DETAILED ACTION
Background
The amendment dated January 13, 2026 amending claims 18 and 21 has been entered. Claims 18-36 as filed with the amendment have been examined. Claims 1-17 have been cancelled.
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
3. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 13, 2026 has been entered.
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 18-36 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.
Each of (i) recited amount of protein, lipid and carbohydrate in each of claims 18, 21 and 26; and, (ii) the recited amount of protein in claim 34 are indefinite because each lacks a basis or denominator for the recited amount. Is the amount of each of protein, lipid and carbohydrate based on the total weight of the confectionary mass, based on the total weight of protein, lipid and carbohydrate, based on the total weight of solids in a composition, or some other basis for amount?
The Office interprets all wt% amounts of protein, lipid and carbohydrate as being based on the total weight of a confectionary mass.
Claims 19-20, 22-25, 27-33 and 35-36 are rejected as depending from a rejected base claim.
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 18-20 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over EP2545789 A1 to Kroll et al. (Kroll) in view of AU2009101002 A4 to Signal (Signal), of record.
All references to Kroll refer to the Clarivate machine language translation, a copy of which has been provided with this Office action.
Unless otherwise stated, all percentages are assumed to be a weight % (wt%), and a weight % and a mass % are considered to be interchangeable.
Regarding instant claims 18 and 26, Kroll at Example 2 on page 7 discloses mixing (“blending”) 33 wt% casein, 4 wt% vegetable oil (“lipid”), 10 wt% glycerol (“carbohydrate”), based on the total weight of the mixture, as well as a sweetener, whey and animal proteins into a mass (“confectionary mass”), then forming by shaping and cutting the mass into a bar and coating it with a chocolate coating. At Description on page 2, Kroll discloses that its composition has a soft bite, even after storage. Further, at page 4, last full paragraph Kroll discloses caseinates as advantageous powders for use (at Abstract on page 2) for blending with the water, the lipid and the carbohydrate and that have an average particle size of 120-140μm (a “D90, as determined by laser diffraction, in the range 80-200 micrometer”). Further, the confectionary mass of Example 2 of Kroll comprises 67 wt% of protein, based on the total weight of the confectionary mass, of which about 50 wt%, based on the total weight of the protein is a casein or a caseinate.
The ordinary skilled artisan in Kroll would have found it obvious to use its caseinate as its powder in its Example 2 because Kroll discloses that caseinates provide a desirable composition for making a bar as a confectionary mass.
The Office considers the claimed confectionary mass that is self-sustaining at a temperature of 25 °C (claims 18 and 26) to include the shaped mass and bars disclosed in Example 2 of Kroll.
Further, and regarding instant claims 19 and 20, Kroll does not state in its examples that it blends a densified divalent metal caseinate powder with its liquid phase to obtain the confectionary mass. Further, Kroll does not disclose its caseinate is a divalent metal caseinate, or a calcium or magnesium caseinate as in claim 19. Still further, Kroll does not disclose a densified divalent metal caseinate particles having a tapped bulk density of from 575-750 g/l, or one having a true density as determined by gas pycnometry of 1.30-1.32 g/cm3 as in claim 20.
Signal at Abstract on page “-2-” discloses a method of producing dairy powders for use (at [0098]) in food and dairy applications comprising roll-drying and compressing the powders and then milling to increase their bulk density (“subjecting to a densifying treatment”) and improve their flowability, dispersibility, wettability and reduce their hydration viscosity (see Table at page “-17-”). Further, at Example 1 and [0051], Signal discloses as its powder calcium caseinate Test sample 1 and Test sample 2 (a densified divalent metal caseinate - claims 18-19), which at the Table on page “-17-” have a Bulk density (35 taps) of, respectively, 0.56 and 0.61 g/ml or 560 and 610 g/l. Still further, at [0083] and the Table on page “-21-” Signal discloses that the same calcium caseinate having a bulk density (100 taps) of 0.596 g/ml or 596 g/l has a bulk density (10 taps) of 0.487 g/ml or 487 g/l. Accordingly, bulk density increases substantially with the number of taps; and, the Office considers the calcium caseinate of Test sample 1 having a bulk density (35 taps) of 560 g/l to have a bulk density (625 taps) of from 575-750 g/l.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Signal for Kroll to include the densified divalent metal or calcium caseinate of Signal having the claimed tapped bulk density of from 575-750 g/l, or one having a true density as determined by gas pycnometry of 1.30-1.32 g/cm3. Both references disclose foods comprising proteins from roller-dried divalent metal caseinates. The ordinary skilled artisan in Kroll would have desired to use the densified dried divalent metal caseinate of Signal as its caseinate powder to improve the improve the ability of the powder to go into its blend with lipid and carbohydrate.
Claims 21-25 are rejected under 35 U.S.C. 103 as being unpatentable over AU2009101002 A4 to Signal (Signal) in view of EP2545789 A1 to Kroll et al. (Kroll).
Unless otherwise stated, all percentages are assumed to be a weight % (wt%), and a weight % and a mass % are considered to be interchangeable.
Regarding instant claims 21 and 24, Signal at Abstract on page “-2-” discloses a method of producing dairy powders for use (at [0098]) in food and dairy applications comprising roll-drying and then milling to increase their bulk density (“subjecting to a densifying treatment”) and improve their flowability, dispersibility, wettability and reduce their hydration viscosity (see Table at page “-17-”). Further, at Example 1 and [0051], Signal discloses calcium caseinate Test sample 1 and Test sample 2 (a densified divalent metal caseinate - claims 21 and 24), which at the Table on page “-17-” have a Bulk density (35 taps) of, respectively, 0.56 and 0.61 g/ml or 560 and 610 g/l. Still further, at [0083] and the Table on page “-21-” Signal discloses that the same calcium caseinate having a bulk density (100 taps) of 0.596 g/ml or 596 g/l has a bulk density (10 taps) of 0.487 g/ml or 487 g/l. Accordingly, bulk density increases substantially with the number of taps; and, the Office considers the calcium caseinate of Test sample 1 having a bulk density (35 taps) of 560 g/l to have a bulk density (625 taps) of from 575-750 g/l.
Further, and Regarding instant claims 22 and 25, the Office considers the roller-dried divalent metal caseinate in claims 21 and 25 as including the divalent metal caseinate of Signal. And the Office considers the claimed dry-compacting in claims 21 and 25 to include the compression of a powder in Signal; and, the Office considers the claimed dry-milling (claims 21 and 25) and dry-milling as pin-milling as in claim 22 to include the rotational milling of a powder as disclosed in Signal at [0032]. In addition,
Signal does not disclose a method for preparing a confectionary mass or a confectionary mass that is self-sustaining at a temperature of 25 °C as in claim 21; and, Signal does not disclose a method of preparing a confectionary mass comprising blending a densified divalent metal caseinate with a liquid phase comprising one or more further ingredients for the confectionary mass as in claim 21; further, Signal does not disclose a confectionary mass comprising at least 30 wt% of protein of which at least 20 wt% is divalent metal caseinate, 1-20 wt% of lipid and 1-65 wt% of carbohydrate as in claim 21; and Signal does not disclose a caseinate
Kroll at Abstract on pages 1-2 discloses a composition (“confectionary mass”) comprising at least 50 wt.% protein comprising 20-35 wt% caseinate, based on the total weight of the composition as a powdered mixture; and, Kroll discloses making a confectionary mass comprising adding water (5-10 wt.%), at least one humectant (“carbohydrate”), at least one animal or vegetable oil (“lipid”), to the above obtained powdered mixture and blending, then forming. Further, at Description on page 2, Kroll discloses that its composition has a soft bite, even after storage. At the last full paragraph on page 3, Kroll discloses that the humectant carbohydrate is a sugar alcohol and that the amount of lipid is 1 to 10 wt%, based on the total weight of the composition. Further, at page 4, last full paragraph Kroll discloses caseinates as advantageous powders for use (at Abstract on page 2) for blending with the water, the lipid and the carbohydrate and that have an average particle size of 120-140μm (a “D90, as determined by laser diffraction, in the range 80-200 micrometer”).
The ordinary skilled artisan in Kroll would have found it obvious to use its caseinate as its powder because Kroll discloses that caseinates provide a desirable composition for making a bar as a confectionary mass.
The Office considers the claimed confectionary mass that is self-sustaining at a temperature of 25 °C (claims 18 and 26) to include the shaped mass and bars disclosed in Example 2 of Kroll.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kroll for Signal to use its densified divalent metal or calcium caseinate by blending said densified caseinate powder with a liquid phase comprising 1-20 wt% lipid, 1-65 wt% carbohydrate and at least 30 wt% protein including at least 20 wt% of the protein as the caseinate to form a confectionary mass as in Kroll that is self-sustaining at a temperature of 25 °C; further, the ordinary skilled artisan would have found it obvious in view of Kroll to use a caseinate having a D90 size, as determined by laser diffraction, in the range 80-200 micrometer. Both references disclose foods comprising dairy proteins from caseinates as powders blended with liquids. The ordinary skilled artisan in Signal would have desired to use its densified dried divalent metal caseinate having the D90 particle size of Kroll in a confectionary mass composition as in Kroll as to improve the improve the soft bite and texture of the resulting product.
Regarding instant claim 23, the Office considers the claimed “roller-drying” to form powders followed by subjecting the roller-dried divalent metal caseinate to a densifying treatment selected from the group of dry-milling, dry compacting and dry-extruding to include the compressing the powders and then milling to increase their bulk density as disclosed at the Abstract on page “-2-” of Signal to improve their flowability, dispersibility, wettability and reduce their hydration viscosity (see Table at page “-17-“).
Claims 27-36 are rejected under 35 U.S.C. 103 as being unpatentable over EP2545789 A1 to Kroll et al. (Kroll) in view of AU2009101002 A4 to Signal (Signal).
Regarding instant claims 27, 31 and 34, Kroll at Abstract on pages 1-2 discloses a composition (“confectionary mass”) comprising at least 50 wt.%, protein based on the total weight of the composition, which range the claimed 35-50 wt% protein in claim 27 overlaps and which the claimed range of 32 to 65 wt% protein in claim 34 overlaps; and, Kroll at Abstract discloses its composition comprising 20 to 35 wt% of a caseinate , based on the total weight of the composition. Further, at Description on page 2, Kroll discloses that its composition has a soft bite, even after storage. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan in Kroll would have found it obvious to use the claimed amount of total protein in making its confectionary mass because Kroll discloses that the claimed amount of protein is desirable for making the confectionary mass having a soft bite. In addition, Kroll at the second to last paragraph on page 5 discloses its caseinate as from an acid casein or a rennin (“rennet”) casein as in claim 31.
Further, in Example 2 on page 7 Kroll discloses a composition comprising 67 wt% protein as powder having 15.15 wt% whey protein hydrolysate, 5 wt% whey protein, vegetable protein, animal protein, animal protein hydrolyzates and 33 wt% of casein (claim 29 as about 50 wt%, based on the total weight of the protein is a casein or a caseinate), the powder blended with water, 4 wt% vegetable oil and 10 w% glycerol, all weights based on the total weight of the composition. And Example 2 of Kroll discloses a method of forming by shaping and cutting the mass into a bar (a “geometrical shape” as a “desired shape for a confectionary product” in claim 36) and coating it with a chocolate coating. In addition, at page 4, last full paragraph Kroll discloses caseinates that have an average particle size of 120-140μm (a “D90, as determined by laser diffraction, in the range 80-200 micrometer”) as advantageous powders for use (at Abstract on page 2) for blending with the water, the lipid and the carbohydrate.
The Office considers the claimed confectionary mass that is self-sustaining at a temperature of 25 °C (claims 18 and 26) to include the shaped mass and bars disclosed in Example 2 of Kroll.
The ordinary skilled artisan in Kroll would have found it obvious to use its caseinate as its powder in its Example 2 because Kroll discloses that caseinates provide a desirable composition for making a bar as a confectionary mass.
Still further, and regarding instant claims 28-29 and 35-36, Signal does not disclose a divalent metal caseinate; further, Signal does not disclose a confectionary mass comprising at least 30 wt% of protein of which at least 20 wt% is divalent metal caseinate, 1-20 wt% of lipid and 1-65 wt% of carbohydrate as in claim 27; still further, Signal does not disclose a confectionary mass comprising 35 to 50 wt% of protein as in claim 28 or comprising 32 to 65 wt% protein as in claim 34; yet still further, Signal does not disclose a confectionary mass wherein 30-90 wt% of the protein is a divalent metal caseinate as in claim 29; and, yet even still further, Signal does not disclose that its casein comprises acid casein or rennet casein as in claim 31. Finally, Signal does not disclose a confectionary product comprising the confectionary mass as in claim 35, or shaping the confectionary mass into a desired shape for a confectionary product as in claim 36.
The Office considers milk protein as claimed in claim 32 as including all of milk protein, lactoglobulin, whey protein, casein and caseinates.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kroll for Signal to use its divalent metal caseinate as a caseinate powder in a confectionary mass as disclosed in the Abstract and Example 2 of Kroll and as claimed and to use a divalent metal caseinate from acid or rennet casein as in Kroll. Further, the ordinary skilled artisan in Signal would have found it obvious to use its divalent metal caseinate to form a confectionary mass as in Kroll comprising any of: At least 30 wt% protein or from 35 to 50 wt% of protein (claim 28) or from 32 to 65 wt% of protein (claim 34), and further comprising from 1-20 wt% of lipid and from 1-65 wt% of carbohydrate, based on the total weight of the confectionary mass as in claims 26-27; a mass in which the protein is least 20 wt% of a divalent metal caseinate as in claims 26-27 or in which the from 30 to 90 wt% of the protein is divalent metal caseinate as in claim 29. And the ordinary skilled artisan would have found it obvious in view of Kroll for Signal to then shape the confectionary mass into a desired shape for a confectionary product (claim 35) to make a confectionary product (claim 36). Both references disclose food comprising dried caseinates and dairy ingredients and methods for making food comprising blending caseinates as powders with liquids including water. The ordinary skilled artisan working with Signal would have desired to use its Test sample 1 or Test sample 2 ([0051] and the Table at p. 13) calcium caseinate as the protein powder of Kroll in blending to form and shape the confectionary mass of Example 2 of Kroll that readily mixes into its mass containing protein and water and facilitates the handling and shaping of the mass into oblong bars as confectionary products. Further, one would have desired to use acid casein as a precipitate or curd that is readily obtained from milk and that will form a calcium salt.
Regarding instant claim 30, Signal does not disclose a confectionary mass comprising protein wherein 8-80 wt% of the protein is whey protein.
In Example 2 on page 7 Kroll discloses a composition comprising 67 wt% protein as powder having 15.15 wt% whey protein hydrolysate, 5 wt% whey protein, vegetable protein, animal protein, animal protein hydrolyzates and 33 wt% of casein (claim 29), the powder blended with water, 4 wt% vegetable oil and 10 w% glycerol, all weights based on the total weight of the composition. In the Example 2 composition of Kroll whey protein comprises about 20.15 wt% out of 67 wt% total protein or about 30.2 wt% of whey protein.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kroll for Signal to use a binding protein of from 8 to 80 wt% whey protein, based on the total weight of the protein to form a protein powder used in making a confectionary mass. The ordinary skilled artisan in Signal would have desired to use the 8 to 80 wt% of protein as whey protein as in Kroll to provide a protein powder suitable to make a confectionary mass having a dairy flavor.
All of claims 27-36 are product by process claims. 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. Claim 32 is not included in this rejection.
Regarding instant claim 33, the confectionary mass of Signal at [0051] and the Table on page 13 as modified by Kroll at Example 2 appears to be substantially the same thing as the claimed confectionary mass. Accordingly, absent a clear showing as to how the hardness of the Signal as modified by Jones confectionary mass differs from that of the confectionary mass as claimed, the Office considers the confectionary mass of Signal at [0051] and the Table on page 13 as modified by Kroll at Example 2 to have one or more hardness characteristics at 20 °C, as determined with a Texture Analyzer (TA-XT2i, Stable Microsystems): - an initial hardness in the range of 100-1000 g; - a hardness after 1 week in the range of 100-1000 g; - a hardness after 60 days in the range of 100-1000 g; - a hardness after 90 days in the range of 100-1000 g; - a hardness after 120 days in the range of 100-1000 g; - a hardness after 150 days in the range of 100-1200 g; and - a hardness after 180 days in the range of 100-2000 g as in claim 33. See MPEP 2112.01.I.
Allowable Subject Matter
Claim 32 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The instantly recited confectionary mass that is self-sustaining at a temperature of 25°C, said confectionary mass and comprising:
at least 30 wt.% protein of which at least 20 wt% of the protein is a divalent metal caseinate and wherein85 to 100 wt% of the total protein is a milk protein, 1-20 wt% lipid, and 1-65 wt% carbohydrate, all based on the total weight of the confectionary mass composition, wherein the divalent metal caseinate has a D90, as determined by laser diffraction, in the range 80-200 micrometers and is densified by subjecting roller-dried divalent metal caseinate particles to a densifying treatment selected from the group of dry-milling using a pin mill or a hammer mill, dry-compacting and dry-extruding is not disclosed or suggested in the art, even with the closest references taken in combination.
The recited confectionary mass comprising milk protein is shown in Table 4 of the instant specification to have prolonged soft texture not achieved without including the claimed densified divalent metal caseinate having the recited particle size.
AU2009101002 A4 to Signal (Signal) at Abstract, [0051] and the Table on page 13 densified divalent metal caseinate and blending the divalent metal caseinate into a liquid phase to make a dairy containing food. Signal does not disclose a confectionary mass comprising fat or lipid and does not disclose a densified divalent metal caseinate having a D90, as determined by laser diffraction, in the range 80-200 micrometer.
US20040142093 A1 to Jones (Jones) discloses at [0021] and Example 1 at [0080] a confectionary bar comprising 17.5 wt% of a divalent metal caseinate, about 12.5 wt% of carbohydrate, about 6.6 wt% of lipid, wherein the total amount of protein is about 45 wt%. Jones does not disclose a confectionary mass comprising a densified divalent metal caseinate powder and does not disclose a divalent metal caseinate having a D90, as determined by laser diffraction, in the range 80-200 micrometer.
Kroll at Abstract, the last paragraph on page 4 and Example 2 discloses powdered caseinates having an average particle size of about 120 to 140 micrometer and masses comprising a powder protein composition, water, lipid and carbohydrates. and uses thereof to make protein containing confectionary masses. Kroll does not disclose a protein powder comprising from 85-100 wt% of milk protein and does not disclose a densified divalent metal caseinate.
Response to Arguments
In view of the amendment dated January 13, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 18-20 and 26 under 35 U.S.C. 103 as being unpatentable over US20040142093 A1 to Jones in view of AU2009101002 A4 to Signal;
The rejections of claims 21-25, 27-30 and 32-36 under 35 U.S.C. 103 as being unpatentable over AU2009101002 A4 to Signal in view of US20040142093 A1 to Jones; and,
The rejections of claim 31 under 35 U.S.C. 103 as being unpatentable over AU2009101002 A4 to Signal in view of US20040142093 A1 to Jones and EP 0393339 B1 to Abraham et al.
Applicant’s arguments with respect to claims 18-36 have been considered but are moot because the new ground of rejection does not rely US20040142093 A1 to Jones or EP 0393339 B1 to Abraham et al. as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the remarks accompanying amendment dated January 13, 2026 (Reply), the positions have been fully considered and are not found persuasive for the following reasons:
Regarding the position taken in the Reply at pages 8-9 regarding the caseinates disclosed in Jones, the Office finds that Jones discloses examples of the caseinates including Farbest 290, Farbest 270, Farbest 200, and Farbest 312 (Id., [0059]-[0062].) Farbest 290 and Farbest 200 that are spray-dried calcium caseinates. However, the Office makes no judgement as to the significance of that finding because spray dried caseinates can be further processed in the same manner as disclosed in the instant specification.
Regarding the position taken in the Reply at pages 9-10 that there is no motivation to combine Signal with Jones because Jones does not disclose a densified caseinate or identify any processing issues with its own blending to make a confectionary bar, or because Signal only “broadly” discloses processing parameters, types of powders, different characteristics to be altered, and commercial applications demonstrates the generalized nature of Signal's teachings; or that Signal fails to teach or suggest which specific processing parameters, types of powders, or altered characteristics should be selected to result in powders useful for the confectionary applications of Jones its dairy proteins, the Office respectfully disagrees. Jones is not cited in any current rejection. However, Signal discloses its Example 1 caseinates as dairy powders for use (as at [0098] of Signal) in food and dairy applications for blending into water as a liquid phase containing carbohydrates, including compositions useful as confectionary masses having 1 to 20 wt% of lipid and 1-65 wt% of carbohydrate.
Regarding the position taken in the Reply at page 10 that the caseinates that Signal discloses are all spray dried and not roller dried, respectfully Signal as disclosed at [0047] is not limited to spray dried starting materials. However, even if Signal could be limited to densifying by roll compacting as at [0031] and milling (as at [0032]-[0033] a spray dried starting material, which it cannot, Applicants have shown no distinction between spray dried and roller dried caseinates that have been subject to a densifying and milling treatment as in Signal.
Regarding the position taken in the Reply at pages 10-11 and 15-16 alleging that Signal's "flowability" does not predict how the powder will behave once combined with carbohydrates and fats in a confectionary mass; that its "blendability" is not relevant to the rheology or texture of a final confectionary product; that its "dispersibility" measures the rate at which the powder disperses in water, but confectionary masses contain minimal water and significant fat and carbohydrates or are fat-containing, carbohydrate-rich, low-water systems; and that its "hydration viscosity" is undefined, respectfully the position is not found persuasive. The instant claims recite compositions with as little as 1 wt% fat or lipid and as little as 1 wt% carbohydrate and so are in no way limited to fat-based confectionary compositions; and there is no definition of a confectionary mass or composition that makes such a thing a fat-containing, carbohydrate-rich, low-water system. In any case, it is sufficient for obviousness purposes to combine Signal with art disclosing mixing powders of caseinates into liquids because powders provide improved handling. The motivation to combine art can be any reasonable one, not limited to the one Applicants envisage. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Regarding the position taken in the Reply at pages 16-18 stating that the present application specifically points out that “even if … properties were improved in aqueous systems, they provide no reasonable expectation of improved processing or product quality in confectionary applications”, respectfully use in a confectionary mass is not as narrow as alleged. Nothing about a confectionary mass as claimed by itself avoids a combination with art of Signal any more than would a composition using caseinates as a dairy substitute or analog.
Regarding the position taken in the Reply at pages 16-18 alleging that the instant specification shows an unexpected result that when a EM9 starting material is subjected to a subsequent densifying treatment through different hammer and/or pin milling steps, the powder density is significantly increased, respectfully the rotating mill disclosed in Signal at [0032] encompasses both a pin mill and a hammer mill. The Examples 1 and 3 in Signal disclose divalent metal caseinates that after drying are then subjecting to both a densifying treatment and to rotating milling. This was not compared to the claimed roller-dried densified, milled divalent metal caseinate. Thus, aside from particle size it is not clear how the allegedly inventive caseinate differs from that of Signal.
Regarding the positions taken in the Reply at pages 19-20, these positions merely reiterate remarks made earlier in the Reply and are treated as general allegations of patentability that are not given patentable weight. 37 CFR 1.111(b).
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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/ANDREW E MERRIAM/Examiner, Art Unit 1791