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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 6, 2026 has been entered.
Status of the Claim
Claims 1, 4, 7, 9-11 and 14-22 are pending and under examination. Any objections or rejections not repeated below have been withdrawn.
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.
The factual inquiries 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.
Claims 1, 4, 7, 9-11 and 14-22 are rejected under 35 U.S.C. 103 as being unpatentable over Veelaert et al. US 20070039612 (cited in IDS dated 08/23/2023) in view of Klemaszewski US 20100278994.
Regarding claim 1, the recitations within the claim of “having a protein content of less than 0.4% w/w with a reactant capable of forming active chlorine, wherein the reactant is used in an amount sufficient to provide greater than 4000 ppm and below 8200 ppm of active chlorine during stabilization reaction” does not limit the claim, but is merely directed towards process steps and ingredients to make the final product instead of the final product itself. See MPEP 2113.I. Therefore, if the product in the product-by-process recitation in claim 1 is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.
Veelaert teaches a stabilized starch obtained by reacting under alkaline conditions a base starch (reaction performed at pH from 3 to 12, preferably a pH of 8.5 to 10.5; [0014-0020]). Veelaert discloses the base starch has a protein content from 0.2 to 0.4% [0021], which is within the claimed range of less than 0.4%. Veelaert further discloses that the reactant used to treat the base starch during the stabilization reaction is used in an amount sufficient to provide between 100 to 8000 ppm active chlorine, preferably between 500-5000 ppm active chlorine ([0014-0019], [0057-0058], Claim 19), which overlaps the claimed range of greater than 4100 ppm and below 7000 ppm of active chlorine during the stabilization reaction. 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(I).
Veelaert teaches the base starch is a modified waxy starch (starches may be chemically modified before treatment and are waxy starches; [0047-0048]) selected from the group consisting of modified waxy maize, modified waxy rice, modified waxy potato, modified waxy sorghum and modified barley [0047-0048].
Veelaert teaches the base starch can be modified by a chemical reaction [0047] but does not state the starch is modified by a chemical reaction with a succinic anhydride to have a succinic anhydride modified waxy starch.
Klemaszewski teaches a stabilized starch (starch modified for increased stability [0023]) which has undergone a reaction with a reactant of hypochlorite capable of forming active chlorine under alkaline conditions, pH between 7.5 to 11.5, where the starch is a waxy maize starch [0020-0021], [0048-0050]. Klemaszewski teaches that the starch is modified by a chemical with succinic anhydride or is a succinic anhydride modified waxy starch (n-octenyl succinic anhydride (nOSA); Abstract, [0049-0052]), which results in a starch with improved heat and shear stability, as well as a starch that can be used in products as a fat mimetic, or in other words used to replace the fat in food products, resulting in improved nutrition by reducing the fat in the overall product [0018], [0048], [0086].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Veelaert by incorporating the teachings of Klemaszewski by using succinic anhydride, specifically nOSA, as the chemical to modify the starch, because nOSA modified starch has improved heat and shear stability, and is also a starch that can be used in products as a fat mimetic, or in other words used to replace the fat in food products, resulting in improved nutrition by reducing the fat in the overall product, as recognized by Klemaszewski [0018], [0048], [0086].
Veelaert teaches the chemically modified waxy starch may or may not be a protease-treated starch ([0047], [0028], Claim 26). Veelaert states that the modified waxy starch undergoes a process step “a) treating starch with an amount of reactant…” but their reactant is selected from a group consisting of proteases, lipases, alkaline solution, and other reactants ([0019], [0028], Claim 18, Claim 26). However, a person of ordinary skill in the art can choose any of the reactants selected from the group, including an alkaline solution, and does not need to use the protease reactant. Therefore, modified Veelaert does teach the succinic anhydride modified waxy starch is not a protease-treated starch.
Regarding the recitation, “wherein the stabilized starch exhibits a viscosity ramp of less than 0.20 BU/sec during 30 minutes heating at 95 °C, pH 3.0, and 5.5% solids, and wherein the stabilized starch shows no viscosity breakdown during said 30 minutes heating at 95°C and pH 3.0;” Veelaert in view of Klemaszewski teaches a stabilized succinic anhydride modified waxy starch composition that is substantially identical to the claimed composition and is produced by a substantially identical process as outlined above. Thus, the stabilized starch composition of Veelaert in view of Klemaszewski, is considered to exhibit a viscosity ramp of less than 0.20 BU/sec during 30 minutes heating at 95 °C, pH 3.0 and 5.5% solids, and wherein the stabilized starch shows no viscosity breakdown during said 30 minutes heating at 95°C and pH 3.0, absent convincing arguments or evidence to the contrary.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. See MPEP §2112.01 (I).
Regarding claims 4, 14 and 15 modified Veelaert discloses the stabilized starch of claim 1, as discussed above. Veelaert teaches the base starch has a protein content of between 0.2 to 0.4% [0021]. This overlaps with the claimed range of between 0.1% and 0.38%, as required by claim 4, encompasses the claimed range of between 0.2% and 0.35%, as required by claim 14 and encompasses the claimed range of between 0.25% and 0.3%, as required by claim 15.
Regarding claims 7 and 16, modified Veelaert discloses the stabilized starch of claim 1, as discussed above. Klemaszewski teaches that the base starch is modified by a chemical with an n-alkenyl succinic anhydride, as required by claim 7, specifically with n-octenyl succinic anhydride, as required by claim 16 (Abstract, [0049-0052]).
Regarding claim 9, modified Veelaert discloses the stabilized starch of claim 1, as discussed above. Veelaert teaches the stabilization reaction is carried out at a pH from 3 to 12, preferably a pH of 7.5 to 11.5 [0019], which encompasses the claimed pH of between 8.0 and 9.0. Veelaert does not teach the base starch is a nOSA starch. However, Klemaszewski teaches the base starch is a nOSA starch (n-octenylsuccinylation (nOSA) chemical modification is carried out on the starch before the hypochlorite treatment, or treatment with reactant, making it the base starch [0052]).
Regarding claim 10, modified Veelaert discloses the stabilized starch of claim 1, as discussed above. The recitations “for soups and sauces” and “for meat products” are construed to be directed towards the intended use of the claimed product. As long as the prior art formulation is capable of performing the intended use, then it meets the claim.
Regardless, Veelaert teaches a product of thickeners for sauces and dairy product containing the stabilized starch of claim 1 (bechamel sauce, where the stabilized starch is used as a thickener imparting a heavy texture to the sauce, the sauce is a dairy product containing milk and butter; [0207-0215]).
Regarding claim 11, modified Veelaert discloses the stabilized starch of claim 1, as discussed above. Veelaert teaches a dairy product selected from the group consisting of milk and butter, said dairy product containing the stabilized starch of claim 1 (bechamel sauce, containing milk and butter containing the stabilized starch; [0207-0212]).
Regarding claims 17-22, modified Veelaert discloses the stabilized starch of claim 1, as discussed above. Veelaert teaches the amount of the reactant is sufficient to provide between 100 to 8000 ppm active chlorine, preferably between 500-5000 ppm active chlorine, during the stabilization reaction [0014-0019], [0057-0058]. This overlaps the claimed ranges of at least 4200 ppm, 4300 ppm, 4400 ppm and 4500 ppm active chlorine, as required by claims 17, 18, 19 and 20 respectively. This also overlaps the claimed ranges of 4100 ppm to 6000 ppm and 4200 ppm to 5500 ppm of active chlorine, as required by claims 21 and 22 respectively. See MPEP 2144.05(I).
Response to Arguments
Applicant's arguments filed 05/06/2026 have been fully considered but they are not persuasive.
Claim Rejections - 35 U.S.C. § 103
Applicant argues, on pgs. 6-7 of their remarks, that Veelaert does not disclose a succinic anhydride-modified waxy starch and relies on Klemaszewski for the feature and that Veelaert has a broad active-chlorine disclosure. Applicant notes that the office action relies on inherency to conclude that the combination Veelaert in view of Klemaszewski exhibit the claimed viscosity behavior. Applicant contends that In re Best applies only where the prior art product or process has first been shown to be identical or substantially identical to the claimed subject matter and that the office action has not shown that. Applicant states Klemaszewski does not disclose the active chlorine range of 4100-7000 and neither Veelaert or Klemaszewski alone or in combination teach the stabilized starch showing no viscosity breakdown under the claimed conditions and time. Applicant points to the previously filed Fonteyn Declaration, noting the declaration confirms the same arguments. However, the Office disagrees for the following reasons.
Veelaert in view of Klemaszewski, is still considered to be substantially identical to the claimed product. The burden of proof lies with the applicant to demonstrate that their claimed invention is not obvious over the prior art. The applicant hasn't compared the closest prior art, specifically the product of Veelaert in view of Klemaszewski, to the claimed product. The Office is unable to do an analysis of the composition of Veelaert modified by Klemaszewski, as shown by the rejection, to the claimed composition and until the applicant has a reasonable case for obviousness the burden is on the applicant to show otherwise. Thus, absent any evidence to the contrary, product of modified Veelaert is considered substantially identical to the claimed product as in the Non-final Office Action and is considered to possess the properties of the claimed composition. Also, it is noted that the Declaration dated 12/09/2025 does state that the experiment results given in the declaration were designed to show that when the starch of Veelaert (protease treated starch) was treated with the high active chlorine, this results in hydrolytic breakdown of the starch. However, this is not looking at the combination of Veelaert in view of Klemaszewski or even the non-protease treated starch of Veelaert discussed above, but only the Veelaert protease treated starch.
Additionally, as discussed in the above rejection, the Office has shown that Veelaert in view of Klemaszewski is substantially identical to the claimed subject matter. Veelaert discloses that the reactant used to treat the base starch during the stabilization reaction is used in an amount sufficient to provide between 100 to 8000 ppm active chlorine ([0014-0019], [0057-0058], Claim 19), which encompasses the claimed range of greater than 4100 ppm and below 7000 ppm of active chlorine during the stabilization reaction. See MPEP 2144.05(I). Additionally, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Veelaert to incorporate the teachings of Klemaszewski by using succinic anhydride (nOSA) as the chemical to modify the starch, because nOSA modified starch has improved heat and shear stability, and is also a starch that can be used in products as a fat mimetic, as recognized by Klemaszewski [0018], [0048], [0086]. Since the active chlorine limitation and succinic anhydride limitation are both met, and the other limitations are met by Veelaert (see rejection above), the stabilized starch of Veelaert in view of Klemaszewski is viewed as being substantially identical to the claimed stabilized starch and is produced by substantially identical processes. Thus, the stabilized starch composition of Veelaert in view of Klemaszewski, is considered to exhibit substantially identical properties, specifically the claimed properties of a viscosity ramp of less than 0.20 BU/sec during 30 minutes heating at 95 °C, pH 3.0 and 5.5% solids, and wherein the stabilized starch shows no viscosity breakdown during said 30 minutes heating at 95°C and pH 3.0, absent convincing arguments or evidence to the contrary.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. See MPEP §2112.01 (I).
Applicant argues, on pg. 7, that there is not an adequate reason to modify Veelaert in view of Klemaszewski. Applicant contends rejection does not explain why a skilled artisan would have selected the specifically recited active chlorine range in combination with the non-protease-treated succinic anhydride modified waxy starch and would have expected the combination to yield a starch showing no viscosity breakdown as claimed. Applicant states the examiner’s rational to modify reflects hindsight reconstruction, not a teaching in the art directing one to the claimed amended subject matter. However, the Office disagrees for the following reasons.
Even though Veelaert in view of Klemaszewski do not disclose or suggest the importance of the combination of active chlorine with the non-protease-treated succinic anhydride modified waxy starch in regards to rheological behavior, that does not render nonobvious an otherwise known invention. MPEP 2145(II) states, "Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention, In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)."
Furthermore, a prior art reference is available for all it teaches and is not limited to what the patentees of the prior art describe as their own inventions or to the problems with which they are concerned, see MPEP 2123.
Additionally, the rejection does provide adequate reason to modify Veelaert. As stated above, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Veelaert to incorporate the teachings of Klemaszewski by using succinic anhydride (nOSA) as the chemical to modify the starch, because nOSA modified starch has improved heat and shear stability, and is also a starch that can be used in products as a fat mimetic, as recognized by Klemaszewski [0018], [0048], [0086].
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues, on pgs. 7-10, that the rejection’s range-overlap position of 100-8000 ppm active chlorine does not establish a prima facie case of obviousness for amended claim 1. Applicant explains the active chlorine range is not an arbitrary selection from a broader prior-art interval, but a technically meaningful region tied directly to the claimed performance. Applicant contends the prior art does not identify the preferred range of between 4100 ppm and 7000 ppm of active chlorine as a critical range that is used to yield specific rheological stability, specifically noting the previously submitted Fonteyn Declaration. Applicant also argues the narrower ranges taught in dependent claims 17-22 are not arbitrary selections from a broad prior-art disclosure but instead correspond to expressly identified preferred regions of the invention tied to the rheological properties. Applicant again references the previously filed Fonteyn Declaration, stating that the overlap rationale does not establish a prima facie case of obviousness for dependent claims 17-22 and that these narrower ranges specifically address the issue of the chlorine ranges not being fully commensurate with the originally pending broader chlorine limitations. However, the Office disagrees for the following reasons.
Regarding the Fonteyn Declaration and the narrower claim ranges overcoming the prima facie case of obviousness for overlapping rationale, an affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness. In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979). "A comparison of the claimed invention with the disclosure of each cited reference to determine the number of claim limitations in common with each reference, bearing in mind the relative importance of particular limitations, will usually yield the closest single prior art reference." In re Merchant, 575 F.2d 865, 868, 197 USPQ 785, 787 (CCPA 1978) (emphasis in original). See MPEP 716.02(e). As noted earlier, the applicant hasn't compared the closest prior art, specifically the product of Veelaert in view of Klemaszewski, to the claimed product. Declaration dated 12/09/2025 states that the experiment results given in the declaration were designed to show that when the starch of Veelaert (protease treated starch) was treated with the high active chlorine, this results in hydrolytic breakdown of the starch. However, this is not looking at the combination of Veelaert in view of Klemaszewski or even the non-protease treated starch of Veelaert discussed above, but only the Veelaert protease treated starch. Thus, the above rejection does establish a prima facie case of obviousness for amended claim 1 and for dependent claims 17-22, and applicant has not effectively rebutted the prima facie case of obviousness.
Additionally, as discussed in the rejection above, Veelaert discloses that the reactant used to treat the base starch during the stabilization reaction is used in an amount sufficient to provide between 100 to 8000 ppm active chlorine, preferably between 500-5000 ppm active chlorine ([0014-0019], [0057-0058], Claim 19), which overlaps the claimed range of greater than 4100 ppm and below 7000 ppm of active chlorine during the stabilization reaction. 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(I). The preferred range of 500-5000 ppm of Veelaert isn’t just a broad sweeping range, but a narrowed range that specifically overlaps the claimed ranges in claim 1 and the narrowed ranges in dependent claims 17-22. Moreover, it isn’t unexpected for the stabilized starch of Veelaert, which is an invention concerned with the improved viscosity stability of a stabilized waxy starch [0034-0035], when combined with the succinic anhydride modified waxy starch of Klemaszewski, which has improved heat and shear stability [0048], to produce a stabilized starch that has improved viscosity and stability.
Response to the Advisory Action mailed April 24, 2026
Applicant, on pgs. 10-13 of their remarks, reviews statements from the examiner submitted in the Advisory Action dated 04/24/2026 and reviews statements from the Fonteyn Declaration. These statements, which are used as the applicant’s argument, have been addressed and fully answered in the Claim Rejections - 35 U.S.C. § 103 section above. The examiner maintains that based on all relevant prior art teachings that a person of ordinary skill in the art would have been motivated and would have a reasonable expectation of success in preparing the claimed stabilized starch based on Veelaert in view of Klemaszewski and that this starch is substantially identical to the claimed starch with substantially identical properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE GERLA whose telephone number is (571)270-0904. The examiner can normally be reached Mon.-Wed. and Fri. 7-12 pm; Th. 7-2pm.
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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