DETAILED ACTION
Background
The amendment dated May 07, 2026 (amendment) amending claims 1, 5 and 7, adding new claims 10-11 and cancelling claims 3 and 4 has been entered. Claims 1, 5 and 7-11 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 In view of the amendment, all outstanding objections have been withdrawn and all outstanding rejections of canceled claims 3 and 4 have been withdrawn.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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 07, 2026 has been entered.
Claim Objections
Claim 1 is objected to because the separate elements beginning with “wherein” are not separated by a line indentation. See 37 CFR 1.75(i).
Claim is objected to for the following informalities:
In claim 1, at the beginning of each of lines 9 and 11 insert an indentation before “wherein”;
at line 4, after “wherein” delete the indent so that the next phrase is “the milk”; and,
at line 8, after “water”, delete the indent so that the next word is “wherein” .
Appropriate correction is required.
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 1, 3-5 and 7-11 are rejected under 35 U.S.C. 103 as being unpatentable over CN104146020 B to Mu et al. (Mu) in view of JP2018174860 A to (Sakamoto), of record.
All references to Mu refer to the Clarivate machine translation, a copy of which was provided in an earlier Office action. All references to Sakamoto 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). In addition, Mu discloses steamed bread and therefore discloses cooking as a heat treatment.
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”).
Claim 1 recites product by process limitations manufactured using a fermentation process by fermenting a dough composition with yeast and subsequently subjecting the dough composition to a heat treatment to cause the dough composition to expand and form a support matrix. The patentability of a product does not depend on its method of production. See MPEP 2113.I. Further, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the applicant to show an nonobvious difference over the art. See MPEP 2113.II. However, Mu discloses fermenting its dough and doing so at 36°C, which is substantially above room temperature, as well as adding starch 50°C water to the dough. Accordingly, the Office considers the expanded food of Mu in Example 1 to be substantially the same thing as the claimed fermented and heat treated dough composition.
Still further and regarding instant claims 10-11, Mu does not disclose a dough or expanded food composition wherein the dough composition comprises a milk-fermented product; further, Mu does not disclose a dough composition wherein the milk-fermented product is at least one selected from the group consisting of fermented milk and a lactic acid bacteria beverage as in claim 10 or is yogurt as a fermented milk as in claim 11.
Sakamoto at Abstract on page 1 discloses a bread like food from a dough comprising no wheat protein and a fermented milk product and water which can be produced on an industrial scale. Further, at page 3, 2nd and 3rd full paragraphs Sakamoto discloses several milk-fermented products including yogurt and lactic bacteria kefir and kwark or quark. The Office considers the claimed lactic acid bacteria beverage as including the lactic acid kefir of Sakamoto.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Sakamoto for Mu to use as its milk protein a milk-fermented product, yogurt or kefir. Both references disclose expanded foods and gluten free dough compositions comprising milk protein, leavening agent, water and starch. The ordinary skilled artisan in Mu would have desired to use the yogurt or kefir of Sakamoto in its dough to add liquid or fluidity and an acid flavor.
The Office considers the bread, steamed bun or cake containing a fermented milk product discloses in Mu at Example 1, page 3, 4th to last full paragraph as modified by Sakamoto and the Abstract and at page 3, 2nd and 3rd full paragraphs 3, an expanded food 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 May 07, 2026, the following rejections have been withdrawn as moot:
The rejections of claim 3 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 claim 1; and,
The rejections of 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).
The positions taken in the remarks accompanying the amendment dated May 07, 2026 (Reply) with respect to claims 1, 3-5 and 7-9 have been considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply that Mu does not disclose a dough or expanded food composition wherein the dough composition comprises a milk-fermented product, Mu is not relied upon for the disclosure of a milk-fermented product, but does disclose dough and bread comprising milk proteins broadly.
Regarding the position taken in the Reply that Mu does not disclose a heat treatment, the Office respectfully disagrees. Cooking and heating to proof both comprise a heat treatment to expand a dough. Nothing on the record provides any evidence of any difference between the claimed product by process and the product of Mu.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H 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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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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