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 .
Response to Amendment
Applicant amendments to the claim and specification have overcome the objections set forth in the last Office action mailed on 5/21/26. Further, the amendments to claims 1-2, 8, 12, and 14-16 have overcome the rejection under 35 U.S.C. 112(b) set forth in the last Office action mailed on 5/21/26.
Claim Status
Claims 1-3, 6-22 are pending and being examined, with claims 1-3, 6-16 being amended, claims 4-5 newly canceled, and claims 17-22 newly added. Claim 1 has been amended to now require the specific amount of non-hydrolyzed oat flour to be 1.0 - 3.0 wt. % and the specific amount of hydrolyzed oat flour to be 4.0 - 6.0 wt. %.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-3, 6-11, 13-17, 20-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou [US20190110501A1], in view of Silver et al., [US20150080296A1], hereinafter Silver, Chatel et al., [US20160081375A1], hereinafter Chatel, and Caruso et al. [US20200022390A1], hereinafter Caruso, evidenced by Palacios et al., [Calcium fortified foods, 2020], hereinafter Palacios, and Powers [Riboflavin (vitamin B2) and health, 2003].
Regarding claim 1; Triantafyllou teaches a fermented non-dairy food composition [Title] comprising:
5-10 wt% Oats [0001, 0026], since the aqueous oat base has a dry matter content of from 7-15 wt%, which means the aqueous oat base mixture contains 7-15 wt% of oat-derived solids (i.e., oat flour such as ground oat [0047]) suspended in water,
1.5-4 wt% faba protein (0.5-7 wt% or more) [0020, 0025],
2-5 wt% vegetable oil (4 wt% rapeseed oil) or fat [0015, 0064],
Water (aqueous oat base) [0062, 0022].
Regarding the food composition having a minimum protein digestibility-corrected amino acid score (PDCAAS) of 0.80, while Triantafyllou does not explicitly recites that the food composition has a minimum PDCAAS of 0.80, because the fermented non-dairy food composition comprise the same ingredients at amounts that overlap, encompass and/or are within the claimed amount ranges, there is reasonable basis to conclude that the fermented non-dairy food composition of Triantafyllou has a minimum PDCAAS of 0.80.
Moreover, MPEP § 2112.01, II. states: “If the composition is the same, it must have the same properties”.
“Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). MPEP §2112.01.
Furthermore, Silver teaches nutritive proteinaceous compositions comprising a protein digestibility-corrected amino acid score (PDCAAS) that exceeds a benchmark protein [Silver, abstract], such as whey protein, egg protein and soy protein [Silver, 0017]. The food product of Silver may be a fermented food composition (frozen yogurt, which is made with fermented milk) [Silver, 0363] and may comprise nutritive protein components from oat [Silver, 0322], and faba (Vicia faba) [Silver, 0143], may also comprise vegetable oil [Silver, 0352], and may have a protein digestibility-corrected amino acid score (PDCAAS) of at least 1.4 [Silver, 0031].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the nutritive protein compositions as ingredients to produce a food composition having a minimum protein digestibility-corrected amino acid score (PDCAAS) of at least 1.4 as taught by Silver, in the composition of Triantafyllou, because Silver teaches that digestibility is a parameter relevant to the nutritive benefits and utility of nutritive proteins [Silver, 0231], and digestibility of a protein source is an important prerequisite to the nutritional value of the protein. If a protein is not well digested its bioavailability will be lower and as a result the actual nutritional value of the protein may be lower than its amino acid composition would otherwise suggest. Moreover, a protein that is more rapidly digested than a second protein will deliver nutrition faster than the second protein and with less input energy. Rapid digestibility is also thought to be correlated with reduced allergenicity [Silver, 0165]. Lastly, would have been obvious to one of ordinary skill in the art to include the nutritive protein compositions as ingredients to produce a food composition having a minimum protein digestibility-corrected amino acid score (PDCAAS) of at least 1.4 as taught by Silver, in the composition of Triantafyllou, because Silver teaches that the nutritive proteins of the invention have good stability, be stored for an extended period of time before use without the need for refrigeration or cooling, and may be prepared in dry form (e.g., by lyophilization), while maintaining their stability upon reconstitution (e.g., liquid formulation) [Silver, 0165].
Triantafyllou does not teach wherein the oat comprises non-hydrolyzed oat flour and hydrolyzed oat flour, and wherein the hydrolyzed oat flour is in amounts of from 4.0 - 6.0 wt. %.
Chatel teaches food compositions comprising oat flour [Chatel, 0002], suitable for fermented non-dairy [Chatel, 0052, 0050] food compositions such as yogurts [Chatel, 0019], wherein suitable oat flours include unprocessed oat flour (non-hydrolyzed oat flour) and hydrolyzed oat flour (which is a form of hydrolyzed oat flour, also referred to as soluble oat flour) [Chatel, 0025, 0060, 0090, 0092]. Chatel teaches an example where a food product is made comprising both unprocessed or non-hydrolyzed oat material (oat flakes) and hydrolyzed oat material (hydrolyzed oat flour) [Chatel, p.5, Table, 0059], where up to about 25%wt of the oat flour (regular non- hydrolyzed oat flour) may be replaced with the hydrolyzed oat flour (soluble oat flour) [Chatel, 0092], and wherein said hydrolyzed oat flour (soluble oat) may be in amounts of from 1-25wt% [Chatel, 0051], with some food products comprising 1-8wt% hydrolyzed oat (soluble oat) [Chatel, 0072].
Moreover, while Triantafyllou does not explicitly teaches using a combination of non-hydrolyzed oat flour and hydrolyzed oat flour, one of ordinary skill in the art would have recognized the suitability of both non-hydrolyzed oat flour and hydrolyzed oat flour as taught by Chattel for producing fermented non-dairy food compositions. "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. (Combining equivalents for the same purpose).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine non-hydrolyzed oat flour and hydrolyzed oat flour, wherein the hydrolyzed oat may be in amounts of from 1-25wt% and wherein some food products may comprise 1-8wt% hydrolyzed oat as taught by Chatel, into the fermented non-dairy food composition of Triantafyllou, because Chatel teaches that both non-hydrolyzed oat flour and hydrolyzed oat flour are suitable for preparing fermented non-dairy food compositions where the oat flour material can maintain its standard of identity as whole grain throughout processing [Chatel, 0025], and also because Chatel teaches that the amount of standard oat (unhydrolyzed oat) and soluble oat (hydrolyzed oat) may be selected or adjusted in order to produce an oat product with higher viscosity (higher non-hydrolyzed oat concentration) or an oat product with lower viscosity, better properties such as better hydration and mixing properties, particularly without the need of elevated temperatures (when higher hydrolyzed oat concentration is used) [Chatel, 0065-0066].
Triantafyllou does not teach wherein the oat comprises non-hydrolyzed oat flour in amounts of from 1.0 - 3.0 wt. %.
Caruso teaches an oat composition, wherein in some embodiments said oat composition may comprise non-hydrolyzed oat material (i.e., oat bran flour [Caruso, 0019]) in amounts of from 1-2wt% [Caruso, 0045].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include amounts of from 1-2wt% of non-hydrolyzed oat material as taught by Caruso, in the fermented non-dairy food oat composition of Triantafyllou, because modified Triantafyllou in view of Chatel already teaches to combine non-hydrolyzed oat flour and hydrolyzed oat flour depending on the desired viscosity (lower viscosity), hydration and mixing properties in the final oat composition [Chatel, 0065-0066]. Further, it would have been obvious to one of ordinary skill in the art to include amounts of from 1-2wt% of non-hydrolyzed oat material as taught by Caruso, because Caruso teaches that by reducing pH of a non-hydrolyzed oat slurry it is possible to produce oat compositions with reduced viscosity (lower viscosity) [Caruso, 0015-0016], which is a property (low viscosity oat product) that Triantafyllou [Triantafyllou, 0015] and modified Triantafyllou in view of Chatel already express interest in as discussed above.
Regarding claim 2; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the food composition has a pH below 4.6 [0039].
Regarding claim 3; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the fermented food composition does not comprise any dairy protein [0021].
Regarding claim 6; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the faba protein is faba protein isolate [0020].
Regarding claim 7; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the faba protein is present in an amount of 1.5-3 wt% faba protein [0020, 0025].
Regarding claim 8; Triantafyllou teaches the fermented non-dairy food composition according to claim 1 discussed above, but does not teach wherein the fermented non-dairy food composition comprises 1.5-6.0 wt% added sugar.
Chatel teaches the fermented non-dairy food composition discussed above in claim 1, wherein the fermented non-dairy food composition comprises added sugar (granulated sugar) [Chatel, 0030], in amounts of about 1-15 wt% [Chatel, 0032]. Chatel further teaches a fermented non-dairy food composition (yogurt) comprising 5 wt% sugar [Chatel, 0084, Table 9].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include added sugar in amounts of about 1-15 wt% as taught by Chatel, into the fermented non-dairy food composition of Triantafyllou, because Chatel teaches that sweeteners may be added in the food product to provide a desired sweetness [Chatel, 0055].
Regarding claim 9-10; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, comprising a calcium source (calcium carbonate) in amounts up to 5 wt% [0033], which would provide an amount of up to 5g in 100g of the composition (0-5g calcium source), and which would provide a calcium source for fortification (see Palacios, p.4, right column, paragraph 3).
Regarding claim 11; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the vegetable oil or fat is rapeseed oil (seed oil) [0015, 0061].
Regarding claim 13; Triantafyllou teaches the fermented non-dairy food composition according to claim 1 discussed above, and further teaches the composition may comprise vitamins [0015]. However, Triantafyllou does not explicitly teach the fermented non-dairy food composition further comprises vitamins selected from the group consisting of vitamin A, vitamin D, vitamin B2 and vitamin B12.
Silver teaches the fermented food composition comprising oat, and faba components as discussed above in claim 1, the fermented food composition further comprising vitamins selected from the group consisting of vitamin A, vitamin D, vitamin B2 (riboflavin, see Powers, p.1, Title), and vitamin B12 [Silver, 0345].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include vitamin A, vitamin D, vitamin B2 and vitamin B12 as taught by Silver, into the composition of Triantafyllou, because Silver teaches that the addition of components such as vitamins (supplements) would provide nutritive compositions in various forms such as liquid solution, slurry, suspension, gel, paste, powder, or solid [Silver, 0050, 0345], and help the subject consuming the nutritive composition to achieve increased coordination with performance of exercise [Silver, 0052-0057] and with any bodily activity that enhances or maintains physical fitness and overall health and wellness [Silver, 0140].
Regarding claim 14; Triantafyllou teaches the fermented non-dairy food composition may comprise calcium (calcium carbonate) in amounts up to 5 wt% (5% = 5g/100g = 5000mg/100g) [0033], which would provide an amount of up to 5000mg in 100g of the composition (0-5000mg calcium).
Regarding claim 15; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, comprising oat and faba protein [abstract, 0020, 0061], and Example 1 disclose the food composition only comprising oat and pea protein (which is one of the vegetable protein isolate mentioned along with faba protein isolate [0020]) [0061], and while Triantafyllou does not explicitly teach an example using oat and faba protein, one of ordinary skill in the art would recognize the substitution of the pea protein in Example 1 for the faba protein mentioned by Triantafyllou in paragraph 0020, because Triantafyllou teaches that these proteins are all suitable (equivalents) for making the fermented non-dairy food composition. Therefore, Triantafyllou implicitly teaches the oat and the faba protein as the only plant proteins in the food composition other than protein contributed by optionally added fruit or nuts.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use oat and faba protein as the only plant proteins in the food composition as taught by Triantafyllou by combining the teachings of paragraph [0020], and the teachings of Example 1 in paragraph [0061] of Triantafyllou’s disclosure, because substituting equivalents known for the same purpose would have been obvious to one of ordinary skill in the art in view of Triantafyllou’s teachings (see MPEP 2144.06 II.). Moreover, it would have been obvious to one of ordinary skill in the art to use oat and faba protein as the only plant proteins in the food composition because simple substitution of one known element (substitute pea protein) for another (for faba protein) would have yielded predictable results to one of ordinary skill in the art (see MPEP 2143 I. (B)).
Triantafyllou does not teach the fermented non-dairy food composition further comprises fruit and/or nuts.
Modified Triantafyllou in view of Chatel teaches the fermented non-dairy food composition discussed above in claim 1, wherein said fermented non-dairy food composition may further comprise fruit and nuts [Chatel, 0110].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include fruits and nuts as taught by Chatel, in the fermented non-dairy food composition of Triantafyllou, because Triantafyllou already teaches/suggests that oat based products such as the one of his invention may comprise fruit extracts. Further would have been obvious to one of ordinary skill in the art to include fruits and nuts as taught by Chatel, because Chatel teaches that this would advantageously provide a wide range of different products, having different flavors [Chatel, 0108, 0110], as well as used in combination with various fruits and nuts products [Chatel, 0070].
Regarding claim 16; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the food composition is to be used as a plant-based yoghurt alternative [0023].
Regarding claim 17; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein the vegetable oil or fat is rapeseed oil (seed oil) [0015, 0061], but does not explicitly teach the rapeseed oil is specifically high oleic rapeseed oil, or sunflower oil, and a combination thereof.
Caruso teaches the oat composition discussed above in claim 1 rejection, wherein said oat composition may comprise oil, said oil consisting of sunflower oil [Caruso, 0033, Tables 3-5].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used sunflower oil as taught by Caruso, in the fermented non-dairy food oat composition of Triantafyllou, because Triantafyllou already teaches using vegetable oils such as seed oils (rapeseed oil) [Triantafyllou, 0015, 0061], but simply did not mention the rapeseed oil was specifically high oleic rapeseed oil. Further, it would have been obvious to one of ordinary skill in the art to have used sunflower oil as taught by Caruso, because Caruso also teaches using vegetable oils [Caruso, 0033], and the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), and MPEP § 2144.07.
Regarding claim 20; Triantafyllou teaches the fermented non-dairy food composition according to claim 1, wherein rapeseed oil is added to rise the total fat content to about 3 wt. % [Triantafyllou, 0061], therefore, equivalent to the vegetable oil or fat is present in an amount of 3 wt. %, since one of ordinary skill in the art would recognize that adding rapeseed oil to a composition that is free of fat or 0% fat to rise the total fat content to about 3 wt. % would produce a fermented non-dairy food composition wherein the vegetable oil or fat is present in an amount of 3 wt. %.
Regarding claim 21; see claim 1 above where modified Triantafyllou teaches the fermented non-dairy food composition [Triantafyllou, Title] according to claim 1, wherein the fermented non-dairy food composition consists of the faba protein [Triantafyllou, 0020, 0025], the vegetable oil or fat [Triantafyllou, 0015, 0064], the water [Triantafyllou, 0062, 0022] and sugar [Triantafyllou, 0039, 0061, 0064], and Triantafyllou in view of Chatel teaches the fermented non-dairy food composition including unprocessed oat flour (non-hydrolyzed oat flour) and hydrolyzed oat flour (which is a form of hydrolyzed oat flour, also referred to as soluble oat flour) [Chatel, 0025, 0060, 0090, 0092, p.5, Table, 0059].
Regarding claim 22; see claims 1 and 20 above where modified Triantafyllou teaches the fermented non-dairy food composition [Triantafyllou, Title] according to claim 1, wherein the vegetable oil or fat is present [Triantafyllou, 0015, 0064] in an amount of 3.0 wt. % [Triantafyllou, 0061], the faba protein is present [Triantafyllou, 0020, 0025] in an amount of 2.0 wt. % (0.5-7 wt% or more) [Triantafyllou, 0020, 0025], Triantafyllou in view of Chatel teaches the fermented non-dairy food composition including unprocessed oat flour (non-hydrolyzed oat flour) and hydrolyzed oat flour (soluble oat flour) [Chatel, 0025, 0060, 0090, 0092, p.5, Table, 0059] in amounts of from 1-25wt% [Chatel, 0051], and Triantafyllou in view of Caruso teaches the oat composition, comprising non-hydrolyzed oat material (i.e., oat bran flour [Caruso, 0019]) in amounts of from 1-2wt% [Caruso, 0045].
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou [US20190110501A1], in view of Silver [US20150080296A1], Chatel [US20160081375A1], and Caruso [US20200022390A1], as applied to claim 1 above, and further in view of Hauser et al., [US20200121702A1], hereinafter Hauser.
Regarding claim 12; modified Triantafyllou teaches the fermented non-dairy food composition according to claim 1 discussed above, but does not teach wherein the fermented non-dairy food composition has an energy density in the range of about 50-90 kcal/100g.
Hauser teaches a fermented (yogurt) nutritional food composition [Hauser, 0061-0062], comprising oat ingredients [Hauser, 0074], wherein the fermented food composition has an energy density in the range of about 60-75 kcal/100g [Hauser, 0073].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to produce a fermented food composition with an energy density in the range of about 60-75 kcal/100g as taught by Hauser, into the fermented non-dairy food composition of Triantafyllou, because Hauser teaches that food compositions with an energy density in said range are suitable for an infant or young child [Hauser, 0073], therefore providing a skilled artisan the flexibility of preparing food compositions with different (higher/lower) energy densities according to the targeted consumer (i.e., elders, adults, kids, infants) which require different energy intakes.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou [US20190110501A1], in view of Silver [US20150080296A1], Chatel [US20160081375A1], and Caruso [US20200022390A1], as applied to claim 1 above, and further in view of Doehler [DE202021101793U1].
Regarding claim 18; modified Triantafyllou teaches the fermented non-dairy food composition according to claim 1 discussed above, but does not teach wherein the fermented non-dairy food composition further comprises 0.1 to 0.5 wt % of citrus fiber.
Doehler, directed to fermented non-dairy food compositions [Doehler, 0002, 0012, 0037], teaches wherein the fermented non-dairy food composition further comprises 0.5 wt % of citrus fiber [Doehler, claim 11, 0024, 0044].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include an amount of 0.5 wt% of citrus fiber as taught by Doehler, into the fermented non-dairy food composition of Triantafyllou, because both Triantafyllou and Doehler are directed to fermented non-dairy food compositions comprising oat [Triantafyllou, Title] and [Doehler, 0017], and also because Triantafyllou already express interest in including fiber for providing health benefits [Triantafyllou, 0002].
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou [US20190110501A1], in view of Silver [US20150080296A1], Chatel [US20160081375A1], and Caruso [US20200022390A1], as applied to claim 1 above, and further in view of de Graaf et al. [US20090123636A1], hereinafter de Graaf.
Regarding claim 19; modified Triantafyllou teaches the fermented non-dairy food composition according to claim 1 discussed above, comprising from 2-3% protein (equivalent to 2-3g protein per 100g composition) [Triantafyllou, 0025], 3% fat (equivalent to 3g fat per 100g composition) [Triantafyllou, 0061], and carbohydrates [Triantafyllou, 0049], and Chatel teaches non-dairy food composition comprising oat discussed above in claim 1, wherein an example of the non-dairy food composition comprises 6-8% or 8-10% sugars (equivalent to 6-8g or 8-10g carbohydrates per 100g composition, see [Silver, 0342], A "carbohydrate" refers to a sugar or polymer of sugars) [Chatel, 0095, Table muffin recipe, 0099, Table fruit gel snack]. However, modified Triantafyllou does not explicitly teach a fermented non-dairy food composition comprising from 7-10 g carbohydrates.
de Graaf, directed to fermented food compositions (yoghurt type product) teaches said fermented food composition comprising from 0-15% sugar (equivalent to 0-15g carbohydrates per 100g composition, see [Silver, 0342], A "carbohydrate" refers to a sugar or polymer of sugars) [de Graaf, 0035].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include an amount of 0-15 wt% of carbohydrates per 100g composition as taught by de Graaf, into the fermented non-dairy food composition of Triantafyllou, because both Triantafyllou and de Graaf are directed to fermented dairy-type food compositions [Triantafyllou, Title] and [de Graaf, Title, 0035], and also because Triantafyllou already teaches yogurt-like type food products [Triantafyllou, 0038] comprising 2-3g protein per 100g composition [Triantafyllou, 0025], 3g fat per 100g composition [Triantafyllou, 0061], and carbohydrates [Triantafyllou, 0049], but simply did not specify the amount of carbohydrates, which one of ordinary skill in the art would have selected based on the desired degree of sweetness in the final food product, and/or the desired carbohydrate level to provide to consumers according to their nutritional needs.
Response to Arguments
Applicant's arguments filed 8/21/26 have been fully considered but they are not persuasive.
In pages 8-9, of Applicant Remarks, Applicant urges that Chatel does not contemplate the claimed combination of non-hydrolyzed oat flour and hydrolyzed oat flour because paragraph [0025] in Chatel’s disclosure merely provides terms relevant for its overall disclosure. However, while paragraph [0025] in Chatel’s disclosure is disclosed as definitions for the terms “regular oat flour,” “typical oat flour,” and “unprocessed oat flour” for non-hydrolyzed oat flour, and “soluble oat flour” for hydrolyzed oat flour, Chatel does define the terms to differentiate between both different forms of oat flours since products containing both non-hydrolyzed oat, and hydrolyzed oat may be combined in one product (see Chatel, p.5, Table, 0059, for an oat composition comprising non-hydrolyzed oat material as oat flakes, and hydrolyzed oat flour). Further, Chatel teaches that the invention provides for replacement of a portion of the oat flour (regular or non-hydrolyzed oat flour) with the hydrolyzed oat flour, where up to about 25%wt of the oat flour (regular non-hydrolyzed oat flour) may be replaced with the hydrolyzed oat flour (soluble oat flour) [Chatel, 0092], thus, producing a food composition comprising both non-hydrolyzed and hydrolyzed oat flour.
Applicant’s arguments with respect to claim(s) 1-3, and 6-22 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. The arguments are directed to limitations not previously considered or required (wherein the oat comprises 1.0 - 3.0 wt. % non-hydrolyzed oat flour and 4.0 - 6.0 wt. % hydrolyzed oat flour) in claim 1, which have been addressed above accordingly, by inclusion of the new prior art of record of Caruso et al. [US20200022390A1], hereinafter Caruso.
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 LUIS EUGENIO DIOU BERDECIA whose telephone number is (571)270-0963. The examiner can normally be reached Monday-Friday 7:30-4:30.
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/LUIS EUGENIO DIOU BERDECIA/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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