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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/18/2025 has been entered.
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) 20,21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Petersen(US 2007/0160712A1) in view of Agn Roots.com(Undenatured Grassfed Whey Protein Powder).
Regarding claim 20, Petersen teaches a whey protein powder having
a pH range of between about 3.3 to about 5.6(para 14)
a protein content of at least 90%w/w(example 1)
a weight ratio between the protein content and the sum of Ca and Mg of least 180(90/0.5)(see para 14 and example 1, a whey protein content of at least 90% and a Ca and Mg content of 0.5%)
Furthermore, Petersen teaches that the liquid whey solution before drying may be filtered to separate the whey protein from fat, lactose, and minerals and that the product is to contain a large amount of whey protein(para 14-15). Therefore, it would have been obvious to separate out the minerals(Ca and Mg) from the whey protein to achieve a highly concentrated whey protein with a low content of Ca and Mg. For example, a protein content of 99.7% and a total Ca and Mg content of 0.3% would yield a ratio of 332.
Petersen is silent on the lactate content. However, according to the instant spec, lactate is reduced through acidification of the whey protein composition(para 151). Since Petersen teaches the same pH as claimed, one of ordinary skill in the art would expect the lactate content of Petersen to be similar to the claimed invention, thus reasonably including at most 0.5% w/w as claimed.
Furthermore, Petersen teaches that the liquid whey solution before drying may be filtered to separate the whey protein from fat, lactose, and minerals and that the product is to contain a large amount of whey protein(para 14-15). Therefore, it would have been obvious to separate out lactate from the whey protein to achieve a highly concentrated whey protein with a low content of lactate, thus reasonably including at most 0.5% w/w as claimed.
Petersen is silent on the degree of protein denaturation. However, Agn roots.com teaches that an un-denatured protein allows for the protein to be bioavailable and more easily absorbable(p.5). Petersen teaches that one can prevent denaturing a protein by avoiding harsh conditions such as hot and cold temperature, pH extremes, UV exposure, and mechanical agitation(p.2). It would have been obvious to minimize the denaturation of the whey protein in Petersen to a level of at most 15% in order to preserve the bioavailability of the protein and ensure that it is more easily absorbed as taught in Agn roots.com. Since Petersen does not require extreme conditions such as heat or mechanical agitation(see example 1), it would have been obvious to prevent protein denaturation through gentle processing parameters.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Petersen(US 2007/0160712A1) in view of Agn Roots.com(Undenatured Grassfed Whey Protein Powder) further in view of Arla(WO 2015/059248).
Petersen is silent on the particle size of the whey protein. However, Arla teaches a whey protein powder composition with a total amount of protein of at least 60%(p.5, line 36). Arla further teaches that the pH is at most 5(p.3, line 14). Arla teaches that the whey protein has a particle size of 1-10 micron, which overlaps the broad claim range and renders it obvious(p.11, line 25-26). It would have been obvious to modify the acidified whey protein in Petersen to a particle size of 1-10 micron as taught in Arla since Arla teaches an effective acidified whey protein used in food products, similar to the whey powder in Petersen.
Response to Arguments
Applicant’s arguments with respect to claim(s) 20-22 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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/KATHERINE D LEBLANC/ Primary Examiner, Art Unit 1791