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 .
Claim Objections
Claim 7 is objected to because of the following informalities: The claim recites “of claim 7”. It appears that Applicants meant to write “of claim 1”, since a claim cannot depend from itself. The claim has been interpreted as dependent upon claim 1. Appropriate correction is required.
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 1-6, 9-11, and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Ryota (JP 2018-126075) as evidenced by Babu et al. “Wheat Bran-Composition and Nutritional Quality: A Review” Advances in Biotechnology and Microbiology vol. 9 Issue 1 April 2018.
Regarding Claim 1: Ryota discloses a low calorie food piece/cereal puff containing psyllium, insoluble dietary fiber (bran), and a starch ingredient [abstract; pg. 2; pg. 10]. Ryota discloses the psyllium, insoluble fiber and starch total in excess of 80% of the food piece [abstract]. Ryota discloses a bulk density of 250 g/L or less which is equivalent to about 409 g/100 in3 or less [abstract; pg. 6]. Ryota discloses a total fiber of at least about 25% [abstract]. Ryota discloses an insoluble fiber content of 20 to 60% in the form of bran [abstract; pg. 2, “Insoluble dietary fiber”]. Ryota discloses a soluble fiber content of 5 to 50% and in the form of psyllium [abstract]. Ryota discloses a starch ingredient which is starch and therefore renders obvious the starch ingredient having a starch content of at least 50% [pg. 3, “Pregelatinized starch”; pg. 6, 3rd paragraph].
Ryota discloses wherein the starch ingredient is 5-50% of the food piece, and also psyllium which is known to be substantially devoid of starch, and bran at (20% -60%) in the food piece [abstract]. Babu teaches wheat bran and that it contains a starch content of around 9 to 25% [pg. 0023]. Therefore Ryota discloses a starch content contributed by starch (5-50%), psyllium and bran contributing (0.30 percentage of bran contained it the food piece) x 0.09 percentage of starch in wheat bran)= 2.7% of starch from wheat bran contributing to the total amount of starch in the food piece. Therefore the total amount of starch in food piece can for example be about 7.7% to about 52.7%.
Ryota discloses the moisture content of the final food piece being 1 to 3% [pg. 8, top paragraph]. Ryota discloses the insoluble fiber at 20 to 60% and soluble fiber (psyllium) at 5 to 50% [abstract]. Although Ryota does not explicitly disclose a ratio of insoluble to soluble fiber of at least 2:1, the percentages when converted to ratio can be for example 2:1 (30% insoluble and 15% soluble) and 4:1 (28% insoluble and 7% soluble).
Although Ryota does not explicitly disclose the food pieces having a bulk density range of from 300 to 750 grams per 100 cubic inches one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the food pieces have a total fiber content of about 35% to about 55% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the insoluble fiber ingredient is included in an amount of about 28% to about 40% by dry weight of the food pieces one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose a soluble fiber content of about 7% to about 15% by dry weight of the food piece one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose a starch ingredient having a starch content of at least 50% by dry weight of the starch ingredient, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 2: Ryota discloses as discussed above in claim 1. Ryota discloses a total fiber of at least about 25% [abstract].
Although Ryota does not explicitly disclose total fiber of about 38% to about 55% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 3: Ryota discloses as discussed above in claim 1. Ryota discloses an insoluble fiber content of 20 to 60% in the form of bran [abstract; pg. 2, “Insoluble dietary fiber”].
Although Ryota does not explicitly disclose insoluble fiber at about 30 to about 40% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 4: Ryota discloses as discussed above in claim 1. Ryota discloses the insoluble fiber at 20 to 60% and soluble fiber (psyllium) at 5 to 50% [abstract]. Although Ryota does not explicitly disclose a ratio of insoluble to soluble fiber of at least 3:1, the percentages when converted to ratio can be for example 4:1 (28% insoluble and 7% soluble).
Regarding Claim 5: Ryota discloses as discussed above in claim 1. Ryota discloses that bran is the source of insoluble fiber [abstract] and therefore represents at least 90% or 100% of the insoluble fiber. Ryota discloses psyllium is the source of soluble fiber [abstract] and therefore represents at least 90% or 100% of the soluble fiber.
Regarding Claim 6: Ryota discloses as discussed above in claim 1. Ryota discloses that bran comprises wheat bran [pg. 2, “Insoluble dietary fiber”].
Regarding Claim 9: Ryota discloses as discussed above in claim 1. Ryota discloses a bulk density of 250 g/L or less which is equivalent to about 409 g/100 in3 or less [abstract; pg. 6].
Although Ryota does not explicitly disclose the food pieces having a bulk density range of from 300 to 500 grams per 100 cubic inches one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 10: Ryota discloses as discussed above in claim 1. Ryota discloses adding other ingredients at preferably 10% by weight or less [pg. 6, “Other materials”].
Although Ryota does not explicitly disclose the other ingredients totaling less than 8% by dry weight of the food piece, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 11: Ryota discloses as discussed above in claim 1. Ryota discloses a syrup (coating) on the formed ready to eat cereal product [pg. 4, 12th line; pg. 6, “Other materials”].
Regarding Claim 13: Ryota discloses a method of making a low calorie food piece/cereal puff containing psyllium, insoluble dietary fiber (bran), and a starch ingredient [abstract; pg. 2; pg. 10]. Ryota discloses using extrusion conditions [pg. 7, top paragraph]. Ryota discloses in an example, adding 50 parts water to a mixture of 10 parts psyllium, 40 parts insoluble dietary fiber, 20 parts starch, 30 parts water soluble dietary fiber (100 total parts dry material) which is about 33% moisture and wherein the dry materials are about 77% of the dough [pg. 8, “Manufacture of pellets”]. Ryota also generally discloses the psyllium, insoluble fiber and starch total in excess of 80% of the food piece [abstract].
Ryota discloses the dough including a total fiber of at least about 25% [abstract]. Ryota discloses an insoluble fiber content of 20 to 60% in the form of bran [abstract; pg. 2, “Insoluble dietary fiber”]. Ryota discloses a soluble fiber content of 5 to 50% and in the form of psyllium [abstract]. Ryota discloses the insoluble fiber at 20 to 60% and soluble fiber (psyllium) at 5 to 50% [abstract]. Although Ryota does not explicitly disclose a ratio of insoluble to soluble fiber of at least 2:1, however, the percentages when converted to ratio can be for example 2:1 (30% insoluble and 15% soluble) and 4:1 (28% insoluble and 7% soluble).
Ryota discloses a starch ingredient which is starch and therefore renders obvious the starch ingredient having a starch content of at least 50% [pg. 3, “Pregelatinized starch”; pg. 6, 3rd paragraph]. Ryota discloses wherein the starch ingredient is 5-50% of the food piece, and also psyllium which is known to be substantially devoid of starch, and bran at (20% -60%) in the food piece [abstract]. Babu teaches wheat bran and that it contains a starch content of around 9 to 25% [pg. 0023]. Therefore Ryota discloses a starch content contributed by starch (5-50%), psyllium and bran contributing (0.30 percentage of bran contained it the food piece) x 0.09 percentage of starch in wheat bran)= 2.7% of starch from wheat bran contributing to the total amount of starch in the food piece. Therefore the total amount of starch in food piece can for example be about 7.7% to about 52.7%.
Ryota discloses extruding the dough and cutting to obtain a substantially square pellet[pg. 8, “Manufacture of pellets”]. Although Ryota does not explicitly disclose a die, it is inferred that one is present since extruding through a die would give the pellet its square shape and small size since all of the sides are disclosed as being about 0.5 cm each [pg. 8, “Manufacture of Pellets”]. Ryota discloses drying the extruded dough to a moisture content of the final food piece being 1 to 3% [pg. 8, top paragraph]. Ryota discloses a bulk density of 250 g/L or less which is equivalent to about 409 g/100 in3 or less [abstract; pg. 6].
Although Ryota does not explicitly disclose combining ingredients to form a dough having a moisture content of about 8% to about 20% by weight of the dough, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the moisture for adequate mixing of the ingredients and for maintaining the potential for producing an end product with a desired moisture, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Although Ryota does not explicitly disclose the food pieces having a total fiber content of about 35% to about 55% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the insoluble fiber ingredient is included in an amount of about 28% to about 40% by dry weight of the food pieces one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that a soluble fiber content of about 7% to about 15% by dry weight of the food piece one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that a starch ingredient having a starch content of at least 50% by dry weight of the starch ingredient, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the food pieces have a bulk density range of from 300 to 750 grams per 100 cubic inches one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 14: Ryota discloses a low calorie food piece/cereal puff containing psyllium; insoluble dietary fiber (bran); insoluble dietary fiber in the form of cellulose, hemicellulose, chitin, or lignin where the insoluble dietary fibers can be used in combination (brans and the other forms including cellulose); and a starch ingredient [abstract; pg. 2; pg. 10]. Ryota discloses the psyllium, insoluble fiber and starch total in excess of 80% of the food piece [abstract]. Ryota discloses a bulk density of 250 g/L or less which is equivalent to about 409 g/100 in3 or less [abstract; pg. 6].
Ryota discloses a total fiber of at least about 25% [abstract]. Ryota discloses the food piece having an insoluble fiber content of 20 to 60% [abstract; pg. 2, “Insoluble dietary fiber”]. Ryota discloses cellulose having low calories and low off taste (refined cellulose) as 50% of the insoluble dietary fiber [pg. 2, “Insoluble dietary fiber”] where it is obvious that the other half can be sourced from bran since different types of dietary fiber can be used in combination.
Ryota discloses a soluble fiber content of 5 to 50% and in the form of psyllium [abstract]. Ryota discloses a starch ingredient which is starch and therefore renders obvious the starch ingredient having a starch content of at least 50% [pg. 3, “Pregelatinized starch”; pg. 6, 3rd paragraph]. Ryota discloses the insoluble fiber at 20 to 60% and soluble fiber (psyllium) at 5 to 50% [abstract]. Although Ryota does not explicitly disclose a ratio of insoluble to soluble fiber of at least 2:1, the percentages when converted to ratio can be for example 2:1 (30% insoluble and 15% soluble) 4:1 (28% insoluble and 7% soluble).
Ryota discloses wherein the starch ingredient is 5-50% of the food piece, and also psyllium which is known to be substantially devoid of starch, and bran at (20% -60%) in the food piece [abstract]. Babu teaches wheat bran and that it contains a starch content of around 9 to 25% [pg. 0023]. It is known in the art that cellulose, especially refined cellulose is a different structure than starch and is therefore devoid of starch. Therefore Ryota discloses a starch content contributed by starch (5-50%), psyllium and bran contributing (0.30 percentage of bran contained it the food piece) x 0.09 percentage of starch in wheat bran)= 2.7% of starch from wheat bran contributing to the total amount of starch in the food piece. Therefore the total amount of starch in food piece can for example be about 7.7% to about 52.7%.
Ryota discloses the moisture content of the final food piece being 1 to 3% [pg. 8, top paragraph].
Although Ryota does not explicitly disclose that the food pieces have a bulk density range of from 300 to 750 grams per 100 cubic inches one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the food pieces have a total fiber content of about 35% to about 55% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the insoluble fiber ingredient is included in an amount of about 28% to about 40% by dry weight of the food pieces one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose a soluble fiber content of about 7% to about 15% by dry weight of the food piece one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose a starch ingredient having a starch content of at least 50% by dry weight of the starch ingredient, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 15: Ryota as modified discloses as discussed above in claim 14. Although Ryota does not explicitly disclose a ratio of insoluble to soluble fiber of 2:1 to about 1:2, the percentages when converted to ratio can be for example 2:1 (30% insoluble and 15% soluble).
Regarding Claim 16: Ryota discloses a method of making a low calorie food piece/cereal puff containing psyllium, insoluble dietary fibers and a starch ingredient [abstract; pg. 2; pg. 10]. Ryota discloses using extrusion conditions [pg. 7, top paragraph]. Ryota discloses in an example, adding 50 parts water to a mixture of 10 parts psyllium, 40 parts insoluble dietary fiber, 20 parts starch, 30 parts water soluble dietary fiber (100 total parts dry material) which is about 33% moisture and wherein the dry materials are about 77% of the dough [pg. 8, “Manufacture of pellets”]. Ryota also generally discloses the psyllium, insoluble fiber and starch total in excess of 80% of the food piece [abstract].
Ryota discloses a low calorie food piece/cereal puff containing psyllium; insoluble dietary fiber (bran); insoluble dietary fiber in the form of cellulose, hemicellulose, chitin, or lignin where the insoluble dietary fibers can be used in combination (brans and the other forms including cellulose); and a starch ingredient [abstract; pg. 2; pg. 10]. Ryota discloses the psyllium, insoluble fiber and starch total in excess of 80% of the food piece [abstract]. Ryota discloses a bulk density of 250 g/L or less which is equivalent to about 409 g/100 in3 or less [abstract; pg. 6].
Ryota discloses a total fiber of at least about 25% [abstract]. Ryota discloses the food piece having an insoluble fiber content of 20 to 60% [abstract; pg. 2, “Insoluble dietary fiber”]. Ryota discloses cellulose having low calories and low off taste (refined cellulose) as 50% of the insoluble dietary fiber [pg. 2, “Insoluble dietary fiber”] where it is obvious that the other half can be sourced from bran since different types of dietary fiber can be used in combination.
Ryota discloses a soluble fiber content of 5 to 50% and in the form of psyllium [abstract]. Ryota discloses a starch ingredient which is starch and therefore renders obvious the starch ingredient having a starch content of at least 50% [pg. 3, “Pregelatinized starch”; pg. 6, 3rd paragraph]. Ryota discloses the insoluble fiber at 20 to 60% and soluble fiber (psyllium) at 5 to 50% [abstract]. Although Ryota does not explicitly disclose a ratio of insoluble to soluble fiber of at least 2:1, the percentages when converted to ratio can be for example 2:1 (30% insoluble and 15% soluble) 4:1 (28% insoluble and 7% soluble).
Ryota discloses wherein the starch ingredient is 5-50% of the food piece, and also psyllium which is known to be substantially devoid of starch, and bran at (20% -60%) in the food piece [abstract]. Babu teaches wheat bran and that it contains a starch content of around 9 to 25% [pg. 0023]. It is known in the art that cellulose, especially refined cellulose is a different structure than starch and is therefore devoid of starch. Therefore Ryota discloses a starch content contributed by starch (5-50%), psyllium and bran contributing (0.30 percentage of bran contained it the food piece) x 0.09 percentage of starch in wheat bran)= 2.7% of starch from wheat bran contributing to the total amount of starch in the food piece. Therefore the total amount of starch in food piece can for example be about 7.7% to about 52.7%.
Ryota discloses extruding the dough and cutting to obtain a substantially square pellet [pg. 8, “Manufacture of pellets”]. Although Ryota does not explicitly disclose a die, it is inferred that one is present since extruding through a die would give the pellet its square shape and small size since all of the sides are disclosed as being about 0.5 cm each [pg. 8, “Manufacture of Pellets”]. Ryota discloses drying the extruded dough to a moisture content of the final food piece being 1 to 3% [pg. 8, top paragraph]. Ryota discloses a bulk density of 250 g/L or less which is equivalent to about 409 g/100 in3 or less [abstract; pg. 6].
Although Ryota does not explicitly disclose combining ingredients to form a dough having a moisture content of about 8% to about 20% by weight of the dough, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the moisture for adequate mixing of the ingredients and for maintaining the potential for producing an end product with a desired moisture, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Although Ryota does not explicitly disclose that the food pieces have a bulk density range of from 300 to 750 grams per 100 cubic inches one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the food pieces have a total fiber content of about 35% to about 55% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose that the insoluble fiber ingredient is included in an amount of about 28% to about 40% by dry weight of the food pieces one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose a soluble fiber content of about 7% to about 15% by dry weight of the food piece one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Ryota does not explicitly disclose a starch ingredient having a starch content of at least 50% by dry weight of the starch ingredient, one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Ryota overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Ryota (JP 2018-126075) as evidenced by Babu et al. “Wheat Bran-Composition and Nutritional Quality: A Review” Advances in Biotechnology and Microbiology vol. 9 Issue 1 April 2018 as applied to claim 1 above and in further view of Creighton et al. (CA 2068166).
Regarding Claim 7: Ryota discloses as discussed above in claim 1. Ryota discloses the inclusion of wheat bran and the like [pg. 2 “Insoluble dietary fiber”]. Ryota does not disclose wherein the bran comprises corn bran and wheat bran at a ratio of about 1:1 to about 1:3 corn bran to wheat bran.
Creighton discloses a ready to eat puffed cereal containing a high amount of dietary fiber [abstract]. Creighton discloses a total dietary fiber that is about 9% to about 42% [abstract; pg. 9, lines 33-36]. Creighton discloses that high fiber cereals typically contain insoluble fiber from corn bran and wheat bran [pg. 1, lines 26-30]. Creighton discloses corn bran and wheat bran and mixtures thereof as fiber sources [pg. 9, lines 6-14].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the ready to eat puff of Ryota to include corn bran in addition to wheat bran as disclosed in Creighton since corn bran can be characterized as “and the like” and since Creighton discloses that corn bran and wheat bran are typically added as the insoluble fiber source in high fiber cereals.
Although Creighton does not disclose the ratio of corn bran to wheat bran about 1:1 to about 1:3, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of corn and wheat relative to each other for providing a source of easily available insoluble, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
The selection of one type of insoluble fiber in combination with another type of insoluble fiber would have been modifiable based upon the desire of the organoleptic properties of the insoluble fiber in the final food product as assessed and desired by one of ordinary skill in the art.
Further, when faced with a mixture of two ingredients, one of ordinary skill in the art would be motivated by common sense to select a 1:1 ratio. Case law holds that "[h]aving established that this knowledge was in the art, the examiner could then properly rely.., on a conclusion of obviousness, 'from common knowledge and common sense of the person of ordinary skill in the art within any specific hint or suggestion in a particular reference.'" In re Bozek, 416 F.2d 1385, 1390.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Ryota (JP 2018-126075) as evidenced by Babu et al. “Wheat Bran-Composition and Nutritional Quality: A Review” Advances in Biotechnology and Microbiology vol. 9 Issue 1 April 2018 as applied to claim 1 above and as evidenced by Shevkani et al. “Wheat starch production, structure, functionality, and applications – a review” International Journal of Food Science and Technology 2017 vol. 51.
Regarding Claim 8: Ryota discloses as discussed above in claim 1. Ryota discloses that the starch ingredient comprises a grain flour and that cereal can be present at 50% or less based on the cereal puff [pg. 6, “Cereals”]. Ryota discloses using pregelatinized starch 5 to 50% pregelatinized starch [abstract]. Ryota does not disclose that the flour or meal contributes at least 50% of the total starch content. However, Shevkani teaches that the wheat flour contains 70-80% starch [pg. 39; 2nd column, 1st paragraph]. Where the flour is applied at 20% and the pregelatinized starch is provided at 5%, the flour supplies more than 50% of the starch in the final product with 14% (20% flour x 70% starch content in flour) of the starch being provided by flour and 5% of the starch being provided by the pregelatinized starch.
It would have been obvious to one of ordinary skill in the art to adjust the amount of starch and ingredients to provide starch based on the desire of one of ordinary skill in the art, and based on the desired organoleptic qualities in the end product.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Ryota (JP 2018-126075) as evidenced by Babu et al. “Wheat Bran-Composition and Nutritional Quality: A Review” Advances in Biotechnology and Microbiology vol. 9 Issue 1 April 2018 as applied to claim 1 above and in further view of Leusner (US 2019/0053520).
Regarding Claim 12: Ryota discloses as discussed above in claim 1. Ryota does not disclose comprising an agglomeration that includes a binder and a plurality of the RTE food pieces of claim 1, the binder binding the plurality together to form the agglomeration.
Leusner discloses a ready to eat cereal and agglomerates comprising cereal pieces and or puffed grains [0016; 0020; 0059]. Leusner discloses a binder [0016; 0020; 0026].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Ryota to include the RTE food pieces in combination with a binder and in an agglomerated form as in Leusner in order to provide the RTE pieces of Ryota in edible particulate, nugget, or bar form [Leusner 0020; 0059].
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Wullschleger et al. (CA 2310231).
Regarding Claim 17: Wullschleger discloses an intermediate fiber blend product containing a soluble fiber and insoluble fiber [abstract]. Wullschleger discloses that the insoluble fiber is derived from the bran of a farinaceous grain [pg. 3, lines 23-27]. Wullschleger discloses that the soluble fiber is derived from psyllium [pg. 4, lines 24-28]. Wullschleger discloses 25% to 99 soluble fiber [pg.4, lines 18-22]. Wullschleger discloses 1 to about 75% insoluble fiber [pg. 4, lines 18-23]. Wullschleger discloses a blend of bran and psyllium husk that is about 90% of the blend fiber content [Ex. 1; claim 1]. Wullschleger discloses ready to eat food material containing the intermediate fiber blend [abstract].
Although Wullschleger does not explicitly disclose 60% to 85% of the insoluble fiber from bran, Wullschleger does disclose an overlapping insoluble total fiber content and it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of the type of insoluble fiber source for the intended application, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
The selection of one type of insoluble fiber in combination with another type of insoluble fiber would have been modifiable based upon the desire of the organoleptic properties of the insoluble fiber in the final food product as assessed and desired by one of ordinary skill in the art.
Although Wullschleger does not explicitly disclose psyllium soluble fiber in an amount of about 12% to about 40% one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Wullschleger overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 18: Wullschleger discloses as discussed above in claim 17. Wullschleger discloses that the source of bran comprises corn bran and wheat bran [pg. 3, lines 21-27; pg. 5, lines 1-claims 10 and 11]. Wullschleger does not explicitly disclose the ratio of corn bran to wheat bran being about 1:1 to about 1:3.
Although Wullschleger does not disclose the ratio of corn bran to wheat bran about 1:1 to about 1:3, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the amount of corn and wheat relative to each other for providing a source of easily available insoluble, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
The selection of one type of insoluble fiber in combination with another type of insoluble fiber would have been modifiable based upon the desire of the organoleptic properties of the insoluble fiber in the final food product as assessed and desired by one of ordinary skill in the art.
Further, when faced with a mixture of two ingredients, one of ordinary skill in the art would be motivated by common sense to select a 1:1 ratio. Case law holds that "[h]aving established that this knowledge was in the art, the examiner could then properly rely.., on a conclusion of obviousness, 'from common knowledge and common sense of the person of ordinary skill in the art within any specific hint or suggestion in a particular reference.'" In re Bozek, 416 F.2d 1385, 1390.
Regarding Claim 19: Wullschleger discloses as discussed above in claim 17. Wullschleger discloses that the soluble fiber in addition to psyllium fiber can be β-glucan, farinaceous grains and mixture thereof [pg. 4, lines 24-28].
Conclusion
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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