DETAILED ACTION
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 .
This office action is in response to the application filed on August 19, 2022. The earliest effective filing date of the application is February 20, 2020.
Priority
The present application is a 371 National Stage Application of PCT/EP2021/054299 which has a filing date of February 22, 2021.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 26, 2026 has been entered.
Status of Application
The amendment filed February 26, 2026 with the Request for Continued Examination has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 2, and 6 – 19
Withdrawn claims: 6 – 16
Amended claims: 1, 2, 7, 9, 14, and 16
Cancelled claims: 3 – 5
New claims: 17 – 19
Claims currently under examination: 1, 2, and 17 – 19
By not repeating the previously presented objection/rejection(s), it is sufficiently clear that said objection/rejection(s) are withdrawn.
Claim Objections
Claim 17 is objected to because of the following informalities:
Claim 17 recites “wherein the composition is added prior to homogenization, pasteurization and fermentation of milk is homogenized at 200 Bar pressure, pasteurized at 95 °C for six minutes and fermentation at a pH between 4.2 to 4.6.” which should be rewritten as “wherein the composition is added prior to homogenization, pasteurization and fermentation of milk, then homogenized at 200 Bar pressure, pasteurized at 95 °C for six minutes and fermented at a pH between 4.2 to 4.6.” to put the claim into proper English.
Appropriate correction is required.
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 1, 2, and 17 – 19 are 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.
Claims 1, 2, 18, and 19 recite the limitation "the modified starch" which renders the claim indefinite. There is insufficient antecedent basis for this limitation in the claims. It is unclear what part of the invention is considered to be the “modified starch”. For the purpose of examination, the “modified starch” is interpreted to be the starch recited in line 2 of claim 1.
Claim 1 recites the limitation "the final product" in line 8 which renders the claim indefinite. There is insufficient antecedent basis for this limitation in the claim. It is unclear what part of the invention of claim 1 is considered to be the “final product”. For the purpose of examination, the “final product” is interpreted to be a fermented or acidified milk product with a pH below 5.0 comprising the precisely claimed colloidal microcrystalline cellulose and starch in a weight ratio between 1:1.25 to 1:7.
Claim 17 is rejected as dependent on a rejected base claim.
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
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, 17, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Braverman (US Patent No. 4,264,637), as evidenced by Pharma Excipients (Pharma Excipients. Avicel RC-591. Pharma Excipients. (2025). Retrieved from: https://www.pharmaexcipients.com/product/avicel-rc-591/ - Filed with Remarks on July 22, 2025)
Regarding claim 1, Braverman teaches a stabilizer composition comprising activated microcrystalline cellulose (MCC – i.e., colloidal microcrystalline cellulose) and a modified starch for use in a frozen confectionery composition (Abstract; col. 7, lines 33 – 39). Braverman teaches the MCC is Avicel RC-591 (col. 7, lines 29 – 35 and lines 64 – 68). Braverman teaches the ranges in weight percent of the stabilizers in the frozen confectionery compositions are 0.5 to 5% MCC and 0.5 to 4% modified starch (col. 8, lines 35 – 39). A combination of 1.2% MCC and 1.0% modified starch would correspond with a ratio of 1:0.83 MCC to modified starch, while a combination of 0.5% MCC and 4% modified starch would correspond with a ratio of 1:8 MCC to modified starch. Braverman teaches the stabilizer composition may be used in a frozen confectionery composition with a pH of 3 – 5 and comprises an opacity-, milkiness-, or turbidity- producing agent such as a milk product (Abstract; col. 5, lines 22 – 24).
With respect to the preamble of claim 1: “A composition for fermented or acidified milk products”, MPEP § 2111.02.II teaches, “[i]f the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” In the instant case, the noted preamble merely states the purpose or intended use of the claimed composition. Therefore, the preamble does not further limit the claim.
With respect to the range of MCC to modified starch ratios, 1:0.83 to 1:8, as disclosed by Braverman, which overlaps with the claimed range of 1:2.5 to 1:7, MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
While Braverman does not teach the colloidal microcrystalline cellulose is produced by co-processing microcrystalline cellulose with carboxymethyl cellulose, this recitation is directed toward a method of production of the product of claim 1. MPEP § 2113.I teaches even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. Therefore, the structure implied by the process steps of claims 1 have been considered when assessing the patentability of the product. The structure implied by “the colloidal microcrystalline cellulose is produced by co-processing microcrystalline cellulose with carboxymethyl cellulose” is interpreted to be the colloidal microcrystalline cellulose is a blend of microcrystalline cellulose and carboxymethyl cellulose.
As evidenced by Pharma Excipients, the MCC of Braverman, Avicel RC-591 is a colloidal blend of microcrystalline cellulose and carboxymethylcellulose sodium (i.e., a blend of microcrystalline cellulose and carboxymethyl cellulose). Therefore, the MCC of Braverman is a blend of microcrystalline cellulose and carboxymethyl cellulose.
With respect to the recitation “the colloidal microcrystalline cellulose being present in an amount of 0.3 – 1.2% by weight of the final product on a weight-to-weight basis and the modified starch is present in an amount of 1.0-4.0% by weight of the final product on a weight-to weight basis”, this recitation is deemed to be an intended use in so far as the structure of the product is concerned. A claimed intended use must result in structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2111.02. The weight fractions of the components of the composition for fermented or acidified milk products in a final product such as a fermented or an acidified milk product with a pH below 5.0 do not limit the weight fractions of the components of the composition for fermented or acidified milk products as recited in claims 1, especially in light of the limitation of the ratio of MCC to modified starch. Therefore, the recitation “the colloidal microcrystalline cellulose being present in an amount of 0.3 – 1.2% by weight of the final product on a weight-to-weight basis and the modified starch is present in an amount of 1.0-4.0% by weight of the final product on a weight-to weight basis” does not further limit the claim.
With respect to the recitation “wherein the composition is added prior to homogenization and pasteurization followed by fermentation of milk to produce a fermented or an acidified milk product with a pH below 5.0”, this recitation is deemed to be an intended use in so far as the structure of the product is concerned. A claimed intended use must result in structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2111.02. In this case, the fact that the stabilizer composition of Braverman comprises the precisely claimed ratio of the precisely claimed MCC to modified starch, and is known to be usable in frozen confections comprising milk with pH 3 – 5, the stabilizer composition of Braverman would have been suitable for use in a fermented or an acidified milk product with a pH below 5.0 before the effective filing date of the invention.
Regarding claim 17, with respect to the recitation “the composition is added prior to homogenization, pasteurization and fermentation of milk is homogenized at 200 Bar pressure, pasteurized at 95 °C for six minutes and fermentation at a pH between 4.2 to 4.6”, this recitation is deemed to be an intended use in so far as the structure of the product is concerned. A claimed intended use must result in structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2111.02. In this case, the fact that the stabilizer composition of Braverman comprises the precisely claimed ratio of the precisely claimed MCC to modified starch, and is known to be usable in frozen confections comprising milk with pH 3 – 5, the stabilizer composition of Braverman would have been suitable for use in a fermented or an acidified milk product produced by a process comprising the steps of adding the composition for fermented or acidified milk products prior to homogenization, pasteurization and fermentation of milk, homogenizing at 200 Bar pressure, pasteurizing at 95 °C for six minutes and fermenting at a pH between 4.2 to 4.6.
Regarding claim 18, with respect to the recitation “the colloidal microcrystalline cellulose is present in an amount of 0.4-0.9% on a weight-to-weight basis and the modified starch is present in an amount of 2.5 % by weight of the final product on a weight-to weight basis”, this recitation is deemed to be an intended use in so far as the structure of the product is concerned. A claimed intended use must result in structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. See MPEP § 2111.02. The weight fractions of the components of the composition for fermented or acidified milk products in a final product such as a fermented or an acidified milk product with a pH below 5.0 do not limit the weight fractions of the components of the composition for fermented or acidified milk products as recited in claim 1 or 18, especially in light of the limitation of the ratio of MCC to modified starch. Therefore, the recitation “the colloidal microcrystalline cellulose being present in an amount of 0.4 – 0.9% by weight of the final product on a weight-to-weight basis and the modified starch is present in an amount of 2.5% by weight of the final product on a weight-to weight basis” does not further limit the claim.
Claims 2 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Braverman (US Patent No. 4,264,637), as evidenced by Pharma Excipients (Pharma Excipients. Avicel RC-591. Pharma Excipients. (2025). Retrieved from: https://www.pharmaexcipients.com/product/avicel-rc-591/ - Filed with Remarks on July 22, 2025), A. E. Staley (A. E. Staley in Wikipedia. Retrieved April 16, 2025 from https://en.wikipedia.org/wiki/A._E._Staley), Tate & Lyle (Tenderfil 8 Material Safety Data Sheet. Tate & Lyle. (2023) Retrieved on April 16, 2025 from https://gather.tracegains.com/5ab67652-f717-4916-bbf7-200e492fe0a7/marketplace/item/d0d2ad03-d978-4e32-81a5-62d81294f641), NCBI (PubChem Compound Summary for CID 24847848, Hydroxypropyl distarch phosphate. Retrieved April 16, 2025 from https://pubchem.ncbi.nlm.nih.gov/compound/24847848), and FSA (Approved additives and E numbers. Food Standards Agency. (2025) Retrieved April 16, 2025 from https://www.food.gov.uk/business-guidance/approved-additives-and-e-numbers).
Regarding claim 2, Braverman teaches the modified starch is a modified tapioca starch (col. 8, line 38). Braverman teaches the modified tapioca starch is Staley’s Tender Fil 8 (Table 2). As evidenced by A. E. Staley, Tate & Lyle acquired A. E. Staley in 1988 (p. 2, paragraph 4). As evidenced by Tate & Lyle, NCBI, and FSA, Tate & Lyle Tenderfil 8 has CAS number 53124-00-8 (Tate & Lyle – p. 1, 1.1 Product Identifier, CAS Number), which is hydroxypropyl distarch phosphate (NCBI – p. 1, Title; p. 4, 2.3.1 CAS), also known as E1442 (FSA – p. 10, E1442).
Regarding claim 19, Braverman teaches the MCC is Avicel RC-591 (col. 7, lines 29 – 35 and lines 64 – 68). Braverman teaches the modified starch is a modified tapioca starch (col. 8, line 38). Braverman teaches the modified tapioca starch is Staley’s Tender Fil 8 (Table 2). As evidenced by A. E. Staley, Tate & Lyle acquired A. E. Staley in 1988 (p. 2, paragraph 4). As evidenced by Tate & Lyle, NCBI, and FSA, Tate & Lyle Tenderfil 8 has CAS number 53124-00-8 (Tate & Lyle – p. 1, 1.1 Product Identifier, CAS Number), which is hydroxypropyl distarch phosphate (NCBI – p. 1, Title; p. 4, 2.3.1 CAS), also known as E1442 (FSA – p. 10, E1442).
While Braverman does not explicitly state the colloidal microcrystalline cellulose of the stabilizer composition comprises the microcrystalline cellulose co-processed with the carboxymethyl cellulose (CMC) such that carboxylated moieties extend into an aqueous phase and form a three-dimensional network stabilized by electrostatic repulsion, the instant specification states “Avicel colloidal microcrystalline cellulose is produced by proprietary processes, covered by several patents including US20130090391A1 and W02013052114A1, where insoluble colloidal-size, rod-shaped microcrystalline cellulose particles are co-processed with a suitable soluble hydrocolloid like carboxymethyl cellulose (CMC), but not limited to CMC. This causes the unsubstituted moieties of the CMC to be connected to the insoluble, rod-shaped microcrystalline cellulose particles through hydrogen bonds, extending the carboxylated moieties of the CMC molecule into the solution. This causes a three-dimensional network to be established in the solution, very much kept in suspension by the electrostatic repulsion of the carboxyl groups, as indicated in fig. 1. The characteristics of the 3-dimensional network of colloidal AVICEL includes a short texture, thixotropy and heat stability, and due to these properties the colloidal AVICEL has been considered a unique multi-functional stabilizer for now more than 50 years in applications like neutral beverages, frozen desserts, whipping creams and dairy and non-dairy cooking creams” (p. 3, lines 16 – 29). Therefore, because the stabilizer composition of Braverman comprises an Avicel MCC, as in the composition of the instant application, the colloidal microcrystalline cellulose of the stabilizer composition of Braverman inherently features carboxylated moieties that extend into an aqueous phase and form a three-dimensional network stabilized by electrostatic repulsion. MPEP § 2112.01.I states where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In this case, the stabilizer composition of Braverman and the instant composition for fermented or acidified milk products are identical in composition, therefore they inherently have the same properties, including the precisely claimed extension of carboxylated moieties into an aqueous phase thereby forming a three-dimensional network stabilized by electrostatic repulsion. Furthermore, MPEP § 2112.I states “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer”. In this case, the fact that Braverman is silent with respect to the behavior of the colloidal microcrystalline cellulose in the of the stabilizer composition does not render novel the previously unappreciated precisely claimed behavior of the colloidal microcrystalline cellulose.
While Braverman does not explicitly state the modified starch of the stabilizer composition is present as a protective colloid effective to inhibit collapse of said three-dimensional network in an environment having acids or cations or both, the instant specification states “the starch will secure that the colloidal MCC/CMC network, stabilized through electrostatic repulsion from the carboxyl groups, stays intact, as neutralization of the negative charges through the addition of acids and/or cat-ions in the presence of a protective colloid like starch will not cause the network to collapse, also known as flocculation.” (p. 8, lines 19 – 23; Figure 3). The instant specification also states “As described in the examples, the colloidal microcrystalline cellulose powder and the modified starch (E1442) are added to the milk prior to the homogenization at 200Bar.” (p. 9, lines 3 – 4). Therefore, because the stabilizer composition of Braverman comprises an Avicel MCC and the modified starch E1442 within the precisely claimed ratios of the instant application, the modified starch of the stabilizer composition of Braverman is inherently present as a protective colloid effective to inhibit collapse of said three-dimensional network in an environment having acids or cations or both. MPEP § 2112.01.I states where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In this case, the stabilizer composition of Braverman and the instant composition for fermented or acidified milk products are identical in composition, therefore they inherently have the same properties, including the modified starch’s ability to inhibit collapse of the three-dimensional structure produced by the MCC. Furthermore, MPEP § 2112.I states “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer”. In this case, the fact that Braverman is silent with respect to the behavior of the modified starch in combination with MCC of the stabilizer composition does not render novel the previously unappreciated precisely claimed behavior of the modified starch in combination with MCC.
Response to Arguments
Applicant's arguments filed February 26, 2026 have been fully considered but they are not persuasive.
Applicant argues Braverman fails to teach or suggest the features of Claim 1 as amended (p. 8, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. See the rejection of claim 1 over Braverman above.
Applicant argues a person of ordinary skill in the art would not look to Braverman for application to fermented or acidified milk products (p. 8, paragraph 4).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that a person of ordinary skill in the art would not look to Braverman for application to fermented or acidified milk products, 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. In this case, the use of the stabilizer composition of Braverman, which encompasses the composition of claim 1 in structure, for fermented or acidified milk products, does not modify the structure of the stabilizer composition of Braverman in any way that would cause one of ordinary skill in the art to not look to Braverman to create the composition of claim 1.
Applicant argues there is a one-step process wherein the colloidal microcrystalline cellulose powder and the starch are mixed with milk and water prior to homogenization and pasteurization followed by cooling to the inoculation temperature, addition of the starter culture, and the fermentation itself (p. 8, paragraph 5).
Applicant’s argument has been carefully considered however the argument is not persuasive. 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., the colloidal microcrystalline cellulose powder and the starch are mixed with milk and water) are not recited 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). Furthermore, in response to applicant's argument that the composition is homogenized and pasteurized followed by cooling to the inoculation temperature, addition of the starter culture, and fermented when added to milk, 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. In this case, the addition of the composition to milk is an intended use, and any process steps recited as a part of the intended use (such as homogenization, pasteurization, and fermentation) are also considered to be intended uses of the composition.
Applicant requests the Office reconsider the reasoning provided with respect to the range of ratios of MCC to starch taught by Braverman (p. 9, paragraphs 2 – 5).
Applicant’s argument has been carefully considered however the argument is not persuasive. As recited in claim 1, “a combination of colloidal microcrystalline cellulose and a starch in a weight ratio between 1:2.5 to 1:7”, one of ordinary skill in the art would have interpreted such language to mean 1 MCC for every 2.5 starch by weight to 1 MCC for every 7 starch by weight because the recitation of claim 1 lists MCC first, then starch. If Applicant wishes to alter the broadest reasonable interpretation of claim 1, an amendment to claim 1 which makes clear the intended interpretation would resolve this issue. As currently interpreted, Braverman teaches the ranges in weight percent of the stabilizers in the frozen confectionery compositions are 0.5 to 5% MCC and 0.5 to 4% modified starch (col. 8, lines 35 – 39). A combination of 5% MCC and 0.5% modified starch would correspond with a ratio of 1:0.1 MCC to modified starch, while a combination of 0.5% MCC and 4% modified starch would correspond with a ratio of 1:8 MCC to modified starch. Braverman does not teach the ratio of MCC to starch is limited to 1.10 to 1.8, as alleged by Applicant.
Applicant argues the specification teaches a critical weight ratio of 1:2.5 to 1:7 because a ratio outside the range will not produce a desired fermented or acidified milk product with the desired texture and sensory attributes required by consumers (p. 9, paragraph 6).
Applicant’s argument has been carefully considered however the argument is not persuasive. 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., a desired fermented or acidified milk product with the desired texture and sensory attributes required by consumers) are not recited 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).
Applicant argues the gradual addition of colloidal microcrystalline cellulose using exemplary Avicel GP 3212 increased viscosity and enhanced greater visual appeal such as increased shininess (p. 10, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. 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., increased viscosity and enhanced greater visual appeal such as increased shininess) are not recited 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).
Applicant argues a ratio of 1:10 is disfavored because such a ratio will not work for fermented or acidified milk products (p. 10, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. Braverman does not teach a ratio of 1:10 MCC to modified starch.
Applicant argues the results of the examples show the surprising and unexpected results of a critical range (a ratio of 1:2.5 to 1:7 of MCC to starch) and parameters to make a yoghurt visually appealing by displaying shininess and increased viscosity in order to provide premium feel for consumers (p. 10, paragraphs 4 and 5).
Applicant’s argument has been carefully considered however the argument is not persuasive. The results presented in the instant specification are not commensurate with the claims. While the examples are directed to a composition comprising a colloidal MCC, starch, and a fermented and acidified milk product (yogurt), the examples are only concerned with one type of MCC, one type of starch, and one type pf fermented/ acidified milk product. Additionally, while claim 1 recites the intended use for the instant invention is for use in fermented or acidified milk products, this intended use is not limiting. Therefore, claim 1 encompasses any composition comprising the precisely claimed combination of colloidal MCC and starch, regardless of whether the composition is used in combination with a fermented or acidified milk product. These scenarios are not shown in the examples. Because the examples in the specification are not commensurate with the claims, the evidence relied upon has not established that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance. See MPEP 716.02(b).
Applicant argues there is no teaching or suggestion for a person of ordinary skill in the art to use the claimed specific ratio of 1:2.5 to 1:7 in view of the surprising and unexpected results of texture enhancement in fermented or acidified milk products and use of a different MCC in Braverman (p. 11, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the MCC and starch composition of the instant invention is for texture enhancement in fermented acidified products, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). 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., the composition provides texture enhancement) are not recited 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). Furthermore, as stated in paragraph 49 above, the results provided in the examples do not show unexpected or surprising results that are commensurate with the scope of the claims.
Applicant argues one of ordinary skill in the art would have no reason to modify Braverman from using activated MCC to colloidal MCC in view of the distinct properties (“chewiness” in frozen products in Braverman) for use in fermented or acidified products such as yoghurt (p. 11, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. While the instant invention and Braverman use different Avicel MCCs, both MCCs are colloidal MCCs. As evidenced by Pharma Excipients, the MCC used in the disclosure of Braverman (Avicel RC-591) is a colloidal MCC (p. 1, paragraph 1). Therefore, one of ordinary skill in the art would not have needed to have been motivated to modify the MCC of Braverman to match the colloidal microcrystalline cellulose limitation in claim 1. MPEP § 2112.01.I states where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In this case, the MCC of Braverman and the instant MCC are identical in composition as recited in claim 1, therefore they inherently have the same properties, including the suitability for use in fermented or acidified milk products.
Applicant argues, with respect to the intended use of the claimed composition in acidified milk products, one of ordinary skill in the art must have a rational reason to modify the prior art with a reasonable expectation of success (p. 11, paragraph 4).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that one of ordinary skill in the art must have a rational reason to modify the prior art with a reasonable expectation of success, 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. In this case, the acknowledgment of the ability of the stabilizer composition of Braverman to be usable in acidified milk products due to evidence of its suitability for the intended purpose of claim 1 and its identical structure to the composition of claim 1 does not introduce a modification to the composition of Braverman, it is merely supporting the conclusion that two identical compositions would be suitable for the same function.
Applicant argues Braverman uses MCC with stabilizers such as alginate or xanthan gum (p. 11, paragraph 5).
Applicant’s argument has been carefully considered however the argument is not persuasive. The composition of claims 1, 2, and 17 – 19 use the transitional phrase “comprising” which allows for the inclusion of additional components in the composition including alginate or xanthan gum. There is no suggestion that the inclusion of alginate or xanthan gum in the stabilizer composition of Braverman renders the stabilizer composition unsuitable for the intended use in fermented or acidified milk products.
Applicant argues a person of ordinary skill in the art would not have a reason not have a motivation to modify Braverman with Kosikowski (p. 12, paragraph 1).
Applicant’s argument has been carefully considered however the argument is not persuasive. Applicant’s arguments with respect to Kosikowski 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.
Applicant argues none of the references in combination teach the combination of colloidal microcrystalline cellulose and starch which is added pre-pasteurization and pre-fermentation (p. 12, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the combination of colloidal microcrystalline cellulose and starch which is added pre-pasteurization and pre-fermentation, 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. In this case, the addition of the composition to milk is an intended use, and any process steps recited as a part of the intended use (such as pasteurization and fermentation) are also considered to be intended uses of the composition.
Conclusion
No claims are allowed.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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