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 .
The amendment filed 1/7/2026 has been entered. Claims 1-22 are pending. Claims 13-17 are withdrawn. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
Claim(s) 1-12 and 18-22 are rejected under 35 U.S.C. 103 as being unpatentable over Dupas-Langlet (WO 2018/224539) in view of Yazdanpanah, et al. (“Egg-shell like structure in dried milk powders”, DOI: 10.1016/j.foodres.2010.11.019, November 2010) and Langrish (“Crystallization Rates for Amorphous Sucrose and Lactose Powders from Spray Drying: A Comparison”, DOI: 10.1080/07373930802716391, March 2009 )
Regarding Claims 1 and 2, Dupas-Langlet teaches an amorphous particle comprising a sweetener, a protein (which is a surface active agent), and a bulking agent (Page 3, Line 8). The particle comprises 5-70% sugar (Page 11, Line 21), 0.5-15% protein (Page 15, Lines 23-24), and 10-25% bulking agent (Page 12, Line 17).
Note that the amount of bulking agent lies within the claimed range. Note that the ratio of sugar to protein (i.e., surface active agent) ranges from 140:1 (or 70:0.5) to 0.3:1 (or 5:15), which overlaps the claimed range.
The particle is formed by blending sweetener, protein, and bulking agent with water (Page 17, Lines 23-25) and spray-drying the mixture (Page 17, Line 19).
Regarding the limitation that the bulking agent is coated with sugar and surface active agent, Dupas-Langlet teaches that the components of the particle are “distributed” through the particles (Page 15, Line 16-22), with higher concentrations of protein (i.e. a coating of protein) at the gas interfaces (i.e. internal and external surfaces). Dupas-Langlet therefore teaches that the bulking agent is coated with sugar and surface active agent, since a distributed mixture of sugar and bulking agent with a greater amount of sugar than bulking agent will result in a bulking agent coated with sugar.
Dupas-Langlet does not address a step of subjected the amorphous product to 5-60% relative humidity, or a step of heating to result in a crystalline product wherein 50-100% of the sugar is in crystalline form.
Yazdanpanah teaches that in a spray-dried milk power, lactose is present in an amorphous state. Yazdanpanah teaches that a spray-dried amorphous particle, treated to have a crystalline surface, retains the beneficial properties of both amorphous and crystalline particles (Introduction, last paragraph, Pages 39-40). Yazdanpanah teaches thermal treatment at 18-60% humidity and 50-100 °C (Page 41, Table 2) for production of such a particle (Page 41, Table 2).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize the treatment of Yazdanpanah for the particles of Dupas-Langlet. One would have been motivated to make such a modification since Yazdanpanah teaches that such a treatment results in a particle with advantageous properties.
Regarding the limitation of percent crystallinity, given that modified Dupas-Langlet teaches the limitations of the process as claimed, the process of modified Dupas-Langlet is interpreted to yield a product comprising the percent crystallinity content as claimed.
Yazdanpanah does not address whether the humidity and temperature conditions apply to non-lactose sugars.
Langrish teaches that lactose and sucrose have similar crystallization behavior and rates (Page 2, Lines 5-6).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize the process conditions of Yazdanpanah in the process of Dupas-Langlet for non-lactose sugars. One would have been motivated to make such a modification since Langrish teaches that lactose and sucrose have similar crystallization behavior, and the benefits of Yazdanpanah would therefore be expected to apply to the particle of Dupas-Langlet.
Regarding Claim 3, Dupas-Langlet teaches the addition of, e.g. wheat, pea, soy, and potato protein (Page 15, Lines 3-6), which are insoluble proteins.
Regarding Claim 4, Dupas-Langlet teaches that the particle contains a moisture content of 0.5-6% (Page 14, Line 15), which encompasses the claimed range.
Regarding Claims 5-7, 10, and 12, Yazdanpanah teaches thermal treatment at 18-60% humidity and 50-100 °C for 1 hour (Page 41, Table 2).
Regarding Claims 8, 9, and 22, Yazdanpanah teaches that particles must be heated above glass transition for crystallization to occur (Page 40, Section 2.2.). It would therefore have been obvious to have heated the particles to any temperature above the glass transition, including 5 °C or 10 °C above the glass transition.
Regarding Claim 11, Yazdanpanah teaches that the treatment occurs simultaneously in a fluidized bed (Page 40, Section 2.1).
Regarding Claim 18, Dupas-Langlet teaches the use of albumin proteins (Page 15, Line 5).
Regarding Claim 19, since Dupas-Langlet teaches a bulking agent (insoluble protein) which meets the limitation of Claim 3, the limitations of Claim 19 have also been met. With a view towards compact prosecution, Examiner notes that Dupas-Langlet teaches the use of insoluble dietary fibers in the particle (Page 12, Lines 20-21).
Regarding Claim 20, Dupas-Langlet teaches wheat, pea, soy, and potato protein (Page 15, Lines 3-6).
Regarding Claim 21, since Dupas-Langlet teaches a bulking agent (insoluble protein) which meets the limitation of Claim 3, the limitations of Claim 21 have also been met.
Response to Arguments
Applicant’s arguments filed 1/7/2026 have been fully considered but they are 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
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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