DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 11, 2026 has been entered.
3. Claims 1-4, 6-8, 10-12, 14-17, 19, 30, 38, 39, and 46 are currently pending.
Claim Rejections - 35 USC § 103
4. Claim(s) 1-4, 6-8, 10-12, 14-17, 19, 30, 38, 39, and 46 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wadsworth (US 6,254,913) in view of Cao (CN 108887688 A – English translation) with Metcalf (“Inulin” https://www.webmd.com/vitamins-and-supplements/inulin-uses-and-risks - accessed 7/2025) providing definitions.
Wadsworth teaches a fiber composition comprising citrus pulp, chicory root fiber (inulin as defined by Metcalf on page 1), pea fiber, and barley fiber (see Example 1). The reference states that the citrus pulp contains fiber. The reference teaches that the fiber ingredients can be present in amounts up to 30% by weight (see column 1, lines 58-62 and column 3, lines 21-33). In addition, the reference teaches incorporating the fiber into food compositions with additional ingredient such as sweeteners, flavors, minerals, vitamins (see column 3, line 33-column 4, line 32). The reference does not require citrus pectin and does not state that an orange is a source of the citrus pulp.
However, Cao teaches it was known in the art prior to the effective filing date to use orange fiber as a source of citrus fiber in fiber supplement blends. In addition, Cao teaches using pomelo (a type of citrus) pectin in the fiber blend. The reference teaches using the orange fiber and pectin in combination with fiber ingredients such as those taught by Wadsworth, i.e. pea, barley, and inulin (see the claims). Thus, the artisan of ordinary skill would reasonably expect that orange fiber and citrus pectin could be used as the type of citrus fiber in the composition taught by Wadsworth. This reasonable expectation of success would have motivated the artisan to modify Wadsworth to use orange fiber and citrus pectin in the composition.
The references do not specifically teach adding the ingredients together in the amounts claimed by applicant. However, as discussed in MPEP section 2144.05(II)(A), “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).” The references teach that the concentrations of fiber in the composition can be varied. Thus, the artisan would reasonably expect to vary the concentration of fibers in and around the amounts taught by the references during routine experimentation. Varying the concentration of the ingredients within the composition is not considered to be inventive unless the concentration is demonstrated as critical. In this particular case, there is no evidence that the claimed concentration of the ingredients produces an unexpected result. Thus, absent some demonstration of unexpected results from the claimed parameters, this optimization of ingredient concentration would have been obvious before the effective filing date of applicant’s claimed invention.
The references do not specifically teach that the composition has the same effects as claimed by applicant in claims 38, 39, and 46. However, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Response to Arguments
Applicant's arguments filed May 11, 2026 have been fully considered but they are not persuasive. Applicant argues:
Wadsworth reports a dietary fiber product obtained from the Indian mulberry (Morinda citrifolia) plant and a process of extracting and purifying the fiber. Wadsworth fails
to teach or suggest a fiber blend of the currently presented subject matter let alone in the
currently presented amounts. Specifically, the currently presented subject matter requires
inter alia at least 15% of one or more pea fiber preparation and at least 28% of one or more inulin fiber preparation. In contrast, Wadsworth discloses examples that contain at most 8.7% pea fiber and 11.7% chicory root fiber which is 2-4 times below the currently presented subject matter. More significantly, the main fiber extract disclosed in Wadsworth is Indian mulberry and appears in every fiber blend in the greatest amount (see, examples 1 to 5 of Wadsworth). More specifically, Indian mulberry is present in at least a twofold amount in every example compared to any other fiber. Furthermore, Wadsworth is completely silent to any fiber blend that does not contain Indian mulberry as the main fiber component. Accordingly, one having skill in the art at minimum would need to eliminate the presence of Indian mulberry from the fiber blend in an effort to arrive at the currently presented subject matter. However, eliminating Indian mulberry would destroy the intent, purpose, and function of the teachings of Wadsworth. A section 103 rejection based upon a modification of a reference that destroys the intent, purpose, or function of the invention disclosed in the reference is not proper and a prima facie case of obviousness cannot therefore be made. In short, there is no technological motivation for engaging in the modification of the Wadsworth reference to encompass Applicants' claimed invention.
However, applicant’s claims use the broad transitional phrase “comprising.” As discussed in MPEP section 2111.03, “The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps…”. Thus, the Indian mulberry fiber required by the reference is not excluded from applicant’s claims. In addition, the reference specifically teaches that additional fibers can be included in combination with the Indian mulberry fiber in amounts up to 30% (see column 3, lines 30-32) and specifically exemplifies using inulin, citrus pulp, and barley fiber in combination with the Indian mulberry (see Example 1). Thus, the combination of these three fibers and the use of these fibers in amounts up to 30% is specifically taught by the reference. Therefore, it is considered to be well within the skill of the artisan to combine these fibers into a single composition and to use them in amounts up to 30% as specifically directed by the reference. Consequently, applicant’s arguments are not persuasive.
Applicant also argues:
…the processing of fiber ingredients brings some physio-chemical changes. The transformations, especially in extrusion, result in unique particle properties, changes to moisture absorption kinetics, changes in starch structure, possibly fragmentation
of long chain polymers such as b-glucans or guar gum. Hence, processed ingredients,
especially their blends, have different properties, may be more easily accessible to microbiota and have greater efficacy. Applicant notes extruded citrus fiber preparations as well as extruded pea fiber preparations are presented in Table B of the instant application. Applicant further notes Wadsworth is completely silent to any extruded fiber preparations. To use an analogy, there are several recipes for cookies. The key ingredients are similar: flour, sugar, water, lipids, leavening, yet there is a variety of cookie products on the market, many of them patented. Thus, a disclosure of blending flour, sugar, water, and lipid DOES NOT translate to a cookie, especially, a delicious cookie with physiological benefit. There are more critical technical aspects which result in a cookie composition, e.g., type of ingredients: flour can be wheat (red, white, hard, soft, etc.), from other grains (oats, barley, sorghum, etc.), gluten free, etc.; sugar can be sucrose with different particle sizes, compositions (white, brown), can be combined with other sugars such as glucose/fructose, physical state may differ (liquid, solid), and similar arguments can be made for other ingredients. There are critical technical aspects of ingredient choices, processing, and delivering benefit to a consumer. In the currently
presented subject matter, the experiments conducted led to selection of fibers that can be
processed into snacks with high fiber content that are delicious, with no consumption hazards, and deliver physiological benefit. Accordingly, Applicant asserts that the currently presented concentrations of ingredients of fiber blends are critical technical aspects as evident in the examples.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies, i.e., that the composition is extruded, is not required in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). In addition, as discussed above, the reference specifically teaches combining the claimed fibers into a single composition and teaches that the fibers can be used in amounts up to 30%. Applicant has not provided any specific evidence to support the assertion that the claimed fiber blends produces any sort of unexpected result. Thus, applicant’s arguments are not persuasive.
5. No claims are allowed.
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 Susan Hoffman whose telephone number is (571)272-0963. The examiner can normally be reached M-Th 8:30am - 5:00pm.
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/SUSAN HOFFMAN/Primary Examiner, Art Unit 1655
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