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 applicant’s submission dated October 24, 2025. Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
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.
Claims 1, 3, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Blaak et al. (US 20190275076 A1).
With respect to Claim 1, Blaak et al. teaches a dietary fiber composition comprising a combination of one or more inulin-type fructans. [0022] Blaak et al. teaches that embodiments are envisaged wherein the inulin-type fructan comprises a combination, such as a combination of short and long chain inulin products. [0032] Blaak et al. also teaches that inulin can be derived from chicory roots. [0029] This teaching reads on the limitation of a plant-based texturizing fiber comprising a combination of long and short chain inulin.
Blaak et al. teaches a preferred embodiment of the invention, wherein the degree of polymerization of the long chain inulin is at least 20 and less than 60 [0028] and the degree of polymerization of the short chain inulin is within the range of 6-10. [0030] This reads on the limitation of the long chain inulin having a DP of greater than 20 and the short chain having a DP of less than 12.
Additionally, Blaak et al. teaches that the short chain inulin can comprise at least 60% of the inulin composition [0028] and that the whole composition may contain resistant starch such that the ratio of inulin to starch is between 1/5 and 10/1. [0050] A composition comprising short and long chain inulin as taught by Blaak et al. wherein the short chain inulin is 60% of the composition and the ratio of inulin to starch is between 1/5 and 10/1 would comprise about 60% short chain inulin, 30% long chain inulin, and 10% starch, resulting in a short to long chain inulin ratio of 2:1.
According to the MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” The ratio of short to long chain inulin taught by Blaak et al. overlaps with the ratio recited in claim 1, and therefore reads on the limitation of the ratio of short to long chain inulin being between 1:0.15-2:1.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Blaak et al. to produce a plant-based, texturizing fiber composition comprising short and long chain inulin at a ratio between 1:0.15 to 2:1, wherein the short chain inulin has a DP of less than 12 and the long chain inulin has a DP of greater than
With respect to Claim 3 and 8, Blaak et al. teaches the composition recited in claim 1, as detailed above. Additionally, Blaak et al. teaches a preferred embodiment of the invention, wherein the degree of polymerization of the long chain inulin is between 22-29 [0028] and the degree of polymerization of the short chain inulin is within the range of 6-10. [0030]. Therefore, Blaak et al. teaches the invention recited in claims 3 and 8.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Blaak et al. (US 20190275076 A1) in view of Nguyen et al. (Tribological method to measure lubricating properties of dairy products, Journal of Food Engineering).
With respect to Claim 22, Blaak et al. teaches a fiber composition as set forth above with regard to claim 1. Blaak et al. teaches that the composition may be added to nutritional drinks and other fortified beverages [0101] and that the composition is beneficial for the treatment of weight conditions such as obesity. [0021]
Blaak et al. is silent to the friction coefficient of the composition.
Nguyen et al. presents a study of tribology motivated by the growing interest in its ability to ascertain the properties of food during consumption, [Abstract] specifically with respect to fluid viscosity and the coefficient of friction [Page 28, Col. 1, Par. 3] in dairy and non-dairy products. [Page 28, Col. 2, Par. 1] Nguyen et al. tests the viscosity and friction coefficient of milk with fats of 0.1%, 1.3%, 2.0%, 3.8%, and 4.9%. [Table 1] The results show that the friction of coefficient for all milk samples at 10mm/s are within 0.2 to 0.6. [Fig. 7]
Blaak et al. and Nguyen et al. exist within the same field of endeavor in that they are both related to food compositions. Wherein Blaak et al. teaches a fiber composition comprising short and long chain inulin, Nguyen et al. teaches the physical properties of dairy milk, including the coefficient of friction.
One would have been motivated to combine these references in order to produce a plant-based fiber composition that would be able to deliver the health benefits provided by long and short chain inulin as taught by Blaak et al. comprising the desirable properties of dairy milk as taught by Nguyen et al.
Additionally, a plant-based dairy composition comprising the fiber taught by Blaak et al. would have a coefficient of friction taught by Nguyen et al. of between 0.2 and 0.6 at 10 mm/s, which reads on the limitation recited in claim 15. According to the MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.”
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have produced a plant-based, texturized fiber composition comprising short and long chain inulin, as taught by Blaak et al., wherein the coefficient of friction is between 0.2 and 0.6 at 10 mm/s by utilizing the teaching Nguyen et al.
Response to Arguments
Applicant’s arguments, see Page 3, Lines 24-27 through Page 4, Lines 1-2, filed October 24, 2025 with respect to the rejections of claims 1-3, 7, and 8 under 35 U.S.C. 102(a)(1) have been fully considered. However, upon further consideration, a new ground of rejection is made in view of Blaak et al.
Applicant asserts on Page 5, Lines 6-8, “Unlike Blaak et al., which uses inulin to modulate gut microbiota and SCFA production, the present invention uses a specific ratio blend of short to long chain inulin to replicate the mouthfeel and friction profile of dairy milk”.
Applicant is reminded that, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims.” Applicant’s assertion that the composition of the instant invention is used to modify the organoleptic properties of dairy milk, that is not a limitation recited in the claims.
Additionally, the composition taught by Blaak et al. reads on the composition recited in claim 1 of the instant invention, as described in the rejection of claim 1 above. According to MPEP 2145 II, “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” The composition of Blaak et al. would have had the same latent properties of the instant invention due to its identical composition. For these reasons, applicant’s assertion are found to be unpersuasive.
Applicant asserts on Page 5, Lines 11-13, that, “there is no reason one of ordinary skill in the art would attempt to modify the teachings of Blaak et al., to achieve the plant-based texturizing fiber composition of the present invention”. Applicant is directed to the rejection of claim 1 above, wherein no modification is made to Blaak et al. in order to render claim 1 obvious. Therefore, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Page 5, Line 17, that, “Blaak et al. teaches ratios of inulin to resistant starch, not short to long chain inulin” (emphasis applicant’s) and on Lines 21-22, that, “there is no disclosure provided in Blaak et al., regarding such a combination of short and long chain inulins with those specific percentages”. Applicant asserts again on Lines 24-25 that, “there again is no teaching of suggestion regarding the specific ratio of the short to long chain inulins”.
According to MPEP 2144.01, “in considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom”.
Blaak et al. does not teach a specific ratio of short to long chain inuline, but Blaak et al. does teach that the short chain inulin can comprise at least 60% of the inulin composition [0029] and that the whole composition may contain resistant starch such that the ratio of inulin to starch is between 1/5 and 10/1. [0050] Blaak et al. teaches that embodiments are envisaged wherein the inulin-type fructan comprises a combination, such as a combination of short and long chain inulin products. [0032]
One of ordinary skill in the art would have been able to envisage a product that is short and long chain inulin with starch, wherein the ratio of inulin to starch is 10/1 and the short chain inulin is 60% of the inulin. One of ordinary skill in the art would be able to infer from that teaching that the remaining amount of inulin would comprise long chain inulin, and that it would be about 30%, resulting in a ratio of short to long chain of 2:1.
For this reason, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Page 5, Line 26-27 and 29, that Blaak et al. teaches, “the long-chain inulin is defined as having a DP with a range of 6-80” and “short-chain inulin is defined as having a DP with a range of 2-35”. Blaak et al. teaches a broad understanding of short and long chain inulin, but applicant is directed toward the preferred embodiments of Blaak et al. that more closely teach the intended invention of Blaak et al.
Blaak et al. teaches a preferred embodiment of the invention, wherein the degree of polymerization of the long chain inulin is between 22-29 [0028] and the degree of polymerization of the short chain inulin is within the range of 6-10. [0030]. These values fall within the claimed range, and therefore render the claimed range obvious in light of the prior art. For this reason, applicant’s argument is found to be unpersuasive.
Applicant asserts on Page 6, Lines 22-23, that “the claimed composition yields unexpectedly improved properties not present in the prior art”, supporting said assertion with date presented in Example 5, concluding on Page 7, Lines 6-7, that, “this texture and mouthfeel was achieved using specific combinations and ratios of short and long inulin fibers”.
Blaak et al. teaches the composition recited in claim 1, as described in the rejection above. According to MPEP 2145 II, “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” The composition of Blaak et al. would have had the same latent properties of the instant invention due to its identical composition. For this reason, applicant’s assertion are found to be unpersuasive.
Applicant asserts on Page 7, Lines 19-20, that “The present invention achieves [the claimed friction coefficient] through a novel inulin blend, which Nguyen does not disclose or suggest”. Applicant’s assertion that Nguyen et al. does not teach the limitation of claim 22 amounts to an attack on the reference individually.
According to MPEP 2145 IV, “One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”. Nguyen et al. is used in combination with Blaak et al. in order to demonstrate that it would have been obvious to modify the friction coefficient of a beverage in order to achieve desired organoleptic properties. For this reason applicant’s assertion is found to be unpersuasive.
In light of the above responses, the rejections of claims 1, 3, 8, and 22 are maintained.
Conclusion
Applicant's amendment necessitated the new ground 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.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791