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 II (claims 27-29 and 35-37) in the reply filed on 11/13/2025 is acknowledged. Elected claims 27-29 and 35-37 are examined in this office action.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 27-29 and 35-37 are rejected under 35 U.S.C. 103 as being unpatentable over EP3028583 A1, hereinafter D1.
Regarding claim 27, D1 teaches a method of making a nutritional product (liquid drink, abstract, paragraphs 7-9, 18 and 137 of D1), the method comprising:
preparing the nutritional product by diluting a thickener comprising a beta-glucan in a diluent (paragraphs 17, 42 and 137 of D1 where beverage with beta-glucan is taught where the stabilizing agent) ; and
subjecting the nutritional product to a treatment selected from the group consisting of: adding to the nutritional product a stabilizer (paragraphs 42 of D1 where importance of stabilizing agent is taught) selected from the group consisting of Na2HPO4, sodium azide (Paragraph 217 of D1), potassium sorbate, sodium benzoate (paragraph 117 of D1, where salts of benzoic acid are taught), sodium citrate, citric acid (paragraph 112 of D1, where sodium and potassium salts of citric, tartaric and lactic acids are taught), hydrochloric acid, tartaric acid, protease, and combinations thereof;
heating the nutritional product to a temperature between about 30°C and about 100°C (Paragraph 137 of D1, where heating at a temperature between 20
°
C to 90°C is taught);
adjusting a pH of the nutritional product to from about 3 to about 7 (paragraph 130 of D1, where pH of the nutritional product is taught between 6-7.5); and combinations thereof.
Regarding the claimed limitations of temperature and pH, the temperature range taught by D1 falls in the claimed range and the pH range as taught by D1 overlaps the claimed range. Thus, the method as claimed is taught by D1.
Regarding the overlapping of ranges between the invention and prior art composition it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Regarding claim 28, D1 teaches the method of Claim 27, wherein the stabilizer comprises at least one of Na2HPO4 or sodium azide ( Paragraph 217 of D1, where claimed sodium azide is taught).
Regarding claim 29, D1 teaches the method of Claim 27, wherein the stabilizer comprises at least one of sodium azide or protease ( Paragraph 217 of D1, where claimed sodium azide is taught).
Regarding claim 35, D1 teaches the method of Claim 27 comprising at least one of adding NaN3 or microwave heating the nutritional product (Paragraph 217 of D1, where claimed sodium azide /NaN3 is taught) .
Regarding claim 36, D1 teaches the method of Claim 27 comprising heating in the claimed range (see rejection of claim 27 and Paragraph 137 of D1), but D1 does not specify the method of heating; i.e. does not specify that the heating is specifically “microwave” heating the nutritional product “for about 10 seconds”. However, heating comestibles using a microwave is a well-known method for quick heating small amounts of comestible, and it is also known that the heating duration for a microwave depends at least on microwave power and amount of food to be heated, the higher the microwave power – the shorter the heating time; and smaller the amount of comestible to be heated, shorter the microwave heating time. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include heating using a microwave. The ordinary artisan would have been motivated to modify D1 at least for the purpose of heating small amounts of comestibles quickly and to pick a heating time at least based on microwave unit power.
Regarding claim 37, D1 teaches method of Claim 27 comprising adjusting a pH of the nutritional product to from about 6 to about 7(paragraph 130 of D1, where pH of the nutritional product is taught between 6-7.5), the pH range as taught by D1 overlaps the claimed range.
Regarding the overlapping of ranges between the invention and prior art composition it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791