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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) filed 18 March 2026 is acknowledged. Receipt of the Response and Amendment and the signed Declaration under 37 C.F.R. § 1.132 filed 17 February 2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 12-13 and 16-37
Withdrawn claims: 12-13, 16-20, and 31-37
Previously canceled claims: None
Newly canceled claims: 1-11 and 14-15
Amended claims: None
New claims: 21-37
Claims currently under consideration: 21-30
Currently rejected claims: 21-30
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 18 March 2026 has been entered.
Claim Objections
Claim 28 is objected to because of the following informalities:
The status identifier for claim 28 incorrect and should instead read “Previously presented”. See MPEP § 714(II)(C).
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 21-25 are rejected under 35 U.S.C. 103 as being unpatentable over Radman et al. (US 2023/0404098 A1, cited on the IDS filed on 13 June 2025) in view of Sáiz-Abajo et al. (Sáiz-Abajo, M. J., González-Ferrero, C., Moreno-Ruiz, A., Romo-Hualde, A., & González-Navarro, C. J. (2013). Thermal protection of β-carotene in re-assembled casein micelles during different processing technologies applied in food industry. Food chemistry, 138(2-3), 1581-1587. https://doi.org/10.1016/j.foodchem.2012.11.016) and as evidenced by Cleveland Clinic (11 Foods Full of Beta-Carotene and Their Health Benefits. (2023, October 18). Cleveland Clinic. Retrieved May 13, 2026 from https://web.archive.org/web/20231020093354/https://health.clevelandclinic.org/beta-carotene/).
Regarding claim 21, Radman teaches a dairy-like product comprising a dried micellar casein containing protein powder ([0040], [0042]; claim 93). The micelles contain alpha-, beta-, and kappa-casein ([0097]; claims 72, 74, and 76), a calcium salt, and a phosphate salt (i.e., calcium and phosphate ions) ([0162], [0163], claim 73). The caseins are produced from a plant host cell ([0239]; claim 84). Since the caseins in the dried micellar casein protein powder are not obtained from milk, and the powder is an ingredient in dairy-like products, the powder is a dry dairy substitute composition.
Radman therefore teaches a (dairy-like) composition comprising a dry dairy substitute composition (dried micellar casein-containing protein powder), wherein the dry dairy substitute composition comprises a plurality of micelles, wherein each of the plurality of micelles comprises a plant-based protein (plant-produced caseins), wherein the plant-based protein comprises α Casein, β Casein, and κ Casein, calcium ions, and phosphate ions.
Radman does not discuss that each of the plurality of micelles comprises a plant-derived material, wherein the plant of the plant-derived material and of the plant-based protein is a leafy green.
However, Sáiz-Abajo teaches the encapsulation of beta-carotene in reassembled casein micelles in order to protect beta-carotene from degradation during heat stabilization, high pressure processing, and the processes most commonly used in the food industry, including baking (Abstract). Sáiz-Abajo teaches that beta-carotene is the main dietary source of pro-vitamin A, and it is one of the ingredients most commonly used to fortify functional foods with vitamin A (p. 1582, col. 2, ¶ 3). As evidenced by Cleveland Clinic, beta-carotene is found in a wide variety of plants, including leafy greens, such as lettuce and spinach (p. 3, ¶ 8 – p. 4, Table). Therefore, beta-carotene is a plant-derived material derivable from leafy greens.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the micelles of Radman to include beta-carotene as disclosed by Sáiz-Abajo. First, Radman teaches casein micelles prepared from plant-based casein proteins, and these micelles are used as ingredients in dairy-like food products. Sáiz-Abajo teaches that beta-carotene is commonly applied in the food industry as a precursor of vitamin A, but suffers from degradation during sterilization, pasteurization, high hydrostatic pressure, and baking (Abstract). Sáiz-Abajo also teaches that when beta-carotene is encapsulated in casein micelles, the casein micelles protected the beta-carotene from degradation during heat stabilization, high pressure processing, and the processes most commonly used in the food industry, including baking (Abstract). Since Sáiz-Abajo teaches that beta-carotene is added to foods as a source of vitamin A, and encapsulation in casein micelles protects beta-carotene from heat-induced degradation during processes commonly used in the food industry, and Radman teaches casein micelle compositions for use as ingredients in dairy-like food products, one of ordinary skill in the art would have been motivated to include beta-carotene in the casein micelles of Radman in order to provide a dairy-like food composition enriched with vitamin A precursor in the form of beta-carotene. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Sáiz-Abajo teaches that beta-carotene can be successfully encapsulated in reassembled casein micelles, and Radman teaches plant-based casein micelles as ingredients in dairy-like food products.
Regarding the “each micelle” compositional requirement, the final composition is not limited to comprising only the claimed plurality of micelles. Claim 21 recites, “A composition comprising: a dry dairy substitute composition, wherein the dry dairy composition comprises a plurality of micelles…”. The open language “comprising” allows for other micelles to be present in the composition, and in the final composition, wherein the claimed plurality of micelles is subsumed into the final product, the origin of any micelle population cannot be differentiated. That is, one would be unable to ascertain whether the micelles of the overall composition originated from the claimed dry dairy substitute, or even whether the micelles of the dry dairy substitute composition originated exclusively from the claimed plurality of micelles, and not another, similar plurality of micelles that may also be comprised within the dry dairy substitute composition. Therefore, the “each micelle” language does not limit the claim.
Additionally, claim 21 recites the limitation, “wherein the plant of the plant-derived material and of the plant-based protein is a leafy green”, and as such is a product-by-source limitation, a derivative of a product-by-process limitation. Such limitations are unpatentable if the claimed product is identical to or obvious from a product produced by a different process, including if the claimed source or origin of the elements is different. This is because the claims are limited only to the structure implied by the steps. Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113(I).
It is noted that the structure of beta-carotene, representing the claimed plant-derived material, is the same, regardless of where it comes from. As evidenced by Cleveland Clinic, beta-carotene is found in a wide variety of plants, including leafy greens, such as lettuce and spinach (p. 3, ¶ 8 – p. 4, Table). Similarly, one would be unable to ascertain the source of the casein proteins given the final product. Therefore, absent evidence of criticality regarding the presently claimed leafy green, and given that Radman and Sáiz-Abajo teach a composition comprising a dry dairy substitute composition, wherein the dry dairy substitute composition comprises: a plurality of micelles, wherein each of the plurality of micelles comprises plant-based alpha-casein, beta-casein, and kappa-casein; a plant-derived material (i.e., beta-carotene); calcium ions; and phosphate ions, Radman and Sáiz-Abajo clearly meet the requirements of the present claim 21. The plant-derived material and the plant-based protein in the product disclosed by the prior art are indistinguishable from the those in the composition as claimed.
Claim 21 is therefore rendered obvious.
Regarding claim 22, Radman and Sáiz-Abajo teach the composition of claim 21.
Radman also teaches that said α Casein, β Casein, and κ Casein are present in said composition in a weight per weight ratio (w/w) of between 1:1:1 to 10:10:1 – Radman teaches that “[t]he ratio of alpha casein protein to kappa casein protein in the micelle may be about 2:1 to 10:1 or about 1:1 to 15:1. The ratio of beta casein protein to kappa-casein protein in the micelle may be about 2:1 to 10:1 or about 1:1 to 15:1.” ([0130]). Using kappa casein as the common reference, Radman teaches a ratio of α Casein, β Casein, and κ Casein in a range of 2:2:1 to 10:10:1, which lies inside the claimed range of 1:1:1 to 10:10:1.
Claim 22 is therefore rendered obvious.
Regarding claim 23, Radman and Sáiz-Abajo teach the composition of claim 21.
Radman also teaches that said calcium ions are in a concentration ranging from 2 mM to 100 mM – “The concentration of a calcium salt in liquid colloid may be from about 10 mM to about 55 mM.” ([0162]). This range lies inside the claimed range of from 2 mM to 100 mM.
Claim 23 is therefore rendered obvious.
Regarding claim 24, Radman and Sáiz-Abajo teach the composition of claim 21.
Radman also teaches that the phosphate ions are phosphate ions, polyphosphate ions, or a combination thereof – “The phosphate salt may be selected from orthophosphates [i.e., “phosphate ions”] such as monosodium (dihydrogen) phosphate, disodium phosphate…polyphosphates such as pent sodium or potassium tripolyphosphate…” ([0163]).
Claim 24 is therefore rendered obvious.
Regarding claim 25, Radman and Sáiz-Abajo teach the composition of claim 21.
Radman also teaches that said plurality of micelles is characterized by an average particle size ranging between 100 nm and 250 nm, 300 nm and 500 nm, or both – Radman discloses that the average diameter of micelles in a population of hybrid micelles may be from 100 nm to 200 nm or from 300 nm to 500 nm ([0126]).
Claim 25 is therefore rendered obvious.
Claims 26-30 are rejected under 35 U.S.C. 103 as being unpatentable over Radman et al. (US 2023/0404098 A1, cited on the IDS filed on 13 June 2025) in view of Sáiz-Abajo et al. (Sáiz-Abajo, M. J., González-Ferrero, C., Moreno-Ruiz, A., Romo-Hualde, A., & González-Navarro, C. J. (2013). Thermal protection of β-carotene in re-assembled casein micelles during different processing technologies applied in food industry. Food chemistry, 138(2-3), 1581-1587. https://doi.org/10.1016/j.foodchem.2012.11.016) and as evidenced by Garg et al. (Garg, M., Sharma, A., Vats, S., Tiwari, V., Kumari, A., Mishra, V., & Krishania, M. (2021). Vitamins in cereals: a critical review of content, health effects, processing losses, bioaccessibility, fortification, and biofortification strategies for their improvement. Frontiers in nutrition, 8, 586815. https://doi.org/10.3389/fnut.2021.586815).
Regarding claim 26, Radman teaches a dairy-like product comprising a dried micellar casein containing protein powder ([0040], [0042]; claim 93). The micelles contain alpha-, beta-, and kappa-casein ([0097]; claims 72, 74, and 76), a calcium salt, and a phosphate salt (i.e., calcium and phosphate ions) ([0162], [0163], claim 73). The caseins are produced from a plant host cell ([0239]; claim 84). Since the caseins in the dried micellar casein protein powder are not obtained from milk, and the powder is an ingredient in dairy-like products, the powder is a dry dairy substitute composition.
Radman therefore teaches a (dairy-like) composition comprising a dry dairy substitute composition (dried micellar casein-containing protein powder), wherein the dry dairy substitute composition comprises a plurality of micelles, wherein each of the plurality of micelles comprises a plant-based protein (plant-produced caseins), wherein the plant-based protein comprises α Casein, β Casein, and κ Casein, calcium ions, and phosphate ions.
Radman does not discuss that each of the plurality of micelles comprises a plant-derived material, wherein the plant of the plant-derived material and of the plant-based protein is a leafy green.
However, Sáiz-Abajo teaches the encapsulation of beta-carotene in reassembled casein micelles in order to protect beta-carotene from degradation during heat stabilization, high pressure processing, and the processes most commonly used in the food industry, including baking (Abstract). Sáiz-Abajo teaches that beta-carotene is the main dietary source of pro-vitamin A, and it is one of the ingredients most commonly used to fortify functional foods with vitamin A (p. 1582, col. 2, ¶ 3). As evidenced by Garg, “The major carotenoids in cereal grains are beta-carotene, beta-cryptoxanthin, lutein, and zeaxanthin” (p. 3, col. 2, ¶ 2). Therefore, beta-carotene is a plant-derived material derivable from cereal grains.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the micelles of Radman to include beta-carotene as disclosed by Sáiz-Abajo. First, Radman teaches casein micelles prepared from plant-based casein proteins, and these micelles are used as ingredients in dairy-like food products. Sáiz-Abajo teaches that beta-carotene is commonly applied in the food industry as a precursor of vitamin A, but suffers from degradation during sterilization, pasteurization, high hydrostatic pressure, and baking (Abstract). Sáiz-Abajo also teaches that when beta-carotene is encapsulated in casein micelles, the casein micelles protected the beta-carotene from degradation during heat stabilization, high pressure processing, and the processes most commonly used in the food industry, including baking (Abstract). Since Sáiz-Abajo teaches that beta-carotene is added to foods as a source of vitamin A, and encapsulation in casein micelles protects beta-carotene from heat-induced degradation during processes commonly used in the food industry, and Radman teaches casein micelle compositions for use as ingredients in dairy-like food products, one of ordinary skill in the art would have been motivated to include beta-carotene in the casein micelles of Radman in order to provide a dairy-like food composition enriched with vitamin A precursor in the form of beta-carotene. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Sáiz-Abajo teaches that beta-carotene can be successfully encapsulated in reassembled casein micelles, and Radman teaches plant-based casein micelles as ingredients in dairy-like food products.
Regarding the “each micelle” compositional requirement, the final composition is not limited to comprising only the claimed plurality of micelles. Claim 26 recites, “A composition comprising: a dry dairy substitute composition, wherein the dry dairy composition comprises a plurality of micelles…”. The open language “comprising” allows for other micelles to be present in the composition, and in the final composition, wherein the claimed plurality of micelles is subsumed into the final product, the origin of any micelle population cannot be differentiated. That is, one would be unable to ascertain whether the micelles of the overall composition originated from the claimed dry dairy substitute, or even whether the micelles of the dry dairy substitute composition originated exclusively from the claimed plurality of micelles, and not another, similar plurality of micelles that may also be comprised within the dry dairy substitute composition. Therefore, the “each micelle” language does not limit the claim.
Additionally, claim 26 recites the limitation, “wherein the plant of the plant-derived material and of the plant-based protein is a leafy green”, and as such is a product-by-source limitation, a derivative of a product-by-process limitation. Such limitations are unpatentable if the claimed product is identical to or obvious from a product produced by a different process, including if the claimed source or origin of the elements is different. This is because the claims are limited only to the structure implied by the steps. Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113(I).
It is noted that the structure of beta-carotene, representing the claimed plant-derived material, is the same, regardless of where it comes from. As evidenced by Garg, “The major carotenoids in cereal grains are beta-carotene, beta-cryptoxanthin, lutein, and zeaxanthin” (p. 3, col. 2, ¶ 2). Similarly, one would be unable to ascertain the source of the casein proteins given the final product. Therefore, absent evidence of criticality regarding the presently claimed leafy green, and given that Radman and Sáiz-Abajo teach a composition comprising a dry dairy substitute composition, wherein the dry dairy substitute composition comprises: a plurality of micelles, wherein each of the plurality of micelles comprises plant-based alpha-casein, beta-casein, and kappa-casein; a plant-derived material (i.e., beta-carotene); calcium ions; and phosphate ions, Radman and Sáiz-Abajo clearly meet the requirements of the present claim 26. The plant-derived material and the plant-based protein in the product disclosed by the prior art are indistinguishable from the those in the composition as claimed.
Claim 26 is therefore rendered obvious.
Regarding claim 27, Radman and Sáiz-Abajo teach the composition of claim 26.
Radman also teaches that said α Casein, β Casein, and κ Casein are present in said composition in a weight per weight ratio (w/w) of between 1:1:1 to 10:10:1 – Radman teaches that “[t]he ratio of alpha casein protein to kappa casein protein in the micelle may be about 2:1 to 10:1 or about 1:1 to 15:1. The ratio of beta casein protein to kappa-casein protein in the micelle may be about 2:1 to 10:1 or about 1:1 to 15:1.” ([0130]). Using kappa casein as the common reference, Radman teaches a ratio of α Casein, β Casein, and κ Casein in a range of 2:2:1 to 10:10:1, which lies inside the claimed range of 1:1:1 to 10:10:1.
Claim 27 is therefore rendered obvious.
Regarding claim 28, Radman and Sáiz-Abajo teach the composition of claim 26.
Radman also teaches that said calcium ions are in a concentration ranging from 2 mM to 100 mM – “The concentration of a calcium salt in liquid colloid may be from about 10 mM to about 55 mM.” ([0162]). This range lies inside the claimed range of from 2 mM to 100 mM.
Claim 28 is therefore rendered obvious.
Regarding claim 29, Radman and Sáiz-Abajo teach the composition of claim 26.
Radman also teaches that the phosphate ions are phosphate ions, polyphosphate ions, or a combination thereof – “The phosphate salt may be selected from orthophosphates [i.e., “phosphate ions”] such as monosodium (dihydrogen) phosphate, disodium phosphate…polyphosphates such as pent sodium or potassium tripolyphosphate…” ([0163]).
Claim 29 is therefore rendered obvious.
Regarding claim 30, Radman and Sáiz-Abajo teach the composition of claim 26.
Radman also teaches that said plurality of micelles is characterized by an average particle size ranging between 100 nm and 250 nm, 300 nm and 500 nm, or both – Radman discloses that the average diameter of micelles in a population of hybrid micelles may be from 100 nm to 200 nm or from 300 nm to 500 nm ([0126]).
Claim 30 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103:
Applicant’s arguments, see p. 8, penultimate ¶ - p. 10, ¶ 3, filed 17 February 2026, with respect to the rejection of independent claims 21 and 26 under 35 U.S.C. § 103 have been fully considered and are persuasive in light of the Declaration under 37 CFR 1.132 filed 17 February 2026. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Radman and Sáiz-Abajo.
Specifically, Applicant argued that Radman and Ghatak do not teach or suggest a composition in which each micelle comprises a plant-derived material, principally because Ghatak does not teach that quercetin is encapsulated in micelles, but rather reassembled casein particles, which are not micelles (p. 8, penultimate ¶). In support of this argument, Applicant submitted a Declaration under 37 CFR 1.132.
The Declaration under 37 CFR 1.132 filed 17 February 2026 is sufficient to overcome the rejection of claims 21-30 based upon modification of Radman et al. with Ghatak et al. as applied under 35 U.S.C. § 103 as set forth in the last Office action.
MPEP § 716.01(c)(III) states, “In assessing the probative value of an expert opinion, the examiner must consider:
1) the nature of the matter sought to be established,
2) the strength of any opposing evidence,
3) the interest of the expert in the outcome of the case, and
4) the presence or absence of factual support for the expert’s opinion.
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 227 USPQ 657 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986).”
The Declaration seeks to establish nonobviousness of incorporating a plant-derived material in plant-based casein micelles regarding claims 21 and 26 due to a lack of a reasonable expectation of success in modifying the plant-based casein micelles of Radman to include quercetin as taught by Ghatak.
Regarding opposing evidence, Radman is relied on for the majority of the elements of the claims, and teaches a (dairy-like) composition comprising a dry dairy substitute composition (dried micellar casein-containing protein powder), wherein the dry dairy substitute composition comprises a plurality of micelles, wherein each of the plurality of micelles comprises a plant-based protein (plant-produced caseins), wherein the plant-based protein comprises α Casein, β Casein, and κ Casein, calcium ions, and phosphate ions, but does not discuss that each of the plurality of micelles comprises a plant-derived material. Ghatak teaches the encapsulation of quercetin in a purified form and also from a crude extract of dry onion peel in reassembled casein particles (i.e., casein micelles) in order to improve the water solubility and bioavailability of quercetin when used as a food component and therapeutic agent (Abstract). Thus, it was known before the time of the invention to encapsulate quercetin (i.e., a plant-derived material) in casein particles.
The Declaration is submitted by one of the inventors, who is considered an interested party to the outcome of the case. An affidavit of an applicant as to the advantages of their claimed invention, while less persuasive than that of a disinterested person, cannot be disregarded for this reason alone. Ex parte Keyes, 214 USPQ 579 (Bd. App. 1982); In re McKenna, 203 F.2d 717, 97 USPQ 348 (CCPA 1953). See MPEP § 716.01(c)(III). As such, the Declaration is being considered as an expert opinion of an interested party.
The Declaration submits (as summarized in Applicant’s remarks, p. 9, ¶ 2) that:
1. Radman's micelles are native-like dairy micelles formed under millimolar salt conditions without surfactant, designed to preserve dairy mineral equilibria and kappa-casein surface stabilization. See, Decl. at ¶¶ 5-19, 37, 39, 53, 56, 58.
2. Ghatak's particles are sodium caseinate aggregates formed under molar salt concentrations and require CTAB to stabilize negative charges, with CTAB itself inducing "hydrophobic precipitation" when increased. See Ghatak at p. 104, §3.4; p. 106, §3.9; p. 108. See, Decl. at ¶¶ 20-36, 40, 54, 57, 59, 75-77.
3. As shown by Hu, sodium caseinate particles form agglomerated, irregular structures with altered secondary structure and increased hydrophobic exposure, which impairs functional stability. See Hu at pp. 4-6; FIGS. 2A, 3; Table 3. See, Decl. at ¶¶ 41-51.
4. Introducing CTAB and the extreme ionic strengths of Ghatak into Radman's micellar system would fundamentally disrupt kappa-casein surface stabilization and dairy-like mineral equilibria, leading to aggregation and loss of native micelle structure rather than yielding the claimed micelles in which each micelle comprises plant-derived material. See, Decl. at ¶¶ 64-66, 78-82.
Applicant argued that Ghatak teaches that encapsulation of quercetin requires a CTAB-dependent sodium caseinate system with extreme ionic strengths. Such conditions are chemically and functionally incompatible with Radman's dairy micellization chemistry, as further corroborated by Hu's structural data (p. 10, ¶ 1), and neither Radman nor Ghatak suggests encapsulating plant-derived material within each alpha/beta/kappa micelle of a dairy-like micellar powder, and the Office Action has not articulated a persuasive technical rationale for how the disparate chemistries of Radman and Ghatak could be combined without destroying Radman's micelle structure (p. 10, ¶ 2).
In considering the opinion evidence and objective evidence (provided by Hu) of the Declaration, it is considered that the salt concentrations and presence of CTAB surfactant used by Ghatak to encapsulate quercetin in casein particles more likely than not would lead to aggregation of the casein proteins of Radman, and thus not result in native/dairy-like casein micelles as in Radman, and where Ghatak demonstrates encapsulation of quercetin in aggregate particles, it cannot be determined whether quercetin can be encapsulated in casein micelles. For this reason, it is considered that the principle of operation of Radman would be changed by the proposed modification, and since aggregates are not micelles, there is not a reasonable expectation of success arriving at the claimed invention in modifying the plant-derived casein micelles of Radman with the teachings of Ghatak to yield micelles comprising plant-derived material.
Accordingly, the rejection of claims 21-30 as presented in the previous Office Action have been withdrawn.
However, upon further consideration, a new ground of rejection is made in view of Radman and Sáiz-Abajo. Sáiz-Abajo encapsulates beta-carotene in re-assembled casein micelles without using a surfactant, and the concentrations of the salts in the final volume of 400 mL reaction volume in the reassembly of casein micelles with beta-carotene are calculated to be 10 mM citrate, 12 mM dipotassium phosphate, and 10 mM calcium chloride (p. 1583, col. 1, ¶ 1). These values are within the ranges disclosed by Radman (2-20 mM citrate salt; [0164], 8-45 mM phosphate salt; [0163], and 10-55 mM calcium salt) and claimed in the instant claims (2-100 mM calcium ions; claims 23 and 28). Therefore, the conditions in which Sáiz-Abajo uses to encapsulate beta-carotene in casein micelles are compatible with the micelles of Radman, and one of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention by modifying the micelles of Radman to contain beta-carotene as taught by Sáiz-Abajo.
Applicant’s arguments with respect to the product-by-source allegation and Levy on p. 10, last – p. 12, ¶ 1 have been considered but are moot because the new ground of rejection does not rely on Ghatak and/or Levy for any teaching or matter specifically challenged in the argument.
With respect to the new ground of rejection, and regarding the “each micelle” compositional requirement, the final composition is not limited to comprising only the claimed plurality of micelles. Claims 21 and 26 recite, “A composition comprising: a dry dairy substitute composition, wherein the dry dairy composition comprises a plurality of micelles…”. The open language “comprising” allows for other micelles to be present in the composition, and in the final composition, wherein the claimed plurality of micelles is subsumed into the final product, the origin of any micelle population cannot be differentiated. That is, one would be unable to ascertain whether the micelles of the overall composition originated from the claimed dry dairy substitute, or even whether the micelles of the dry dairy substitute composition originated exclusively from the claimed plurality of micelles, and not another, similar plurality of micelles that may also be comprised within the dry dairy substitute composition. Therefore, the “each micelle” language does not limit the claims. Similarly, the final composition of the instant claims is not required to be dried, so the recitation of “a dry dairy substitute composition” does not limit the claims.
The product-by-source interpretation of claims 21 and 26 stands as described in the rejections hereinabove.
Claims 21-30 are rejected under 35 U.S.C. § 103 as presented hereinabove.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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