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 I, claims 1-5 in the reply filed on 02/12/2026 is acknowledged. Claims 6-7 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim status
Claims 1-7 are pending in the application. Claims 1-5 are previously presented. Claims 6-7 are withdrawn without traverse in response to the restriction requirement. Claims 1-5 are hereby examined on the merits.
Claim Objections
Claims 1-3 are objected to because of the following informalities: “ is derived” in line 7 of claim 1, line 2 of claim 2 and line 9 of claim 3 should read “are derived”. Appropriate correction is required.
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 3-5 are 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 3 recites “35-90% by weight of dry matter of the food or beverage ingredient”. There is insufficient antecedent basis for the limitation about “the food or beverage ingredient”. Appropriate correction is required.
Claims 4-5 depends from claim 3 therefore necessarily incorporate the indefinite subject matter therein.
Claim 4 recites that the creamer composition further comprising “one or more emulsifiers and buffering salts”. It is unclear whether the scope of the claim require the presence of both emulsifiers and buffering salts, or just one of them. For the purpose of examination, the latter interpretation is assumed. Clarification is required.
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 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Sorensen WO 2011/124678 A1 (hereinafter referred to as Sorensen).
Regarding claims 1-2, Sorensen teaches a method of increasing the water holding capacity (WHC) of a cereal bran fraction, comprising adding water to the cereal bran fraction followed by treating the cereal bran fraction with added water without the removal of any components with one or more cell-wall modifying enzyme, and optionally one or more further enzyme (page 2, line 10-17), wherein the cereal bran fraction is a cereal ban from traditionally milling, and is selected from the group consisting of wheat bran, barley bran, oat bran, rye bran, sorghum bran, maize bran, corn bran, rice bran, millet bran and triticale bran (page 7, line 13-14 and 25-26; page 8, line 1-10), wherein the one or more cell-wall modifying enzyme is selected from the group consisting of cellulase, xylanase and beta-glucanase (page 22, line 21-24); and wherein the optional one or more further enzyme is selected from the group consisting of an amylase and a protease (the para. that bridges pages 22 and 23). Further, Sorensen teaches that the cereal bran fraction with increased WHC can be used as a food or beverage, or as a food or beverage ingredient, for example, it can be used as a food improver in preparing a creamer (e.g., a coffee whitener) (page 15, line 3-4; page 16, line 17-18; page 17, line 1, and the table on page 20).
On the amounts of protein, fat and total carbohydrate in the food or beverage ingredient (e.g., the cereal bran fraction), Sorensen as recited above teaches treating a cereal bran fraction (e.g., oat bran, corn bran, rice bran, wheat bran, barley bran, rye bran, millet bran, etc.) with a cell-wall modifying enzyme (e.g., beta-glucanase, cellulase, xylanase or combination thereof) and optionally amylase without removal of any components, which is consistent with the method of preparing the food beverage ingredient recited in the instant specification (page 6, third para.). A cell-wall modifying enzyme will hydrolyze cell-wall ingredients such as xylan and beta-glucan into oligosaccharide and mono/disaccharide, and an amylase will hydrolyze starch into shorter glucose chains and glucose, however, the total carbohydrate content of the cereal bran will not change, and is inherent to the cereal bran per se. Further, the cell-wall modifying enzyme will not cleave protein or fat thus the amounts of protein and fat are inherent to the cereal bran too. Given that both Sorensen and the claimed invention use the same type of cereal brans to begin with, it logically follows that the amounts of protein, fat and total carbohydrate as recited in claim 1 are encompassed by prior art.
As for sugar and dietary fiber as a part of the carbohydrate in the hydrolyzed cereal bran, it is submitted that the amount of sugar in the hydrolyzed cereal bran (e.g., the cereal bran fraction with increased WHC) depends on the original starch (if starch is present) and dietary fiber contents in the cereal bran, and the degree of hydrolysis by the enzymes, since 1) cereal bran contain little sugar, and 2) the cell-wall modifying enzyme will hydrolyze the dietary fibers (e.g., beta-glucan and xylan) into shorter xylose chains, glucose chains, xylose and glucose, and amylase will hydrolyze starch into shorter glucose chains and glucose. Similarly, the amount of dietary fibers in the hydrolyzed cereal bran depends on the original cereal bran and the degree of hydrolysis. To this end, Sorensen teaches that the cereal bran fraction is solubilized to a degree of higher than 5% such as higher than 10%, 15%, 20%, 35%, 20 , 35%, etc. (page 24, third para.). This, along with the fact that solubilization is actually the process of cleaving/hydrolyzing long insoluble polysaccharides (e.g., starch and dietary fibers such as xylan) into soluble shorter chains and monosaccharides, it logically follows that the amounts of sugar and dietary fibers as recited in the claim are encompassed by the prior art.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Sorensen WO 2011/124678 A1 (hereinafter referred to as Sorensen) in view of Reh US Patent Application Publication No. 2018/0007935 A1 (hereinafter referred to as Reh).
Regarding claim 3, Sorensen as recited above teaches a food or beverage ingredient (e.g., a cereal bran with increased WHC) in connection with claim 1, the entirety of which is incorporated herein by reference. Sorensen further teaches that the cereal bran with increased WHC can be used as a food improver in preparing a creamer (e.g., a coffee whitener) (page 15, line 3-4; page 16, line 17-18; page 17, line 1, and the table on page 20). Additionally, Sorensen teaches that the functionality of the food improver can be improved by combination with an emulsifier such as DATEM (page 19, line 12-13). Sorensen is silent regarding combining the cereal bran with increased WHC with a fat in preparing the creamer.
Reh teaches that a non-dairy creamer with regular fat usually contains 30-35% fat, and one with high fat usually contains 40-50% fat (Table 1). Both Sorensen and Reh are directed to creamers. 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 Sorensen by incorporating fat so as to make a creamer having regular or high amount of fat. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the amount fat added to the cereal bran with increased WHC for making creamers having desirable amount of fat (e.g., regular or high fat). Modification of Sorensen with Reh would have resulted in a creamer composition the added fat content of which overlaps with the range as recited in the claim (calculation: assuming there is 100 g the cereal bran with increased WHC that has 15% fat, and x g fat is added to the cereal bran to make a creamer having 40% fat, then 40% = (100 x 15% + x)/ (100 + x), thus x is 42 gram, and the ratio of added fat to the whole creamer is 42/142 =~30%).
Regarding claim 4, Reh teaches that a creamer usually contains a buffering salt for preventing undesired creaming or precipitation, and an emulsifier for stabilizing the oil-in-water emulsion (0063; 0054; Table 1). It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have included a buffering salt in the creamer for preventing undesired creaming or precipitation, and an emulsifier for stabilizing an emulsion.
Regarding claim 5, Reh teaches that a creamer can be present in either liquid form or dried form, and drying techniques including spray drying, vacuum band drying, roller drying and freeze drying can be used to obtain the dried form (0047; 0068). It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have drying the liquid creamer through spray drying, vacuum band drying, roller drying and freeze drying so as to obtain a creamer powder.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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