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 .
DETAILED ACTION
Claims 1-16 are pending in the current application.
Claims 10-16 are withdrawn from consideration (see discussion, below).
Claims 1-9 are examined in the current application.
Election/Restrictions
Applicant’s election without traverse of claims 1-9 in the reply filed on January 23rd 2026 is acknowledged.
Claims 10-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on January 23rd 2026.
Claim Objections
Claim 8 is objected to because of the following informalities: The viscosity range in line 2 recites to be between “500 and 15.00 mPa.s.” instead of “.500 and 15.00 mPa.s.”. Appropriate correction is required.
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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Mikkelsen et al., (WO 2015/059245 A1). Evidenced by NPL Fabian et al., “Isolation and characterization of starch from defatted rice bran” (from Journal of the Taiwan Institute of Chemical Engineers 42 (2011) pp. 86-91).
Regarding claims 1 and 4: Mikkelsen discloses a high-protein fermented dairy product (i.e., yogurt) comprising 21-25wt% of protein (see Mikkelsen abstract; page 25, lines 28-32), where 0-20wt% of the protein comprises micellar casein (see Mikkelsen page 22, lines 10-16) and at least 60wt% of the protein comprise denatured whey protein (see Mikkelsen page 6, lines 4-5). Since the claimed total protein, micellar casein and whey protein content ranges overlap the total protein, micellar casein and whey protein contents ranges in Mikkelesen, a prima facie case of obviousness exists (see MPEP §2144.05).
As to the whey protein being “microparticulated” recited in claim 1: Mikkelsen discloses denatured whey protein is heat denatured, cooled and subjected to high shear treatment (see Mikkelsen from page 17, line 34 to page 18, line 16) where 50-100wt% have particles size in the range of 1-10 microns, where at least 80wt% have a diameter of about 1 micron (see Mikkelsen page 8, lines 19-31; page 9, lines 4-15). Since the current application discloses microparticulated whey protein is attained by heat-treating whey protein, cooling and subjecting to high shear treatment to attain particle size diameter of 0.1-3 microns (see Specification page 5, lines 6-18; page 7, lines 1-13), the heat-denatured whey protein in Mikkelsen reads on the claimed microparticulated whey protein.
As to the claimed stabilizer and fat contents: Mikkelsen discloses the high-protein fermented dairy product comprises at most 15wt% fat (see Mikkelsen page 17, lines 17-22) and 0.01-5wt% stabilizers and 0.01-3wt% emulsifiers (see Mikkelsen page 24, lines 10-12 and 21-23). Since the claimed stabilizer and fat content ranges, overlap, or lie inside the stabilizer and fat content ranges in Mikkelsen, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claim 2: Mikkelsen discloses at least 60wt% of the protein comprise heat-denatured whey protein (i.e., microparticulated whey protein) (see Mikkelsen page 6, lines 4-5). Since the claimed microparticulated whey protein content range lies inside the microparticulated whey protein content range in Mikkelesen, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claim 3: Mikkelsen discloses a high-protein fermented dairy product (i.e., yogurt) comprising 21-25wt% of protein (see Mikkelsen abstract; page 25, lines 28-32). Since the claimed total protein content range overlaps the total protein content range in Mikkelesen, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claim 5: Mikkelsen disclose the high-protein fermented dairy product comprises 0.01-5wt% stabilizers and 0.01-3wt% emulsifiers, such as rice bran extract (see Mikkelsen page 24, lines 10-12 and 18-23) and non-dairy protein, such as gelatin (see Mikkelsen page 22, lines 18-20). Since rice bran is known to comprise starch (see Fabian page 87, left column, top paragraph), Mikkelsen meets the claimed limitations.
Regarding claim 6: Mikkelsen discloses denatured whey protein is heat denatured, cooled and subjected to high shear treatment (see Mikkelsen from page 17, line 34 to page 18, line 16) where 50-100wt% have particles size in the range of 1-10 microns, where at least 80wt% have a diameter of about 1 micron (see Mikkelsen page 8, lines 19-31; page 9, lines 4-15). Since the claimed mean particle diameter overlaps the particle size in Mikkelsen, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claim 7: Mikkelsen discloses an example where the composition comprised fruit composition (see Mikkelsen page 56, line 4).
Regarding claims 8 and 9: Mikkelsen discloses the high-protein composition has a viscosity of at most 2500cp (i.e., 2.5 mPas). Since the ranges of viscosity recited in claims 8 and 9, overlap the range of viscosity in Mikkelsen, a prima facie case of obviousness exists (see MPEP §2144.05).
Conclusion
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Shang et al., (WO 2019/048513 A1) discloses a stable fermented heat-inactivated dairy product from 0.45 to 0.60% by weight of carboxymethylcellulose, from 0.015 to 0.030% by weight of gellan gum , from 0.45 to 0.60% by weight of pectin, from 0.35 to 0.55% by weight of glutinous starch, said product having a pH of 4.15 to 4.3, a protein content of milk of 2.3 to 3.0 g / 100 ml and a fat content of 1.8 to 4.0 g / 100 ml (see Shang abstract).
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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