DETAILED ACTION
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/16/2026 has been entered.
Status of Application
The Examiner acknowledges receipt of the amendments filed on 1/16/2026 wherein claim 1 has been amended.
Claims 1-6 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s arguments filed 1/16/2026 regarding the rejection of claims 1 and 4-6 made by the Examiner under 35 USC 103 over Barclay et al. (WO 0072700) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 10/16/2025.
Applicant’s arguments filed 1/16/2026 regarding the rejection of claim 2 made by the Examiner under 35 USC 103 over Barclay et al. (WO 0072700), further in view of Moyson et al. (WO 2016124626) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 10/16/2025.
Applicant’s arguments filed 1/16/2026 regarding the rejection of claim 3 made by the Examiner under 35 USC 103 over Barclay et al. (WO 0072700) further in view of Egli et al. (J Food Sci, 67, 9, 2002, 3484-3488) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 10/16/2025.
In regards to the 103 rejections, Applicant asserts the following:
A) The claims have been amended to require the starting grain be intact cereal grains (oat or barley) rather than grain flour as in Barclay. Barclay requires milling prior to slurring whereas the present invention mills the grain after being formed into a slurry.
In response to A, the Examiner is not persuaded. The claims do not require ‘intact’ grains as nothing in the claim requires such a structure. Instant claim 1 recites, “…[P]roviding cereal grains, wherein the cereal grains are oat or barley…”. The claim is silent as to the state of the cereal grains. An oat that has been milled is a ‘cereal grain’ just as an oat that has not been milled. It is not apparent to the Examiner why changing the grains physical form would diminish its identity.
Applicant’s argument that Barclay requires milling prior to producing a slurry is not persuasive because a) as noted above in section 7, the grain being intact is not a requirement of the present invention and 2) even if it were a requirement, the net result of the process steps 1A-1C are obvious as Barclay teaches producing an aqueous slurry of milled cereal grain which is in effect the output of process steps 1A-1C.
Applicant states that the process which uses intact grains protects the kernel during hydration and incubation, supported uniform biochemical activity and reduces mechanical damage and contamination risk which differentiates the claims from the prior art, none of which is in Barclay. While these outcomes might be reflective of a process which uses intact grains and may yield a different outcome compared to Barclay, the present invention does not require intact grains and so arguing for features which are not presently claimed is not persuasive.
If Applicant desires an intact, nonmilled grains, then such should be specifically claimed. As of now no such requirement is present and so broadest reasonable interpretation includes processed grains in their nonnative forms. Applicant’s arguments are not considered persuasive.
Maintained Rejections, of Record
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 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.
Claims 1 and 4-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barclay et al. (WO 0072700), evidenced by Applicant’s specification.
Barclay teaches a cereal product having low phytic acid content and methods of making said cereal product.
The method of making the cereal product comprises the steps: providing a gluten free cereal such as oat flour (see page 3, line 17) (see instant claim 1A); mixing the cereal and water to produce a slurry and incubating the grain slurry to degrade the phytic acid content (see page 4, lines 31-35) (see instant claim 1B and 3B1); and c) then subjecting the slurry to a heat treatment process wherein the slurry is heated to about 35-60oC for between 60-200 minutes (see instant claim 1F) and subsequently heated to 130o for at least 5 seconds (see instant claim 1G). The process may be supplemented with additional ingredients such as proteins and lipids such as corn oil (a vegetable oil) and sucrose and maltose (sweeteners) (see instant claims 1E and 5).
Regarding instant claim 1D, the requirement that the grain be ‘finely divided’ is met by providing oat flour. [0237] of Applicant’s published specification defines ‘finely dividing’ as being a grain subject to ‘blending or grinding or milling’ which results in a ‘flour’. Thus, the oat flour utilized by Barclay would be ‘finely divided’ and would remain as such throughout Barclay’s process.
Regarding the temperature range of instant claim 1F, Barclay teaches that the incubation step to reduce phytase is done at a range of 30-60oC which is slightly outside the 70-95oC claimed. However, 60oC is sufficiently close to 70oC that one of ordinary skill would expect similar outcomes. See MPEP 2144.05(I) regarding obviousness of ranges that do nto overlap but are merely close.
As to the time period of instant claim 1G, the heating to 130oC for at least 5 seconds would encompass the 1-10 minutes instantly claimed. Where the general conditions of a claim are described by the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II)(A).
The process of Barclay is out of order relative to the process claimed. For example, the reference teaches that the oat is milled in to flour prior to treating the grain to reduce its phytic acid content instead of after the treatment step like that claimed. This difference, however, is nothing more than a change in sequence of adding ingredients. See MPEP 2144(IV)(C) which states that the selection of any order of performing a process step (such as here) is prima facie obvious absent some evidence that the difference yields a new or unexpected result.
Regarding instant claim 4, the removal of phytic acid is to be such that the treated cereal is substantially devoid of phytic acid (see Examples 1 and 2). While it is unclear if step B is the sole step responsible for removal of phytic acid the net result of the process is one that results in a product that is devoid of phytic acid (i.e. less than 70% of the initial level).
Regarding instant claim 6, the treated grain material can be made in to a food product for infants (see Example 3). Barclay teaches that infant food products are solid or semi-solid (see page 1).
The only difference between Barclay and the instant claims is that Barclay does not set forth the specific steps in an order like that of instant claim 1, or with sufficient specificity to be anticipatory. However, the totality of the claimed process is described within the teaching of Barclay, but rearranging the process steps and manipulating the heating processes does not give rise to anticipation. As noted above, MPEP 2144(IV)(C) states that the selection of any order of performing process steps is prima facie obvious absent some evidence that the difference yields a new or unexpected result. Consistent with this reasoning, it would have been obvious to manipulate the prior art process to yield a process like that claimed with a reasonable expectation for success.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Barclay et al. (WO 0072700), evidenced by Applicant’s specification as applied to claims 1 and 4-6 above, and further in view of Moyson et al. (WO 2016/124626).
Barclay fails to teach the cereal grain as being dehulled oat grains.
Moyson is directed to oat processing and it is taught that processing of oats to oat flour requires a dehulling process (see claim 1). Thus, it would have been obvious to use dehulled oats in Barclay’s process with a reasonable expectation for success given that oats are known to be dehulled prior to milling and consumption.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Barclay et al. (WO 0072700), evidenced by Applicant’s specification as applied to claims 1 and 4-6 above, and further in view of Egli et al. (J Food Sci, 67(9), 2002, 3484-3488).
Although Barclay teaches submerging gains in water (see instant claim 3B1), Barclay fails to teach germinating said grains (step B2).
Egli teaches that soaking and germinating grains such as oats increased phytase activity thereby reducing phytic acid (see Table 1). It would have been obvious to modify Barclay to further include the process of germinating the grains so as to reduce phytic acid in the treated gain. See MPEP2143(I)(A) which states that combining prior art elements according to known methods to yield predictable results is supportive of obviousness.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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