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 .
DETAILED ACTION
2. Applicants’ arguments and amendments filed on 7/02/2026 overcomes the rejections of record. However, the new grounds of rejection as set forth below are necessitated by applicants’ amendment and therefore, the following action is Final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 1-15 are pending in this office action.
Claims 1-3 have been amended.
Claims 1-15 have been rejected.
Claim Rejections - 35 USC § 103
4. 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.
5. 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.
6. 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 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 non-obviousness.
7. Claim(s) 1-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Geremia et al. WO 2020/097458 in view of Brunner et al. WO 2018/149756 A1.
8. Regarding claims 1-4, 9, Geremia et al. discloses (Example 22) a powdered synthetic oligosaccharide formulation having (i) a DP 1 to DPn (n being 4-100) (at least in claims 1, 2 of Geremia et al. (ii) the resulting powder comprises about 35 wt.% absorbed oligosaccharide having 50% by weight of the powder exhibit below 511 micrometer, 90% by weight of the powder exhibit below 886 micrometer particle size (at least Ex 23), (iii) density 1.3063 g/ml ([00352]), (iv) Geremia et al. also discloses that it can be powder formulation which can be without water (i.e. 0 wt.%) (at least in Ex 23) and also it can contain moisture (water) 5-10 wt.% for such formulation ([00353], claim 112,113 of Geremia et al.). Geremia et al. also discloses that feed grade silica is used in the powdered formulation to yield a stable, flowable powder containing at least 50% by weight of oligosaccharide with respect to the total powder having density 1.5562 g/ml (at least in Ex 23, [00356]). Geremia et al. also discloses that oligosaccharide preparation comprises less than 80% etc. (At least in claim 121 of Geremia et al.), and 80%-1% etc. (At least in claim 122 of Geremia et al.) anhydro-subunit containing oligosaccharides by relative abundance (At least in claims 121, 122 of Geremia et al.).
It is to be noted that Gerecia et al. discloses “the carrier loading formulation was repeated using feed-grade silica to yield a stable, flowable powder with a loading of at least 50 wt.% oligosaccharide preparation (dry solids basis) with respect to the final powder (at least in [00356], Ex 22). Therefore, it would have been obvious that silica is powdered form and is amorphous.
Geremia et al. also discloses that feed grade silica is used in the powdered formulation to yield a stable, flowable powder having density 1.5562 g/ml (at least in Ex 23, [00356]).
However, Geremia et al. is specifically silent about “storage-stable” (i.e. storage stability during and/or after storage”) powdered formulation as claimed in claim 1 and specific claim limitation of “silica-based adsorbate is amorphous precipitated silica” as claimed in claim 4.
Brunner et al. discloses that ‘storage-stable’ (e.g. “Storage-stable i.e. exhibit a retention” at least, third paragraph from bottom of page 2), composition can be made using specific amorphous precipitated silica as carrier material and this silica is, for example, available as Ibersil D-250 from IQE Group, Sipernat 2200 from Evonik or Tixosil 68 from Solvay, Zeofree 5170 from J.M. Huber Cooperation or Newsil C50 from Quechen Silicon Chemical Co Ltd. (at least page 3, paragraph 6, Under WO 2012/084629). It is evidenced from applicant’s specification that this disclosed silica is identical to the specific amorphous precipitated silica from identical company (at least in specification, PGPUB [0016]). Therefore, it will have identical property of the claimed composition including identical “storage-stability” of the product to meet independent claim 1 and is identical amorphous precipitated silica as carrier material as claimed in claim 4.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Geremia et al. with the teaching of discloses that storage-stable (i.e. “exhibit a retention” at least, third paragraph from bottom of page 2), composition can be made using specific amorphous precipitated silica as carrier material and this silica is , for example, available as Ibersil D-250 from IQE Group, Sipernat 2200 from Evonik or Tixosil 68 from Solvay, Zeofree 5170 from J.M. Huber Cooperation or Newsil C50 from Quechen Silicon Chemical Co Ltd.(at least page 3, paragraph 6, Under WO 2012/084629)).
Regarding the claim limitation “wherein the storage-stable powderous formulation is obtained by mixing the silica based adsorbate with the oligosaccharide preparation, wherein the oligosaccharide preparation is pre-heated to a temperature higher than 50 °C. higher than 60 °C, or higher 65 °C, and wherein the storage-stable powderous formulation is obtained by mixing the silica based adsorbate with the oligosaccharide preparation for more than 20 min or for at least 30 min”, as claimed in amended independent claims 1-3, it is to be noted that if we consider Geremia et al. , as a whole, Geremia et al. discloses that the oligosaccharide preparation can be dried on a drying tray and placed in a forced-air convection heater at 60 °C followed by grinding after removing from tray to yield a light-orange colored flowable powder. (at least in [00351]). If we combine the teachings of Geremia et al., further, Geremia et al. also discloses that feed grade silica is used in the powdered formulation to yield a stable, flowable powder containing at least 50% by weight of oligosaccharide with respect to the total powder having density 1.5562 g/ml and not hygroscopic (at least in Ex 23, [00356]). Therefore, it is “pre-heating the oligosaccharide at 60 degree C” first (at least in [00351]) followed by mixing with silica ([00356]) to meet claim limitation of “ wherein the oligosaccharide preparation is pre-heated to a temperature higher than 50 °C. higher than 60 °C, or higher 65 °C, and wherein the storage-stable powderous formulation is obtained by mixing the silica based adsorbate with the oligosaccharide preparation” as claimed in amended independent claims 1-3.
It is also to be noted that if we interpret claims 1-3 by considering that after pre-heating at 60 degree C, silica is added, which addition is at 60 degree C, then it can be addressed as discussed below:
Geremia et al. also discloses that silica is used to make carrier loading formulation having a flowable powder with stability which is obviously provided by silica to achieve stability including storage stability of the product and to achieve density of 1.5562g/ml ([00356]). Geremia et al. also discloses heating at 60 °C yields a light orange colored flowable powder as discussed above (at least in [00351]). Geremia et al. also discloses that the extrusion method can be used to make flowable powder ([00357]) to make stable powder formulation from examples 22-24 which includes [00356] and [00357] and [00358]).
It is to be noted that even if the disclosed [00356] discloses silica, however, other carriers as disclosed at least in the [00357], can be considered as equivalent to silica and therefore, extrusion ([00357]) or any convenient method is applicable for silica with oligosaccharide also.
Therefore, one of ordinary skill in the art can use the above teachings of Geremia et al. to perform mixing oligosaccharide with silica make carrier loading formulation at 60 degree C which includes heating to dry the product which can be performed by any convenient method including mixing and drying at 60 degree C temperature in an extruder with a reasonable expectation of success to make desired colored (at least in [00351]) silica based stable and flowable oligosaccharide stable which is non hygroscopic product (at least in examples 23-24 which includes [003511], [00356] and [00357] and [00358]). Also, one of ordinary skill in the art would have been motivated to perform mixing the silica-based adsorbate at the heated oligosaccharide at 60 degree C which is drying condition is because the mixing at this temperature will allow minimal absorption of moisture prior to completion of adsorbate silica mixing which protects oligosaccharide from moisture absorption to make non-hygroscopic stable flowable powder.
Therefore, it meets pre-heated to a temperature “60 degree C” as claimed in amended independent claims 1-3.
Regarding the claimed time of “no more than 20 min” or “at least 30 minutes “as claimed in amended independent claims 1-3, it is also to be noted that the amended independent claim limitations of claim 1 is made optional. Although it is not optional for independent claim 3.
However, considering the above claim limitations for both the claims 1, 3, as mentioned in the last office action, it to be noted that it is within the skill of one of ordinary skill in the art to optimize the time to have most of the oligosaccharides are properly mixed with silica-based adsorbate (Geremia et al. [00356] e.g. e.g. loading at least 50% by weight of oligosaccharide).
Absent showing of unexpected results, the specific amount of time is not considered to confer patentability to the claims. As the mixing time with silica -based carrier absorbate to mix oligosaccharide to have proper, homogeneous mixing between them are variables that can be modified, among others, by adjusting the amount of time, at a particular temperature, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of time in Geremia et al. , to amounts, including that presently claimed, in order to obtain the desired completely carrier loaded formulation of oligosaccharide with silica to make desired silica based stable and flowable oligosaccharide powder which is non hygroscopic product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
9. Regarding the claim limitation “wherein the storage-stable powderous formulation is obtained by mixing the silica based adsorbate with the oligosaccharide preparation, wherein the oligosaccharide preparation is pre-heated to a temperature higher than 50 °C. higher than 60 °C, or higher 65 °C, and wherein the storage-stable powderous formulation is obtained by mixing the silica based adsorbate with the oligosaccharide preparation for more than 20 min or for at least 30 min”, as claimed in amended independent claims 1-3, it is to be noted that the claims 1-3 are considered by the examiner as product-by-process claim.
Therefore, it is to be noted that, in this case, the courts have held that when the prior art factor appears to differ from the claimed factor only in the method of obtaining the factor, the burden of persuasion was on applicants to show that the claimed product exhibited unexpected properties compared with that of the prior art. The courts further noted that “no objective evidence has been provided establishing that no method was known to those skilled in this field whereby the claimed material might have been synthesized.” 10 USPQ2d in 1926.
The courts also held that “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
Furthermore, "[b]ecause validity is determined based on the requirements of patentability, a patent is invalid if a product made by the process recited in a product-by-process claim is anticipated by or obvious from prior art products, even if those prior art products are made by different processes." Amgen Inc. v. F. Hoffman-La Roche Ltd., 580 F.3d 1340, 1370 n 14, 92 USPQ2d 1289, 1312, n 14 (Fed. Cir. 2009). See MPEP §2113.
Lastly the courts have held that when the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or section 103 of the statute is eminently fair and acceptable. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith. In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972). The examiner further notes that “The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature” than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983). See MPEP §2113.
10. Regarding claims 5, 6, 7, Geremia et al. discloses that diatomaceous earth was added combined with the oligosaccharide preparation to make a stable, flowable powder having particle size of less than 511 micron and having 35 wt.% adsorbed oligosaccharides in the formulation (Example 23, [00355]).
11. Regarding claim 8, Geremia et al. discloses that the relative abundance of oligosaccharides in each of the n (4-10) fractions decreases monotonically with its degree of polymerization. In some embodiments, the relative abundance of oligosaccharides in each of the n fractions decreases monotonically with its degree of polymerization (at least in [0005]).
12. Regarding claims 10, 11, Geremia et al. discloses that each fraction of said
Oligosaccharide preparation comprises less than 80%, 70%, 60%, 50%, 40%, 30%, 20%, 19%, 18%, 17%, 16%, 15%, 14%, 13%, 12%, 11%, 10%, 9%, 8%, 7%, 6%, 5%, 4%, 3%, or 2% anhydro-subunit containing oligosaccharides by relative abundance At least in claim 121 of Germia et al.).
13. Regarding claim 12, Geremia et al. discloses that at least one fraction of said oligosaccharide comprises greater than 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 11%, 12%,13%, 14%, 15%,16%, 17%, 18%, 19%, 20%, 30%, 40%, 50%, 60%, 70%, or 80% anhydro-subunit containing oligosaccharides by relative abundance. The method of any preceding claim, wherein said oligosaccharide preparation comprises greater than 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 11%, 12%, 13%, 14%, 15%, 16%, 17%, 18%, 19%, 20%, 30%, 40%, 50%, 60%, 70%, or 80% anhydro-subunit containing oligosaccharides by relative abundance (at least in [0008], claim 129 of Germia et al.).
14. Regarding claims 13, 14, Geremia et al. discloses the oligosaccharide preparation has a weight average molecular weight of from about 300 to about 2500 g/mol as determined by HPLC (at least in claims 52,53 of Geremia et al.).
15. Regarding claim 15, Geremia et al. discloses the oligosaccharide preparation has a number average molecular weight of from about 500 to about 2000 g/mol as determined by HPLC. (at least in [0008], claims 57,58, 61 of Geremia et al.)
Response to arguments
16. Applicants’ arguments and amendments have been considered. However, they are not persuasive. The reasons are discussed below.
17. Applicants argued on first page that
(a) Geremia et al. in view of Brunner et al. improperly mixes non-analogous teachings. The rejection depends on impermissible hindsight.
In response, it is to be noted that Brunner et al. is additional prior art which is considered to correlate applicants silica and disclosed silica are similar and from identical company as discussed in the office action above. The rejection can be maintained without Brunner et al.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it considers only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
(b) on second page, under “A) Process limitation: Mixing silica -based adsorbate with pre-heated oligosaccharide preparation.
In rejecting the process limitation "wherein the storage-stable powderous formulation is obtained by mixing the silica- based adsorbate with the oligosaccharide preparation, wherein the oligosaccharide preparation is pre-heated to a temperature higher than 50 °C, higher than 60 °C, or higher 65 °C" the Examiner pointed to paragraph [00351] of Geremia. See, OA, p. 6.
The Examiner stated "if we consider Geremia et al., as a whole Geremia et al. discloses that the oligosaccharide preparation can be dried on a drying tray and placed in a forced-air convection heater at 60 °C followed by grinding after removing from tray to yield a light orange colored flowable powder. Therefore, it is "pre-heating the oligosaccharide at 60 degree C' " Id. (emphasis added).
This rationale is errant on at least two counts. First, Example 22, cited paragraph [00351] of Geremia describes a different process from that which is presently claimed¹. Second, considering Geremia et al. "as a whole" admits that the Examiner is improperly "cherry picking" different parts of Geremia to patch together an alleged obviousness rejection through use of hindsight.
Applicants continued arguing at least on last two paragraphs of the third page the same arguments about Example 22. Further applicants also argued that Example 23 of Geremia teaches away from heating. See, Geremia at [00355] "Equal masses of a 70 wt.% aqueous syrup of the oligosaccharide preparation of Example 9.2 and diatomaceous earth were combined at room temperature to yield a stable, flowable powder" (emphasis added).
In response, it is to be noted that and as was mentioned in the office action that Geremia et al. discloses in paragraph [00351]) that flowable powder can be made using convection heater to supply forced air at 60 degree C which will make light orange colored flowable powder.
If we consider [00355] and [00356]) of Geremia et al., it is interpreted that both the paragraphs teach the flowable powder can be made by using diatomaceous earth ([03555]) or feed-grade silica can be used in such a powder formulation to make flowable powder ([00356]). Therefore, paragraph [00356] teaches silica which meets claimed silica-based absorbate of independent claims 1, 3. Even if paragraph [03555] teaches room temperature it is noted that paragraph [00356] is silent about the temperature. As it is known that temperature and time of treatment provides the reduction of moisture content, and [00351] teaches flowable powder can be made using convection heater to supply forced air at 60 degree C which will make light -orange colored flowable powder, therefore it would have been well within the ability of one of ordinary skill in the art to optimize the time and temperature using silica from the teaching of Geremia et al. ([00351]) in order to achieve desired moisture reduction at a reduced time because we know that heating can reduce time compared to room temperature (temperature and time are inverse relation) which is addressed using Result Effective variable in the last office action. In addition, one of ordinary skill in the art would also have been motivated to do so with a reasonable expectation of success to have the additional benefit of desired light orange colored flowable powder ([00351]) when compared both the combinations of silica and heat treatment.
18. Applicants argued on second page that “examiner is improperly “cherry picking” different parts of Geremia to patch together an alleged obviousness rejection through use of hindsight”.
In response, examiner does not agree with the applicant's arguments regarding the arguments based on the allegations that ‘picking and choosing various elements from the several combinations of references. In this instance, as discussed in the response above (item # 17), the teachings of [00351], [00355], [00356] of Geremia et al. are interrelated and should be considered as a whole to achieve the benefit of having light-orange colored free-flowing property containing stable powder formulation as discussed in the last office action (Last OA page 7) and the combined teaching is also addressed by using obvious analysis and Result Effective Variable (REV) as discussed in the office action above.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it considers only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
19. Unexpected Result:
Applicants argued Under A) “Process limitation: Mixing silica -based adsorbate with pre-heated oligosaccharide preparation”:
On last paragraph of third page and continued first paragraph of fourth page that “Further, it is shown in Table 2 of the present application that highly flowable powders were achieved only in preparations in which the oligosaccharide preparation syrup was pre- heated to a temperature higher than 50 °C (i.e. Preparations T1 and T2). In contrast, preparationsT3-T9, which were not pre-heated to such high temperatures were not highly flowable. See, Table 2”.
Under (B) Process limitation: Mixing silica-based adsorbate with the oligosaccharide preparation for more than 20 min or for at least 30 min.
Under (B), applicants argued on fourth and Fifth page, “Indeed, Applicant discovered surprising and unexpected results via the process of mixing "for more than 20 min" or "at least 30 minutes" as claimed in independent claims 1-3”. The Examiner is directed to Example 8 (paragraphs [0116] to [0119] of Applicant's specification. Therein, it is described that the physical stability of T1 and T2 powders was tested by subjecting each to 3 days at 52.5°C and 60% relative humidity. Thereafter, it was surprisingly discovered that only T2 material (which was mixed for more than 20 min) remained flowable and the individual particles did not change structure nor melt or stick to each other, while with T1 material (which was not mixed for more than 20 min) particles stuck together forming a soft lump. See also, Figure 1. Therefore, by using the same carrier with the same amount of fluid, a stabilizing effect was surprisingly observed by modifying the conditions (i.e. mixing time) under which the powder is manufactured”.
In response, the examiner acknowledges the arguments based on unexpected results, however, the arguments are insufficient to overcome the final rejection because:
(1) Applicants have not compared the claimed invention to the teachings of the closest prior art reference and in this instance, Geremia et al. is the closest prior art. In this instance, applicants need to establish at least (i) that Geremia’s free-flowing powder is not free-flowing under the claimed condition (e.g. particle size, treatment condition at the claimed temperature etc.) as claimed in independent claims 1-3.
(2) Evidence of unexpected results must be commensurate in scope with the subject matter claimed. In re Linder 173 USPQ 356. More importantly, the evidence of unexpected results must be clear and convincing. In re Lohr 137 USPQ 548. To establish unexpected results over a claimed range, applicants should compare sufficient number of tests both inside and outside (i.e. as well as the upper and lower limits) the claimed range to show the criticality of the claimed range. In re Hill 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See MPEP 716.02.
In this instance, Table 2 of the present application teaches that highly flowable powders were achieved at 65 degree C using carrier type is Silica based adsorbate (T1, T2) compared to other low temperatures (T4-T9). Claims 1-3 are broad and claims broadly mixing temperatures higher than 50 degree C or 60 degree C or 65 degree C
In Table 3, if we consider (b) example 8, Table 3, it recites RT/20 min for T1 and RT/30 min for T2 sample for the oligosaccharide preparations containing silica. This table compares the results with respect to its flowability quality at RT/20 or RT/30 and it is only at Room Temperature (RT). However, claims 1-3 broadly claim superiority of flowability quality under the condition of greater than 20 minutes or for at least 30 minutes is the alternative claim limitation in amended claims 1- 3.
Therefore, they have not shown that it is unexpected result properly by comparing enough tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See MPEP 716.02. Therefore, the evidence of unexpected results does not commensurate in scope with the subject matter claimed.
20. Applicants further argued on sixth page under C,
“Product-by process rejection” that
Geremia explains that the coarse milled powder of Example 22 was observed to be unstable with respect to segregation and the fine milled powder of Example 22 was found to be unstable with exposure to humidity (Geremia [0358], [0359]). Applicants claimed invention is highly flowable powders (in specification Table 2, T1 and t2).
In response, it is to be noted that in the last office action, it was mentioned that Geremia et al. also discloses that feed grade silica is used in the powdered formulation to yield a stable, flowable powder containing at least 50% by weight of oligosaccharide with respect to the total powder having density 1.5562 g/ml (at least in Ex 23, [00356]). Geremia et al. discloses in Ex 22 the powder which was considered for the free flow property. Examiner used this paragraph only to combine the teaching of heating temperature in combination of silica-based absorbate with motivation as discussed in detail in the office action above.
21. Applicants argued in the last paragraph above D), that “Likewise, only formulations which are obtained by mixing silica with the oligosaccharide preparation for more than 20 min resist lumping and stay flowable. These formulations therefore exhibit the unexpected property of improved stability and flowability compared to products that have been obtained by shorter mixing. Hence, the presently claimed product is different and distinct from prior art products”.
In response, as mentioned in the office action above that the claimed time of “no more than 20 min” or “at least 30 minutes “as claimed in amended independent claims 1-3 are optimizable and is addressed using Result Effective Variable (REV).
In response, it is also to be noted that regarding the claimed time of “no more than 20 min” or “at least 30 minutes “as claimed in amended independent claims 1-3, it is also to be noted that the amended independent claim limitations of claim 1 is made optional. Although it is not optional for independent claim 3.
Therefore, product-by-process is proper. It is applicants’ responsibility to establish the claimed product is of having different property.
The rejection is maintained and made Final.
Conclusion
22. Related prior art by Moonen et al. (US 2011/0287140 A1) discloses free-flowing oligosaccharide powder composition but does not teach silica - based formulation. Therefore, Moonen et al. was not considered.
23. 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).
Applicants are 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 extension fee 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 date of this final action.
Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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