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 .
Status of the Claims
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-18
Canceled claims: None
Currently rejected claims: 1-18
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claim 18 is objected to because of the following informalities: the list recites “yoghurt” twice. 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.
Claim 16 is 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 16 recites “wherein the atmospheric pressure is between 2 and 4 MPa” which is vague and indefinite in that “atmospheric pressure” is presumably intended to refer to the defined atmospheric pressure of 1 atmosphere, or 0.1 MPa, and the range of “between 2 and 4 MPa” is presumably intended to refer to the “gas pressure exceeding atmospheric pressure” in claim 15, yet the language of claim 16 contradicts the conventional usage of the term of “atmospheric pressure”. For examination purposes, the claim is interpreted with the range being intended to apply to the gas pressure that exceeds atmospheric pressure.
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 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Dupas-Langlet et al. (WO 2018/224537 A1) in view of Zeller et al. (U.S. 2006/0040023 A1).
Regarding claim 1, Dupas-Langlet et al. discloses a foamer ingredient (p. 2, ll. 7-11, 13-15) comprising a carbohydrate (p. 9, ll. 1-2, 8-11), 0.5-5% by weight of a protein (p. 11, ll. 1-5), and an entrapped gas (p. 5, ll. 16-22; p. 6, ll. 11-13; p. 9, ll. 24-25).
Dupas-Langlet et al. does not explicitly disclose the protein as having a ”protein-bound phosphorus to nitrogen ratio of less than 0.03 g/g and having a proline content of less than 7 g per 100 g of protein” or the foamer ingredient as releasing at least 3 ml gas/gram of foamer ingredient upon dissolution in 20°C water at atmospheric pressure.
Regarding the protein limitation, though, the present specification indicates that suitable proteins include whey protein concentrate/isolate (p. 7, l. 30 – p. 8, l. 3). Dupas-Langlet et al. discloses that suitable protein for producing the foamer ingredient are whey proteins (p. 11, ll. 3-5). The whey proteins of Dupas-Langlet et al. would thus meet the claimed requirement of having a ”protein-bound phosphorus to nitrogen ratio of less than 0.03 g/g and having a proline content of less than 7 g per 100 g of protein”, thus rendering the inclusion of a protein that exhibits the claimed characteristic obvious.
Regarding the amount of released gas, Zeller et al. discloses subjecting a spray-dried powder to an external gas pressure, heating, and then depressurizing to impart additional gas to internal voids, thus increasing the amount of gas released upon dissolution to “at least about 5 cc gas per gram” ([0009]-[0010]).
It would have been obvious to one having ordinary skill in the art to produce a foamer ingredient according to Dupas-Langlet et al. that releases a least 3 ml of gas per gram of foamer ingredient upon dissolution in 20°C water at atmospheric pressure. Dupas-Langlet et al. indicates a preference for particles that contain relatively large amounts of gas to facilitate the foaming effect (p. 2, ll. 13-15; p. 9, ll. 24-25). A skilled practitioner would be motivated to consult Zeller et al. to better optimize the amount of entrapped gas in the particles. Since Zeller et al. teaches a method of treating such particles in order to increase the amount of gas in particles, wherein a volume of at least about 5 ml gas/gram of powder may be released, a skilled practitioner would find incorporating such instruction into the production process of Dupas-Langlet et al. to be obvious, including the resultant gas amount. The claimed amount of released gas of at least 3 ml gas/gram of foamer ingredient would thus be obvious to a skilled practitioner. The release of gas is presumed to be at ambient conditions, which would be roughly equivalent to the claimed conditions of 20°C water at atmospheric pressure.
As for claim 2, Dupas-Langlet et al. discloses the foamer ingredient as comprising 2-5% proteins by weight (p. 11, ll. 1-5).
As for claim 3, Dupas-Langlet et al. discloses the proteins as comprising dairy proteins (p. 11, ll. 3-5).
As for claim 4, Dupas-Langlet et al. discloses the proteins as being whey protein concentrates (p. 11, ll. 3-5, where “whey proteins” would encompass whey protein concentrates).
As for claim 5, Dupas-Langlet et al. discloses the foamer ingredient as comprising 85-98% by weight of carbohydrates (p. 9, ll. 18-20, where the particles may comprise 5-70% sucrose; p. 10, ll. 3-9, where the particles may comprise 5-70% lactose; p. 11, ll. 1-3, where the only required additive—the surfactant—comprises 0.5-15 wt.% of the particles, such that the entire remained of the particles would be carbohydrates).
As for claim 6, Dupas-Langlet et al. discloses the foamer ingredient as comprising 88-96% by weight of carbohydrates (p. 9, ll. 18-20, where the particles may comprise 5-70% sucrose; p. 10, ll. 3-9, where the particles may comprise 5-70% lactose; p. 11, ll. 1-3, where the only required additive—the surfactant—comprises 0.5-15 wt.% of the particles, such that the entire remained of the particles would be carbohydrates).
As for claim 7, Dupas-Langlet et al. discloses the foamer ingredient as comprising an additive that is a surfactant (p. 9, ll. 1-2; p. 11, ll. 3-10).
As for claim 8, Dupas-Langlet et al. discloses the foamer ingredient as comprising 0-8% additives by weight, based on the total weight of the foamer ingredient (p. 9, ll. 1-3, where the particles comprise a sweetener, a soluble filler, and a surfactant; p. 10, l. 1, where the filler may be a carbohydrate; p. 11, ll. 1-3, where the only required additive—the surfactant—comprises 0.5-15 wt.% of the particles).
As for claim 9, Dupas-Langlet et al. discloses the foamer ingredient as comprising 0.1-6% additives by weight, based on the total weight of the foamer ingredient (p. 9, ll. 1-3, where the particles comprise a sweetener, a soluble filler, and a surfactant; p. 10, l. 1, where the filler may be a carbohydrate; p. 11, ll. 1-3, where the only required additive—the surfactant—comprises 0.5-15 wt.% of the particles).
As for claim 10, Dupas-Langlet et al. discloses the one or more carbohydrates as being sucrose (p. 9, ll. 10-11) and lactose (p. 10, ll. 14-15; p. 16, ll. 26-28).
As for claim 11, Dupas-Langlet et al. discloses the entrapped gas as being nitrogen (p. 18, ll. 4-16; p. 20, ll. 3-5).
As for claim 12, Zeller et al. discloses the amount of gas released upon dissolution as being “at least about 5 cc gas per gram” ([0009]-[0010]), which renders the claimed range of 4-20 ml gas/gram obvious.
As for claim 13, Zeller et al. discloses the amount of gas released upon dissolution as being “at least about 5 cc gas per gram” ([0009]-[0010]), which renders the claimed range of 8-18 ml gas/gram obvious.
As for claim 14, Dupas-Langlet et al. discloses a preference for particles with closed porosity in order to improve stability of the particles (p. 6, ll. 5, ¶10). Optimizing particle porosity in order to maximize stability of the powder would thus be obvious to a skilled practitioner, which would include any attainable stability characteristic. The claimed limitation of leakage of gas upon storage for 12 months at ambient conditions as being at most 20% would thus be obvious.
As for claim 15, Dupas-Langlet et al. discloses a method for manufacturing a foamer ingredient comprising (a) preparing a mixture comprising carbohydrates and one or more proteins (p. 18, ll. 7-13, where the sweetener and filler may be carbohydrates), (b) blending the mixture with an additive (p. 9, ll. 1-2), (c) applying external gas pressure exceeding atmospheric pressure (p. 18, ll. 13-14), and (f) releasing the external gas pressure, resulting in the foamer ingredient in the form of a powder comprising entrapped gas (p. 18, ll. 15-16, where spray drying indicates the release of pressure has occurred).
Dupas-Langlet et al. does not explicitly disclose the protein as having a ”protein-bound phosphorus to nitrogen ratio of less than 0.03 g/g and having a proline content of less than 7 g per 100 g of protein”, the steps of (d) heating the mixture to a temperature above 90°C and (e) cooling the mixture to a temperature between 40-80°C, or the foamer ingredient as releasing at least 3 ml gas/gram of foamer ingredient upon dissolution in 20°C water at atmospheric pressure.
Regarding the protein limitation, though, the present specification indicates that suitable proteins include whey protein concentrate/isolate (p. 7, l. 30 – p. 8, l. 3). Dupas-Langlet et al. discloses that suitable protein for producing the foamer ingredient are whey proteins (p. 11, ll. 3-5). The whey proteins of Dupas-Langlet et al. would thus meet the claimed requirement of having a ”protein-bound phosphorus to nitrogen ratio of less than 0.03 g/g and having a proline content of less than 7 g per 100 g of protein”, thus rendering the inclusion of a protein that exhibits the claimed characteristic obvious.
Regarding the heating and cooling steps and the amount of released gas, Zeller et al. discloses subjecting a spray-dried powder to an external gas pressure, heating, and then depressurizing to impart additional gas to internal voids, thus increasing the amount of gas released upon dissolution to “at least about 5 cc gas per gram” ([0009]-[0010]). The heating may be to a temperature below the glass transition temperature ([0009]), which may be as high as 150°C ([0017]).
It would have been obvious to one having ordinary skill in the art to produce a foamer ingredient according to Dupas-Langlet et al. with steps of heating the mixture to above 90°C and cooling to a temperature between 40-80°C, wherein the foamer ingredient releases a least 3 ml of gas per gram of foamer ingredient upon dissolution in 20°C water at atmospheric pressure. Dupas-Langlet et al. indicates a preference for particles that contain relatively large amounts of gas to facilitate the foaming effect (p. 2, ll. 13-15; p. 9, ll. 24-25). A skilled practitioner would be motivated to consult Zeller et al. to better optimize the amount of entrapped gas in the particles. Since Zeller et al. teaches a method of treating such particles in order to increase the amount of gas in particles involving heating to a temperature below the glass transition temperature (i.e., up to 150°C) ([0009], [0017]), wherein a volume of at least about 5 ml gas/gram of powder may be released, a skilled practitioner would find incorporating such instruction into the production process of Dupas-Langlet et al. to be obvious, including the resultant gas amount. The claimed amount of released gas of at least 3 ml gas/gram of foamer ingredient would thus be obvious to a skilled practitioner. The release of gas is presumed to be at ambient conditions, which would be roughly equivalent to the claimed conditions of 20°C water at atmospheric pressure. A cooling step is presumed to occur to the extent that the finished product would be stored at ambient conditions. Such cooling would necessarily involve at least initially cooling to a temperature in the range of 40-80°C as the mixture is eventually cooled to ambient temperature.
As for claim 16, Zeller et al. discloses the pressure as being between 2-4 MPa (specifically, 100-3000 psi, or 0.69-20.68 MPa) ([0027]).
As for claim 17, Zeller et al. discloses such a mixture as being prepared using a spray-drying technique ([0009]).
As for claim 18, Dupas-Langlet et al. discloses a food product comprising the foamer ingredient of claim 1 that is an instant coffee mix (p. 17, ll. 23-25).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793