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 with traverse of Group I, claims 1-11 and 13-14 in the reply filed on 01/05/2026 is acknowledged. Claims 12 and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim.
It is noted that applicant elected with traverse but has failed to provide any argument, therefore, the requirement is still deemed proper and is therefore made FINAL
Claim status
Claims 1-15 are pending in the application. Claims 1-11 and 13-14 are previously presented. Claim 12 and 15 are withdrawn with traverse in response to the restriction requirement. Claims 1-11 and 13-14 are hereby examined on the merits.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in EP on 12/15/2022. It is noted, however, that applicant has not filed a certified copy of the EP22213935.4 application as required by 37 CFR 1.55.
Claim Objections
Claim 8 is objected to because of the following informalities: “DP” should be written out with full name degree of polymerization for the first occurrence. Appropriate correction is required.
Claim 9 is objected to because of the following informalities: “salts and dyes” should read “salts, dyes”. Appropriate 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 5-7, 9, 11 and 13-14 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hougee US Patent Application Publication No. 2010/0278781 A1 (hereinafter referred to as Hougee).
Regarding claims 1-3, 11 and 13-14, Hougee teaches a prebiotic formulation (e.g., an infant and/or toddler nutrition) comprising, inter alia, a non-digestible oligosaccharide and a protein (0014; 0053), wherein the non-digestible oligosaccharide is selected from group consisting of beta-GOS, alpha-GOS, FOS, MOS, and a mixture thereof (0029), and wherein the protein is selected from the group consisting of casein, whey protein, soy protein, potato protein and pea protein (0053). Hougee teaches that the infant and/or toddler nutrition is a liquid (0060). The infant and/or toddler nutrition reads on the food supplement or the animal nutritional composition as recited in claims 13-14.
Claims 5-6 are interpreted to be met by Hougee, given that alpha-GOS or FOS is in alternative form with the beta-GOS as disclosed by Hougee.
Regarding claim 7, Hougee teaches MOS, which is known to derive from yeast cell wall, or is materially indistinguishable from a MOS that is obtained from yeast cell wall.
Regarding claim 9, Hougee teaches that infant and/or toddler nutrition comprises starch, salt (e.g., mineral), food acids (e.g., lactic acid and a flavoring (e.g., sucrose, glucose, etc.) (0054-0055; 0057).
Claim 4 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hougee as applied to claim 1 above, and evidenced by Jeurink US Patent Application Publication No. 2017/0209472 A1 (hereinafter referred to as Jeurink).
Regarding claim 4, Hougee teaches that the GOS is Vivinal® GOS (0036). As evidenced by Jeurink (para. 0118), Vivinal® GOS is obtained from by transgalactosylation of lactose by beta-galactosidase.
Claims 1-3, 5, 7, 9, 11 and 13-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gibson US Patent Application Publication No. 2004/0131659 A1 (hereinafter referred to as Gibson).
Regarding claims 1-2 and 11, Gibson teaches a prebiotic formulation (e.g., a composition such as a nutritional composition) for mammals such as human (0075) comprising, inter alia, a prebiotic composition that comprises GOS and FOS (0001; 0014; 0016), and a protein such as milk protein (0062; 0112, note that 0112 teaches milk powder ). Gibson teaches that the nutritional composition is in powder or liquid form (0112; 0068). Gibson teaches that GOS is Vivinal® GOS (0029), which is known to be beta-GOS derived from dairy product. The nutritional composition as disclosed by Gibson reads on the food supplement or the animal nutritional composition as recited in claims 13-14.
Regarding claims 3, 5 and 7, it is noted that claim 3 further limits the plant protein of claim 1, which is in alternative form with the milk protein. By meeting the milk protein, Gibson is interpreted to read on claim 3.
For the same reason, claims 5 and 7 are also interpreted to be met by Gibson, given that Gibson teaches FOS and beta-GOS, which are in alternative form with alpha-GOS or MOS.
Regarding claim 9, Gibson teaches that the nutritional composition comprises flavorings and emulsifiers (0067).
Claim 4 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gibson as applied to claim 1 above, and evidenced by Jeurink US Patent Application Publication No. 2017/0209472 A1 (hereinafter referred to as Jeurink).
Regarding claim 4, Gibson teaches that the GOS is Vivinal® GOS (0029). As evidenced by Jeurink (para. 0118), Vivinal® GOS is obtained from by transgalactosylation of lactose by beta-galactosidase.
Claims 1-7, 9, 11 and 13-14 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kobayashi EP0323201 B1 (hereinafter referred to as Kobayashi).
Regarding claims 1, 2 and 4, Kobayashi teaches a method of preparing a processed milk containing GOS, the method comprising treating an animal milk product (e.g., milk powder, page 4, line 4-9) with beta-galactosidase to covert lactose present in the milk product into GOS (page 2, line 49-54). Since lactose in the milk product is treated with beta-galactosidase, the GOS formed is necessarily in beta form (see instant specification para. 0016, which evidences that treating lactose with beta-galactosidase will result in a GOS in beta form). The processed milk that contains GOS is interpreted to read on the prebiotic formulation. The processed milk necessarily contains milk protein.
Regarding claims 3, 5, 6 and 7, it is noted that the claim 3 further limits the plant protein of claim 1, which is in alternative form with the milk protein. By meeting the milk protein, Kobayashi is interpreted to read on claim 3.
For the same reason claims 5, 6 and 7 are also interpreted to be met by Kobayashi, given that Kobayashi teaches beta-GOS, which are in alternative form with alpha-GOS, FOS or MOS.
Regarding claim 9, the residual lactose in the processed milk (page 5, line 1-2) is interpreted to read on the sweetener limitation of claim 9.
Regarding claim 11, Kobayashi teaches that the processed milk is in the form of an aqueous solution/dispersion (Example 1; Example 2).
Regarding claims 13-14, Kobayashi teaches that the processed milk can be served as beverage, or can be used to prepare baby milks, LAB beverages, fermented milks, ice creams, breads, sweets, pet-food and calf starters (page 4, line 43-48).
Claims 1, 3 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bijkerk US Patent Application Publication No. 2009/0004342 A1 (hereinafter referred to as Bijkerk).
Regarding claims 1, 3 and 6, Bijkerk teaches a prebiotic formulation (e.g., a nutritional composition) comprising soy protein and a fiber including hydrolyzed inulin, and GOS (alpha- and beta-) (0032; 0034; 0038). Hydrolysis of long-chain inulin necessarily creates shorter FOS chains.
Claims 1, 3 and 5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Canet-Martinez US Patent Application Publication No. 2022/0125074 A1 (hereinafter referred to as Canet-Martinez).
Regarding claims 1, 3 and 5, Canet-Martinez teaches a prebiotic formulation (e.g., an animal feed extract) comprising soy protein and a product resulting from digesting sucrose with alpha-galactosidase, which necessarily comprises alpha-GOS as a result of transgalactosylation by alpha-galactosidase (Example 15, 16 and para. [1272]).
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 8 is rejected under 35 U.S.C. 103 as being unpatentable over Hougee as applied to claim 1 above.
Regarding claim 8, Hougee teaches that the DP of the oligosaccharide is 2-200 (0028). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Claims 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Gibson as applied to claim 1 above.
Regarding claim 8, Gibson teaches that the DP of the FOS is 2-20, and the DP of GOS is 2-10 (0025; 0027). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claims 10, Gibson teaches that 100 ml of nutritional composition comprises 2-20 gram protein, 2-6 gram of FOS + GOS, 1-30 gram of a sweetener (e.g., carbohydrate), 0.5-20 gram of fat +mineral +vitamin (0066-0067). The amount of each ingredients as disclosed by Gibson overlaps with the ranges as recited in claim 1 (assuming a density of 1 g/ml for the liquid). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I). Note that scope of claim 10 includes a formulation that is devoid of dyes, salts, rennet, a food acid, an emulsifier, a thickener, a flavoring, a probiotic an additional prebiotic, a starch product and a dietary fiber.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi as applied to claim 1 above.
Regarding claim 8, Kobayashi teaches that the DP of the GOS is 3-6 (page 2, line 51). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791