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 1-6 and 11-14 in the reply filed on 01/05/2026 is acknowledged. Claims 7-10 and 15-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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
The examiner acknowledged the amendment made to the claims on 01/05/2026.
Claims 1-16 are pending in the application. Claims 1-6 and 11-14 are previously presented. Claims 7-10 and 15-16 are withdrawn without traverse in response to the restriction requirement. Claims 1-6 and 11-14 are hereby examined on the merits.
Claim Objections
Claims 5 and 13 are objected to because of the following informalities: “water retention property” should read “water retention capacity”. 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 1-6 and 11-14 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 1 recites a beverage comprising a milk base and from 0.3 ‰ to 5 ‰ citrus fiber based on the milk base; wherein a citrus fiber raw materials used to prepare the beverage comprises from 50% to 100% of the total dietary fiber and has a particle size D99 of from 100 µm-300 µm. It is unclear whether the permill or the percent is based on the weight. It is further unclear what D99 of from 100 µm-300 µm means, given that by definition, D# is x micron means: #% of the particles are smaller than x microns, and (100 - #)% are larger than x microns. Does it mean 99% of the particles are less than 300 microns, or less than 100 microns? For the purpose of examination, the permill and the percent are interpreted to be weight permill and weight percent. Appropriate correction is required.
Claims 2-6 and 11-14 depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction 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, 6 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Xu CN111248285 A (cited in the IDS submitted 01/09/2024, English disclosure relied upon for reference, hereinafter referred to as Xu).
Regarding claims 1-2, 6 and 14, Xu teaches a beverage (e.g., a milk containing food such as low fat milk with improved taste, see page 7, line 21-30; page 14, Example 3) that comprises commercial UHT skimmed milk (page 14, Example 3, line 9-10), and a homogenized citrus fiber-based product (1C) (page 14, Example 3, line 10), wherein the homogenized citrus fiber-based product (1C) is prepared by homogenizing a mixture of citrus fiber, skimmed milk and cream (page 11, line 7-29). Additionally, Xu teaches that a starter culture can be added to the mixture of a liquid milk and citrus fiber-based composition to make a fermented milk product (page 7, line 28-30).
Further, Xu teaches that the amount of citrus fiber in the mixture of the commercial UHT skimmed milk and the homogenized citrus fiber-based product (1C) is 0.7 ‰ (e.g., 0.07%, page 14, line 11-12). Such a content of citrus fiber falls within the range as recited in claim 1, taken all the skimmed milk and cream in the mixture as the milk base.
Further, Xu teaches that the citrus fiber used in the examples is AQ Plus citrus fiber from Herbafood, which comprises 88-93% total dietary fiber, and the fiber particle size is less than 250 microns (page 10, line 7-9). The amount of total dietary fiber in the citrus fiber of Xu falls within the range of claims 1-2. The particle size as disclosed by Xu overlaps with range as recited in claims 1-2. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Given that the low fat milk with improved taste as recited in Example 3 of Xu comprises citrus fiber, skimmed milk and cream and nothing more, the limitation that the beverage does not contain a suspension stabilizer is met by Xu.
Claims 5 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Xu as applied to claims 1-2 above, and evidenced by Ashcroft WO 2014/082951 A2 (hereinafter referred to as Ashcroft).
Regarding claims 5 and 13, Xu as recited above teaches that the citrus fiber raw materials used to prepare the beverage is AQ Plus citrus fiber from Herbafood. As evidenced by Ashcroft (page 9, line 28- page 10, line 2), dried AQ Plus citrus fiber has a water retention capacity of about 20 times (e.g., a water binding capacity of about 20 kg water per kg of AQ Plus citrus fiber powder, page 10,, line 1-2).
Claims 3-4 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Xu as applied to claims 1-2 above, and further in view of Sendra, “Viscoelastic properties of orange fiber enriched yogurt as a function of fiber dose, size and thermal treatment”, LWT, Food Science and Technology, 2010, 43, pages 708-714 (hereinafter referred to as Sendra) and Kieserling, “Impact of pectin-rich orange fibre on gel characteristics and sensory properties in lactic acid fermented yoghurt”, Food Hydrocolloid, 2019, 94, pages 152-163 (hereinafter referred to as Kieserling).
Regarding claims 3-4 and 11-12, those claims are interpreted to recite a viscosity of the citrus fiber raw material under a specific condition, given that the claims are directed to a beverage as opposed to a process of making a beverage or a process of measuring the viscosity of a citrus fiber raw material. To this end, Xu does not teach the viscosity value of the citrus fiber raw material. What Xu teaches is that the citrus fiber serves to impart viscosity and thickening effect to the food (page 1, line 31-49).
Further, Sendra in the same field of endeavor teaches that the viscosity of a yogurt that comprises a citrus (e.g. orange) fiber is a parameter of the particle size of the citrus fiber (e.g., viscosity is higher with larger fiber particle size than with smaller fiber particles, Abstract; Conclusion); however, Kieserling in the same field of endeavor teaches that particle size of the citrus (e.g. orange) fiber also affects its ability to stabilize yogurt gel (e.g., fine fiber is able to stabilize yogurt gel over a broader deformation range than coarse fiber, and fine fiber is favorably integrated into the casein network able to additionally fortify yogurt gel; page 159, right hand column, para. 1-2).
Therefore, one of the ordinary skill in the art would have been motivated to manipulate the size of the citrus fiber below a range of less than 250 microns so as to ensure that the fiber could effectively impart the viscosity but without compromising its stabilization effect. As such, the viscosity as recited in claims 3-4 and 11-12 are merely obvious variants of the prior at, given that the viscosity of the citrus fiber is related to its particle size.
Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Wang CN111990577 A (English disclosure relied upon for reference, hereinafter referred to as Wang).
Regarding claims 1-2, Wang teaches an acidic protein beverage comprising a milk base (e.g., fermented milk, page 2, line 13) and a compound stabilizer that comprises, inter alia, citrus fiber (page 2, line 14, page 1 line 51). Further, Wang teaches that the citrus fiber contains 85% or less insoluble fiber (page 1, line 52-53), thus overlapping the range of 50-100% (or 80-100%) total dietary fiber as recited in claims 1-2. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Further, Wang teaches that 100% of the citrus fiber can pass 80 mesh filter cloth (page 1, line 55-56), which is interpreted to read on the limitation that the citrus fiber has a particle size of D99 of from 100 microns to 300 microns, since 80 mesh is about 180 micron.
On the amount of citrus fiber by weight of the milk base: Wang teaches that the acidic protein beverage comprises 15-30% fermented milk, 3-8% sugar, 0.3-0.8% the compound stabilizer, and balanced amount of water (page 2, line 13-14). Wang further teaches that the compound stabilizer comprises 60-85% CMC, 5-20% an alkali (e.g., citrate or tripolyphosphate) and the rest is citrus fiber (page 1, line 51-52; page 2, line 4-6), for example, Example 8 of Wang teaches that the compound stabilizer contains 8% citrus fiber, 80% CMC and 12% tripolyphosphate (page 6, line 55-56). As such, the amount of citrus fiber by weight of the milk base as disclosed by Wang overlaps with range as recited in claim 1 (calculation: for an acidic protein beverage that comprises 30% fermented milk, and 0.3% the compound stabilizer having 8% citrus fiber, the proportion of citrus fiber by weight of the fermented milk is 0.3% x 8%/30% = 0.8‰). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791