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 .
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.
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.
Claim(s) 1-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhou(Comparison of hydrability, antioxidants, microstructure, and sensory quality of barley grass powder using ultra‐micro‐crushing combined with hot air and freeze drying) as evidenced by Takano(Insoluble Fiber in Young Barley Leaf Suppresses the Increment of Postprandial Blood Glucose Level by Increasing the Digesta Viscosity)
Regarding claims 1-4,7,8 Zhou teaches young barley grass powder with a particle size of 3-25 microns(table 1). Specifically, the young barley grass powder starts as 25 microns and is reduced down to a size of 5 microns after 30 minutes and 3.18 microns after 120 minutes. As such, the between the grinding times of 0 and 30 minutes the powder would exist at a size between 25 and 5 microns. Furthermore, since the size is inversely related to crushing times, it would have been obvious to modify the crushing times to achieve different sized particles depending on intended use of the powder. For example, it would have been obvious to crush the barley grass powder for a time of 0 to 30 minutes in order to achieve a size of 5 to 25 microns.
Zhou teaches that the barley grass powder can be added to food products(section 3.5). Zhou teaches the same particle size as claimed. Therefore, it is considered a granulated product as claimed.
As evidenced by Takano, young barley grass powder comprises 14% hemicellulose(table 1).
Regarding claims 5,6, Zhou teaches that young barley grass powder can be used in food compositions and that it is high in antioxidants, vitamins, and minerals(1.introduction). It would have been obvious to add young barley grass powder to a beverage composition in order to provide antioxidants, vitamins, and minerals to consumers.
Regarding claims 9,10,13,14, Zhou teaches young barley grass powder with a particle size of 3-25 microns(table 1). As evidenced by Takano, young barley grass powder comprises 14% hemicellulose(table 1).
Takano teaches 14% hemicellulose and not 15% as recited in the claimed ranges. It is apparent, however, that the instantly claimed 15 % and that taught by Takano are so close to each other that the fact pattern is similar to the one in In re Woodruff, 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a "slight" difference in the ranges the court held that such a difference did not "render the claims patentable" or, alternatively, that "a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties".
Regarding claims 11,12,15,16, Zhou teaches young barley grass powder with a particle size of 3-25 microns(table 1). As evidenced by Takano, young barley grass powder comprises 16% hemicellulose(table 1).
Takano teaches 14% hemicellulose and not 15% as recited in the claimed ranges. It is apparent, however, that the instantly claimed 15 % and that taught by Takano are so close to each other that the fact pattern is similar to the one in In re Woodruff, 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a "slight" difference in the ranges the court held that such a difference did not "render the claims patentable" or, alternatively, that "a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties".
Response to Arguments
Applicant's arguments filed 1/22/2026 have been fully considered but they are not persuasive.
The applicant argues that Zhou does not anticipate a median diameter of 7 to 25 microns. Zhou teaches young barley grass powder with a particle size of 3-25 microns(table 1). Specifically, the young barley grass powder starts as 25 microns and is reduced down to a size of 5 microns after 30 minutes and 3.18 microns after 120 minutes. As such, the between the grinding times of 0 and 30 minutes the powder would exist at a size between 25 and 5 microns. Furthermore, since the size is inversely related to crushing times, it would have been obvious to modify the crushing times to achieve different sized particles depending on intended use of the powder. For example, it would have been obvious to crush the barley grass powder for a time of 0 to 30 minutes in order to achieve a size of 5 to 25 microns.
The applicant argues that the median diameter is critical, specifically that examples 1 and 2 with a median diameter of 14.91 microns and 23.75 microns have superior fecal wet weight, intestinal flora, and fecal IgA compared to sample of example 3 with a median diameter of 41.85 microns. However, the instant spec actually states
“For Examples 1-3, the levels of fecal wet weight, intestinal flora, and fecal IgA level were all superior with respect to control group”(para 69).
Therefore, the claimed range of for the median diameter of young barley grass powder does not appear to be critical, since a size outside of the range(example 3, 41.85 microns) still produces superior results.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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