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 .
Election/Restrictions
Applicant’s election without traverse of Claims 7-10 in the reply filed on 08/21/2026 is acknowledged.
Claims 1-6 and 11-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/21/2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 7-10 are rejected under 35 U.S.C. 103 as being unpatentable over Rosado (US 2015/0245644 A1).
Regarding Claim 7, Rosado teaches a protein composition (formula comprising protein Par. 0027)
comprising 21.0% to 32.0% of α-lactalbumin (preferred 26% of alphalactalbumin rated on total protein Par. 0027)
and 29% to 35% of β-casein relative to 100% of the total protein content in the protein composition (casein 35% of total protein, Casein A2 80% of casein Table 1 Pg. 4; beta casein protein content with a ratio of type A1 and type A2 between 3:97 and 70:30 Par. 0027). As A2 accounts for 80% of the total 35% casein in the example of Table 1, this would provide 28% A2 of the entire protein composition. On the low end (ratio of 3:97 of A1:A2), this would give 1% A1. Therefore. The lowest amount of β-casein possible for this example is 29%. The high end of the A1:A2 ratio (70:30) results in a higher total of β-casein than total casein, so the high end would be all the casein is of β-casein, therefore 35%.
Regarding 26.0% to 32.0% of β-casein relative to 100% of the total protein content in the protein composition, Rosado teaches 29% to 35% β-casein (Table 1, Par. 0027, seen above). As Rosado discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Rosado to have 26.0% to 32.0% of β-casein relative to the total protein content. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 29-32%) from the taught range of 29% to 35% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I)
Regarding Claim 8, Rosado further teaches 21.0% to 32.0% of α-lactalbumin (preferred 26% of alphalactalbumin rated on total protein Par. 0027)
and 29% to 35% of β-casein relative to 100% of the total protein content in the protein composition (casein 35% of total protein, Casein A2 80% of casein Table 1 Pg. 4; beta casein protein content with a ratio of type A1 and type A2 between 3:97 and 70:30 Par. 0027). As A2 accounts for 80% of the total 35% casein in the example of Table 1, this would provide 28% A2 of the entire protein composition. On the low end (ratio of 3:97 of A1:A2), this would give 1% A1. Therefore. The lowest amount of β-casein possible for this example is 29%. The high end of the A1:A2 ratio (70:30) results in a higher total of β-casein than total casein, so the high end would be all the casein is of β-casein, therefore 35%.
Regarding 29.0% to 32.0% of β-casein relative to 100% of the total protein content in the protein composition, Rosado teaches 29% to 35% β-casein (Table 1, Par. 0027, seen above). As Rosado discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Rosado to have 29.0% to 32.0% of β-casein relative to the total protein content. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 29-32%) from the taught range of 29% to 35% (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I)
Regarding Claim 9, Rosado further teaches
20% to 30% α-lactalbumin (alphalactalbumin between 20-30% rated on total protein Par. 0027)
and 29% to 35% of β-casein relative to 100% of the total protein content in the protein composition (casein 35% of total protein, Casein A2 80% of casein Table 1 Pg. 4; beta casein protein content with a ratio of type A1 and type A2 between 3:97 and 70:30 Par. 0027). As A2 accounts for 80% of the total 35% casein in the example of Table 1, this would provide 28% A2 of the entire protein composition. On the low end (ratio of 3:97 of A1:A2), this would give 1% A1. Therefore. The lowest amount of β-casein possible for this example is 29%. The high end of the A1:A2 ratio (70:30) results in a higher total of β-casein than total casein, so the high end would be all the casein is of β-casein, therefore 35%.
Regarding 29.0% of α-lactalbumin and 32.0% of β-casein or 21.5% of α-lactalbumin and 29.0% of β-casein relative to 100% of the total protein content in the protein composition, Rosado teaches 20% to 30% α-lactalbumin and 29% to 35% β-casein (Par. 0027, Table 1, seen above). As Rosado discloses a range which overlaps with the claimed amount, it would have been obvious to one having an ordinary skill in the art to modify Rosado to have 29.0% of α-lactalbumin and 32.0% of β-casein or 21.5% of α-lactalbumin and 29.0% of β-casein relative to 100% of the total protein content. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 29% α-lactalbumin and 32.0% β-casein; or 21.5% α-lactalbumin and 29.0% of β-casein) from the taught range of 20% to 30% α-lactalbumin and 29% to 35% β-casein (as seen above). In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I)
Regarding Claim 10, Rosado further teaches 55.0% to 65.0% of whey protein and 35.0% to 45.0% of casein relative to 100% of the total protein content in the protein composition (whey protein:casein ratio preferably 65:35 Par, 0027).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
McGrath (US 2019/0247469 A1) discloses a nutritional formula comprising α-lactalbumin and β-casein.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIEL M RODGERS whose telephone number is (571)272-7857. The examiner can normally be reached Monday - Friday 9:00 am - 6:00 pm.
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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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