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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1, 2 and 13-18 in the reply filed on December 18, 2025 is acknowledged.
Claims 3-15, 18 and 19 are cancelled. Claims 20-31 are new. Claims 1, 2, 16, 17 and 20-31 are pending examination.
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. 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 § 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 1, 2, 20, 21, 24, 25, 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Vautier (WO 2006/130025).
Regarding clams 1, Vautier discloses an extruded protein product comprising at least one insoluble milk protein and a non-tuber starch (Abstract, [0007], [0017]). Vautier discloses the insoluble milk protein comprises of an insoluble whey protein stream insoluble whey protein concentrate, insoluble whey protein isolate, or mixtures thereof ([0020]-[0025]).
Given Vautier disclose an extruded protein product comprising at least 80% by weight total protein wherein the protein is insoluble milk protein ([0017]-[0018]), it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used any combination of the disclosed insoluble milk proteins, including casein and whey, in any proportion including where the protein content comprises from 15-35% by weight insoluble whey protein and from 65% to 85% by weight casein, and arrive at the present invention with a reasonable expectation of success.
While Vautier discloses the extruded protein product is a crisp having a crispy texture ([0044], [0045], [0050]/Example 2), the reference is silent with respect to bulk density.
Vautier discloses the extruded protein product is made by mixing the insoluble milk protein (i.e., whey protein and casein) with starch to form a homogenous blend; introducing the blend into a twin screw extruder, adding water into the extruder at a flow rate of 0.64 liters per hour; heating the blend in the extruder barrel to a temperature of 90°C; forcing the extrudate through 2 x 3.5 mm dies and cutting to produce small spherical crisp nuggets (i.e., high protein product -[0049]). Vautier discloses the final product quality is controlled by controlling water feed rate, dry product feed rate, screw speed (shear), barrel temperature and die size and workers of ordinary skill in the art of extrusion would have the ability to assess product quality and vary processing conditions accordingly ([0045]).
Given Vautier discloses a process of making an extruded product comprising whey protein and casein, substantially similar to the presently claimed, inherently the product would exhibit a bulk density in the broadly claimed range of 20 to 400 g/L. In the alternative, one of ordinary skill in the art would have been motivated to adjust, in routine processing, the extrusion parameters to obtain a product with desired quality characteristics including bulk density.
Regarding claims 2, Vautier discloses all of the claim limitations as set forth above. Vautier discloses the extruded products are dried at a temperature of at least about 25° to 150°C to obtain a crisp product with a crunchy texture ([0033], [0045], [0049]). Given Vautier discloses an extruded product substantially similar to the claimed high protein food, since Vautier discloses drying the product to obtain a crisp and crunchy textured product, inherently the product of Vautier would exhibit a moisture content in the broadly claimed range of 1 to 14% by weight. In the alternative, one of ordinary skill in the art would have been motivated to adjust, in routine processing, the drying time and temperature, to obtain a desired moisture content while maintaining the quality of the product texture.
Regarding claims 20 and 21, Vautier discloses all of the claim limitations as set forth above. Vautier discloses an extruded protein product comprising at least 80% by weight total protein wherein the protein is insoluble milk protein ([0017]-[0018]). Here at least 80% by weight total protein encompasses the claimed value of at least 90% protein by weight.
Regarding claims 24, 25, 28 and 29, Vautier discloses all of the claim limitations as set forth above. Vautier discloses the extruded protein product is a crisp having a crispy texture ([0044], [0045], [0050]/Example 2).
Claims 1, 2, 20, 21, 24, 25, 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Ning et al. (US 2008/0102165).
Regarding claims 1, 2, 20 and 21, Ning et al. disclose an extruded protein composition comprising about 90% protein by weight and about 10% starch by weight ([0018], [0036]). Ning et al. disclose the protein can be dairy protein selected from the group consisting of casein, caseinates, whey protein milk protein concentrate, milk protein isolate and mixtures thereof ([0020]). Ning et al. also disclose the extruded protein composition comprise other ingredient including sugars, starches, oligosaccharides, soy fiber and other dietary fibers, gluten and mixtures thereof ([0021]).
Given Ning et al. disclose an extruded protein composition comprising about 90% protein wherein the protein is a dairy protein, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used any combination of the disclosed dairy proteins, including casein and whey, in any proportion including wherein the protein content comprises from 15% to 35% by weight whey protein and from 65% to 85% by weight casein and arrive at the present invention with a reasonable expectation of success.
Ning et al. disclose the extruded protein composition has a bulk density of from 0.2 g/cm3 to 0.4 g/cm3 (i.e., 200-400 g/L – [0054]).
Ning et al. disclose the extruded protein composition has a moisture content of about 4% to about 15% ([0061]).
Regarding claims 24, 25, 28 and 29, Ning et al. disclose all of the claim limitations as set forth above. Ning et al. disclose the extruded protein composition is a crispy snack (i.e., crisp – [0007]).
While Ning et al. does not disclose the precisely claimed range for moisture content and bulk density, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Conclusion
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