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 Claims
This is a 2nd Non-Final Rejection. Applicant’s arguments in the Remarks filed 05/11/2026, with regards to the 102 rejection over Lato Milk was given consideration, and upon further search and consideration, a closer prior art was found, and thereby relied upon in the rejection herewith.
Receipt of Remarks/Amendments filed on 05/11/2026 is acknowledged. Claims 1, 3-5 are amended. Claim 10 is withdrawn. Claims 6 and 11 are cancelled. Claims 1-5, 7-10, and 12-13 are currently under examination and the subject matter of the present Office Action.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 13 is 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.
Claim 13 requires that the expanded dry food product is in ground form. Claim 13 depends from Claim 1, which requires that the expanded dry food product is in honeycombed form. It is therefore unclear how the expanded dry food product would both be in ground form and have a honeycombed structure. As such, Claim 13 is indefinite and rejected.
Claim Rejections - 35 USC § 103
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5, 8-9, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Nagai et al. (JP 2001-136950 A, machine translated in IP.com), Nagai, as evidenced by ThinkUSAdairy (Non-fat Dry Milk & Skim Milk Powder | ThinkUSAdairy by the U.S. Dairy Export Council, obtained on 06/16/2026 from WayBack Machine from URL: <https://web.archive.org/web/20150802005159/https:/www.thinkusadairy.org/products/milk-powders/milk-powder-categories/non-fat-dry-milk-and-skim-milk-powder>).
Nagai relates a method of producing a dairy product by extrusion to obtain a milk snack. (Abstract).
Regarding Claim 1, Nagai discloses the preparation of foamed material from 100% skim milk powder and water supplied to a twin screw extruder and heated (p. 6, Example 2). -The milk and water are mixed and the product extruded from a nozzle having a diameter of 2.5 mm, and the extrudate cut at an average length is 3mm pellets (p. 6, Example 2). The skim milk foam obtained was a lightweight, dense foam with a milky scent and excellent texture (p. 6, Example 2). Nagai also teaches drying, and that a crispy snack is obtained by increasing the extrusion speed (p. 5, 2nd to last paragraph; p. 6, 3rd paragraph). As such, Claim 12 is also obvious.
Nagai does not expressly teach the honeycombed shape, but teaches that shapes and sizes can be set (p. 2, [0005]). As such, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to create any desired shape. Furthermore, according to MPEP § 2144.04, a a design choice rejection hinges on the principle that “[a]n obviousness rejection based on a design choice is appropriate where the applicant has not shown that the particular design provides any unexpected results.” The Examiner may argue that the claimed feature or configuration is an obvious variant of prior art because it does not yield a functional or technical benefit beyond what was already known.
Regarding Claim 2, Nagai teaches milk material containing 50% or more of skim milk powder, which encompasses the claimed range (Claim 1). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05.
Regarding Claims 3 and 5, these claims depend from Claim 1, and recites the ingredient that promotes expansion to be an optional component. As such, Nagai also render these claims obvious.
Regarding Claim 8, Nagai teaches the water content is adjusted to 10-15%, which overlaps with the claimed range (Claim 2). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05.
Regarding Claim 9, Nagai teaches skimmed milk. Skimmed milk typically contains 49.5% - 52.0% lactose as evidenced by ThinkUSAdairy (p. 2).
Claims 1-5, 8-9, and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Nagai, as applied to Claims 1-3, 5, 8-9, and 12 above, and in view of Horton, R. (CA 2787101 A1), hereinafter Horton.
The teachings of Nagai have been set forth supra.
Regarding Claim 1, in the event that Nagai have not rendered the honeycombed feature obvious, Horton also teaches expanded food products, and teaches products with honeycomb structure (Abstract). Horton comprehends milk is a structuring material or modifier of the matrix in expanded food products, making it compatible with Nagai (p. 5, lines 1-10; p. 9, lines 3-8). Horton relates dried, shaped food product that has a porous/brittle structure of air pockets, i.e. "honeycombed" (Abstract; p. 6, lines 26-28). Horton teaches that its structure can be for example, porous, brittle, crunchy, honeycombed, crispy, or any combination thereof, and that the solid can be extruded into any desired shape (p. 12, lines 29-30; p. 13, lines 5-20; Claims 3 and 32). In fact, Horton comprehend that expanded edible products can have porous, foamed structures etc. (p. 2, lines 31-32).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Horton to that of Nagai and shape the food product with a honeycombed structure, i.e. having a porous/brittle structure of air pockets, if such porous structure is desired. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143. In this case, Horton already acknowledged that the solid can be extruded into any desired shape porous forms are known forms of expanded edible products.
Regarding Claim 4, Horton teaches sodium and potassium chloride salts as well as minerals of calcium, phosphorous etc. (p. 20, lines 20-29). Horton expressly teaches minerals in example compositions as non-structural ingredients (p. 8, lines 21-26; Examples 6-9). This is a situation where elements of references are combined in a predictable manner so that the elements retain their function. The non-structural ingredients do not modify the function of any of the components or the product. As such, the artisan would enjoy a reasonable expectation of success. Therefore, all of the 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 functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Regarding Claim 13, Horton teaches a cheese-based product comprising expanded cheese grains, which reads on the ground form (p. 4, lines 6-11). As above, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Horton to that of Nagai and shape the food product with in a granular/ground form as artisan desires in accordance to use. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143 In this case, Horton already acknowledged that the solid can be extruded into any desired shape porous forms are known forms of expanded edible products.
Furthermore, per MPEP § 2144.04, a design choice rejection hinges on the principle that “[a]n obviousness rejection based on a design choice is appropriate where the applicant has not shown that the particular design provides any unexpected results.” The Examiner may argue that the claimed feature or configuration is an obvious variant of prior art because it does not yield a functional or technical benefit beyond what was already known.
Claims 1-5, 7-9, and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Nagai in view of Horton, as applied to Claims 1-5, 8-9, and 12-13 above, and in further view of Mikota et al. (EP 1300083 A1), hereinafter Mikota.
Nagai does not teach the claimed density.
Mikota also teaches extruded milk-based snack having more than 27.5% non-fat milk solids, and more than 40% total milk solids (Abstract; Claims 1-2). Mikota teaches increasing the total amount of milk solids in an extruded-expanded snack provided a snack with increased nutritional value, has a good texture, taste and overall organoleptic properties among other desirable advantages ([0008], [0015]-[0018]). The milk solids may be chosen from different milk fractions including skimmed milk powder, making it compatible with Nagai [0051],[0058]. In one embodiment, the extruded mixture comprises more than 40% up to 80% total milk solids, or more than 27.5% up to 70% non-fat milk solids [0012]. The snack may also comprise minerals including calcium carbonate, sodium chloride etc. ([0057, Table 1).
Regarding Claim 7, Mikota expressly teaches a dried snack which step has a density of 135-140 g/L having a crunchy, crispy texture, a pleasant mouthfeel and a good taste, comprising 65% of total milk solids, wherein the "total milk solids" includes lactose etc. ([0024], [0103]; Example 1). Mikota also teaches that a skilled artisan in food extrusion would be able to easily select the extrusion die, a cutting device etc. to obtain an end-product of any desired shape and size [0073]. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Mikota with Nagai and adjust the components and extrusion conditions to obtain an extruded food snack that has the desired crispiness and density, starting with the density taught by Mikota. One of ordinary skill in the art would also find it obvious to adjust the density as a matter of experimentation and optimization. The adjustment of particular conventional working conditions is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Response to Remarks:
Applicant traversed the 102 rejection over Lato Milk, and the 103 rejections over AskCulinary, Korte, and Fourre stating that these references do not teach the claimed feature.
After careful consideration, the Examiner agreed that these arts do not teach the “expanded” dry food products” as recognized in the art, i.e. prepared by extrusion. However, upon further search, relevant arts were found that still rendered the claims obvious, and a second non-final rejection is issued Vide supra.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/JANICE Y SILVERMAN/Examiner, Art Unit 1792
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