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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-9 in the reply filed on 10/10/2025 is acknowledged.
Claims 10-16 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected product, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/10/2025.
It is noted that claim 9 should have been with the method claims in the restriction requirement. Therefore, claim 9 is being examined along with the method claims 1-8.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3-6,8,9 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 3 recites the broad recitation 40-75%w/w, and the claim also recites 40-70% w/w which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 4-6,8 have similar broad/narrow limitations.
Regarding claim 9, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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.
Claim(s) 1-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arla Foods(WO2018/011392A1).
Regarding claims 1,3,4,7, Arla Foods aka “Arla” teaches a method for preparing a high-protein, dairy-based product having a protein content of at least 12% w/w(p.42, line 4-8), the method comprising
a) combining acid-gellable whey protein aggregates with other dairy ingredients such as lactose or milk fat and other ingredients such as carbohydrates, fats, vitamins and minerals to obtain a mixture(p. 52, line 6-16; p.45, line 18-20, p.42, line 30-36);
wherein the high-protein dairy-based product is the mixture obtained from step a), and wherein the acid-gellable whey protein aggregates constitute at least 6%(w/w)(claim 17) of the total weight of the dairy-based product.
Arla is silent on the dry matter content of the high-protein, dairy-based product. However, Arla teaches that the food product can be in the form of a yogurt product such as a set-type gelled yogurt, a stirred yogurt, or a drinking yogurt(p.46, line 26-32). It would have been obvious to adjust the dry matter content of the high-protein, dairy-based product depending on the type of product(set-type yogurt versus a drinking yogurt) and the consistency desired.
Arla teaches combining the acid-gellable whey protein aggregates with other dairy ingredients such as lactose or milk fat but does not specifically teach that the dairy product is acidified. However, Arla teaches acidifying the composition produced in step a) and that the food product can be an acidified dairy product such as a yogurt(p.46, line 21-25). Therefore, it would have been obvious to have the initial dairy ingredient be acidified to minimize the amount of pH adjustment of the final composition.
Regarding claim 2, Arla teaches that the high-protein dairy-based product is a set-type yogurt(i.e. is self-supporting)(p.46, line 34-37).
Regarding claim 5, Arla teaches that the pH of the mixture is at most 5(p.52, line 14-16).
Regarding claim 6, Arla teaches that the mixture is cooled to a temperature before 50C(p.52, line 9-12), which overlaps the temperature of 0-20C and renders it obvious.
Regarding claim 8, Arla teaches that the mixture is a yogurt which is required to be stored at cooler temperatures such as 0-10C for 1-24 hours to prevent spoilage(p.46, line 21-25).
Regarding claim 9, Arla teaches that the mixture is shaped by filling in a container(p.46, line 34-37).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KATHERINE D LEBLANC/ Primary Examiner, Art Unit 1791