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 .
Election/Restrictions
Applicant’s election of Group IV in the reply filed on 7/21/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Specification
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
When there are drawings, there shall be a “brief description of the several views of the drawings” (See 37 C.F.R. 1.74.).
The section heading “BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S)” is missing.
Claim Objections
Claim 13 is objected to because of the following informalities: there is an extraneous “or” at line 12. Appropriate correction is required.
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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 13-17 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.
The phrase “a thermally inhibited waxy cassava starch” in Claim 13, line 4 is vague and indefinite as it is unclear if it includes “damaged starch” and if it includes “damaged starch” can it be deemed “thermally inhibited waxy cassava starch” if the starch has degraded into molecules like water and carbon dioxide. If molecules like water and carbon dioxide are deemed “thermally inhibited waxy cassava starch” then it is unclear how one can tell what is and what is not “thermally inhibited waxy cassava starch”.
The phrase “composition has a viscosity between 1,000 and 10,000 cP” in Claim 13, line 8 is vague and indefinite as it unclear whether the viscosity of between 1,000 and 10,000 cP is measured at any specific temperature like -10 oC, 0 oC, 50 oC, 100 oC, 200 oC. The claimed viscosity appears impossible if it is a frozen solid at -10 oC or is boiling, however, the claims do not provide a temperature. It was very well known in the art that a solid or gas have different viscosities than liquids.
Clarification and/or correction is required.
Claim Rejections - 35 USC § 102
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 13, 16 and 17 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Whaley et al. (WO 2018/112383).
Regarding Claim 13, Whaley (‘383) teaches a method for making an edible composition (See para. 73.) comprising: a) mixing between 0.1 and 35% by weight of the composition of a thermally inhibited waxy cassava starch wherein the waxy Cassava starch is a moderately or highly inhibited thermally inhibited waxy cassava starch with an edible aqueous liquid to form a mixture (See para. 77, 43, 0.1-35%, e.g., 0.5-6.0%, by weight, of the food product, where the term "inhibited starch" means a starch which exhibits "process tolerance", where the degree of inhibition can be assessed through measuring the sedimentation volume of the starch.), b) cooking the mixture (See para. 73.) wherein the composition has a viscosity between 1,000 and 10,000 cP (See para. 39.), wherein the composition is selected from dairy products, sauces, dressings, and beverages (See para. 80.).
Regarding Claim 16, Whaley (‘383) teaches wherein the thermally inhibited waxy cassava starch in the composition is in an amount between 1% and 3% (wt.%) (See para. 77.).
Regarding Claim 17, Whaley (‘383) teaches wherein the thermally inhibited waxy cassava starch in the composition is in an amount between 2% and 8% (wt.%) (See para. 77.).
Claim(s) 13 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Hanchett et al. (EP 3000327).
Regarding Claim 13, Hanchett (‘327) teaches a method for making an edible composition comprising: a) mixing between 0.1 and 35% by weight of the composition of a thermally inhibited waxy cassava starch having with an edible aqueous liquid to form a mixture (See Abs., paras. 22, 55, Claims 3-4, 1.0-4% by weight for yogurts/puddings.), b) cooking the mixture (See para. 17.); and c) subjecting the mixture to homogenization at between 750 and 2750 psi (See paras. 43 and 67.); wherein the composition has a viscosity between 1,000 and 10,000 cP (See paras. 22, 25, 55, Claims 3-4, wherein the waxy cassava starch inherently has the claimed viscosity as the starch is the same.), wherein the composition is yogurt (See Abstract, para. 55.).
Regarding Claim 16, Hanchett (‘327) teaches wherein the thermally inhibited waxy cassava starch in the composition is in an amount between 1% and 3% (wt.%) (See Abs., paras. 27, 33, 2-7% by weight.).
Regarding Claim 17, Hanchett (‘327) teaches wherein the thermally inhibited waxy cassava starch in the composition is in an amount between 2% and 8% (wt.%) (See Abs., paras. 27, 33, 2-7% by weight.).
Claim Rejections - 35 USC § 103
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.
Claim(s) 14 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Whaley et al. (WO 2018/112383) in view of Patton et al. (WO 2018/013831).
Regarding Claim 14, Whaley (‘383) teaches the method discussed above, however, fails to expressly disclose subjecting the mixture to homogenization at between 750 and 2750 psi.
The claimed homogenization pressure range is very broad and includes virtually all conceivable values.
Patton (‘831) teaches a similar method as Whaley (‘383) for making similar food products including screening of yogurt including starch at a homogenization pressure of 1,000 psi to provide a food product of desired consistency (See paras. 116-122.).
It would have been foreseeable and obvious prior to the earliest effective filing date to homogenize Whaley’s (‘383) food at the pressure within the very broad claimed range and taught by Patton (‘831) to provide a food product of desired consistency. The selection of homogenization pressure would have been within the skill set of a person having ordinary skill in the art prior to the earliest effective filing date.
Regarding Claim 15, Whaley (‘383) teaches the method discussed above, however, fails to expressly disclose wherein the thermally inhibited waxy cassava starch has been inhibited to have a peak viscosity in a range selected from the group consisting of: a) from about 50 to about 500 cP and b) 500 to about 1200 cP.
Whaley (‘383) teaches products similar as claimed having peak viscosity in a range of: a) from about 50 to about 500 cP and b) 500 to about 1200 cP (See para. 39.).
It would have been foreseeable and obvious prior to the earliest effective filing date since Whaley’s (‘383) produced product is the same and the listed similar embodiments have the same peak viscosity as claims it would also have the same claimed peak viscosity.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT T O'HERN whose telephone number is (571)272-6385. The examiner can normally be reached M-Th 5:00 am - 3:30 pm.
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/BRENT T O'HERN/ Primary Examiner, Art Unit 1793
July 21, 2025