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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/7/2026 has been entered.
Claims 1-5, 7-17, and 19-23 are pending. Claims 1-5, 7-15, and 20-23 are withdrawn. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Information Disclosure Statement
The information disclosure statement filed 5/7/2026 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
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.
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 16, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Inglett (US 5082673) in view of Leemhuis (Isomalto/Malto-Polysaccharide, A Novel Soluble Dietary Fiber Made Via Enzymatic Conversion of Starch, DOI: 10.1021/jf503970a, November 2014).
Regarding Claims 16 and 19, Inglett teaches the incorporation of a soluble dietary fiber (Abstract) into dairy products (Column 4, Line 5) such as yoghurt (Column 8, Example 13) at 5% (Column 9, Table V), which lies within the claimed range of Claim 16. Regarding the limitation that the yogurt be “spoonable”, Inglett teaches that the viscosity of the yoghurt is 22,400 centipoise (Column 8, Line 28), which is 22,400 mPa∙s, which lies within the claimed range.
Inglett teaches a soluble fiber added to yoghurt but does not discuss the use of an isomalto/malto polysaccharide (IMMP) having an alpha (1,6) linkage content of at least 70% as the soluble fiber.
Leemhuis teaches a soluble dietary fiber (Page 12035, “Starches, Maltodextrins, and Other Carbohydrates”). The fiber is linear and contains up to 92% of alpha (1,6) linkages (Page 12042, Conclusion – 12043, Paragraph 1), which overlaps the claimed range. Leemhuis teaches that fibers are commonly incorporated into foods and improve the well-being of consumers (Page 12034, Column 1, Paragraph 2). Leemhuis additionally teaches that the soluble dietary fiber is appropriate for use as a dietary fiber and may have prebiotic effects (Page 12043, Paragraph 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify Inglett to incorporate the soluble dietary fiber of Leemhuis. One would have been motivated to make such a modification to utilize a soluble dietary fiber that may have a prebiotic effect.
Regarding Claim 17, Leemhuis teaches that the fiber is linear (Page 12042, Conclusion – 12043, Paragraph 1). Leemhuis additionally teaches that the fiber has linear moieties comprising at least four consecutive alpha (1,6) residues linked via an alpha (1,6) residue to at least two consecutively linked alpha (1,4) residues, as claimed (Page 12040, Figure 4).
Response to Arguments
Applicant’s arguments filed 5/7/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that the IMMP/IMO/MOS of the instant inventive yoghurt provide improvements in viscosity and shelf stability for the yoghurt, which is not suggested or predicted by the prior art.
This argument is not convincing. Note that the motivation to combine the teachings of the prior art, i.e., Inglett and Gibson, is not required to be the same as that of the instant Application.
Applicant additionally argues that isomalto/malto-polysaccharides are not interchangeable alternatives for the generally accepted prebiotic carbohydrates (e.g. fructans). Applicant additionally argues that Leemhuis introduces IMMPS as a novel dietary fiber, and one having ordinary skill would not have selected the fiber(s) of Lemmhuis in lieu of established prebiotic fibers.
This argument is not convincing. Where Leemhuis teaches the use of dietary fibers in foods, and teaches that IMMP is a dietary fiber appropriate for use in food, it would have been obvious to have utilized the fibers of Leemhuis in the yogurt of Inglett.
Applicant additionally argues that the prior art does not provide a reasonable expectation of success in regards to the technical effect of the instant inventive yoghurt, i.e. improvements in viscosity and texture.
This argument is not convincing. The motivation to combine the teachings of the prior art, i. e. Inglett and Gibson, is not required to be the same as that of the instant Application.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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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.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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