%);
7.5%-15.95% by dry weight glucose (50%X(15%)- 55%X(29%)= 7.5%- 15.95%);
0.50%-4.4% by dry weight galactose (50%X(1%) -55%(5%)= 0.50%-4.4%);
35%-49.5% by dry weight galactooligosaccharide (50%X(70%)-55%(90%)= 35%-49.5%);
Each of the above ranges overlap the ranges taught by Ray as discussed above in claim 1.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792