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 Application
Receipt of the Response and Amendment after Non-Final Office Action filed 04/07/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the objections to claim 18 has been withdrawn; and (2) the 35 U.S.C. 112(b) rejection of claim 16 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-18
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1-4, 15, 16, and 18
New claims: None
Claims currently under consideration: 1-18
Currently rejected claims: 1-18
Allowed claims: None
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.
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”, any protein not meeting that requirement as being at less than 0.5% by weight, the entrapped gas as having a pressure greater than atmospheric pressure, 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 limitations, 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 proteins 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. Selection of only whey proteins would also meet the requirement for the foamer ingredient of “less than 0.5% by weight of one or more proteins that do not have (i) a protein-bound phosphorous to nitrogen ratio of less than 0.03 g/g and (ii) a proline content of less than 7 g per 100 g of protein”.
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 the pressure of the entrapped gas, Zeller et al. discloses the pressure of the internal voids are at atmospheric pressure ([0009]). However, the reference cites an earlier reference wherein internal voids contain entrapped pressurized gas ([0004]) that would be expected to release increased gas upon dissolution, which renders obvious the claimed limitation requiring entrapped gas to have a pressure greater than atmospheric pressure.
As for claim 2, Dupas-Langlet et al. discloses the foamer ingredient as comprising 2-5% proteins by weight that may be whey proteins (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, the entrapped gas as having a pressure greater than atmospheric pressure, 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 the pressure of the entrapped gas, Zeller et al. discloses the pressure of the internal voids are at atmospheric pressure ([0009]). However, the reference cites an earlier reference wherein internal voids contain entrapped pressurized gas ([0004]) that would be expected to release increased gas upon dissolution, which renders obvious the claimed limitation requiring entrapped gas to have a pressure greater than atmospheric pressure.
As for claim 16, Zeller et al. discloses the external gas 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).
Response to Arguments
Claim Objections: Applicant has overcome the objection of claim 18 based on amendment to the claim. Accordingly, the claim objection has been withdrawn.
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejection of claim 16 based on amendment to the claim. Accordingly, the 35 U.S.C. § 112(b) rejection has been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 1-18 over Dupas-Langlet et al. and Zeller et al.: Applicant' s arguments have been fully considered but they are not persuasive.
Applicant first argued that the cited prior art references disclose only entrapped gas at atmospheric pressure (Applicant’s Remarks, p. 6, ¶3 – p. 7, ¶1).
However, Zeller et al. discloses an earlier reference wherein internal voids contain entrapped pressurized gas ([0004]), which renders obvious the claimed limitation requiring entrapped gas to have a pressure greater than atmospheric pressure. A skilled practitioner would be motivated to pressurize the entrapped gas in order to release increased gas upon dissolution.
Applicant then argued that the cited prior art references do not teach or suggest “the two proteins of amended claim 1” that are selected according to the recited phosphorous/nitrogen and proline criteria (Applicant’s Remarks, p. 7, ¶2).
However, claim 1 does not actually require the presence of two different proteins. The new limitation recites “(d) less than 0.5% by weight of one or more proteins that do not have (i) a protein-bound phosphorous to nitrogen ratio of less than 0.03 g/g and (ii) a proline content of less than 7 g per 100 g of protein”, which encompasses the absence of any protein that meets the compositional limitation. The new limitation is read as requiring a maximum limit of undesired protein but not that the secondary protein is actually required to be present in the foamer ingredient.
Applicant’s arguments are thus unpersuasive.
Applicant next asserted that the claimed foamer ingredient exhibits unexpected results in the form of “very low gas leakage, good foam quality, no flocculation in acidic liquids, and good taste” (Applicant’s Remarks, p. 7, ¶5). Applicant asserted that for powders with entrapped gas at an elevated pressure, gas leakage over time becomes a problem, and that “protein selection materially affects whether that pressurized gas is retained during storage” (Applicant’s Remarks, p. 8, ¶2).
However, MPEP 716.02(e) states: “An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness.” Comparison to a sodium caseinate protein component is ineffective in showing unexpected results when Dupas-Langlet et al. discloses the protein component as being whey proteins (p. 11, ll. 1-5), which is alleged as being the superior protein component.
Also, MPEP 716.02(d) states: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range.” The present claims are substantially broader than the asserted data in multiple regards such that the asserted data is not commensurate in scope with the claims and is consequently insufficient to overcome the showing of prima facie obviousness. For example, the claimed classes of carbohydrates and proteins are broader than the examples and there is no basis for extrapolating the data across the entire classes for other types of carbohydrates/proteins than those used in the examples.
Also, MPEP 2144 IV states: “It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Thus, it is not necessary that the prior art recognize the effect of whey protein on the stability of entrapped gas in a foamer ingredient.
The rejections of claims 1-18 have been maintained herein.
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.
Claims 1-18 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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