DETAILED ACTION
Background
The amendment dated December 30, 2025 (amendment) amending claims 1, 3-5, 7 and 9 and cancelling claims 2 and 6 has been entered. Claims 1, 3-5 and 7-9 as filed with the amendment have been examined. In view of the amendment, all outstanding objections have been withdrawn and all outstanding rejections of canceled claims 2 and 6 have been withdrawn.
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 Objections
Claim 3 is objected to because of the following informalities:
In claim 3, before “at least one” insert --contains --.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The recited “at least one edible composition” comprising a milk protein is broader than a just a milk protein and does not further limit the recited food comprising a milk protein in claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 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 and 7-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN104146020 B to Mu et al. (Mu).
All references to Mu refer to the Clarivate machine translation, a copy of which is provided with this Office action.
Unless otherwise disclosed, all percentages (%s) disclosed without units are interpreted as weight %s (wt%), which is interpreted as interchangeable with mass%.
Unless otherwise specified, the Office interprets the recited hardness and cohesiveness and the recited viscosity and modulus terms in claim 1 to refer to those properties as determined under conditions of room temperature and standard pressure.
The Office interprets the recited term “not substantially containing a wheat-derived protein” in claim 1 as meaning that the recited expanded food comprises less than 1 mass% of a wheat-derived protein, based on the total mass of the expanded food as disclosed in the instant specification at [0029] on page 21.
Regarding instant claims 1, 3-4 and 7, Mu in Example 1 on page 4, “Preferred Embodiment” 2nd and 3rd full paragraphs discloses a fermented dough (“an expanded food”) without gluten protein (“not substantially containing a wheat-derived protein”). The dough disclosed in Example 1 of Mu comprises a mixture of 140 g of potato starch (“(b)” in claim 4), 40 g potato powder, 20 g whey protein concentrate (“milk protein comprising a protein derived from a milk-fermented product” in claims 1 and 4; as “at least one edible composition comprising a milk protein, wherein at least one of the edible compositions is a milk-fermented product” as in claim 3; and as “(a) milk protein” in claim 4), 1.0% of yeast (“(c) a leavening agent” in claim 4) in 50 g water (“(d)” in claim 4) and, further comprising in various trials 0, 0.15, 0.25, 0.75, 1.0, 1.5 and 2.0 g hydroxypropyl methylcellulose (HPMC as “(e) a thickener” - claim 7) dissolved in 100 g 50 °C water (“(d)” in claim 4).
In addition, Mu at Example 1 discloses activating its dough at 35 °C for 10 min, then fermenting at 36 °C for 50 min (“subjecting a dough composition…to heat treatment to cause the dough composition to expand and form a support matrix” in claim 4).
Further, the dough expanded food disclosed in Example 1 of Mu comprises protein only as milk protein from whey (milk protein or “milk protein (a)” in claim 4 comprises approximately 100 mass% milk protein “based on the total mass or protein content in the expanded food”).
Still further, Mu at page 3, 4th to last full paragraph discloses an expanded food as a bread, steamed bun or cake. All of the dough of Example 1 of Mu and its steamed bun, cake or bread containing a milk protein as approximately 100 mass% of the total protein, starch, water and yeast appear to be substantially the same thing as the claimed expanded food. Accordingly, absent a clear showing as to how the hardness, cohesiveness, modulus, viscosity and textural properties of the expanded food in Mu differs from that of the expanded food as claimed, the Office considers the expanded food of Example 1 and page 3, 4th to last full paragraph of Mu to have all of the (A)(1) hardness, as determined by a texture measurement, within the range of 0.10 to 0.35 N and (2) cohesiveness, as determined by a texture measurement, within the range of 0.50 to 0.71, and/or (B) values of (1) elastic modulus and (2) viscosity, as determined by a creep test, within the following ranges: (1a) instantaneous elastic modulus: 190 to 460 Pa; (1b) delayed elastic modulus: 4400 to 13000 Pa; (2a) delayed viscosity: 38000 to 117000 Pa•s; and (2b) permanent viscosity: 240000 to 820000 Pa•s as claimed in claim 1. MPEP 2112.01.I.
Regarding instant claim 8, the Office interprets the recited expanded food which substantially does not contain a processed rice product in claim 8 to include any such food which has 0.1 mass% or less of such a rice product, based on the total mass of the expanded food as disclosed in the instant specification at [0044] on page 30. Because the expanded food disclosed in Example 1 of Mu contains no rice or processed rice products, the Office considers the claimed expanded food which substantially does not contain a processed rice product in claim 8 to include the expanded food of Example 1 of Mu.
Regarding instant claim 9, the Office considers the recited expanded food made without using eggs or egg derived ingredients (“without an egg or an egg-derived ingredient or does not contain all members in the group”) to include the expanded food disclosed in Example 1 of Mu because it contains no eggs or egg-derived ingredients.
Response to Arguments
In view of the amendment dated December 30, 2025, the following rejections have been withdrawn as moot:
The rejections of claims 1-9 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the claim 1 mass% basis for the milk protein “based on the total protein”;
The rejections of claims 1 and 4-9 under 35 U.S.C. 102(a)(1) as being anticipated by PL213549 B1 to Krupa et al.;
The rejections of claims 1-3, 5 and 8-9 under 35 U.S.C. 102(a)(1) as being anticipated by JPH10191877 A to Nakano et al.;
The rejections of claims 2-3 under 35 U.S.C. 103 as being unpatentable over PL213549 B1 to Krupa et al. in view of JP2018174860 A to Sakamoto et al.;
The rejection of claim 4 under 35 U.S.C. 103 as being unpatentable over JPH10191877 A to Nakano et al.; and,
The rejections of claims 6-7 under 35 U.S.C. 103 as being unpatentable over JPH10191877 A to Nakano et al. in view of WO2021/042162 A to Lewis et al.
The positions taken in the remarks accompanying the amendment dated December 30, 2025 (Reply) with respect to claims 1-9 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/A.E.M./Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791