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 May 12, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-26
Withdrawn claims:
12-16, 18-20
Previously canceled claims:
None
Newly canceled claims:
None
Amended claims:
1, 3-6, 8
New claims:
21-26
Claims currently under consideration:
1-11, 17, 21-26
Currently rejected claims:
1-11, 17, 21-26
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, 4-8, 17, and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Kvist (WO 2010/140963) in view of Jensen (US 6,306,447 B1).
Regarding claim 1, Kvist teaches an oat dietary fiber composition comprising on a dry matter basis (p. 11, lines 5-7):
24% proteins (i.e., oat protein), which falls in the claimed range of “20-55%”;
9% fat, which falls in the claimed range of “5-20%”;
33% dietary fiber, which falls within the claimed range of “20-40%”; and
12% carbohydrates, which falls within the claimed range of “3-20%”.
Kvist does not teach wherein a portion of the carbohydrates are sugars comprising maltose, sucrose, and one or more of fructose and glucose.
However, in the same field of endeavor, Jensen teaches of a fiber composition (Abstract) such as an oat fiber composition (col. 4, l. 39) comprising sugars selected from sucrose, glucose, maltose, and combinations thereof (col. 5, l. 57-58).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the carbohydrate portion of the oat fiber composition of Kvist with the addition sugars used in the oat fiber composition of Jensen. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Although the cited prior art does not specify that the sugars are a portion of the carbohydrate, sugars are known in the art to be carbohydrates. Thus, one of ordinary skill would recognize that sucrose, glucose, and maltose can be used in the carbohydrate portion of Jensen because Jensen does not specify a required composition of the carbohydrate portion.
Regarding claim 4, although the cited prior art does not teach the amount of sugar to include in the composition, sugars are well known in the art to impact the sweetness of food compositions. One of ordinary skill in the art would have adjusted the amount of sugar in the oat fiber composition during routine optimization to arrive at the desired sweetness of the oat composition. MPEP §2144.05(II)(A) states “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.” "[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). Thus, the claimed range would be obvious.
Regarding claim 5, Kvist also teaches a different composition comprising 3% ash (p. 16, line 5, Table).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to include 3% ash from examples 4 and 5 in the product of example 2 of Kvist. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding claims 6, 21, and 22, Kvist teaches the final composition having a residual moisture content (i.e., water content) of around 5% (p. 11, lines 22-23), which falls in the claimed range of “1-20%” (claim 6), “5-15%” (claim 21), and “5-10%” (claim 22).
Regarding claim 7, Kvist teaches that the intermediate wet product comprises between 22% to 50% dry matter (p. 11, lines 18-20), which equates to a water content of 50-88%, which overlaps with the claimed range of “60-80% by weight”.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 8, 23, and 24, although the cited prior art does not teach the amount of maltose in the sugar portion of the composition, maltose is a type of sugar, which are well known in the art to impact the sweetness of food compositions. One of ordinary skill in the art would have adjusted the amount of maltose in the oat fiber composition during routine optimization to arrive at the desired sweetness of the oat composition. MPEP §2144.05(II)(A) states “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.” "[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). Thus, the claimed range would be obvious.
Regarding claim 17, Kvist teaches that the oat dietary fiber composition can be used in the present invention (p. 11, lines 23-25), and that the present invention is a food product (Abstract).
Claims 2, 3, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Kvist (WO 2010/140963) in view of Jensen (US 6,306,447 B1) as applied to claim 1 above, and further in view of Decombaz (US 20020142026 A1).
Regarding claims 2 and 9, Kvist does not teach wherein a majority of the oat derived composition by dry weight of the composition is in a form of particles.
However, in the same field of endeavor, Decombaz teaches a dry mixture made from oat concentrate that is extruded into pieces (i.e., particles) ([0049]-[0050]). Although Decombaz does not explicitly teach that the particles are comprised of the content of the composition, the pieces are cut after mixing the composition together ([0050]). Thus, it logically follows that the pieces would be the content of the composition.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kvist by making it into particles as taught by Decombaz. One of ordinary skill would be motivated to make this modification because Decombaz teaches that the dried food product has a pleasant texture ([0051]).
Regarding claim 3, Kvist does not teach wherein a portion of the dietary fiber is β-glucan, and wherein the β-glucan is present in an amount of 2-9% by dry weight of the composition.
However, in the same field of endeavor, Decombaz teaches a composition comprising oat fiber ([0018]) with a total β-glucan content of 10% by weight ([0053]), which lies close to the claimed range of “2-9%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kvist to use an amount of β-glucan as taught by Decombaz. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the close range, MPEP §2144.05 states a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Claims 10, 25, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Kvist (WO 2010/140963) in view of Jensen (US 6,306,447 B1) as applied to claims 6, 21, and 22 above, and further in view of Alho-Lehto (US 20110159145 A1).
Regarding claims 10, 25, and 26, Kvist does not teach wherein the oat composition is in the form of a powder.
However, in the same field of endeavor, Alho-Lehto teaches of an oat suspension that is in the form of a powder (Abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kvist by making is a powder as taught by Alho-Lehto. One would be motivated to make this modification because Alho-Lehto teaches that the powder is useful in various non-dairy products ([0062]).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Kvist (WO 2010/140963) in view of Jensen (US 6,306,447 B1) as applied to claim 1 above, and further in view of Kourimska (Kourimska, Lenka, et al. “Lipid content, fatty acid profile, and nutritional value of new oat cultivars”, Journal of Cereal Science, Volume 84, p. 44-48, published September 19, 2018 [accessed online December 16, 2025]).
Regarding claim 11, Kvist does not teach that the fat comprises 15-25% saturated fat, 30-50% mono-unsaturated fat, and 30-50% poly-unsaturated fat.
However, in the same field of endeavor, Kourimska teaches that oats comprise (p. 46, col. 2, Table 5):
24.5-27.6% saturated fatty acids, which overlaps with the claimed range of “15-25%”;
33.9-35.4% monounsaturated fatty acids, which falls within the claimed range of “30-50%”; and
38.1-40.4% polyunsaturated fatty acids, which falls within the claimed range of “30-50%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Kvist with the use of a fatty acid profile as taught by Kourimska. One of ordinary skill would have been motivated to make this modification because Kourimska teaches that the oats are a good source of nutritionally valuable oil that plays an important role in the prevent of cardiovascular disease (Abstract).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Response to Arguments
Claim Objections: Applicant has overcome the objections to the claims based on amendments in the Claims. Accordingly, the objections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 4, 6, 8, and 10 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §102 of claims 1, 6, and 17 over Kvist: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated in view of Kvist. However, upon further consideration, a new ground(s) of rejection is made in view of Kvist and Jensen.
Claim Rejections – 35 U.S.C. §103 of claims 2, 3, and 9 over Kvist and Decombaz; claims 4 and 8 over Kvist and Novozymes; claims 5 and 7 over Kvist; claim 10 over Kvist and Alho-Lehto; and claim 11 over Kvist and Kourimska: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be obvious in view of Kvist and Novozymes. However, upon further consideration, a new ground(s) of rejection is made in view of Kvist and Jensen as necessitated by the amendment of claim 1.
Applicant's arguments as related to claim 1 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 1-11, 17, 21-26 have been maintained herein.
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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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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