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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claims 8-15 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/12/2026.
Applicant’s election without traverse of claims 1-7 in the reply filed on 03/12/2026 is acknowledged.
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.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hedayatnia et al (Effect of different fat replacers and drying methods on thermal behaviour, morphology and sensory attributes of reduced-fat coffee creamer) in view of Booten et al (EP 0821885 A1) (see IDS of 03/21/2024), Merrill (US 20160374360 A1).
Claim 1 recites the following limitations:
A non-fat creamer powder comprising:
5 to 15 wt% of hydrothermally treated long chain fibre inulin having a chain length of from 14 to 60;
5 to 20 wt% micellar casein, and the balance comprising one or more sweetening and/or bulking agents.
In regard to claim 1, Hedayatnia et al discloses reduced-fat coffee creamer comprising a fat replacer such as inulin and maltodextrin (Abstract). Hedayatnia et al discloses that “partial replacement of fat with 25% maltodextrin and 7.5% inulin resulted in the most acceptable instant coffee creamer comparable with the commercial product” (Abstract). Hedayatnia et al discloses preparation of creamer emulsion by addition of sodium caseinate (2.5% w/w), 7% by weight of skim milk powder, corn syrup solids and inulin (page 331 section 2.2 Preparation of creamer emulsion). In regard to the recitation of a non-fat creamer powder, Hedayatnia et al discloses that “homogenized creamer emulsion was dried by only spray dryer and/or spray dryer followed by fluidized bed dryer to prepare the regular and instant creamers, respectively” (page 331 section 2.2 Preparation of creamer emulsion).
It is noted that skim milk powder contains micellar casein. Therefore, by disclosing skim milk powder, Hedayatnia et al discloses micellar casein.
Hedayatnia et al does not disclose that inulin is hydrothermally treated and has a chain length of from 14 to 60. Hedayatnia et al discloses commercially available inulin obtained from Cosucra Inc. (Fibruline , Warcoing, Warcoing, Belgium) (page 331 col. 1 bottom paragraph).
Booten et al discloses fructan-containing dairy powders having improved mouthfeel, texture and taste (Abstract). Booten et al discloses that among commercial products of the inulin type suited to be used in the present invention is Raftilose ® of ORAFTI that contains mainly fructo-oligosaccharides produced by partial hydrolysis of chicory inulin (page 3). This product can be in the form of a syrup (qualities L30, L60, L85 and L95) or in the form of a powder (quality P95) (page 3). Booten et al discloses the preparation of a powder comprising 50/50 or 85/15 of skimmed milk/ Raftiline ® (Example 1). One of ordinary skill ion the art would have been motivated to modify Hedayatnia et al in view of Booten et al and to employ commercially available hydrothermally treated (hydrolyzed) inulin as a suitable fat replacer.
Hedayatnia et al does not disclose the concentration of micellar casein as claimed. Merrill discloses the use of micellar casein in coffee creamers to replace conventional casein salts ([0007]- [0015], [0034], [0060], [0060]) for providing improved whitening stability ([0098], [0099], Fig.1). One of ordinary skill in the art would have been motivated to employ micellar casein in combination with hydrothermally treated long chain inulin having as disclosed by Booten et al and Merrill in order to obtain non-fat creamer having desired whitening properties and improved whitening stability. One of ordinary skill in the art would have been motivated to employ inulin and micellar casein in 1:1 proportion as suggested by Booten et al.
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235(CCPA 1955) (MPEP 2144.05, II A).
Further, regarding the temperature ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to claim 2, Hedayatnia et al discloses that “[i]nulin is classified to three groups based on the degree of polymerization (DP): native, short-chain and long-chain inulin (Glibowski & Bukowska, 2011) (page 331).
In regard to claims 3 and 6, Hedayatnia et al discloses preparation of creamer emulsion by addition of sodium caseinate (2.5% w/w), 7% by weight of skim milk powder, corn syrup solids and inulin (page 331 section 2.2 Preparation of creamer emulsion).
In regard to claim 4, Booten et al discloses that among commercial products of the inulin type suited to be used in the present invention is Raftilose ® of ORAFTI that contains mainly fructo-oligosaccharides produced by partial hydrolysis of chicory inulin (page 3). This product can be in the form of a syrup (qualities L30, L60, L85 and L95) or in the form of a powder (quality P95) (page 3).
In regard to claim 5, Hedayatnia et al does not require the presence of colors, preservatives, stabilizers or added fructose, glucose or sucrose.
In regard to claim 7, Hedayatnia et al discloses reduced-fat coffee creamer comprising a fat replacer such as inulin and maltodextrin (Abstract). Hedayatnia et al discloses mixing creamer with hot coffee (page 331 section 2.2 Preparation of creamer emulsion).
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
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