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 .
DETAILED ACTION
Status of Claims
Note: The amendment of July 3rd 2026 has been considered.
Claims 1 has been amended.
Claims 2, 4-6, 11, 12 and 20 have been cancelled.
Claims 1, 3, 7-10, 13-19 and 21 are pending and in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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, 3, 7, 10, 13-19 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Chaney et al. (WO 2019/105883 A1) in view of Verkoeijen et al. (US 2011/0039002 A1). Evidenced by NPL “Oat Oil” (from Gourmet and Health Promoting Specialty Oils, 2009, pages 433-454) and NPL Chaisuwan et al., “Physocochemical and antioxidative characteristics of rice bran protein extracted using subcritical water as a pretreatment and stability in a functional drink model during storage” (from Biocatalysis and Agricultural Biotechnology 44 (2022) 102466). Evidenced by NPL Kortekangas et al., “Phytase treatment of a protein-enriched rice bran fraction improves heat-induced gelation properties at alkaline conditions” (from Food Hydrocolloids 105 (2020) 105787).
Regarding claims 1, 4, 7, 10, 13, 14, 18 and 19: To clarify, Chaney discloses spray-dried flavor compositions comprising stable spray-dried particles including a water-soluble matrix which encapsulates at least one active ingredient, the matrix comprising 40-99.9wt% filler (e.g., glucose syrup and/or soluble fiber), from 1% to 30% active ingredient, such as flavor oils and terpenes (antioxidant compositions), based on the total weight of the matrix (see Chaney abstract; page 4, lines 8-22; page 5, line, 17-33; page 9, lines 9-11). Furthermore, Chaney discloses using 0.1 to 60wt% of an emulsifier, or a combination of emulsifiers, such as rice bran protein (see Chaney abstract; page 2, line 14-22), which meets “soluble rice bran” as soluble rice bran is a form of rice bran protein, and rice bran protein are known to be soluble (see Chaisuwan section 3.1.4). Since the claimed relative contents of the encapsulated components, emulsifiers and filler recited in claims 1, 4, 7, 14, 18 and 19 overlap or lie inside the relative contents of the encapsulated components, emulsifiers and filler in Chaney, a prima facie case of obviousness exists (see MPEP §2144.05). Chaney discloses using an emulsifier, or a combination of emulsifiers, such as rice bran protein (i.e., a soluble rice bran), but fails to disclose oat oil; However Verkoeijen discloses that oat oil (i.e., a galactolipid material) is the preferred emulsifier in a spray-dried emulsion composition (see Verkoeijen abstract; paragraph [0063]). Since the soluble rice bran and oat oil are known emulsifiers used in spray dried oil in water compositions, it would have been obvious to a skilled artisan at the time the application was filed to have modified Chaney and to have added oat oil together with the oat bran to the composition. As set forth in MPEP §2144.06, It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.
Regarding the antioxidant activity of the soluble rice bran and oat oil recited in claim 1: Chaney in view of Verkoeijen contemplate using soluble rice bran and oat oil, which are known antioxidants (see “Oat Oil” Publisher Summary and Chaisuwan abstract).
As to the presence of phytic acid in the soluble rice bran recited in the claims: Chaney discloses using emulsifiers, such as rice bran protein, which is known to be soluble and is naturally co-occurs and complexes with phytic as, as phytate is densely localized inside the protein-rich bodies of the rice bran protein (see Kortekangas page 2, left column). Accordingly, the rice brain protein in Chaney comprises phytic acid, which meets the claimed limitations.
Regarding claim 3: Chaney disclose the spray-dried flavor composition comprising encapsulated flavoring oils to attain desired flavors (see Chaney page 5, lines 17-33) and adding the spray-dried flavor composition to meat products (see Chaney page 10, line 30 to page 11, line 2), but fails to disclose specific examples of encapsulating meat fats; emulsifiers; However, given the fact Chaney discloses oil phase flavoring compositions with desired flavors, and since using animal meat fat (e.g., tallow, lard, fish oil) in spray dried oil-in-water emulsions is well known and conventional (see Verkoeijen paragraph [0061]), it would have been to a skilled artisan at the time the application was filed who desires meat fat and/or meat fat flavor, to have modified Chaney and to have used meat fat as the encapsulated fat component flavoring composition in order to attain a composition with the desired meat flavor, and thus arrive at the claimed limitations.
Regarding claims 15 and 16: Chaney discloses maltodextrin is a well-known and conventional filler used in spray dried emulsions (see Chaney page 2, lines 20-22). Since the matrix comprising 40-99.9wt% filler, Chaney meets the claimed limitations. In the alternative, Chaney discloses the spray dried flavoring composition comprises about 47% maltodextrin as the filler (see Chaney examples 1 and 2).
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Chaney et al. (WO 2019/105883 A1) and Verkoeijen et al. (US 2011/0039002 A1) as applied to claims 1, 3, 7, 10, 13-19 and 21 above, and further in view of NPL Grembecka, “Natural sweeteners in a human diet” (from Rocz Panstw Zakl Hig. 2015; 66(3): 195-202).
Regarding claims 8 and 9: Chaney discloses the composition may comprise any desired flavors (see Chaney page 5, lines 23-33), but fails to disclose sucrose; However, since Chaney discloses adjusting the composition to attain desired flavors, and since sucrose is a flavoring agent, it would have been obvious to a skilled artisan who desires sucrose flavoring at the time the application was filed, to have modified Chaney and to have used sucrose as the flavoring agent in order to attain a composition with the desired flavor, and thus arrive at the claimed limitations.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Chaney et al. (WO 2019/105883 A1) and Verkoeijen et al. (US 2011/0039002 A1) as applied to claims 1, 3, 7, 10, 13-19 and 21 above, and further in view of NPL Shoaib et al., “Inulin: Properties, health benefits and food applications” (from Carbohydrate Polymers 147(2016) 444-454).
Regarding claim 17: Chaney discloses spray-dried flavor compositions comprising stable spray-dried particles including a water-soluble matrix, the matrix comprising 40-99.9wt% filler (e.g., glucose syrup and/or soluble fiber), from 1% to 30% active ingredient, such as flavor oils and terpenes (antioxidant compositions), based on the total weight of the matrix (see Chaney abstract; page 2, lines 14-17), but fails to use the soluble fiber inulin; However, Shoaib discloses on page 2, section 1. Introduction, that inulin provided GI health benefits to the consumer. Therefore it would have been obvious to a skilled artisan at the time the application was filed to have modified Chaney and Verkoeijen and use inulin as the soluble fiber in the filler, in order to provide the health benefits associated with inulin intake, and thus arrive at the claimed limitations.
Response to Arguments
Applicant's arguments filed July 3rd 2026 have been fully considered but they are not persuasive.
Applicant argues on pages 5-6 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because Applicant had provided evidence the induction time provided by the combination of soluble oat bran and oat oil was better than the induction time provided by separately using soluble oat bran and oat oil. The examiner respectfully disagrees.
Given the fact soluble oat bran and hydrophilic and oat oil is hydrophobic, soluble oat bran and oat oil provide antioxidation protection via somewhat different pathways, combining the two antioxidants for the same purpose would have been obvious to a skilled artisan, on the assumption that “the two together produce an effect somewhat greater than the sum of their separate effects”. In re Crockett and Hulme, 126 USPQ 186 (C.C.P.A. 1960). [Prior art teaches use of magnesium oxide and calcium carbide, individually, assuming that the two together produce an effect somewhat greater than sum of their separate effects, idea of combining them would flow logically from teaching of prior art; therefore, claim to their joint use is not patentable. The Courts said: “The patents clearly teach that both magnesium oxide and calcium carbide, individually, promote the formation of a nodular structure in cast iron, and it would be natural to suppose that, in combination, they would produce the same effect and would supplement each other. Even assuming, as appellant alleges to be the case, that the two together produce an effect somewhat greater than the sum of their separate effects, we feel that the idea of combining them would flow logically from the teaching of the prior art and therefore that a claim to their joint use is no patentable. In re Henrich, 46 CCPA 933, 268 F.2d 753, 122 USPQ 388, and cases there cited]. See also Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Int., 1992): If two or more herbicides functioned by somewhat different biological mechanisms, their combined use would clearly be expected to be more efficient than the use of merely a larger amount of any one of the individual herbicides since multiple biological pathways would be affected at the same time. See also Merck & Co. Inc. v. Biocraft Laboratories Inc., 10USPQ2d 1843 (Fed. Cir. 1989). Thus, the claims remain rejected.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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