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 without traverse of Group 1-13 in the reply filed on 11/30/2025 is acknowledged.
Claim 14-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II and III, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/30/2025.
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.
Claim 1-13 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.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “mass ratio” in claim 1-3 and 5-8 is confusing; while the definition of ‘mass ratio” is a comparison of two masses, expressed as a faction or ratio, the instant claims 1-3 and 5-8 does not recite two mass value in ratios, but rather a mass of one component. The term is indefinite because the specification does not clearly redefine the term. It is not clear as to which two masses to arrive at the claimed mass ratio(s). For the purpose of examination, the examination consideration, the limitation of the listed components taught by prior art meets the claim limitations.
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) 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Muschiolik et al. (US 2012/0135125 A1).
Regarding claim 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 and 12, Muschiolik et al. (Muschiolik) discloses an oil-in-water emulsion (‘125, [0037]) comprising ingredients including fat/oil component, water (‘125, [0038]), iron (‘125, [0139]), ascorbic acid (‘125, [0060]), pectin (fiber) (‘125, [0029], [0088]). It would have been obvious to one of ordinary skill in the art to adjust amounts of the ingredients including the cited ratios to provide a desired stable emulsion for food application.
With respect to claim 2, protein (‘125, [0046], [0101]). With respect to claim 3, carbohydrates (‘125, [0102]). With respect to claim 5, zinc (‘125, [0139]). With respect to claim 6, selenium (‘125, [0139]). With respect to claim 7, inositol (‘125, [0139]). With respect to claim 9, based on claim 1 which recites alternative selection the recitation of lecithin is not required; wherein Muschiolik teaches pectin (fiber) (‘125, [0029], [0088]). With claim 8, docosahexaenoic acid (‘125, [0026]). With respect to claim 11 and 12, Muschiolik teaches the oil-in-water emulsion is dried and agglomerated (‘125, [0067], [0289], [0290]).
Regarding claim 4, Muschiolik teaches the iron (‘125, [0139]). Muschiolik does not explicitly disclose the iron in form of ferric citrate. However it is well known in the art of food additives to use ferric citrate for iron source. It would have been obvious to one of ordinary skill in the art to use ferric citrate for iron source in Muschiolik since ferric citrate is ready commercially available for iron supplement in food application.
Regarding claim 13, Muschiolik teaches probiotic products (‘125, [0276]). Muschiolik does not explicitly disclose the probiotic product as cited. However it is well known in the art of food additives to use probiotic organisms as cited to provide known health benefits. It would have been obvious to one of ordinary skill in the art to use probiotic organisms as cited in Muschiolik for a desired health benefit, absent a clear and convincing argument or evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792