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 .
DETAILED ACTION
Status of the application
2. Claims 1-15 are pending in this office action.
Claims 1-15 have been rejected.
Claim Rejections - 35 USC § 112
3. 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.
4. Claims 1-15 are 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.
5. At least claims 1 , 3, 7, 8, 10 recite the term “dairy-like”. It is to be noted that the phrase "or the like" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "or the like"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d).
6. Claim 2 recites the claim limitation “chosen from a single or compound oil ….selected from the group comprising Argon, ……..and Evening Primorse oil 1-5 ml/day”. It is to be noted that it is understood that applicants intend to claim in the Markush format. Therefore, applicants are advised to amend claim 2 to rewrite proper Markush format (i.e. selected from the group consisting of A, B, C and D) in claim 2.
7. At least claims 4, 9 recite “such as”. Regarding claims 4, 9, , the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
8. At least claims 3, 10 recite percent amount. However, it is not clear whether the percent amount of the ingredient is w/w, or w/v or v/v with respect to the total amount of the food composition. This renders claims 3, 10 indefinite.
Claim Rejections - 35 USC § 103
9a. 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.
9b. 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.
9c. 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.
10. Claim(s) 1-15 are rejected under 35 U.S.C. 103 as being
unpatentable over Han et al. (CN 108740276 A) in view of Zehil et al. (WO 2021/219580 A1) in view of Van Lengerich et al. US 2007/0098854 A1 and further in view of Mizono et al. (WO 8603377 A1) and as evidenced by Peter et al. (WO 9608156 A1).
11. Regarding claims 1, 2, 6, 7, 9, 11, 15, Han et al. discloses a process of making frozen yogurt ice cream made by soy milk and nut milk rich in live bacteria and the process using soy milk and nut milk to partially replace cow’s milk with additional nutritional components like sugar, stabilizers from monoglycerides, xanthan gum, CMC etc. followed by heating , homogenizing and then sterilizing and then fermenting using lactic acid bacteria to obtain a plant-based yogurt ice cream containing live bacteria (i.e. probiotic) (Abstract) having pH 4.2-5.0 (page 3 5th paragraph).
Han et al. discloses the steps of (a) mixing the components (b) steps of formulation and preparation by mixing the components by (a) heating at 60-75 degree C for 10-30 minutes ( page 3 3rd paragraph) and step of homogenizing after heating i.e. after heating step, homogenization step can be any temperature below heating temperature which will meet the claimed 25-70 degree C (page 3 first three paragraphs).
Han et al. is specifically silent about specific oil that have beneficial health effect as claimed in claim 1.
Zehil et al. discloses that argan oil has beneficial health effect because it is recommended food items for individuals with low testosterone who would like to improve their fertility. The recommended amount of extra virgin argan oil is at least about 25 ml/day ( at least , page 11, under “Monosaturated fatty acids”, paragraph 3, ). This also meet claims 1, 2, 8, 10, 13.
It is evidenced by applicant’s specification that if the intended portion of the final product is around 125 g, the usual weight of a yogurt. In that case, the oil concentration will be 20% to contain the recommended amount of lipids, currently 25 ml. (in PGPUB [0012]). Therefore, This also meet claims 3, 12 , 14.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Han et al. with the teaching of Zehil et al. discloses that argan oil has beneficial health effect because it is recommended food items for individuals with low testosterone who would like to improve their fertility. The recommended amount of extra virgin argan oil is at least about 25 ml/day (at least , page 11, under “Monosaturated fatty acids”, paragraph 3).
Regarding the amount of Argan oil it is variable and optimizable (claim 3 of Zehil et al.).
Han et al. in view of Zehil et al. are silent about the claim limitation of “formulation and preparation of matrix” by heat treatment to make “ Heat-treated matrix” as claimed in claims 1-(a).
Van Lengerich et al. discloses that starch provides a plasticizable matrix material in presence of proteins from various sources including the proteins from dairy- protein source ([0062]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Han et al. in view of Zehil et al. with the teaching of Van Lengerich et al. discloses that starch provides a plasticizable matrix material in presence of proteins from various sources including the proteins from dairy- protein source ([0062]) which provides a unique textural plasticizable property with desired taste in the final yogurt product.
Regarding claim 1(3), regarding the claim limitation of “sensory evaluation of the gelled lipid dispersion, it is to be noted that and as discussed above that the combined teachings of Han in view of Zehil et al. , Van Lengerich et al. provides a plasticizable matrix material in presence of proteins from various sources including the proteins from dairy- protein source ([0062]). Therefore, the product has achieved a sensural evaluation with respect to textural plasticizable property with desired taste in the final yogurt product. It is also to be noted that Han et al. discloses different types of stabilizers including gums which can have gelling property also.
Regarding the phrase “gelled”, Mizono et al. discloses that that 2% by weight starch is added to such soy milk containing product in order to have desired hydration and gelation of the starch which also provides desired sufficient viscosity (at least second paragraph, under Example 3). Therefore, it meets claims 6, 9 also.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Han et al. in view of Zehil et al. and Van Lengerich et al. to include the teaching of Mizono et al. with the disclosed amount of starch in order to provide desired hydration and gelation of the starch which also provides desired sufficient viscosity (at least second paragraph, under Example 3) with the participation of matrix formation to provide additional unique textural plasticizable property with desired taste in the final yogurt product also.
12. Regarding claims 4,5, it is to be noted that claims 4, 5 depend on claim 1 and “formulation and preparation of matrix” by heat treatment to make “ Heat-treated matrix” preparation is discussed above for claim 1 and is applicable here.
Regarding the amounts, regarding the amount of protein, Han et al. discloses that soy milk and full fat milk is 1:1 (v/v) which is 25% of total mixing, and skim milk powder content is 8% (w/w) in the product (at least under Example 1, see last para of page 3, page 4 second paragraph of Han et al.). It is known and is evidenced by Peter et al. that skim milk powder having 33% protein (at least under “Methods and materials) and therefore, it provides 33% of 8% = 2.65 wt.% (about) dairy protein which includes whey, sodium caseinate etc. proteins of claim 4. It is to be noted that even if we consider soy milk and full fat milk is 1:1 (v/v) which is 25% of total mixing from where milk protein is included further, yet, it is known that whole liquid milk has combined whey and casein is about 8% by weight (Google). Therefore, all together, the milk protein will be within the claimed range amount of claim 4.
Regarding the amount of starch, Mizono et al. discloses that 2% by weight starch is added to such soy milk containing product in order to have desired hydration and gelation of the starch which also provides desired sufficient viscosity (at least second paragraph, under Example 3).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Han et al. in view of Zehil et al. and Van Lengerich et al. to include the teaching of Mizono et al. with the disclosed amount of starch in order to provide desired hydration and gelation of the starch which also provides desired sufficient viscosity (at least second paragraph, under Example 3) with the participation of matrix formation to provide additional unique textural plasticizable property with desired taste in the final yogurt product also.
Conclusion
13. At least one other pertinent prior art by Wenxiang et al. (WO 2013/159498 A1) (ISR Ref; English Translated version filed by the applicant on 4/01/2025), meets claims 1,7,8,9. However, does not teach claimed acidic pH of about 4.5 as claimed in independent claim 1. Overall comparing the ISR references (Filed 11/08/2024), examiner found that Han et al. covers the most of the claim limitations including pH of independent claim 1. Therefore, Han et al. is considered as primary prior art in this office action. However, examiner has selected few more new secondary prior arts to meet the claimed invention as discussed in the office action above.
14. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
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