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 .
Claim Objections
Claim 1 is objected to because of the following informalities: “said at least one milk protein” should read as “said . Appropriate correction is required.
Claim Status
Claims 1, 4-14, and 16-23 are currently pending in the application. Claims 21-23 are newly added.
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, 4-14, and 16-23 are rejected under 35 U.S.C. 103 as being unpatentable over Baniel et al. (herein referred to as Baniel, WO 2017037531 A2) in view of Schmitt et al. (herein referred to as Schmitt, EP 1839492 A1).
With regard to Claim 1, Baniel teaches an edible formulation comprising sweetener particles ([0003], [0033]). Baniel teaches the sweetener particles contain a sweetener carbohydrate and a sweetener polyol ([0004]). Baniel teaches a carrier compound is coated with one or more sweetener carbohydrates and/or sweetener polyols ([0004]). Baniel reads such that the carrier compound is disposed within a sweetener carbohydrate and a sweetener polyol.
However, Baniel is silent to the carrier compound being a milk protein.
Schmitt teaches a whey protein micelle which may be used as a sweetener ([0065]). Schmitt teaches protein imparts desirable texture and stabilization to foods ([0002]). Schmitt teaches the whey protein micelle can be coated with coating agents ([0065]). In some embodiments Schmitt teaches a coating is advantageous to modulate the functionality and taste ([0102]). With regard to protein concentration, Schmitt teaches the whey protein micelles can have an adjustable protein concentration, and teaches embodiments which the protein concentration is as low as 4% (Figure 16). However Schmitt does not explicitly teach the protein concentration of the edible formulation in its entirety. Because Schmitt teaches the protein concentration in the whey protein micelle and embodiments in which sweeteners are added as a coating agent, it would have been obvious to one with ordinary skill in the art to adjust the protein concentration in the final edible formulation by adjusting the protein within the whey protein micelles and the amount of sweetener coating added through routine optimization to achieve the desired functionality and taste. See MPEP 2144.05(II) which 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).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Baniel in view of Schmitt to have the carrier compound (i.e., core) comprising a whey protein micelle because the whey protein imparts desirable texture and stabilization to foods ([0002]).
With regard to the mucosal adhesion, because the combination of Baniel and Schmitt teach substantially the same composition as stated in the instant claim, the formulation would inherently have the desired mucosal adhesion described in the claim. See MPEP 2112.01(II), "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to the specific gravity, , because the combination of Baniel and Schmitt teach substantially the same composition as stated in the instant claim, the formulation would inherently have the desired specific gravity described in the claim. See MPEP 2112.01(II), "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to Claims 4-7, the combination of Baniel and Schmitt teach substantially the same composition as stated in the instant claim, the formulation would inherently have the desired mucosal adhesion described in the claims. See MPEP 2112.01(II), "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to the method of determination, because the combination of Baniel and Schmitt teach substantially the same composition as the instant claims, the formulation will inherently have substantially the same results as the claimed methods of determining standard maximum detachment force and standard work of detachment.
With regard to Claims 8 and 9, Baniel teaches In some cases, at least 10, 20, 30, 40, 50, 60, 70, 80, or 90 percent of the particles of a sweetener composition described herein are between about 1 micron and about 1,000 microns in diameter ([0062]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976);
With regard to Claim 10, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). One with ordinary skill in the art would recognize that the range taught by Baniel above reads on embodiments where the sweetener particle can include predominantly (> 50%) sweetener carbohydrates.
With regard to Claims 11, 12 and 16, Baniel teaches the sweetener carbohydrate can be sucrose (Claim 4) and, as stated above, the sweetener carbohydrate can be included in concentrations >50% thus reading that the sweetener carbohydrate can mainly include sucrose ([0073]).
Because Baniel teaches the use of sucrose as the carbohydrate sweetener and described in instant claim 16, and chemical composition and its properties are inseparable, one with ordinary skill in the art would recognize that the sweetener carbohydrate is thus a crystalline sweetener carbohydrate and has a crystalline structure as stated in claims 11 and 12. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to Claims 13 and 14, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). Thus reading that the carrier compound and the sweetener(s) can be within a range of 97% to 100% on a dry wight basis.
However, Baniel is silent to the carrier being a milk protein.
Schmitt teaches a whey protein micelle which may be used as a sweetener ([0065]). Schmitt teaches protein imparts desirable texture and stabilization to foods ([0002]). Schmitt teaches the whey protein micelle can be coated with coating agents ([0065]). In some embodiments Schmitt teaches a coating is advantageous to modulate the functionality and taste ([0102]). With regard to protein concentration, Schmitt teaches the whey protein micelles can have an adjustable protein concentration, and teaches embodiments which the protein concentration is as low as 4% (Figure 16). However Schmitt does not explicitly teach the protein concentration of the edible formulation in its entirety. Because Schmitt teaches the protein concentration in the whey protein micelle and embodiments in which sweeteners are added as a coating agent, it would have been obvious to one with ordinary skill in the art to adjust the protein concentration in the final edible formulation by adjusting the protein within the whey protein micelles and the amount of sweetener coating added through routine optimization to achieve the desired functionality and taste. See MPEP 2144.05(II) which 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).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Baniel in view of Schmitt to have the carrier compound (i.e., core) comprising a whey protein micelle because the whey protein imparts desirable texture and stabilization to foods ([0002]).
With regard to Claim 17, Baniel teaches a substantially identical composition as Claim 16, therefore the composition would have the same properties. Therefore, the composition taught by Baniel would have a bulk density substantially identically to what is claimed. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
In addition Baniel teaches adjusting one or more reaction parameters may affect the molecular structure, porosity, density, and/or particle size of the carrier compound that is formed. ([0066]). Baniel teaches physical properties of a sweetener composition may affect its taste properties ([0061]). Therefore, through routine optimization, the bulk density could be optimized for the desired taste properties by adjusting the reaction parameters. See MPEP 2144.05(II) "[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).
With regard to Claim 18, Baniel teaches the sweetener compositions can be added to or mixed with one or more food additives. Food additives can add volume and/or mass to a sweetener composition. The sweetener compositions herein may be mixed with food additives such that up to 0.001, 0.005, 0.01, 0.05, 0.1, 0.5, 1, 1.5, 2, 2.5, 3, 3.5, 4, 4.5, 5, 6, 7, 8, 9, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 91, 92, 93, 94, 95, 96, 97, 98, or 99 weight% of the sweetener formulation is food additives ([0071] ). Baniel teaches the additive can be a macronutrient or an essential nutrient([0071]) Additionally, Baniel teaches the additive can be a starch and/or and edible filler ([0071]). One with ordinary skill in the art would recognize a macronutrient and/or essential nutrient to include fat.
Baniel teaches a sweetener composition comprising one or more sweetener carbohydrates and/or sweetener polyols and 0.001-12% carrier compound weight/weight relative to a sum of total sweetener carbohydrate and sweetener polyol ([0010]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976);
Additionally, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). Thus Baniel reads such that the total concentration of sweetener, at least one fat, and at least one starch can be at least 30% on a dry weight basis of the edible formulation.
However, Baniel is silent to the carrier compound being a milk protein.
Schmitt teaches a whey protein micelle which may be used as a sweetener ([0065]). Schmitt teaches protein imparts desirable texture and stabilization to foods ([0002]). Schmitt teaches the whey protein micelle can be coated with coating agents ([0065]). In one embodiment, Schmitt teaches adding lactose and sucrose can be added to the formulation so that the final product will have similar nutritional profile compared to milk, but only whey protein as the protein source ([0090]). In some embodiments Schmitt teaches a coating is advantageous to modulate the functionality and taste ([0102]). With regard to protein concentration, Schmitt teaches the whey protein micelles (sweetener particles) can have an adjustable protein concentration, and teaches embodiments which the protein concentration is as low as 4% (Figure 16). However Schmitt does not explicitly teach the protein concentration of the edible formulation in its entirety. Because Schmitt teaches the protein concentration in the whey protein micelle and embodiments in which sweeteners are added as a coating agent, it would have been obvious to one with ordinary skill in the art to adjust the protein concentration in the final edible formulation by adjusting the protein within the whey protein micelles and the amount of sweetener coating added through routine optimization to achieve the desired functionality and taste. See MPEP 2144.05(II) which 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).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Baniel in view of Schmitt to have the carrier compound (i.e., core) comprising a whey protein micelle because the whey protein imparts desirable texture and stabilization to foods ([0002]).
With regard to Claim 19, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). Baniel teaches the food additive may be an edible filler ([0071]). Thus Baniel reads that the concentration of the sweetener within the edible formulation can be at least 10% and the edible filler can be within the range if 3% to 35%.
With regard to Claim 20, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). Baniel teaches the additive can be a macronutrient or an essential nutrient ([0071]) Additionally, Baniel teaches the additive can be a starch and/or and edible filler ([0071]). One with ordinary skill in the art would recognize a macronutrient and/or essential nutrient to include fat. Thus Baniel reads that the composition may contain at least 5% sweetener, at least 5% of a fat, and at least 5% of a starch.
With regard to Claim 21, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). Thus reading that the carrier compound and the sweetener(s) can be within a range of 97% to 100% on a dry wight basis. Baniel teaches sweetener compositions with enhanced sweetness may taste sweeter than the control composition to which they are compared. A smaller amount (by weight or by volume) of a sweetener composition with enhanced sweetness may produce the same sense of sweetness as a larger amount (by weight or by volume) of a control composition that lacks enhanced sweetness ([0051])
However, Baniel is silent to the ratio of sweetener to milk protein within the sweetener particle.
Schmitt teaches a whey protein micelle which may be used as a sweetener ([0065]). Schmitt teaches protein imparts desirable texture and stabilization to foods ([0002]). Schmitt teaches the whey protein micelle can be coated with coating agents ([0065]). In some embodiments Schmitt teaches a coating is advantageous to modulate the functionality and taste ([0102]). With regard to protein concentration, Schmitt teaches the whey protein micelles can have an adjustable protein concentration, and teaches embodiments which the protein concentration is as low as 4% (Figure 16). However Schmitt does not explicitly teach the protein concentration of the edible formulation in its entirety. Because Schmitt teaches the protein concentration in the whey protein micelle and embodiments in which sweeteners are added as a coating agent, it would have been obvious to one with ordinary skill in the art to adjust the protein concentration in the final edible formulation by adjusting the protein within the whey protein micelles and the amount of sweetener coating added through routine optimization to achieve the desired functionality and taste. See MPEP 2144.05(II) which 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).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Baniel in view of Schmitt to optimize the ratio of sweetener to at least one milk protein so the sweetener particle has the desired enhance sweetness taught by Baniel and the desired texture and stabilization as taught by Schmitt.
With regard to Claim 22, Baniel teaches the sweetener carbohydrate can be sucrose (Claim 4). The sweetener carbohydrate can be included in concentrations >50% thus reading that the sweetener carbohydrate can mainly include sucrose ([0073]).
With regard to Claim 23, Baniel teaches about or at least 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 96, 97, 98, 99, 99.5, 99.9, or 100% of the sweetener formulation by weight may be one, two, three, four, or five components selected from the group consisting of one or more sweetener carbohydrates, one or more sweetener polyols, one or more carrier compounds, one or more solvents, and one or more food additives ([0073]). Thus reading that the carrier compound and the sweetener(s) can be within a range of 97% to 100% on a dry wight basis.
However, Baniel is silent to the carrier being a milk protein.
Schmitt teaches a whey protein micelle which may be used as a sweetener ([0065]). Schmitt teaches protein imparts desirable texture and stabilization to foods ([0002]). Schmitt teaches the whey protein micelle can be coated with coating agents ([0065]). In some embodiments Schmitt teaches a coating is advantageous to modulate the functionality and taste ([0102]). With regard to protein concentration, Schmitt teaches the whey protein micelles can have an adjustable protein concentration, and teaches embodiments which the protein concentration is as low as 4% (Figure 16). However Schmitt does not explicitly teach the protein concentration of the edible formulation in its entirety. Because Schmitt teaches the protein concentration in the whey protein micelle and embodiments in which sweeteners are added as a coating agent, it would have been obvious to one with ordinary skill in the art to adjust the protein concentration in the final edible formulation by adjusting the protein within the whey protein micelles and the amount of sweetener coating added through routine optimization to achieve the desired functionality and taste. See MPEP 2144.05(II) which 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).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Baniel in view of Schmitt to have the carrier compound (i.e., core) comprising a whey protein micelle because the whey protein imparts desirable texture and stabilization to foods ([0002]).
Response to Arguments
Applicant's arguments filed 24 November 2025 have been fully considered but they are not persuasive.
Applicant argues that the examiner has incorrectly applied in re Spada and provides an example to rebuttal the inherency rejection. The applicant explains that sucrose can have different properties and cites that sucrose in the form of table sugar and cotton candy having different bulk densities. The examiner agrees with the differences cited by applicant, however disagrees with the relevancy of the example provided. The examiner agrees the sucrose and the composition as claimed are both sweeteners but the composition taught by Claim 1 does not limit the sweetener to contain only sucrose. Even Claim 16 which cites sucrose only limits the carbohydrate to “mainly sucrose” meaning there can be other carbohydrates. The composition of claim 1 contains carbohydrates, polyols, and at least one milk protein. Therefore, the example provided by the applicant is not a direct comparison and the example provided by the applicant and the composition in the claims are fundamentally different. Applicants example is broader than the precise composition limited in the applicants claims. See MPEP 2112(V) In Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed.Cir.1997).
Continuing, the example of table sugar and cotton candy provided by the applicant explicitly states that the table sugar and cotton candy are processed differently and that is the cause of the different properties. Comparing example 1 from applicants specification and example 1 and example 26 taught by Baniel, the processing steps are extremely similar, unlike that of cotton candy and table sugar as pointed out by the applicant. The examples taught by Baniel require mixing and routine optimization of the utilization of heat. Comparing this to applicants example 1, the processing steps are substantially the same. In addition Baniel teaches similar components, Baniel teaches the sweetener carbohydrate can be sucrose (Claim 4) and the sweetener polyol can be xylitol, maltitol, erythritol, sorbitol, threitol, arabitol, hydrogenated starch hydrolysates, isomalt, lactitol, mannitol, galactitol (dulcitol), and any combination thereof ([0029]). The polyol taught by Baniel are identical to the list provided in the applicant’s specification on page 5. Thus Baniel teaches substantially similar materials as used by applicant being processed in very similar way and as such one of ordinary skill in the art would expect them to have the same properties and the fact that the same material treated in a substantially different way has substantially different properties is not persuasive and as such the examiners inherency argument is maintained (MPEP 2112).
Therefore, it light of the above argument, applicants arguments with regard to inherency of the properties are not found to be persuasive.
Applicant argues that the specific gravity, mucosal adhesion, and bulk density are not composition limitations but structural limitations. This argument is not found to be persuasive because those properties can not be viewed independently from the composition limits and a direct results of the claimed limitation. The specific gravity, mucosal adhesion, and bulk density are still merely properties of the claimed carbohydrates, polyols, and at least one milk protein stated in claim 1. As noted above at the bottom of page 14, Baniel teaches the processing steps are substantially the same and the components taught by Baniel are substantially similar materials as used by applicant. The examiner acknowledges that the processing of a composition can affect the properties, however the processing taught by Baniel was not processed in a manner any or very different than described in applicants specification. Thus, Baniel teaches substantially similar materials as used by applicant being processed in very similar way and as such one of ordinary skill in the art would expect them to have the same properties as such the examiners inherency argument is maintained (MPEP 2112) and the argument is not found to be persuasive.
Applicant argues that Baniel is overly broad. This argument is not found to be persuasive because per MPEP 2173.01(I) In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) "During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow." Therefore, the claims of the present application and Baniel are view under the broadest reasonable interpretation. Thus, applicant’s argument is not found to be persuasive.
Applicant argues that although the examiner points out that Baniel is silent to the carrier compound being a milk protein, the examiner fails to point out that Baniel does not teach that a milk protein carrier exhibits enhance sweetness of the sweetener. While Baniel does teach the use of silica as the carrier, this is only a preferred embodiment and Baniel teaches a variety of different carriers can be used (Baniel [0030]). See MPEP 2123(II) Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). The milk protein taught by Schmitt would work in the same way and would impart desirable texture and stabilization to foods. No arguments have been presented to show why the milk protein would not work in the same manner as the silica. Thus, the motivation provided by Schmitt is sufficient to one with ordinary skill in the art to combine Schmitt with Baniel and therefore applicants argument is not found to be persuasive.
Continuing, in response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, 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, Schmitt's motivation to achieve the desired texture and stabilization is more than sufficient for one with ordinary skill in the art to combine Baniel with Schmitt regardless if Baniel mentions the need for stabilization or not.
With regard to applicants arguments with regard to Schmitt, examiner would like to point to Schmitt which teaches “The whey protein micelles may be used as such in any composition such as a sweetener” ([0065]). Therefore applicants argument that Schmitt does not teach the whey protein micelle can be used as a sweetener is not found to be persuasive.
Applicants argument with regard to the protein concentration taught by Schmitt is not found to be persuasive because Schmitt teaches “it is better to start with an aqueous whey protein solution having a protein concentration below 12%, preferably below 4%” ([0060]). Thus, applicants argument with regard to the protein concentration is not found to be persuasive.
Conclusion
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 KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792