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 .
Claim status
Claims 1, 4-16 and 20-22 filed 12/01/2023 are pending in the application and are hereby examined on the merits.
Specification
The Abstract of the disclosure is objected to because there are more than 150 words or more than 15 lines of text in the instant Abstract. The abstract should be in narrative form and generally limited to a single paragraph preferably within the range of 50 to 150 words in length. The Abstract should not exceed 15 lines of text. Abstracts exceeding 15 lines of text or 150 words should be checked to see that they are as concise as the disclosure permits. The form and legal phraseology often used in patent claims, such as "means" and "said," should be avoided. The abstract should sufficiently describe the disclosure to assist readers in deciding whether there is a need for consulting the full patent text for details. Correction is required. See MPEP § 608.01(b).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 4 and 10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a natural phenomenon without significantly more. The claims recites a fiber blend comprising psyllium husk fiber, gellan gum, gum Arabic and an insoluble fiber, However, all the four ingredients are known to be naturally occurring, and although the combination of the four are not naturally occurring, there is no recording showing the combination of four imparts any characteristic than their naturally occurring counterparts alone or added up. This judicial exception is not integrated into a practical application because no utility is recited. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because no additional elements are recited in claims 1 and 4. Further, although claim 10 recites a flavoring, such a recitation is well-understood, routine and conventional, thus being not sufficient to amount to significantly more than the judicial exception.
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.
Claims 5 and 7 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.
Claim 5 recites that wherein pea fiber makes up from 50 percent by weight to 70 percent by weight of the fiber blend. It is unclear whether pea fiber limits the insoluble fiber as recited in claim 1. For the purpose of examination, claim 5 is interpreted to mean that the insoluble fiber comprises pea fiber, wherein the hydrocolloid makes up 30-50 wt% and pea fiber makes up 50-70% by weight of the fiber blend. Appropriate correction is required.
Claim 7 recites that the hydrocolloid makes up 80-90% by weight. It is unclear if the percent is based on the total dry weight of the fiber blend. 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, 4, 10, 12-16 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Anfinsen US Patent Application Publication No. 2003/0134023 A1 (hereinafter referred to as Anfinsen).
Regarding claims 1, 4, 10, 12-16 and 20, Anfinsen teaches a dough composition for making a bread comprising inter alia, a protein component (e.g., vital wheat gluten, 0023), flavoring including a sweeter or sweetness enhancer (0056), lecithin which reads on an emulsifier of non-hydrocolloid type (0054), salts and acids (0051, 0053; 0055; 0061), and an non-digestible material that comprises dietary fiber (0010; 0041); wherein the dietary fiber includes psyllium husk fiber (e.g., psyllium), gum Arabic, gellan gum, pea fiber (e.g., pea hull fiber), gum acacia, citrus pectin, low and high methoxy pectin, modified cellulose, oat and barley glucans, carrageenan, soy polysaccharide, oat hull fiber, soy hull fiber, soy cotyledon fiber, sugar beet fiber, cellulose, and corn bran, and any combination thereof (0045). As such, Anfinsen encompasses an embodiment teaching a dietary fiber blend comprises psyllium husk fiber, gum Arabic, gellan gum, and pea fiber.
Claims 1, 4, 10, 14, 15, 16, 20 and 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tagi US Patent Application Publication No. 2017/0013855 A1 (hereinafter referred to as Tagi).
Regarding claims 1, 4, 10, 14, 15, 16, 20 and 22, Tagi teaches a cheese-like food that comprises a thickener composition, wherein the thickener composition comprising one or more of psyllium husk fiber (e.g., psyllium seed gum), gellan gum, gum Arabic and karaya gum, curdlan, etc. (0164). As such, Tagi encompasses an embodiment teaching a fiber blend comprising all four of psyllium husk fiber, gellan gum, gum Arabic and karaya gum, in which the karaya gum is an insoluble plant-derived fiber. The cheese- like food reads on the dairy analogue product of claim 22. The cheese-like food comprises soybean powder (0131), which reads on the non-animal protein of claim 20. Tagi further teaches that the cheese-like food comprises a flavor, lecithin, organic acid, salt, etc. (0170; 0166; 0177; 0044; 0182).
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.
Claims 5-9 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Anfinsen as applied to claim 1 above.
Regarding claims 5-9, Anfinsen as recited above encompasses the embodiment that teaches a fiber blend comprising psyllium husk fiber, gum Arabic, gellan gum, and pea fiber. Further, Anfinsen teaches that the amount of dietary fiber in the dough composition is 5-40% or narrowly 5-20% (0041), and that the bread obtained from the dough composition is capable of minimizing postprandial blood glucose levels, limiting insulin response, lowering blood nitrogen levels, promoting the growth of beneficial intestinal bacteria, and supporting regularity of defecation (0014). Anfinsen is silent regarding the amounts of each or the total of the four fibers by dry weight of the fiber blend. However, knowing that each of the above fibers is able to perform the aforementioned health benefits, one of ordinary skill in the art would have been motivated to manipulate the amount of each fiber component in the blend of the fibers based on personal preference or desirability. As such, the proportions of each or the total of the four fibers by weight of the fiber blend as recited in claims 5-9 are merely obvious variant of the prior art, absent a showing of any new result.
Regarding claim 21, Anfinsen teaches 10-60% or narrowly 15-25% vital wheat gluten and the vital wheat gluten comprises 65-85% gluten protein (0023; 0022), and 5-40% or narrowly 5-20% dietary fibers (0041; 0010). As such, the ratio of protein to the fiber blend as disclosed by prior art overlaps with the range as recited in claim 21. 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 1, 10, 12, 13, 14, 15, 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Yamaguchi US Patent Application Publication No. 2012/0177797 A1 (hereinafter referred to as Yamaguchi).
Regarding claims 1, 10, 12, 13, 14, 15, 16 and 20, Yamaguchi teaches a composition that comprises a tasting enhancing agent, and auxiliary agents or food additives (0037; 0040; 0043), wherein the tasting enhancing agent is a linear aliphatic aldehyde or a linear aliphatic alcohol that is able to enhance sweetness and/or umami of a food (0037; 0040), and the auxiliary agents or food additives comprise a sweetener (0043), a non-hydrocolloid emulsifier (0045), a salt, an acid (0043), a dairy or plant protein (0048), and thickener such as psyllium husk fiber (e.g., psyllium seed gum), gellan gum, gum Arabid, curdlan, locust bean gum, etc. (0047). Yamaguchi further teaches adding the composition to a food such as miso paste for enhancing umami flavor (0028; 0053). A miso paste is known contain non-animal protein.
Where Yamaguchi teaches that each of psyllium husk fiber, gellan gum, gum Arabid and curdlan is suitable for use a thickener in the composition, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined the four gums with reasonable expectation of success, for the reason that "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06 I. Curdlan reads on the insoluble fiber as recited in claim 1, and the combination of psyllium husk fiber, gellan gum, gum Arabid and curdlan reads on the fiber blend of claim 1.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Tagi as applied to claims 1 and 10 above, further in view of Min US Patent Application Publication No. 2018/0289028 A1 (hereinafter referred to as Min).
Regarding claim 11, Tagi as recited above teaches a cheese-like food comprising a flavor but is silent regarding the flavor includes a yeast lysate.
Min in the same field of endeavor teaches that it is suitable to include a flavoring such as yeast extract in making a cheese-like food (e.g., non-dairy cheese) (0063).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Tagi by including yeast extract in the cheese-like food as disclosed by Tagi with reasonable expectation of success, for the reason that prior art has established that it is suitable to including yeast extract in a cheese-like food for flavoring purpose. An yeast extract reads on yeast lysate since yeast extract contains the content of the yeast cell, then a lysis process is inherent.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791