DETAILED ACTION
Amendments made January 15, 2026 have been entered.
Claims 44, 45, 47-51, 53-59, 62, and 64-73 are pending;
Claims 67-73 have been withdrawn.
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 .
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.
Claim Objections
The objections to claims 51 and 59 have been withdrawn in light of applicant’s amendments made January 15, 2026.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claim 57, for the recitation of exemplified species, 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made January 15, 2026.
Claims 44, 45, 47-51, 53-59, 62, and 64-66 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made January 15, 2026.
The term “low sugar” in claim 44 is a relative term which renders the claim indefinite. The term “low sugar” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what content of sugar the product of the method must have in order to be considered “low sugar” as claimed. Although the claim has been further limited to containing at most 0.01% lactose and a total amount of glucose, galactose and lactose of about 0.6-2.5% because the term “sugar” encompasses all sugars, i.e. more than glucose, galactose and lactose, the term “low sugar” remains unclear because it is unknown what levels of total sugar would and would not be encompassed by the claimed term.
Claim Rejections - 35 USC § 102/103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 44, 45, 50, 53, 54, 56, 58, 59, and 65 under 35 U.S.C. 102(a)(2) as being anticipated by, or in the alterative under 35 U.S.C. 103 as being unpatentable over Hofi (“Low Lactose labneh and zabady by ultrafiltration” 1990 pages 30-33) has been withdrawn in light of applicant’s amendments made January 15, 2026. Specifically, claim 44 was amended to include the limitations of dependent claims 46, 52, 61, and 63 which are not taught by Hofi.
Claims 44, 45, 47-50, 53-59, 62, and 64-66 are rejected under 35 U.S.C. 103 as being unpatentable over Partanen et al (WO 2018/115586) in view of Robichon et al (WO 2010/139765) and Braun (WO 2012/085010).
Regarding claims 44, 45, 56, 59, 62, and 65, Partanen et al (Partanen) teaches of making a low sugar acidified yogurt (abstract). Partanen teaches the method comprises:
providing a raw milk material, i.e. a milk base, having about 2.5-8% protein (page 3 lines 8-9) and about 0.6-2.5% lactose (page 2 lines 30-33);
optionally homogenizing;
heat treating with methods including pasteurization, high-pasteurization, or thermisation;
acidifying by fermenting with a starter culture including Lactobacillus bulgaricus and Streptococcus thermophiles until a pH of about 4.5-4.7; and
optionally treating the raw material, i.e. the material before fermentation, with an enzyme including a lactase enzyme; and flavoring with a sugar sweetener (page 8 lines 10-29, page 9 lines 1-3, 9-21, 24-26, and 33-36).
Partanen teaches that the milk base comprises a milk protein concentrate, including ideal whey protein concentrate, in combination with milk minerals (page 4 lines 13-20 and 26-29, Examples 1-4, and claims 13 and 14). Partanen teaches the milk minerals are in concentrated form (page 7 lines 33-35), and thus encompasses or at least makes obvious the milk base as a milk protein concentrate and a milk mineral concentrate. Partanen teaches that the acidified milk material, i.e. the product after fermentation, has lactose derived sugars, which refers to lactose, glucose, and galatose from less than 2%, including from 0-0.6% (page 9 lines 27-32 and page 10 lines 10-12), thus encompassing or alternatively making obvious the range of lactose and total amount of glucose, galactose, and lactose as claimed.
Partanen is silent to adding a citrate preparation to the milk base in an amount of about 0.1-0.18% calculated as pure citrate preparation as recited in claim 44, or in the form selected from the group including trisodium citrate as recited in claim 53, or as added prior to fermentation or pasteurization as recited in claim 54, or as in an amount of about 0.1-0.25% pure citrate in the product as recited in claim 64; to the milk base as having about 0-10% fat and about 0.7-0.9% ash as recited in claim 44, and about 5-17% solids as recited in claim 50; to the milk mineral concentrate reverse osmosis retentate as comprising about 1.2-1.6% ash as recited in claim 48; to about 1.0-5.0% saccharose added to the milk base as recited in claim 49; and to the fermentation as carried out at about 30-42C as recited in claim 58.
Robichon et al (Robichon) teaches a cost-efficient method of manufacturing acidified dairy products, including yogurt, by subjecting a milk base to fermentation with weakly post-acidifying starter cultures until a pH of 4.0-5.0 is reached (abstract, page 1 line 30 through page 2 line 13, page 4 lines 1-4 and 11-12, page 10 line 11). Robichon teaches the milk base was prepared to contain the relevant concentrations, including 3.5% fat, 0.89% ash, and 13.79% total solids as cited in the prior art Becker (page 12 lines 24-27). Robichon teaches optional ingredients including sugar, i.e. saccharose, may be added at any stage of manufacturing (page 4 line 32 through page 5 line 2 and page 11 line 23 through page 12 line 2). Robichon teaches the fermentation temperature, which is 32-44C influences efficiency, flavor, and quality (page 8 lines 24-31).
Braun teaches flavor modulation in fermented milk, wherein the addition of about 0.01-5% trisodium citrate before fermentation and pasteurization, adds a creamy flavor and aroma (abstract, page 7 line 24 through page 8 line 34 and page 9 lines 19-32). As trisodium citrate contained about 73% pure citrate, the teachings of Braun thus encompass adding about 0.0073-3.65% pure citrate to the milk base.
Regarding adding a citrate preparation to the milk base in an amount of about 0.1-0.18% by weight of pure citrate as recited in claim 44, or in the form selected from the group including trisodium citrate as recited in claim 53, or as added prior to fermentation or pasteurization as recited in claim 54, or as in an amount of about 0.1-0.25% pure citrate in the product as recited in claim 64, it would have been obvious to add about 0.0073-3.65% pure citrate in the form of trisodium citrate to the milk base of Partanen before pasteurization and fermentation in order to provide a creamy flavor and aroma in view of Braun. Thus, it would have been further obvious that the acidified milk product contains about 0.0073-3.65% pure citrate.
Regarding the milk base as having about 0-10% fat and about 0.6-0.9% ash as recited in claim 44, and about 5-17% solids as recited in claim 50, it would have been obvious for the milk base as taught by Partanen to have a yogurt base, including about 3.5% fat, 0.89% ash, and about 13.79% solids as Robichon shows they were relevant concentrations of the prior art as seen in Becker. Furthermore, the composition of Partanen would necessarily have a fat and ash content, however as no specific limitation was given to those contents it would have been particularly obvious to one of ordinary skill in the art when practicing the invention of Partanen to use known and relevant amounts disclosed in the prior art, including those shown by Robichon.
Regarding claim 47, as discussed above, Partanen teaches that the milk base comprises an ideal whey protein concentrate. Partanen teaches the ideal whey protein concentrate is ultrafiltered retentate of skim milk (page 4 lines 26-29) and contains about 4-25%, preferably 8.5-9.2% protein, 2.4-3.0% lactose, and may contain traces of fat (page 5 lines 5-6 and 16-25). Furthermore, as Partanen teaches the ideal whey protein concentrate, i.e. milk protein concentrate, is ultrafiltered retentate of skim milk (page 4 lines 26-29), it would encompass 0% fat, thus the claimed range is considered encompassed or at least obvious over the prior art.
Regarding claim 48, as discussed above, Partanen teaches that the milk base comprises a milk mineral. Partanen teaches the milk minerals are in concentrated form, including as a reverse osmosis retentate (page 7 lines 26-35), and thus encompass, or at least make obvious the milk mineral as a reverse osmosis retentate. To use a disclosed for of a taught ingredient would have been obvious to one of ordinary skill in the art. Prakash is silent to the amount of ash within the milk mineral concentrate, however, as the prior art teaches of forming the milk mineral concentrate from the same materials, i.e. milk, with the same method, i.e. reverse osmosis, the same product composition would be at least obvious. Alternatively, as the prior art makes obvious an overlapping amount of ash in the milk base that is fermented (see Partanen in view of Robichon discussed in regards to the ash content in claim 44 above), and teaches the milk base formed from the milk components as claimed and disclosed, to have the ash as added with the milk mineral concentrate and/or with another milk component is considered a switched order of steps and would not materially affect the method.
Regarding adding about 1.0-5.0% saccharose to the milk base as recited in claim 49, as discussed above, Partanen teaches of optionally adding sugar, i.e. saccharose, as a sweetener and/or flavoring. It would have been obvious to add an amount of saccharose depending on the desired sweetness or flavoring. As Partanen generally teaches the raw milk material can be flavored with a sugar sweetener (page 8 lines 10-21), the addition of the sweetener to the milk base would have been encompassed or obvious. Furthermore, as Robichon teaches optional ingredients including sugar, i.e. saccharose, may be added at any stage of manufacturing (page 4 line 32 through page 5 line 2 and page 11 line 23 through page 12 line 2), it would have been obvious to add the sugar at any point in process, including to the milk base.
Regarding the starter culture as excluding those which involve citrate metabolism as recited in claim 55, or from Lactobacillus acidophilus, Bifidobacterium animalis and Bifidobacterium lactis as recited in claim 57, as discussed above, Partanen teaches of making a low sugar acidified yogurt including the step of acidifying by fermenting with a starter culture including Lactobacillus bulgaricus and Streptococcus thermophiles until a pH of about 4.5-4.7 (page 8 lines 10-29, page 9 lines 1-3, 9-21, 24-26, and 33-36). Partanen is silent to the specific cultures claimed.
Robichon teaches a cost-efficient method of manufacturing acidified dairy products, including yogurt, by subjecting a milk base to fermentation with weakly post-acidifying starter cultures until a pH of 4.0-5.0 is reached (abstract, page 1 line 30 through page 2 line 13, page 4 lines 1-4 and 11-12, page 10 line 11). Robichon teaches the starter cultures which are responsible for the acidification of milk and texture of the dairy product comprises at least one Streptococcus thermophilus strain and at least one Lactobacillus delbruckii subsp. bulgaricus, which are needed for the definition of yogurt as set by European and French regulations, wherein additional cultures including Lactobacillus acidophilus, and Bifidobacterium animalis are used to give the finished product various properties, such as promoting the equilibrium of flora (page 2 lines 21-26, page 4 lines 16-23 and 26-30, page 5 lines 26-31, page 9 lines 11-30 and page 10 lines 22-28).
It would have been obvious for the starter culture to include Lactobacillus acidophilus, and Bifidobacterium animalis, i.e. starter cultures which do not involve citrate metabolism, to cost efficiently form a yogurt with desired properties, such as promoting the equilibrium of flora in view of Robichon.
Regarding the fermentation as carried out at about 30-42C as recited in claim 58, it would have been obvious for the fermentation of Partanen to be about 32-44C as Robichon teaches it was a known temperature for fermentation to produce yogurt, wherein the fermentation temperature influences efficiency, flavor, and quality (page 8 lines 24-31).
Regarding claim 66, Partanen teaches that sucrose is added to the acidified milk material, i.e. the product after fermentation (page 10 lines 10-16).
Regarding the claimed ranges, the prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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 percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claim 51 is rejected under 35 U.S.C. 103 as being unpatentable over Partanen et al (WO 2018/115586) in view of Robichon et al (WO 2010/139765) and Braun (WO 2012/085010), further in view of Kosikowski (Low Lactose Yogurts and Milk Beverages by Ultrafiltration Journal of Dairy Science 1978, pages 41-46) and Igoe et al (Dictionary of Food Ingredients 4th Edition Aspen Publishing 2001, page 23).
As discussed above, Partanen teaches of making a low sugar acidified yogurt through fermentation of a milk base. Partanen is silent to the milk base as having about 0.02-0.05% sodium or about 0.09-0.12% calcium, or about 0.12-0.21% potassium, or about 0.006-0.013% magnesium, or about 0.07-0.11% phosphorus as recited in claim 51.
Kosikowski shows mineral elements of yogurts from reconstituted retentates, wherein calcium is 0.132%, 0.095%, 0.183%, and 0.121% (Table 5, page 44).
Igoe et al (Igoe) teaches that calcium contributes toward bone and teeth formation, muscle contraction, and blood clotting (page 23).
Regarding the milk base as having about 0.02-0.05% sodium or about 0.09-0.12% calcium, or about 0.12-0.21% potassium, or about 0.006-0.013% magnesium, or about 0.07-0.11% phosphorus as recited in claim 51, as discussed above, Partanen teaches of adding a milk mineral composition to the milk base to adjust mineral content. It would have been obvious for the yogurt as taught by Partanen, and thus the milk base which formed the yogurt to have known mineral amounts for yogurts for their known nutritional benefits. For example, it would have been obvious for the yogurt of Partanen to comprise calcium in known amounts, including 0.095% and 0.121% as shown by Kosikowski for its known nutritional benefits, including bone and teeth formation, muscle contraction, and blood clotting as shown by Igoe.
Response to Arguments
Applicant’s arguments filed January 15, 2026 with respect to the rejection over Hofi have been considered but are moot because the rejection was withdrawn in view of the amendments.
Applicant's arguments filed January 15, 2026 regarding the remaining prior art rejections and the 112b rejection have been fully considered but they are not persuasive.
Regarding the 112b rejection applicant argues that the term “low sugar” is defined by the claim which has now been limited to containing at most 0.01% lactose and a total amount of glucose, galactose and lactose of about 0.6 to about 2.5%. This argument is not convincing as the term “sugar” encompasses more than glucose, galactose and lactose. The term remains unclear because it is unknown what levels of total sugar would and would not be encompassed by the claimed term “low sugar”. See for example claim 49 which shows that further sugar can be added to the milk base, and thus the term “low sugar” is not defined just because a few sugars have been limited as argued.
Regarding the prior art rejection, Applicant argues that Partanen teaches production of low sugar acidified milk products with low ash because example 3 of Partanen exemplifies the yogurt milk as with about 0.3% ash, without mineral reconstruction, and the product is described as having excellent taste and structure, and thus there is no motivation to add citrate to provide a creamy flavor and aroma in view of Bruan. This argument is not convincing. First a reference is not limited to its preferred embodiments and/or examples and rather must be considered as a whole. One example does not limit all the teachings of a reference as argued by applicant. Second, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Braun teaches flavor modulation in fermented milk, wherein the addition of about 0.01-5% trisodium citrate before fermentation and pasteurization, adds a creamy flavor and aroma (abstract, page 7 line 24 through page 8 line 34 and page 9 lines 19-32). Thus, as stated previously and herein it would have been obvious to add trisodium citrate to the milk base of Partanen before pasteurization and fermentation in order to provide a creamy flavor and aroma in view of Braun.
In response to applicant's argument that Braun addresses flavor modification in fermented milk products and does not address low sugar systems derived from milk bases following filtration; and that Robichon is directed to dairy products corresponding to normal milk and does not teach modifying a low ash system, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. WO 2015/193449 teaches of making a fermented milk product with a low lactose concentration (abstract).
THIS ACTION IS MADE FINAL. 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 KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
Prosecution Insights