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 Status
Applicants’ amendments and arguments filed 03/30/2026 have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claims 2, 4, 7, 9, 11, 13, 15, 19-22, and 25 are canceled.
Claims 26-30 are newly added.
Claims 12, 14, 16, 18, and 23-24 remain withdrawn.
Claims 1, 3, 8, 10, 12, 14, 16-17, and 23-24 have been amended.
Claims 1, 3, 5-6, 8, 10, and 26-30 are examined on the merits.
Claim Interpretation
In regards claim 1, specifically the transitional phrase “having”, Examiner has taken into account the instant specification and the MPEP 2111.03(IV) definition for “having”. Examiner broadly interprets “having” to be open ended, equivalent to “comprising”, thus allowing for additional components.
In regards to claim 8, the MPEP 2113 states "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim 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." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). Therefore, since claim 8 is composition claim, the method of inhibiting using conditions that provide a sedimentation volume in the range of 5-50 mL/g to a corresponding un-fragmented starch is given no patentable weight and any prior art teaching a fragmented corn starch with the limitations of a thermally inhibited fragmented corn starch having a median primary particle size in the range of 0.2-5 microns, a sedimentation volume in the range of 5-35 mL/g, and a protein content in the range of 0.6-8% on a dry starch basis will be sufficient in meeting the limitations of this claim.
New Rejections Necessitated by Claim Amendments
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.
Claim(s) 1, 3, 5-6, 8, 10, 26-27, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Han et al. (US20130309386A1, published 11/21/2013, hereafter Han), in view of Santhanam et al. (US9982064B2, published 05/29/2018, hereafter Santhanam), in view of Dejmek et al. (US20150125498A1, published 05/07/2015, hereafter Dejmek), and as evidenced by Chiu et al. (US5725676A, published 03/10/1998, hereafter Chiu).
As evidenced by Chiu, a thermally inhibited non-pregelatinized granular starch is produced by heat treating at a temperature of 100oC or greater (claim 1).
Han teaches an inhibited non-pregelatinized granular starches (title; according to the claim limitations of the instant claims 1 and 8). Han claims the method for making the inhibited starch comprises heating a starch to a temperature to at least 35oC, and further claims the temperature is at least 120 oC (claims 1 and 3; according to the claim limitations of the instant claims 1 and 8). Han teaches the fragmented cooked starch granules after shear are from 11-21% fragmented (pages 9-10, tables 4-7; according to the claim limitations of the instant claim 8). Han teaches the inhibited starches are particularly useful in foods requiring a thermal processing step, specifically for thermally-processed foods, acid foods, dry mixes, refrigerated foods, frozen foods, extruded foods, oven-prepared foods, stove top-cooked foods, microwaveable foods, full-fat or fat-reduced foods, and foods having a low water activity ([0069]; according to the claim limitations of the instant claims 1 and 8). Han teaches the inhibited starch may be crushed, ground, milled, screened, sieved, or subjected to any other such technique to attain a particular desired particle size ([0062]; according to the claim limitations of the instant claims 1, 5-6, and 8). Han teaches the used of treatments to reduce the amount of protein present in the starch ([0045]; according to the claim limitations of the instant claims 1 and 8). Han teaches the non-pregelatinized granular starch utilized as a starting material may, for example, be selected from the group to include amaranth and corn ([0010], [0026], and [0045]; according to the claim limitations of the instant claims 1, 3, and 8). Han teaches a specific sedimentation volume of starch (SSV) between 20 mL/g to 40 mL/g is considered to have low shear stability or low cross-linked in chemically cross-linked starch, 16 mL/g to 20 mL/g to have medium shear stability and starch with SSV <16 mL/g to have high shear stability ([0097]; according to the claim limitations of the instant claims 1 and 8). Further, Hans teaches Rapid Visco-Analyzer (RVA) profiles of different starch samples measured at 5% concentration and provides a table which demonstrates the viscosity is in a range of 200 to 600 cP for the majority of the samples 50oC ([0030] and figure 1; according to the claim limitations of the instant claims 26-27).
Although Han teaches the use of treatments to reduce the amount of protein, it fails to teach the protein content of the instant claims 1, 8, 10, and 30. Further, although Han teaches using techniques to attain a particular desired particle size, it fails to teach the particle size of the instant claims 1 and 5-6.
Santhanam claims a process of preparing an inhibited starch comprising extracting starch from a native source then refining the starch so it has a residual protein content on a dry starch basis of more than 1.0% by weight and less than 8% by weight (claim 1, title, and abstract). Santhanam teaches one successful alternative approach to producing inhibited starch is by alkaline dry roasting (“thermally inhibited starch”) (column 1, lines 55-57). Santhanam teaches amaranth to be a suitable the native source for the starch (column 5, lines 52-55). Santhanam claims the native source to be waxy maize (corn) (claims 9-10). Further, Santhanam teaches the inhibited starches according to the present invention are useful include thermally-processed foods, acid foods, dry mixes, refrigerated foods, frozen foods, extruded foods, oven-prepared foods, stove top cooked foods, microwaveable foods, full-fat or fat-reduced foods, and foods having a low water activity (column 8, lines 8-13).
Dejmek teaches a particle that is stabilized and has uses in foods, cosmetic, and pharmaceutical products (title, claim 14, and [0004]). Dejmek provides sample patents demonstrating the use of thermally inhibited starch and teaches an advantage of thermal modification is that no specific labeling is required when used in food modifications ([0007-0008] and [0050]). Dejmek teaches the starch granules are obtained from amaranth, quinoa, and corn ([0052]). Dejmek teaches the preferred particle size to be in the range of approximately 0.2-20 micron, preferably 0.2-8 micron (claim 16 and [0051]).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a thermally inhibited amaranth or corn starch used for thermally-processed foods, acid foods, dry mixes, refrigerated foods, frozen foods, extruded foods, oven-prepared foods, stove top-cooked foods, microwaveable foods, full-fat or fat-reduced foods, and foods having a low water activity as outlined by Han as evidenced by Chiu with the ready for improvement with the known technique of adjusting the concentration of protein in a thermally inhibited amaranth or corn starch used for include thermally-processed foods, acid foods, dry mixes, refrigerated foods, frozen foods, extruded foods, oven-prepared foods, stove top cooked foods, microwaveable foods, full-fat or fat-reduced foods, and foods having a low water activity as outlined by Santhanam. Adjusting the forementioned components of thermally inhibited amaranth starch as claimed by instant claims 1, 8, 10, and 30 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan. Further, it would be obvious to one skilled in the art before the effective filing date of the claimed invention to claim a thermally inhibited amaranth or corn starch used for thermally-processed foods, acid foods, dry mixes, refrigerated foods, frozen foods, extruded foods, oven-prepared foods, stove top-cooked foods, microwaveable foods, full-fat or fat-reduced foods, and foods having a low water activity as outlined by Han as evidenced by Chiu with the ready for improvement with the known technique of the particles being in the range of 0.2-20 microns or preferably 0.2-8 microns as outlined by Dejmek. Adding the forementioned components of a thermally inhibited starch composition as claimed by instant claims 1, 5-6, and 8 would yield predictable results thus making them of obviousness as modification of a known product with a known technique is within the purview of the skilled artisan.
Claims 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Han et al. (US20130309386A1, published 11/21/2013, hereafter Han), in view of Santhanam et al. (US9982064B2, published 05/29/2018, hereafter Santhanam), in view of Dejmek et al. (US20150125498A1, published 05/07/2015, hereafter Dejmek), in view of Ackar et al. (Ačkar Đ, Babić J, Jozinović A, Miličević B, Jokić S, Miličević R, Rajič M, Šubarić D. Starch Modification by Organic Acids and Their Derivatives: A Review. Molecules. 2015 Oct 27;20(10):19554-70. doi: 10.3390/molecules201019554. PMID: 26516831; PMCID: PMC6331858., hereafter Ackar), and as evidenced by Chiu et al. (US5725676A, published 03/10/1998, hereafter Chiu).
As outlined above, Han in view of Santhanam and Dejmek, as evidenced by Chiu teaches the limitations of the instant claims 1 and 8. Han further teaches the application of the starch to thicken a food product such as a soup or sauce which is to be subjected to severe acid and/or heat and/or shear conditions during either its processing or its end use ([0003] and [0028]). Although Han does not teach the starch is succinated, it does not explicitly teach the starch is not succinated as claimed by instant claims 28 and 29.
Ackar teaches the succinylation reaction generates starch succinate (page 19559, paragraph 3.1). Ackar further teaches that the succinylation process increase setback and breakdown values which indicates reduced stability during shearing at high temperatures and cooling (page 19560, paragraph 3).
It would be obvious to one skilled in the art before the effective filing date of the claimed invention would modify the thermally inhibited amaranth starch as outlined by Han in view of Santhanam and Dejmek as evidenced by Chiu the exclusion of succinated the inhibited starch as outlined by Ackar under TSM, see MPEP 2143(G). As outlined by Ackar, succinated a starch recues stability during shearing at high temperatures and cooling which would motivate someone skilled in the art to advantageously avoid succinylation of the inhibited starch of Han as it would have a reasonable expectation of success.
Response to Applicant’s Arguments
Applicant’s arguments filed on 03/30/2026 have been considered.
In regards to the 35 USC § 103 rejections, Applicant’s amendments have necessitated new grounds of rejection.
Conclusion
No claims are allowed.
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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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/A.N.I./Examiner, Art Unit 1611
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