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 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 2 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 2 recites the limitation "the water soluble fiber" in line 1 of the claim. There is insufficient antecedent basis for this limitation in the claim because this limitation was cancelled from Claim 1.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 6, 8, 10-16 are rejected under 35 U.S.C. 102a1 as being anticipated by Zhang et al (CN 106070622), made of record by Applicant, and as evidenced by Spruce Eats NPL.
Regarding amended Claims 1, 2, 6, Zhang teaches a composition comprising curdlan (Paragraph 7 of the machine translation provided by Applicant), which is a beta-glucan fiber produced from microbial fermentation (Paragraph 7), and therefore meets the limitation of a bacteria-derived beta-glucan, and pectin (Paragraph 20) used in a drinkable yogurt composition (Embodiment 1, Paragraphs 53-55). Pectin meets the limitation of a plant-derived non-beta glucan carbohydrate fiber in light of The Spruce Eats NPL teaching that pectin is a water soluble fiber occurring naturally in fruits (Page 2). Claim 2 does not require the water soluble fiber to be selected from a list in Claim 1, and Applicant’s amendment has removed the limitation of “water soluble fiber” from Claim 1 in any case. Therefore, the limitation of Claim 2 is not seen as limiting, and therefore met by Zhang as well.
Regarding amended Claim 8, Zhang teaches in Embodiment 1 35kg curdlan and 4kg pectin (Paragraph 55), which gives a ratio of plant-derived non-beta-glucan fiber to beta-glucan fiber of 4:35 or 0.11:1 which provides the same ratio as 10:90 which also is equivalent to a ratio of 0.11:1, which is within the claimed ratio range.
Regarding amended Claims 10-13, Zhang teaches a consumable and a method of making a consumable comprising a consumable base (fresh milk), curdlan and pectin according to Claim 1 composition where the consumable comprises a beverage, or a ready to drink beverage or a dairy beverage, in light of the teaching of the drinkable yogurt, as well as the method of making (Paragraphs 55-69).
Regarding original and amended Claims 14 and 15, Zhang is taken as cited above in the rejection of Claims 10-13 and teaches the curdlan and pectin composition increases the viscosity of yogurt and improves the taste and at the same time, the curdlan as a microbial polydextrose fiber, can enhance the nutritional value of yogurt products (Paragraph 51). Therefore, Zhang is deemed to teach a method of improving the mouthfeel of a consumable comprising adding to a consumable base at least one plant-derived non-beta glucan fiber and at least one beta glucan fiber, where the fibers are added at “mouthfeel improving amounts” in light of the fibers increasing the viscosity of the yogurt and improving the taste, which reads on improving the mouthfeel. Therefore, Zhang is also deemed to teach a method of improving the mouthfeel of a consumable by adding a combination of the two claimed fibers to a consumable, as set forth above. Regarding new Claim 16, Zhang as evidenced by Spruce Eats teaches pectin is a water soluble fiber (The Spruce Eats NPL, Page 2).
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.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al (CN 106070622), made of record by Applicant, in view of Spruce Eats NPL.
Regarding amended Claims 3-5, Zhang is taken as cited above in the rejection of Claim 1 and teaches pectin, but does not specifically teach pectin from fruits, or citrus or one of the claimed citrus. It is first noted that the claim recites “plant-derived non-beta-glucan carbohydrate fiber”, which can be seen as just requiring a non-beta-glucan carbohydrate fiber, as the particular derivation of the fiber would not be expected to significantly affect the functioning of the fiber in the composition or in the consumable comprising the composition. Applicant’s claims are very broad with the recitation of “a non-beta glucan carbohydrate fiber” and would read on any non-beta-glucan carbohydrate fiber, such as pectin. The particular derivation of the fiber can also be seen as a product by process limitation. Applicants' Claims 3-5 are written in a product-by-process format and as such, it is the novelty of the instantly claimed product that needs to be established and not that of the recited process steps. In re Brown, 173 USPQ 685 (CCPA 1972); In re Wertheim, 191 USPQ (CCPA 1976). Regarding Claims 3-5, since the product shown by this reference is a non-beta-glucan carbohydrate fiber (pectin), the product is met.
In any case, Spruce Eats NPL teaches pectin occurs naturally in fruits such as lemons, limes, etc. (Pages 1-3). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the pectin of Zhang to have been from lemons or limes in light of the teachings of Spruce Eats NPL.
Claims 7, 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al (CN 106070622), made of record by Applicant.
Regarding original and new Claims 7 and 17-20, Zhang is taken as cited above in the rejection of Claim 1.
Regarding original Claim 7 and new Claims 17-19, Zhang teaches a plant-derived non-beta-glucan carbohydrate fiber in the teaching of pectin. It is first noted that the claim recites “plant-derived non-beta-glucan carbohydrate fiber”, which can be seen as just requiring a non-beta-glucan carbohydrate fiber, as the particular derivation of the fiber would not be expected to significantly affect the functioning of the fiber in the composition or in the consumable comprising the composition. The derivation of the fiber, such as the “plant-derived”, such as from one of the plants or mushrooms, as recited in Claim 7, or from peas, or oats or is grain-derived, as recited in new Claims 17-19. Applicant’s claims are very broad with the recitation of “a non-beta glucan carbohydrate fiber” and would read on any non-beta-glucan carbohydrate fiber, such as the pectin taught by Zhang. The particular derivation of the fiber can also be seen as a product by process limitation. Applicants' Claims 7 and 17-19 are written in a product-by-process format and as such, it is the novelty of the instantly claimed product that needs to be established and not that of the recited process steps. In re Brown, 173 USPQ 685 (CCPA 1972); In re Wertheim, 191 USPQ (CCPA 1976). Regarding Claims 7 and 17-19, since the product shown by this reference is a non-beta-glucan carbohydrate fiber (pectin), the product is met. Therefore, Applicant’s claims would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teaching of Zhang and a non-beta-glucan carbohydrate fiber.
Regarding new Claim 20, Zhang is taken above in the rejection of Claim 8 and teaches a 10:90 ratio for the non-beta-glucan carbohydrate fiber and the beta-glucan fiber, but also teaches general guidelines of 3-15kg pectin and 25-50 kg curdlan (beta-glucan fiber) (Paragraph 12), where a ratio of 15kg pectin to 50kg curdlan gives a ratio of 0.3:1. The ratio of 20:80 which is recited in new Claim 20 is equivalent to a ratio of 0.25:1. Therefore, the claimed ratio range would have been obvious to one of ordinary skill in the art before the effective filing date of the invention in light of the range of fibers taught by Zhang and a close ratio of 0.3:1 as discussed above. Furthermore, it has been found that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al (CN 106070622), made of record by Applicant, in view of Heathline (2019) and Chen et al. (2016).
Regarding amended Claim 9, Zhang is taken as cited above in the rejection of Claim 1 but does not specifically teach the composition in powdered form.
Healthline teaches pectin is available in powdered form (Pages 1-3) and Chen teaches curdlan is available as a powder (Page 4077, Column 2, Paragraph 2). Therefore, where it was desired to have a powdered composition of the two claimed fibers, it would have been obvious to one of ordinary skill in the art to have done so, in light of the teachings of the prior art.
Conclusion
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 1/28/2026