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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 26 June 2025 has been entered.
Status of the Application
Claims 1, 4-5, 8-9 and 12-13 are pending. Claims 2-3, 6-7, 10-11 and 14 have been cancelled. It is noted that claim 15 was cancelled in the amended claims submitted 23 May 2022 but claim 15 has been omitted from the current claim set. The previous 112(b) rejections not repeated below have been withdrawn in view of applicant’s amendments to the claims. The previous 103 rejections have been modified in view of applicant’s amendments to the claims.
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 4 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 4 recites “wherein the at least one vitamin is a fat and water soluble vitamin.” It is unclear which vitamins could be both water and fat soluble. Generally vitamins are considered either fat or water soluble. The specification discloses: the present plant based protein drink is fortified with vitamins and minerals, to meet the optimal daily nutritional requirements. The vitamins comprises fat soluble as well as water soluble vitamins such as vitamin A, vitamin B1nitrate, vitamin B2, vitamin B3,vitamin B5,vitamin B6,vitamin B12, Folic acid, Vitamin D and the like [0014]. For the purpose of examination, 4 will be interpreted as: wherein the vitamin and mineral premix comprises at least one vitamin, selected from the group consisting of fat soluble vitamins and water soluble vitamins.
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.
Claims 1, 4-5 and 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Johns (US 2016/0037817 A1) in view of Avila (US 2008/0206430), Vestkorn (NEW!! Fabaprotein 65%, https://vestkorn.no/2015/12/11/new-fababean-protein-65/ (Year: 2015)), Food Insight (Trend or Tool? The Real Deal on Pea Protein, https://foodinsight.org/trend-or-tool-the-real-deal-on-pea-protein/ (Year: 2015)), Yang (US 2018/0369394 A1), Connolly (US 5,409,725) and Shibata (US 2018/0360063 A1).
Regarding claim 1, Johns discloses a nutritional composition comprising protein [0002] which can be a liquid nutritional composition [0007]. Johns discloses the liquid nutritional composition may be formulated with juice [0031]. Johns further disclose the protein in the liquid nutritional composition may be cereal or vegetable protein and combinations thereof [0064]. These disclosures by Johns are considered to meet the claim limitation of a plant based protein drink enriched with real fruit juices.
Regarding claim 1 (i) Johns discloses the protein in the liquid nutritional composition may be cereal (rice) or vegetable protein and combinations thereof [0064]. Johns further discloses in a liquid beverage the protein concentration may be from about 0.5% to about 7% by weight of the nutritional liquid beverage [0066]. Johns also discloses the liquid nutritional composition may be an emulsion, and the emulsion may have a density from about 1.085 g/mL to about 1.1 g/mL [0024].
Converting from % by weight of the protein to % w/v of the protein using the density of the liquid nutritional composition disclosed by Johns, results in a protein content of 0.54% - 7.7% w/volume of protein in the liquid nutritional composition disclosed by Johns. This encompasses the claim 1 range of 3.0-5.8% w/v protein in the plant based protein drink. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Johns does not disclose the plant protein is a combination of 20%-35% by weight of faba bean protein concentrate, 25%-35% by weight of rice protein and 40%-45% by weight pea protein as hydrolysate.
Avila, in the field of compositions made with blended vegetarian proteins, discloses a nutritional supplement for inclusion in vegetarian liquids and ready-to-drink foods [0013]. Avila discloses the plant protein is a blend of three plant proteins 20-95% by weight soy protein, 5-80% by weight rice and pea protein [0015]. The amounts of rice and pea protein disclosed by Avila encompass the claimed ranges of 25-35% wt rice protein and 40-45% wt pea protein. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
It would have been obvious to have included the vegetable protein blend of Avila in the liquid nutritional composition of Johns since Johns discloses the use of a combination of vegetable and cereal proteins for use in a beverage and Avila discloses a specific blend of vegetable and cereal proteins for use in a beverage. Substitution of equivalents known for the same purpose is prima facie obvious. MPEP 2144.06 II.
Johns does not disclose faba bean protein concentrate as one of the plant proteins.
Vestkorn, in the field of plant proteins, discloses a faba bean protein concentrate which can be used as a substitute to replace soy protein (p1, para 2). Vestkorn further discloses the use of the faba bean protein concentrate acts as a stabilizer, improves consistency, provides a smooth texture and allows for making products soy-free (p1, Functional Benefits).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the faba bean protein concentrate of Vestkorn for the soy protein of Avila in order to provide a soy-free product with improved consistency, smooth texture and stability. It is considered prima facie obvious to substitute equivalents known for the same purpose. MPEP 2144.06 II.
Johns does not disclose one of the vegetable proteins is in the form of pea protein hydrolysate.
Food insight, in the field of pea protein benefits, discloses pea protein hydrolysate can reduce blood pressure in people with hypertension and delay or prevent the onset of kidney damage due to high blood pressure (p2, 1st full paragraph).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to selected the pea protein hydrolysate of Food Insight as one of the vegetable proteins of Johns in order to provide a composition that can reduce blood pressure in people with hypertension and delay or prevent the onset of kidney damage due to high blood pressure.
Regarding the quantity of faba bean protein in the composition, Avila discloses 20-95% by weight soy protein and Vestkorn provides motivation for substituting the faba bean protein concentrate for the soy protein of Avila. This substitution would result in 20-95% by weight faba bean concentrate in the composition, which encompasses the claimed range of 20-35% wt. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claim 1 (ii), Johns discloses the liquid nutritional composition may be formulated with juice [0031] and may contain water [0034].
Johns does not disclose the variety of juice.
Yang, in the field of stabilizers for use in beverages, discloses an edible food product that may be a beverage that comprises fruit juices [0046]. Yang discloses the fruit juices may include orange, pomegranate and strawberry juices where the juices may be in any form, including liquid, concentrates or powders [0047]. Yang also discloses proteins may be included in the edible food product, including plant proteins and fractions or derivatives thereof [0048]. Yang further discloses the edible food product beverage may include mineral salts, acidulants, sweeteners, buffering agents, stabilizing salts, flavorings and colorings [0046].
Yang’s disclosure of orange, pomegranate and strawberry juices meets the claim 1(ii) limitation of “wherein the real fruit juice is pomegranate, strawberry, orange or a combination thereof.”
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the liquid nutritional composition comprising protein, juice and water of Johns with the orange, pomegranate and strawberry juices of Yang since both drawn to beverages comprising plant proteins and juice.
Regarding the degree of reconstitution of the fruit juice and the amount of reconstituted fruit juice in the final product, the prior art references do not specify the proportions of the components: water, juice concentrate and reconstituted juice. The proportions of those components are conventional result effective variables in the food art. In other words, one of ordinary skill in the art would have varied the amounts of water, juice concentrate and reconstituted juice depending on the intensity of juice flavor and dilution desired for the mixture. As such, the proportions of the components recited in claim 1 (ii) are merely obvious variants of the prior art. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding claim 1 (iii), Johns discloses the liquid nutritional composition may comprise vitamins and minerals [0049], [0086] and [0087].
Johns does not disclose the vitamins and minerals in a premix nor the quantity of vitamins and minerals.
Connolly, in the field of stabilizing proteins in beverages, discloses a protein-fortified juice beverage which includes a vitamin and mineral premix at 0.14% weight (col 5, lines 38-53).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the vitamins and minerals of Johns with the premix and quantity of vitamins and minerals of Connolly since both are drawn to the preparations of protein and juice based beverages.
Connolly’s 0.14% weight vitamin and mineral premix is approximately 0.14% wt/volume, when the density of the beverage is near 1 g/mL as in Johns [0024]. Connolly’s 0.14% wt/v of vitamin and mineral premix is near the claim 1 (iii) range of 0.15%-0.30% w/v. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. MPEP 2144.05 I.
Regarding claim 1 (iv) Johns discloses the liquid nutritional composition can further comprise carbohydrates, including corn syrup, sucrose, honey and artificial sweeteners (sweetening agents) in amounts from 5%-40% by weight (approximately 5%-40% w/v) [0070] and [0072]. Johns 5%-40% sweetening agents encompasses the claim 1 (iv) range of 5.5-7.5% w/v. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claim 1 (v), Johns discloses the liquid nutritional composition comprises water [0034].
Regarding the remainder of claim 1, Johns disclose lactose as an optional ingredient [0072], therefore the liquid nutritional composition of Johns is considered to be lactose free.
Johns discloses the liquid nutritional composition comprises protein from cereals, vegetables or combinations thereof [0064]. As discussed above, the rice protein and pea protein of Avila and the faba bean protein of Vestkorn constitute the vegetable and cereal proteins of Johns. Therefore the liquid nutritional composition of Johns may be considered gluten free.
Johns discloses preservatives as an optional ingredient in the liquid nutritional composition [0081], therefore the liquid nutritional composition of Johns may be considered preservative free.
Johns discloses the liquid nutritional composition comprises at least one protein, at least on macronutrient other than the at least one protein and micronized calcium phosphate [0008]. Where the protein can be cereal or rice protein and the macronutrient may be carbohydrate, such as sucrose [0064], [0016] and [0072]. Therefore no animal products are required for the liquid nutritional composition of Johns, and it is considered to be 100% vegan.
Johns does not disclose the BRIX value of the beverage.
Shibata, in the field of beverages, discloses a beverage which can be made with orange juice or strawberry juice [0080]. Shibata discloses the beverage may have a Brix level of 0.1-16 and the Brix level effects the flavor and the calories of the beverage [0078]. Shibata discloses the BRIX level may be achieved by including sweeteners [0079]. Shibata’s BRIX value of 0.1-16 encompasses the claimed range of 12.5-14.5. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the liquid nutritional composition comprising protein, juice and water of Johns with the BRIX levels of a beverage containing strawberry and/or orange juice of Shibata since both are drawn to juice based beverages and Shibata discloses the BRIX level is appropriate for juice based beverages and effects the flavor and the calorie content.
Regarding claim 4, Johns discloses the liquid nutritional composition may comprise vitamin A, riboflavin (vitamin B2), niacin (vitamin B3), pantothenic acid (vitamin B5), pyridoxine (vitamin B6), vitamin B12, folic acid and Vitamin D [0086] which are listed in the specification as fat and water soluble vitamins [0014]. Johns also discloses the liquid nutritional composition comprises the minerals copper, manganese, iron, calcium, sodium, potassium, and phosphorus [0087] and [0088].
Regarding claim 5, as discussed in the claim 1 rejection above, Johns discloses the liquid nutritional composition can further comprise carbohydrates, including sucrose and honey (sweetening agents comprising natural sweetener) in amounts from 5%-40% by weight (approximately 5%-40% w/v) [0070] and [0072]. Johns 5%-40% sweetening agents comprising natural sweeteners encompasses the claimed range of 6.0-7.5% w/v sweetening agent. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claims 8 and 9, Johns discloses a nutritional composition comprising protein [0002] which can be a liquid nutritional composition [0007]. Johns discloses the liquid nutritional composition may be formulated with juice [0031]. Johns further disclose the protein in the liquid nutritional composition may be cereal or vegetable protein and combinations thereof [0064].
Johns does not disclose the variety of juice.
Yang, in the field of stabilizers for use in beverages, discloses an edible food product that may be a beverage that comprises fruit juices [0046]. Yang discloses the fruit juices may include orange, pomegranate and strawberry juices where the juices may be in any form, including liquid, concentrates or powders [0047]. Yang also discloses proteins may be included in the edible food product, including plant proteins and fractions or derivatives thereof [0048]. Yang further discloses the edible food product beverage may include mineral salts, acidulants, sweeteners, buffering agents, stabilizing salts, flavorings and colorings [0046].
Yang’s disclosure of orange, pomegranate and strawberry juices meets the claim 8 limitation of “enriched with pomegranate and/or strawberry juice” and the claim 9 limitation of “enriched with orange juice.”
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the liquid nutritional composition comprising protein, juice and water of Johns with the orange, pomegranate and strawberry juices of Yang since both drawn to beverages comprising proteins and juice.
Regarding claims 8 (i) and 9 (i), Johns in view of Avila, Vestkorn, Food Insight, Yang, Connolly and Shibata discloses the plant protein combination of claim 1 (i). Johns further discloses in a liquid beverage the protein concentration may be from about 0.5% to about 7% by weight of the nutritional liquid beverage [0066]. Johns also discloses the liquid nutritional composition may be an emulsion, and the emulsion may have a density from about 1.085 g/mL to about 1.1 g/mL [0024].
Converting from % by weight of the protein to % w/v of the protein using the density of the liquid nutritional composition disclosed by Johns, results in a protein content of 0.54% - 7.7% w/volume of protein in the liquid nutritional composition disclosed by Johns. This encompasses the claim 8 and 9 range of 3.0-4.2% w/v in the plant based protein drink. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Regarding claims 8 (ii) and 9 (ii), as discussed above Johns in view of Yang discloses the orange juice of claim 9 and the strawberry and/or pomegranate juice of claim 8.
Regarding the degree of reconstitution of the fruit juice and the amount of reconstituted fruit juice in the final product, the prior art references do not specify the proportions of the components: water, juice concentrate and reconstituted juice. The proportions of those components are conventional result effective variables in the food art. In other words, one of ordinary skill in the art would have varied the amounts of water, juice concentrate and reconstituted juice depending on the intensity of juice flavor and dilution desired for the mixture. As such, the proportions of the components recited in claim 8 (ii) and claim 9 (ii) are merely obvious variants of the prior art. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding claims 8 (iii) and 9 (iii), Johns discloses the liquid nutritional composition may comprise vitamins and minerals [0049], [0086] and [0087].
Johns does not disclose the vitamins and minerals in a premix nor the quantity of vitamins and minerals.
Connolly, in the field of stabilizing proteins in beverages, discloses a protein-fortified juice beverage which includes a vitamin and mineral premix at 0.14% weight (col 5, lines 38-53).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the vitamins and minerals of Johns with the premix and quantity of vitamins and minerals of Connolly since both are drawn to the preparations of protein and juice based beverages.
Connolly’s 0.14% weight vitamin and mineral premix is approximately 0.14% wt/volume, when the density of the beverage is near 1 g/mL as in Johns [0024]. Connolly’s 0.14% wt/v of vitamin and mineral premix is near the claim 8 (iii) and claim 9 (iii) range of 0.15%-0.16% w/v. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. MPEP 2144.05 I.
Regarding claims 8 (iv) and 9 (iv), Johns discloses the liquid nutritional composition can comprise option ingredients including colorants and flavors [0081].
Johns does not disclose the quantity of the colorant and flavors.
Regarding the amount of colorant and flavoring agent, the prior art references do not specify the proportions of the components. The proportions of these components are conventional result effective variables in the food art. In other words, one of ordinary skill in the art would have varied the amounts of flavoring agent and colorant depending on the intensity of flavor and color desired for the mixture. As such, the proportions of the components recited in claim 8 (iv) and claim 9 (iv) are merely obvious variants of the prior art. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Claims 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Johns in view of Avila, Vestkorn, Food Insight, Yang, Connolly and Shibata as applied to claim 1 above, and further in view of Kraai (2017, The Benefits of Reverse Osmosis Water, https://kraaiwelldrilling.com/the-benefits-of-drinking-reverse-osmosis-water/).
Regarding claim 12, Johns in view of Avila, Vestkorn, Food Insight, Yang, and Connolly discloses plant based protein drink as discussed above in the claim 1 rejection.
Regarding points (a) and (b) of claim 12, these are product by process claim limitations, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. MPEP 2113 I.
Johns in view of Avila, Vestkorn, Food Insight, Yang, Connolly and Shibata discloses the plant based protein source, the inclusion of water, 12-14% reconstituted fruit juices, vitamin and mineral premix and additives as discussed above in the claim 1 rejection.
Johns discloses the carbohydrate mineral slurry for preparing the beverage is added to water [0049] and the carbohydrate may be sucrose [0072], which meets the claim limitation of a pre-formulated sugar syrup.
Johns discloses the composition is heat treated and homogenized, diluted to a ready-to-feed liquid and then aseptically packaged [0050].
Johns does not disclose the RO water.
Kraai, in the field of reverse osmosis water, discloses RO water has reduced levels of contaminants (p2) and tastes better (p5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the RO water of Kraai for the water of Johns because the RO water has reduced levels of contaminants and tastes better.
Regarding claim 13, Johns in view of Avila, Vestkorn, Food Insight, Yang, Connolly and Shibata discloses plant based protein drink as discussed above in the claim 1 rejection. As discussed in the claim 1 rejection, Johns discloses the protein in the liquid nutritional composition may be cereal (rice) or vegetable protein and combinations thereof [0064]. Johns further discloses in a liquid beverage the protein concentration may be from about 0.5% to about 7% by weight of the nutritional liquid beverage [0066]. Johns also discloses the liquid nutritional composition may be an emulsion, and the emulsion may have a density from about 1.085 g/mL to about 1.1 g/mL [0024].
Converting from % by weight of the protein to % w/v of the protein using the density of the liquid nutritional composition disclosed by Johns, results in a protein content of 0.54% - 7.7% w/volume of protein in the liquid nutritional composition disclosed by Johns. This encompasses the claim 13 range of 3.2-5.8% w/v protein in the plant based protein drink. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05 I.
Response to Arguments
Applicant's arguments filed 26 June 2025 have been fully considered. To the extent they apply to the above rejections they are not persuasive.
Applicant argues none of Johns, Avila, Vestkorn, Food Insight, Yang or Connolly teach the newly amended claim limitation of the plant based protein drink has a BRIX value ranging from 12.5-14.5 Bx. Remarks pp8-10.
This argument is not persuasive. None of the above references are relied upon to disclose the instantly claimed BRIX value of the plant based protein drink.
Applicant argues improper hindsight analysis for the current rejection. Remarks pp10-11.
This argument is not persuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
In the instant case, beverages with the claimed types of plant proteins, vitamins, minerals, juices, additives and BRIX values were known in the art before the filing date of the claimed invention.
Conclusion
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/C.L.G./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793