DETAILED ACTION
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 July 13, 2026 has been entered. Claims 1, 2, 16, 17 and 20-31 are pending.
The previous rejection of claims 1, 2, 20, 21, 24, 25, 28 and 29 under 35 U.S.C. 103 as being unpatentable over Vautier (WO 2006/130025) and claims 1, 2, 20, 21, 24, 25, 28 under 35 U.S.C. 103 as being unpatentable over Ning et al. (US 2008/0102165) are withdrawn in light of Applicant’s amendment and remarks filed July 13, 2026.
Claim Objections
Claim 17 is objected to because of the following informalities: the recitation “(one percent)” after 1% in line 2 and 14% in line 3 is redundant. The recitation should be removed. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 16, 17, 22, 23, 26, 27, 30 and 31 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 16 requires the high protein food have a bulk density from about 0.2 g/ml to about 0.9 g/ml. Claim 1, from which claim 16 depends, requires the high protein food have a bulk density from 20 g/L to 400 g/L (i.e., 0.02 to 0.4 g/ml). Claim 16 does not further limit claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claims 17, 22, 23, 26, 27, 30 and 31 are rejected because they depend from a rejected claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 16, 17 and 24-27 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bouvier et al. (“Physical and rehydration properties of milk protein concentrates: comparison of spray-dried and extrusion-porosified powders”, Dairy Sci. & Technol., 93, (2013), pp. 387-399).
Regarding claims 1, 2, 16 and 17, Bouvier et al. disclose extruded milk protein concentrate (Abstract, p. 389/2.1 MPC Powders). Bouvier et al. disclose the extruded milk protein concentrate is in the form of a powder and exhibits very high dispersibility (Abstract, p. 389-389/2.2 Physical characterization of MPC powders).
Bouvier et al. disclose the extruded milk protein concentrate comprises (a) 86.7% w/w milk proteins wherein the milk proteins comprises about 20% whey protein and about 80% casein, (b) 4.1% w/w lactose, (c) 1.4% w/w fat; (d) 2% w/w ash; and (e) 5.8% w/w water (p. 389/2.1 MPC Powders). No other sources of protein or carbohydrate are reported.
Bouvier et al. disclose wherein the bulk density of the extruded milk protein concentrate is 215 kg/me (i.e., g/L).
Regarding claims 24-27, Bouvier et al. disclose all of the claim limitations as set forth above. Given Bouvier et al. disclose an extruded milk protein concentrate identical to the claimed high protein food, inherently the extruded milk protein concentrate would be considered a “crisp” high protein food.
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 20-23 and 28-31 are rejected under 35 U.S.C. 103 as being unpatentable over Bouvier et al. (“Physical and rehydration properties of milk protein concentrates: comparison of spray-dried and extrusion-porosified powders”, Dairy Sci. & Technol., 93, (2013), pp. 387-399).
Regarding claims 20-23, Bouvier et al. disclose all of the claim limitations as set forth above. While Bouvier et al. disclose an extruded milk protein concentrate comprising 86.7% w/w milk proteins, the reference is silent with respect to a protein content of at least 90% by weight. However, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP §2144.05 I). In this case one of ordinary skill would expect that a milk protein material comprising 86.7% w/w protein would behave the same as a milk protein material comprising 90% by weight protein when extruded.
Regarding claims 28-31, Bouvier et al. disclose all of the claim limitations as set forth above. Given Bouvier et al. disclose an extruded milk protein concentrate identical to the claimed high protein food, inherently the extruded milk protein concentrate would be considered a “crisp” high protein food.
Response to Arguments
Applicant's arguments with respect to the rejection of claims 16, 17, 22, 23, 26, 27, 30 and 31 under 35 U.S.C. 112(d) filed July 13, 2026, have been fully considered but they are not persuasive.
Applicant argues that because claim 1 does not require the high protein food to be in the form of a powder, claim 16 further limits claim 1. While claim 1 does not require the high protein food is powdered, claim 1 requires the high protein food have a bulk density in the range of 20 g/L to 400 g/L. Claim 16 requires the high protein food have a bulk density in the range of 0.2 to 0.9 g/ml (i.e., 200 to 900 g/L).
Applicant’s arguments with respect to the rejection of claims 1, 2, 16, 17 and 20-31 under 35 U.S.C. 103 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
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
