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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/2/2026 has been entered.
Claim Objections
Claims 4,5,7 are objected to because of the following informalities: Claims 4,5, and 7 should recite “calorie content”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5 and 9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 5 is dependent from claim 2, which has been canceled.
Claim 9 recites “at least one material selected from the group consisting of a sugar, a thickener, gluten, egg white, a colorant, and a nutrient, wherein the nutrient comprises a vitamin and calcium.”
It is unclear if both vitamin and calcium are required if a nutrient is present. The claim recites “nutrient” as singular but then lists two different components.
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.
Claim(s) 1,3-5,7-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kormelink(WO 2013/072888) in view of Seib(WO 9854973).
Regarding claims 1,3,8, Kormelink teaches a dried granular extruded product that comprises at least 10wt% resistant starch and 30-45wt% non-resistant rice starch on a dry basis(p.9, last paragraph; example; p.11, 4th paragraph, claim 1). Kormelink describes the composition as a “rice-like grain”(p.5, line 6). Kormelink teaches that the granular composition contain protein inherently present in the cereal and dietary fiber(p.9, line 1-3). Protein inherently contains amino acids.
Kormelink teaches that the non-resistant starch can be in the form of high amylose starch(p.13, 1st paragraph), which is known in the art to contain at least 25wt% amylose content.
Kormelink is silent on the calorie content of the granular composition and the resistant starch. However, Seib teaches resistant starch compositions that contain zero calories(p.2, line 31-p.3, line 3). The resistant starch is preferably in the form of distarch phosphates of high amylose starches(abstract). Note these are the same starches that applicant classifies as having zero calories in the instant spec. It would have been obvious to use resistant starches in the form of distarch phosphates of high amylose starches in Kormelink as taught in Seib since they contribute 0 kcals to the composition.
Regarding claims 4 and 5, Kormelink teaches a dried granular extruded product that comprises at least 10wt% resistant starch and 30-45wt% non-resistant starch on a dry basis(p.9, last paragraph; example; p.11, 4th paragraph, claim 1). Seib renders obvious using 0kcal/g resistant starch. The applicant states in the arguments that rice starch has a calorie content of 168kcal/100g. Therefore, assuming 30% non-resistant starch and 70% resistant starch, the composition would have 50kcal per 100g, which is less than 135kcal per 100g
Regarding claim 7, Kormelink teaches a dried granular extruded product that comprises at least 10wt% resistant starch and 30-45wt% non-resistant rice starch on a dry basis(p.9, last paragraph; example; p.11, 4th paragraph, claim 1). Seib renders obvious using 0kcal/g resistant starch. Therefore, assuming 30% non-resistant starch and 70% resistant starch, the composition would have a calorie content of 50kcal per 100g. The applicant states in the arguments that non-resistant rice starch has a calorie content of 168kcal/100g. Therefore, the final product would have a calorie content of 30% of cooked rice prepared without the resistant starch.
Regarding claim 9, Kormelink teaches that the non-resistant starch can be in the form of cereal flour, such as wheat flour, which contains gluten(p.7, 4th full paragraph, p. 12, 3rd full paragraph).
Response to Arguments
Applicant's arguments filed 1/2/2026 have been fully considered but they are not persuasive.
The applicant argues that Kormelink does not specifically teach that the resistant starch contains 0kcal/100g. However, Seib teaches resistant starch compositions that contain zero calories. The resistant starch is preferably in the form of distarch phosphates of high amylose starches(abstract). Note these are the same starches that applicant classifies as having zero calories in the instant spec. It would have been obvious to use resistant starches in the form of distarch phosphates of high amylose starches in Kormelink as taught in Seib since they contribute 0 kcals to the composition.
Conclusion
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791