DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed March 3, 2026 has been entered. Claims has been cancelled. Claims 22-30 are new. Claims 1-6, 8-12 and 21-30 are pending examination.
The previous indication of allowable subject matter in the Non-Final Rejection mailed December 4, 2025 has been withdrawn. A new grounds of rejection under 35 U.S.C. 103 in view of Niwano et al. (US 5, 591,471) and Nakaseko et al. (JPH 175776A) is set forth below. This office action is made non-final.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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, 8-12 and 21-30 are rejected under 35 U.S.C. 103 as being unpatentable over Niwano et al. (US 5,591,471) in view of Nakaseko et al. (JPH 175776A-Espacenet translation provided on IDS filed June 24, 2024).
Regarding claims 1-6, 8-12 and 21-30, Niwano et al. disclose a puffed food (i.e., swollen food) comprising soybean protein (i.e., pulse), starch, dietary fiber and water (Abstract, C2/L18-26). Niwano et al. disclose the puffed food is made by kneading the raw materials, i.e., protein, starch, dietary fiber and water to produce a dough (C4/L52-67). Niwano et al. disclose that the dough is heat-treated into a puffed (i.e., swollen) food with excellent flavor and touch (C5/L45-51).
Niwano et al. disclose the ratio of soy protein, starch and dietary fiber in the dough for the puffed food (i.e., swollen food) is 1:0.2-0.8: 0.01-0.4 (C2/L63-67). Niwano et al. also disclose the dough comprises 150 to 300 parts by weight of water with respect to 100 parts by weight of the total amount of protein, starch and dietary fiber (C3/L55-64). Niwano et al. disclose that the solid content of the dough used to make the swollen food has a solid content of about 25 to 50% by weight (C5/L1-9).
Note, while Niwano et al. disclose a composition comprising 150 parts of water with respect to 100 parts by weight of the total amount of protein, starch and dietary fiber (i.e., moisture content of 150 wt% on a dry mass basis), a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP §2144.05 I).
Therefore, in a composition comprising 100 parts of a combination of protein, starch and dietary fiber and 150 parts by weight of water wherein the ratio of protein, starch and dietary fiber in the dough is 1:0.2-0.8:0.01-0.4, the composition could comprise (a) about 18 wt% protein on a wet mass basis, 14 wt% starch on a wet mass basis, and 8 wt% dietary fiber on a wet basis (150 parts water, 45 parts protein, 35 parts starch and 20 parts dietary fiber; wherein the ratio of protein, starch and dietary fiber is: 1: 0.6: 0.4) or . While the composition of Niwano et al. would result in about 18 wt% protein, 14 wt% starch and 8 wt% dietary fiber on a wet basis, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP §2144.05 I). The proportions of starch and dietary fiber are so close to those presently claimed that prima facie one skilled in the art would have expected them to have the same properties.
Niwano et al. is silent with respect to plant polysaccharide in an amount of 0.1% by weight or more.
Nakaseko et al. teach a psyllium hydrolysate obtained by reacting psyllium with an enzyme selected from the group consisting of pectinase, hemicellulase and combinations thereof ([0001], [0009]). Nakaseko et al. disclose the psyllium hydrolysate can be blended, in powder form, with foods such as snacks, confectionaries and noodles ([0023]-[0024]). Nakaseko et al. disclose the effects of consuming the psyllium hydrolysate is to improve bowel movements, inhibit the absorption of cholesterol and inhibit the rise in blood sugar levels. ([0021]).
Niwano et al. and Nakaseko et al. are combinable because they are concerned with the same field of endeavor, namely snack food compositions. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added psyllium hydrolysate (i.e., plant polysaccharide), as taught by Nakaseko et al. to the puffed food composition of Niwano et al. to improve the health benefits of the food, e.g., inhibiting the absorption of cholesterol and rise in blood sugar levels. One of ordinary skill in the art would have adjusted, in routine processing, the amount of added psyllium hydrolysate to obtain the desired dosage (i.e., health benefits) while maintaining the physical, chemical and sensory (i.e., taste, smell and texture) properties of the puffed food composition.
Given Nakaseko et al. teach a plant polysaccharide , i.e., psyllium hydrolysate obtained by reacting psyllium with an enzyme, similar to the plant polysaccharide claimed and disclosed in the present invention, inherently the polysaccharide would exhibit the claimed viscosity and soluble dietary fiber content.
Regarding requirements (5) and (6), given the combination of Niwano et al. and Nakaseko et al. teach a puffed food (i.e., swollen food) having a composition substantially similar to the claimed swollen food composition inherently the puffed food would meet the conditions of requirements (5) and (6); and claims 2-8.
While Niwano et al. does not disclose the puffed food is made by process including fermentation, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself (MPEP §2113 I). If the product in the product-by-process claims is the same as or obvious from the product of the prior art, the claims is unpatentable even though the prior product was made by a different process (MPEP §2113 I).
Response to Arguments
Applicant’s arguments, see Remarks, filed March 3, 2026, with respect to the rejection of claims 1-12 under 35 U.S.C. 103 as being unpatentable over Niwano et al. (US 5,591,471) in view of Nakaseko et al. (JPH 175776A-Espacenet translation provided on IDS filed June 24, 2024) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is set forth above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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