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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 25 November 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the objections to the claims have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-5, 7-13, and 15-17
Withdrawn claims: 10-13
Previously canceled claims: 14
Newly canceled claims: 6
Amended claims: 1-3 and 7
New claims: 15-17
Claims currently under consideration: 1-5, 7-9, and 15-17
Currently rejected claims: 1-5, 7-9, and 15-17
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-5, 7, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Dubois et al. (WO 2018/224542 A1).
Regarding claim 1, Dubois teaches amorphous porous particles with non-dairy proteins (see Example 4, p. 22, line 23 – p. 25, line 10), wherein a powder “K” is produced from 60% sucrose, 37% lactose (i.e., 97% of one or more carbohydrates) and 3 % pea protein (i.e., plant protein), and has a glass transition temperature (Tg) of 51.7°C (p. 23, lines 4-5 Table, “K”). The particles have a closed porosity of 43.9% (p. 23, lines 6-10 Table, “K”). The powder was prepared by dissolving the components in water, transferring to a vessel at a controlled temperature of 55°C and pumped at 100-130 bar, followed by injection of high pressure nitrogen at 0.5-2 NL/min for at least 10 minutes or until full dissolution of the gas, pre-heating at 60°C, and spray drying (p. 19, lines 3-9; p. 23, lines 1-3), thereby forming particles with closed pores with entrapped gas at above atmospheric pressure (see Fig. 5 K). The porous particles may be comprised within a beverage powder, i.e., as an ingredient (see claim 1).
Dubois further teaches that the proteins used in the particles may be potato proteins (p. 10, lines 6-23).
Therefore, Dubois teaches a porous soluble foaming ingredient having a closed porosity between 20 and 80% containing entrapped gas at above atmospheric pressure, the ingredient comprising 60 to 97 % on a dry weight basis of one or more carbohydrates; 3 to 40 % on a dry weight basis of plant protein; and wherein the plant protein is selected from the group consisting of pea protein, fava bean protein, chick pea protein, lentil protein, potato protein and combinations of these, and the porous soluble foaming ingredient has a glass transition temperature between 50 and 90°C, the porous soluble foaming ingredient is free from milk (lactose is not milk).
Dubois does not specifically discuss that the pores have a size distribution D3,2 between 0.1 and 40 µm.
However, Dubois teaches that the particles have bubbles or air channels (i.e., pores) of approximately 5-10 µm (p. 24, lines 1-6). Dubois also teaches that it is advantageous to have multiple small closed pores in the particles according to the invention because such a particle will retain its buoyancy for longer as it dissolves, and so has the capability to rise to the top of a beverage and form a concentration gradient of tastant (p. 6, lines 4-16). Pore size is thus a result-effective variable; more, smaller pores result in higher buoyancy and prolonged time at the surface, and fewer, larger pores result in a decreased buoyancy and less time at the surface. Therefore, from these teachings, one of ordinary skill in the art would conclude that for a given particle size, many small pores are desired. Increasing the number of pores while retaining particle size necessarily results in smaller pores. Dubois teaches that the particle size ranges from 5 to 70 microns (p. 24, lines 1-6).
MPEP § 2144.05(II)(A) states, “‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the pore size of the particles of Dubois by routine experimentation to provide a sufficient number of small closed pores in the particles such that the desired buoyancy is achieved, including to a D3,2 of between 0.1 and 40 µm as claimed. Although the D3,2 does not equate to average pore size directly, one of ordinary skill in the art would nonetheless achieve a D3,2 in the claimed range given the disclosed particle size range of 5 to 70 microns and the desire for multiple small closed pores in said particles.
As such, claim 1 is rendered obvious.
Regarding claim 2, Dubois teaches the porous soluble foaming ingredient of claim 1 as described above.
Dubois does not specifically teach that the ingredient is suitable for persons following a vegan diet. The composition in Example 4 “K” comprises lactose.
However, Dubois discloses that “some customers wish to avoid dairy products in their diet” (p. 10, line 27). One of ordinary skill in the art would also have been generally aware that some customers also wish to avoid animal products in their diet (i.e., vegans). The filler in Example 4 “K” is lactose, an animal product. Dubois teaches that suitable soluble fillers for the invention “may be selected from the group consisting of lactose, maltose, maltodextrins, soluble wheat or corn dextrin (for example Nutriose.sup.®), polydextrose, soluble fibre such as Promitor.sup.® and any combinations thereof” (p. 8, lines 22-25). Therefore, Dubois teaches other suitable non-animal product fillers. Dubois also teaches that the tastant (e.g., sucrose) is present in a range from 5 to 70% (p. 9, lines 8-10), the soluble filler is present in a range from 5 to 70% (p. 8, lines 7-21), and the protein is present in a range from 0.5 to 15% (p. 10, lines 24-26).
MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have selected ingredients from non-animal sources and adjust the amounts by routine experimentation such that the parameters including the porosity and glass transition temperature match those of particles containing animal products, such as those in Example 4, “K”. One of ordinary skill in the art would have been motivated to do so in order to provide a product suitable for vegans, thereby expanding the market for the product. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Dubois provides options for non-animal product fillers, and provides ranges for the ingredients in which to optimize to achieve desired physical properties, including porosity and glass transition temperature.
Claim 2 is therefore rendered obvious.
Regarding claim 4, Dubois teaches the porous soluble foaming ingredient of claim 1.
Dubois also teaches that the porous soluble foaming ingredient comprises less than 0.5 wt% fat – Example 4, “K” does not comprise fat, being comprised of 97% carbohydrates and 3% pea protein.
Claim 4 is therefore rendered obvious.
Regarding claim 5, Dubois teaches the porous soluble foaming ingredient of claim 1.
Dubois does not specifically discuss that the particles have a size distribution D3,2 between 10 and 500 µm.
However, Dubois discloses, “The microstructure of the particles was investigated by SEM analysis (Figure 5)...First, we observe that particles containing sodium caseinate and pea protein have a comparable structure. Particle size is between 5-70 microns.” (p. 24, lines 1-6). The particles are a spray-dried powder (p. 23, lines 1-3). Therefore, Dubois teaches a powder wherein the particles have particle size distribution from approximately 5-70 µm. More broadly, Dubois teaches that “the size of spray-dried particles with or without agglomeration may be increased by increasing the aperture size of the spray-drying nozzle” (p. 7, lines 22-35). Dubois teaches that “[t]he porous particles comprised within the beverage powder of the invention may have a particle size distribution D90 below 450 microns, for example below 140 microns, for further example between 30 and 140 microns. The porous particles comprised within the beverage powder of the invention may have a particle size distribution D90 of less than 90 microns, for example less than 80 microns, for further example less than 70 microns. The porous particles comprised within the beverage powder of the invention may have a particle size distribution D90 of between 40 and 90 microns, for example between 50 and 80 microns.” (p. 7, lines 6-13). Therefore, Dubois teaches that the D90 particle size can be anywhere below 450 microns, and the particle size can be adjusted based on design choice by adjusting the aperture size of the spray-drying nozzle.
MPEP § 2144.05(II)(A) states, “‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the size of the particles of Dubois by routine experimentation within the disclosed range of D90 of less than 450 µm to provide a powder with the desired properties when added to a beverage, such as time taken to dissolve. Although the D3,2 does not equate to D90 particle size directly, one of ordinary skill in the art would nonetheless achieve a D3,2 in claimed range of between 10 and 500 µm given the disclosed particle size range of less than 450 microns.
Claim 5 is therefore rendered obvious.
Regarding claim 7, Dubois teaches amorphous porous particles with non-dairy proteins (see Example 4, p. 22, line 23 – p. 25, line 10), wherein a powder “K” is produced from 60% sucrose, 37% lactose (i.e., 97% of one or more carbohydrates) and 3 % pea protein (i.e., plant protein), and has a glass transition temperature (Tg) of 51.7°C (p. 23, lines 4-5 Table, “K”). The particles have a closed porosity of 43.9% (p. 23, lines 6-10 Table, “K”). The powder was prepared by dissolving the components in water, transferring to a vessel at a controlled temperature of 55°C and pumped at 100-130 bar, followed by injection of high pressure nitrogen at 0.5-2 NL/min for at least 10 minutes or until full dissolution of the gas, pre-heating at 60°C, and spray drying (p. 19, lines 3-9; p. 23, lines 1-3), thereby forming particles with closed pores with entrapped gas at above atmospheric pressure (see Fig. 5 K). The porous particles may be comprised within a beverage powder, i.e., as an ingredient (see claim 1).
Dubois further teaches that the proteins used in the particles may be potato proteins (p. 10, lines 6-23).
Therefore, Dubois teaches soluble beverage powder comprising a porous soluble foaming ingredient having a closed porosity between 20 and 80% containing entrapped gas at above atmospheric pressure, the ingredient comprising 60 to 97 % on a dry weight basis of one or more carbohydrates; 3 to 40 % on a dry weight basis of plant protein; wherein the plant protein is selected from the group consisting of pea protein, fava bean protein, chick pea protein, lentil protein, potato protein and combinations thereof, the porous soluble foaming ingredient has a glass transition temperature between 50 and 90°C, the porous soluble foaming ingredient is free from milk (lactose is not milk).
Dubois does not specifically discuss that the pores have a size distribution D3,2 between 0.1 and 40 µm.
However, Dubois teaches that the particles have bubbles or air channels (i.e., pores) of approximately 5-10 µm (p. 24, lines 1-6). Dubois also teaches that it is advantageous to have multiple small closed pores in the particles according to the invention because such a particle will retain its buoyancy for longer as it dissolves, and so has the capability to rise to the top of a beverage and form a concentration gradient of tastant (p. 6, lines 4-16). Pore size is thus a result-effective variable; more, smaller pores result in higher buoyancy and prolonged time at the surface, and fewer, larger pores result in a decreased buoyancy and less time at the surface. Therefore, from these teachings, one of ordinary skill in the art would conclude that for a given particle size, many small pores are desired. Increasing the number of pores while retaining particle size necessarily results in smaller pores. Dubois teaches that the particle size ranges from 5 to 70 microns (p. 24, lines 1-6).
MPEP § 2144.05(II)(A) states, “‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the pore size of the particles of Dubois by routine experimentation to provide a sufficient number of small closed pores in the particles such that the desired buoyancy is achieved, including to a D3,2 of between 0.1 and 40 µm as claimed. Although the D3,2 does not equate to average pore size directly, one of ordinary skill in the art would nonetheless achieve a D3,2 in the claimed range given the disclosed particle size range of 5 to 70 microns and the desire for multiple small closed pores in said particles.
As such, claim 7 is rendered obvious.
Regarding claim 16, Dubois teaches the soluble beverage powder of claim 7.
Dubois also teaches that the porous soluble foaming ingredient comprises less than 0.5 wt% fat – Example 4, “K” does not comprise fat, being comprised of 97% carbohydrates and 3% pea protein.
Claim 16 is therefore rendered obvious.
Regarding claim 17, Dubois teaches the soluble beverage powder of claim 7.
Dubois does not specifically discuss that the particles have a size distribution D3,2 between 10 and 500 µm.
However, Dubois discloses, “The microstructure of the particles was investigated by SEM analysis (Figure 5)...First, we observe that particles containing sodium caseinate and pea protein have a comparable structure. Particle size is between 5-70 microns.” (p. 24, lines 1-6). The particles are a spray-dried powder (p. 23, lines 1-3). Therefore, Dubois teaches a powder wherein the particles have particle size distribution from approximately 5-70 µm. More broadly, Dubois teaches that “the size of spray-dried particles with or without agglomeration may be increased by increasing the aperture size of the spray-drying nozzle” (p. 7, lines 22-35). Dubois teaches that “[t]he porous particles comprised within the beverage powder of the invention may have a particle size distribution D90 below 450 microns, for example below 140 microns, for further example between 30 and 140 microns. The porous particles comprised within the beverage powder of the invention may have a particle size distribution D90 of less than 90 microns, for example less than 80 microns, for further example less than 70 microns. The porous particles comprised within the beverage powder of the invention may have a particle size distribution D90 of between 40 and 90 microns, for example between 50 and 80 microns.” (p. 7, lines 6-13). Therefore, Dubois teaches that the D90 particle size can be anywhere below 450 microns, and the particle size can be adjusted based on design choice by adjusting the aperture size of the spray-drying nozzle.
MPEP § 2144.05(II)(A) states, “‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the size of the particles of Dubois by routine experimentation within the disclosed range of D90 of less than 450 µm to provide a powder with the desired properties when added to a beverage, such as time taken to dissolve. Although the D3,2 does not equate to D90 particle size directly, one of ordinary skill in the art would nonetheless achieve a D3,2 in claimed range of between 10 and 500 µm given the disclosed particle size range of less than 450 microns.
Claim 17 is therefore rendered obvious.
Claims 3, 8-9, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Dubois et al. (WO 2018/224542 A1) in view of Bisperink et al. (EP 1074181 A1).
Regarding claims 3 and 15, Dubois teaches the porous soluble foaming ingredient of claim 1 and the soluble beverage powder of claim 7 as described above.
Dubois does not teach that the entrapped gas is present in an amount to release at least 1 ml of gas at ambient conditions per gram of ingredient upon addition of an aqueous liquid.
However, Bisperink teaches a powdered soluble creamer ingredient comprising particles formed of a matrix containing carbohydrate, protein, and entrapped gas. The gas is pressurized to release upon addition to a liquid at least about 1 ml of gas at ambient conditions per gram of soluble creamer ingredient (Abstract).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the porous soluble particles of Dubois with the teachings of Bisperink to increase the amount of entrapped gas to an amount to release at least 1 ml of gas at ambient conditions per gram of ingredient. First, Dubois teaches powdered porous soluble particles comprising carbohydrate, protein, and entrapped gas (p. 23, lines 4-5 Table, “K”) for use in beverage powders, such as coffee mix or flavored milk powder (p. 15, lines 23-27). Bisperink teaches that a powdered soluble creamer capable of generating much greater volumes of foam than conventional foaming creamers can be produced by subjecting porous particles of the matrix to an atmosphere of gas at a raised pressure and a temperature above the glass transition temperature of the particles, and then quenching or curing the particles ([0007] – [0009]). The gas is pressurized to release upon addition to a liquid at least about 1 ml of gas at ambient conditions per gram of soluble creamer ingredient ([0006]). Bisperink also teaches that “quite often the foam produced by many soluble cappuccino powders is not light and fluffy…[and] is often less than that ordinarily found on a traditional cappuccino” ([0004]). One of ordinary skill in the art would have been motivated to provide an instant coffee mix comprising soluble porous particles with enhanced foaming abilities to provide a coffee drink with foam like a traditional cappuccino. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Bisperink teaches that a matrix comprising carbohydrates, proteins, and entrapped gas (such as that of Dubois) can be given enhanced foaming properties by increasing the amount of entrapped gas by subjecting porous particles of the matrix to an atmosphere of gas at a raised pressure and a temperature above the glass transition temperature of the particles, and then quenching or curing the particles ([0007] – [0009]).
Claims 3 and 15 are therefore rendered obvious.
Regarding claim 8, Dubois teaches the soluble beverage powder of claim 7 as described above.
Dubois does not teach that the soluble beverage powder is a soluble creamer powder.
However, Bisperink teaches a powdered soluble creamer ingredient comprising particles formed of a matrix containing carbohydrate, protein, and entrapped gas (Abstract). The soluble creamer ingredient preferably has a porosity of at least about 30%, for example about 40% to about 60% by volume ([0023]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the porous soluble particles of Dubois with the teachings of Bisperink to use the porous soluble particles in a soluble creamer powder. First, Dubois teaches powdered porous soluble particles comprising carbohydrate, protein, and entrapped gas (p. 23, lines 4-5 Table, “K”) for use in beverage powders, such as coffee mix or flavored milk powder (p. 15, lines 23-27). The particles have a closed porosity of 43.9% (p. 23, lines 6-10 Table, “K”). The porous particles may be comprised within a beverage powder, i.e., as an ingredient (see claim 1). Since Bisperink teaches a powdered soluble creamer ingredient comprised of a matrix of carbohydrates, protein, and entrapped gas with a porosity of about 40% to about 60%, one of ordinary skill in the art would have been motivated to use the composition of Dubois as an ingredient in a creamer powder in order to expand its application in the market. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Bisperink teaches that a matrix comprising carbohydrates, proteins, and entrapped gas (such as that of Dubois) is useful in a creamer powder (Abstract), and Dubois teaches that the particles may be used in the similar application of a flavored milk powder (p. 15, lines 23-27).
Claim 8 is therefore rendered obvious.
Regarding claim 9, Dubois teaches the soluble beverage powder of claim 7 as described above.
Dubois does not teach that the soluble beverage powder comprises 15 wt% to 50 wt% of the porous soluble foaming ingredient on a dry basis.
However, Bisperink teaches a powdered soluble creamer ingredient comprising particles formed of a matrix containing carbohydrate, protein, and entrapped gas (Abstract). The soluble creamer ingredient preferably has a porosity of at least about 30%, for example about 40% to about 60% by volume ([0023]). The soluble creamer ingredient is preferably combined with a soluble creamer base to form a soluble creamer powder ([0024]). The soluble creamer ingredient preferably comprises about 15% to about 50% by weight of the soluble creamer powder ([0025]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the beverage powder of Dubois with the teachings of Bisperink such that the soluble beverage powder comprises 15 wt% to 50 wt% of the porous soluble foaming ingredient on a dry basis, as claimed. First, Dubois teaches powdered porous soluble particles comprising carbohydrate, protein, and entrapped gas (p. 23, lines 4-5 Table, “K”) for use in beverage powders, such as coffee mix or flavored milk powder (p. 15, lines 23-27). The particles have a closed porosity of 43.9% (p. 23, lines 6-10 Table, “K”). Dubois does not teach a specific amount of the particles to be used in the beverage powders. Since Bisperink teaches a powdered soluble creamer ingredient, comprised of a matrix of carbohydrates, protein, and entrapped gas with a porosity of about 40% to about 60%, used in a creamer powder at about 15% to about 50% by weight of the creamer powder, one of ordinary skill in the art would have been motivated to consult Bisperink to determine a suitable amount of the porous particles to add to the beverage powder. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Bisperink teaches that a matrix comprising carbohydrates, proteins, and entrapped gas (such as that of Dubois) is useful in a creamer powder for generating foam (Abstract), and Dubois teaches that the particles may be used in the similar application.
Claim 9 is therefore rendered obvious.
Response to Arguments
Claim Objections:
Applicant has overcome the objections to the claims by amendment. Accordingly, the objections have been withdrawn.
Claim Rejections – 35 U.S.C. § 102: Applicant’s arguments, see p. 5, ¶ 7 – p. 6, filed 25 November 2025, with respect to the rejection(s) of claim(s) 1, 4, and 6-7 under 35 U.S.C. § 102(a)(1) have been fully considered and are persuasive – Dubois does not specifically discuss that the pores have a size distribution D3,2 between 0.1 and 40 µm. Therefore, the rejection has been withdrawn. However, upon consideration of the amendments, a new ground(s) of rejection is made in view of Dubois under 35 U.S.C. § 103.
Applicant first argued that Dubois does not disclose or suggest a distribution D3,2, which is a specific particle size distribution parameter that inherently selects a particular distribution weighted by particle surface area, rather than merely identifying an average particle size (p. 6, ¶ 4).
Regarding rejection under 35 U.S.C. § 103, although Dubois does not specifically discuss that the pores have a size distribution D3,2 between 0.1 and 40 µm, Dubois teaches that the particles have bubbles or air channels (i.e., pores) of approximately 5-10 µm (p. 24, lines 1-6). Dubois also teaches that it is advantageous to have multiple small closed pores in the particles according to the invention because such a particle will retain its buoyancy for longer as it dissolves, and so has the capability to rise to the top of a beverage and form a concentration gradient of tastant (p. 6, lines 4-16). Pore size is thus a result-effective variable; more, smaller pores result in higher buoyancy and prolonged time at the surface, and fewer, larger pores result in a decreased buoyancy and less time at the surface. Therefore, from these teachings, one of ordinary skill in the art would conclude that for a given particle size, many small pores are desired. Increasing the number of pores while retaining particle size necessarily results in smaller pores. Dubois teaches that the particle size ranges from 5 to 70 microns (p. 24, lines 1-6).
MPEP § 2144.05(II)(A) states, “‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’ In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)”.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the pore size of the particles of Dubois by routine experimentation to provide a sufficient number of small closed pores in the particles such that the desired buoyancy is achieved, including to a D3,2 of between 0.1 and 40 µm as claimed. Although the D3,2 does not equate to average pore size directly, one of ordinary skill in the art would nonetheless achieve a D3,2 in the claimed range given the disclosed particle size range of 5 to 70 microns and the desire for multiple small closed pores in said particles.
Applicant also argued that Dubois does not disclose or suggest its porous particles are free from milk, and instead discloses using milk in its particles throughout its disclosures (p. 6, ¶ 5).
Applicant’s argument has been considered, but it is not persuasive. Dubois teaches that the “invention relates in part to a beverage powder comprising water-soluble porous particles, the particles comprising a tastant and having an amorphous continuous phase comprising a soluble filler and optionally a surfactant, wherein the particles have a closed porosity of between 10 and 80 % and can float in water” (p. 3, lines 19-27). Regarding the amorphous continuous phase, page 10, lines 27-35 of Dubois reads:
Some consumers wish to avoid dairy products in their diet. In an embodiment, the amorphous continuous phase of the particles according to the present invention may be free from milk ingredients. For example, the amorphous continuous phase of the particles according to the present invention may comprise sucrose; a bulking agent selected from the group consisting of maltose, maltodextrins, soluble wheat or corn dextrin, polydextrose, soluble fibre and combinations of these; and a surfactant selected from the group consisting of pea proteins, potato proteins, wheat gluten, egg albumin proteins, clupeine, soy proteins, oat protein, tomato proteins, Brassicaceae seed protein and combinations of these.
Dubois clearly teaches embodiments wherein the particles are free from milk.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 25 November 2025 have been fully considered, but they are not persuasive.
Applicant argued that Bisperink does not disclose or suggest a porous soluble foaming ingredient that is free from milk and comprises pores having a size distribution D3,2 of between 0.1 and 40 µm as required by the present claims, nor does Bisperink provide any reason to modify Dubois to produce such particles (p. 7, ¶¶ 4-5).
Applicant’s arguments have been considered, but they are not persuasive. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Bisperink is not relied upon for the rejection of the limitations “a porous soluble foaming ingredient that is free from milk and comprises pores having a size distribution D3,2 of between 0.1 and 40 µm” as required by the present claims. Teachings from Dubois render these limtations obvious. Bisperink is applied to address the limitations of claims 3, 8-9, and new claim 15 as described hereinabove.
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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793