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
Receipt of Remarks/Amendments filed on 12/19/2025 is acknowledged. Applicant elected Group I, Claims 1-9 and 12-13. Applicant did not indicate traversal of the requirement; therefore, the response will be treated as one without traverse. 11 is cancelled. Claim 10 is withdrawn. Accordingly, Claims 1-9 and 12-13 correspond to the elected subject matter and are herein acted on the merits.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 08/12/2025 and 10/12/2023 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
Claim Objections
Claim 3 is objected to because of the following informalities:
Claim 3 is objected to because the claim is missing the word “is” before “characterized”.
Appropriate correction is required.
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.
Claims 3, 5-6, and 8 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.
Claim 3 recites “…characterized in that it comprises only ingredients of dairy origin and the expansion promoting ingredient that promotes expansion is a mineral.” It is unclear if the mineral needs to be of dairy origin. The Examiner notes that the claim is drawn to an expanded dry food product, which is a final product, therefore it is unclear how one of ordinary skill in the art would be able to tell from a final product if a mineral in the product is of dairy origin or not, given that a mineral that came from a diary product and from another source added in the process of obtaining the produce would appear identical in the final product. Clarification is required.
Claim 5 is rejected for indefiniteness. The claim recites “…mineral chosen from citrates, chlorides, phosphates, sodium, calcium and potassium carbonates. It is unclear if “carbonates” only modifies potassium, or if it applies to calcium and/or sodium as well. Additionally, by themselves, citrates, chlorides, phosphates are not considered minerals. As such, the metes and bounds of the claim is unclear. Appropriate correction is required.
Claim 6 depends from Claim 1. Claim 1 requires the expanded food product to comprise 85 and 100% of a skimmed milk powder. Claim 6 requires a three-dimensional shape of between 2 and 20 mm, and is dry, honeycombed and crispy. It is unclear how at 85-100% skimmed milk, the product would be honeycombed and crispy. The instant Specification states “The expanded dry food product according to the invention can be presented in various three-dimensional shapes, for example in the form of a ball, star, bean or annulus, with a characteristic dimension of between 2 and 20 mm; it is dry, honeycombed, crispy and light; it has a density of between 100 and 350 g/I and a moisture level of between 3 and 10%”, but does not explain how construction of products with such shapes, sizes, density, and moisture level are possible when comprising skimmed milk, for example, at 98% and above. Appropriate correction is required.
Claim 6 is also indefinite because it recites a three-dimensional shape having a dimension of between 2-20mm, however, it is unclear if the dimension being required applies to the width, length, thickness, or all three, or merely requires that one of width, length, thickness falls inside the range. Clarification is requested.
Claim Interpretation
The Specification does not provide a definition of “expanded” food. As such, the Examiner will give the broadest reasonable interpretation as used in the field to mean foods with multiple nutrition types.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 3-5, 8 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lato Milk (Lato Milk Powder, and Skimmed Milk Powder. Obtained from Wayback Machine on 01/29/2026 from URL:<https://web.archive.org/web/20190129183421/http://latomilk.com/ products/milk-powder/skimmed-milk-powder/>; and from URL: <https://web.archive.org/ web/20190129183330/http://latomilk.com/products/milk-powder/>).
Lato Milk discloses Skimmed Milk Powder (SMP) is obtained from cow’s milk that has been skimmed, pasteurized and concentrated by vacuum evaporation (p. 2). The ingredient lists only milk solids, which indicates 100% skimmed milk powder (picture in last page).
Regarding Claims 1 and 3-4, because the ingredient lists only milk solids, the SMP in Lato Milk necessarily meets the claimed 85-100%. Lato milk powder contains casein and whey protein which is high in soluble vitamin and mineral content, wherein the mineral is at an amount of 8% maximum (p. 3).
Regarding Claim 5, Lato Milk teaches its milk powders to be rich in calcium (p. 5).
Regarding Claim 8, Lato Milk teaches its product to have 4% moisture maximum (p. 3).
Regarding Claim 12, Lato Milk is processed for commercial distribution, which renders the claim obvious (p. 1).
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 1-2 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over AskCulinary (Of record).
AskCulinary relates how other binders commonly used in making meatballs as breadcrumbs substitute include skim milk powder, soy protein, eggs, potato flour or rice flour (p.-4). The original poster noted that the most recipes call for breadcrumbs and milk (p. 1).
Regarding Claim 1 and the claimed concentration of 85-100% for skimmed milk powder in, because the discussion in AskCulinary surrounds breadcrumbs substitution with a gluten-free option, the Examiner interprets this to mean requiring 100% substitution with skim milk powder, which anticipates the claim (p. 1 and 3).
Regarding Claim 2, because AskCulinary teaches breadcrumbs to skim milk substitution, which is interpreted to mean 100% substitution, the amount is near the claimed range. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05.
Regarding Claim 12, AskCulinary teaches skim milk powder, which is a processed product (p. 3).
Regarding Claim 13, AskCulinary teaches skim milk powder as binder for meatballs as substitute to breadcrumbs, which reads on the “breadcrumb-type product” (p. 1 and 3).
Claims 3-4, and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over AskCulinary, as applied to Claims 1-2 and 12-13 above, and in view of Korte et al. (US 5,397,589), hereinafter Korte.
AskCulinary is silent on the mineral ingredient.
Korte is in the milk field and teaches fortification of powdered milk with calcium to obtain a calcium fortified dry milk powder with improved dispersibility in aqueous media (Abstract). Korte teaches that many calcium fortified products formulated to meet the needs of individuals at high risk for calcium-related diseases (Col. 1, lines 45-47).
Regarding Claims 3-4, Korte discloses the process of calcium fortification and making non-fat dry milk with appropriate amounts of water, nonfat dry milk and calcium gluconate/saccharate solutions (Example 1).
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 Korte with AskCulinary and use SMP fortified with calcium to meet the needs of individuals at high risk for calcium-related diseases.
Regarding Claim 7, Korte teaches varying densities in bulk loose (BDLP) and dense (BDDP) packing, which appears to differ according to factors including the calcium content, milk solids, pH, lactose etc. Example 19 has a BDLP of 298 g/L and BDDP of 333 g/L, which is within the claimed density.
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 Korte with AskCulinary and adjust the components and conditions, e.g. pH to obtain the desired density of the SMP fortified with calcium. One of ordinary skill in the art would 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.
Regarding Claim 8, Korte teaches that skim milk typically contains not more than 5 wt % moisture (Col. 2, lines 16-20).
Regarding Claim 9, Korte teaches that lactose makes up approximately 52% of the content of regular spray dried nonfat milk powders (Col. 5, lines 11-14).
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over AskCulinary, as applied to Claims 1-4, 7-9, and 12-13 above, and in view of Korte, and in further view of Fourre et al. (WO 03/030659 A1, cited in the IDS), hereinafter Fourre.
AskCulinary is silent on the type of mineral ingredient, and the physical characteristics of the expanded food.
Korte has taught the advantage of calcium fortification of milk using calcium gluconate/saccharate solutions (Col. 1, lines 45-47; Example 1). Fourre teaches milk-based snack comprising more than 40% by weight of total milk solids into an extruded snack (Abstract, Claim 2). The snack is expanded after extrusion and comprises 28% to 70% of non-fat milk solids.
Regarding Claim 5, Fourre teaches the snack may also comprise calcium carbonate, disodium phosphate, sodium caseinate, sodium chloride, and other ingredients, for example ingredients influencing the texture, color etc. (p. 8, lines 26-30). Fourre expressly teaches a snack comprising 0.3% calcium carbonate (Table 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine Fourre with AskCulinary and fortify the milk with calcium using calcium carbonate to also influence the physical properties of the milk, e.g. alter the texture or of the product. Furthermore, 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, one would simply substitute the source of calcium taught by Korte with the calcium carbonate of Fourre.
Regarding Claim 6, Fourre teaches an extrusion process utilizing a die with one or more circular openings of ~2 to 10 mm in diameter, an may also have different, fancy shapes such as stars, for example.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use the extrusion process taught by Fourre and prepare expanded snacks comprising the SMP of AskCulinary having dimensions and shapes according to the teaching of Fourre. It can be expected that using this technique would lead to uniform coating with uniform sizes and shapes of the snack product. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Claims 2, and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Lato Milk, as applied to Claims 1, 3-4, 8 and 12 above, and in view of Fourre et al. (WO 03/030659 A1, cited in the IDS), hereinafter Fourre.
The teachings of Lato Milk have been set forth supra.
Fourre teaches milk-based snack comprising more than 40% by weight of total milk solids into an extruded snack (Abstract, Claim 2). The snack is expanded after extrusion and comprises 28% to 70% of non-fat milk solids.
Regarding Claims 2 and 5, Fourre teaches the snack may also comprise calcium carbonate, disodium phosphate, sodium caseinate, sodium chloride, and other ingredients, for example ingredients influencing the texture, the crispiness (p. 8, lines 26-30). Fourre expressly teaches a snack comprising 0.3% calcium carbonate (Table 1).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine Fourre with Lato Milk and make snacks using the SMP from Lato Milk, adding calcium carbonate or other salts or ingredient for the snack preparation to obtain the desired texture or physical characteristics such as crispiness. One would start modifying Lato by adding the calcium carbonate at the amount expressly taught by Fourre, and adjusting the amount of SMP to less than 100% and optimize as needed. As such, the snack also renders the processed product in Claim 12 obvious.
Regarding Claim 6, Fourre teaches an extrusion process utilizing a die with one or more circular openings of ~2 to 10 mm in diameter, an may also have different, fancy shapes such as stars, for example.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use the extrusion process taught by Fourre and prepare expanded snacks using SMP of Lato Milk having dimensions and shapes according to the teaching of Fourre. It can be expected that using this technique would lead to uniform coating with uniform sizes and shapes of the snack product Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding Claim 7, Fourre teaches the snack as obtained after the drying step has a density of 135-140 g/L (p. 15, line 22).
Regarding Claim 8, Fourre teaches drying until the snack has a moisture content of about 2%, which is near the claimed range (Example 2). A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05.
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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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792