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 status of the claims stands as follows:
Pending claims: 1-6
Withdrawn claims: None
Cancelled claims: None
Claims currently under consideration: 1-6
Currently rejected claims: 1-6
Allowed claims: None
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. 15/775,090, filed on 05/10/2018.
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.
Claim 6 is rejected under 35 U.S.C. 112(b) 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 6 is rejected under 35 U.S.C. 112(b) as being incomplete for omitting essential steps, such omission amounting to a gap between the steps. See MPEP § 2172.01. The omitted steps are: a step of foaming or creating bubbles in the composition. The claimed method is directed to promoting foaming or stabilizing bubbles of a composition; however, no step of foaming or bubble production has been recited.
For the purpose of this examination, the method of claim 6 will be interpreted as requiring the foaming material of claim 1 to be added to a composition wherein the foaming material of claim 1 causes foaming and/or stabilization of foam in the composition.
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 are rejected under 35 U.S.C. 103 as being unpatentable over Yasumatsu (JP 2011/234643; IDS citation; English translation relied on for citations).
Regarding claims 1 and 2, Yasumatsu teaches a property modification agent comprising a yeast extract having a protein (corresponding to peptide) content of at least 16%; and a fiber content of at least 20% [0014], [0016]. Since the property modification agent enhances foaming of foodstuffs [0013], the property modification agent is considered to be a foaming material and a foaming agent as recited by present claims 1 and 2. These disclosed contents of protein and fiber are considered to encompass the claimed contents of protein and fiber recited in present claim 1.
In regard to the encompassing ranges, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Regarding claim 3, Yasumatsu teaches the invention as described above in claim 1, including the foaming material is added to a bubble-containing food product (corresponding to foaming enhancement in foodstuff) in an amount of 0.05-5 wt.%, preferably 0.03-1 wt.% [0021], which falls within the claimed range.
Regarding claims 4 and 5, Yasumatsu teaches the invention as described above in claim 1, including a method for producing the foaming material of claim 1, the method comprising: suspending a yeast cell residue in water (corresponding to candida fungus body solution ); adjusting a pH of a yeast cell suspension to an acidic side (corresponding to processing at pH 3.5 using sulfuric acid); and heating a yeast cell suspension (corresponding to processing at 60°C) [0023] as recited in present claim 5. This disclosed method is a method of extracting a yeast extract from a yeast cell residue as recited in present claim 4.
Regarding claim 6, Yasumatsu teaches the invention as described above in claim 1, including adding the foaming material of claim 1 to a foodstuff in order to enhance the foaming and stability of the foam in the foodstuff [0014]. Yasumatsu teaches that the foaming material is added to the foodstuff in an amount of 0.05-5 wt.%, preferably 0.03-1 wt.% [0021], which falls withing the claimed range. Therefore, Yasumatsu teaches the method as presently claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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