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 .
Claim status
The examiner acknowledged the amendment made to the claims on 01/26/2026.
Claims 12, 19-20, 24-25 and 34 are pending in the application. Claims 12, 25 and 34 are currently amended. Claims 13-15, 26 and 28-33 remain cancelled. Claim 17 is newly cancelled. Claims 19-20 and 24 are previously presented. Claims 12, 19-20, 24- 25 and 34 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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 34 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 34 recites that “wherein said aqueous food composition is for use as a food composition, as a feed composition or as a pharmaceutical composition” in line 5-6, then recites that “wherein said aqueous food composition is an oral beverage”. It is thus unclear what the aqueous food composition is about. Appropriate correction is required.
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.
Claims 12, 19-20, 24-25 and 34 rejected under 35 U.S.C. 103 as being unpatentable over Sherwood US Patent Application Publication No. 2007/0148307 A1 (hereinafter referred to as Sherwood) in view of Akinruli US Patent Application Publication No. 2009/0196955 A1 (hereinafter referred to as Akinruli), and Griffity US Patent No. 4,988,513 (hereinafter referred to as Griffity) and evidenced by Henson US Patent No. 6,440482 B1 (hereinafter referred to as Henson).
Regarding claims 12, 19-20, 24-25 and 34, Sherwood teaches a protein beverage concentrated powder comprising pea protein (0090), and one or more preservative such as sorbate and benzoate (0065). Further, Sherwood teaches that the protein beverage concentrated powder is made by mixing individual ingredient in powder form (0097), and that the protein beverage concentrated powder can be diluted with a liquid such as water, fruit juice, alcohol, milk, etc., to prepare a beverage (0093).
The protein beverage concentrated powder as disclosed by Sherwood reads on the limitation about the rehydratable food composition, and the beverage obtained by dilution with water reads on the limitation about the aqueous food composition that is an oral beverage.
Where Sherwood teaches diluting the protein beverage concentrate with water, juice, etc. to make a beverage, one of ordinary skill in the art would have been motivated to add water or juice of any temperature to the protein beverage concentrated powder depending on personal preference (e.g., hot drink, cold drink, or room temperature drink). An aqueous food composition in the form of aqueous suspension of solid pea protein particles is necessarily formed by the prior art process, since the actual step as disclosed by prior art is the same as the process of claim 25.
Sherwood teaches a preservative such as sorbate and benzoate, but is silent regarding the preservative being a mixture of sodium metaphosphate and potassium metaphosphate or the amount thereof, in which potassium metaphosphate is a compound of formula (KPO3)n, wherein n is 8,000-12,000. Sherwood is further silent regarding the weight percentage of potassium metaphosphate by weight of the protein beverage concentrated powder or by weight of the sum of potassium metaphosphate and sodium metaphosphate.
Akinruli teaches that sorbate, benzoate, sodium metaphosphate (e.g., sodium polyphosphate), potassium metaphosphate (e.g., potassium polyphosphate) or the mixture of sodium polyphosphate and potassium polyphosphate is suitable for use as a preservative in a beverage (0005; 0012; 0029 and 0031). Akinruli further teaches that the beverage comprises 0.08-0.12% metaphosphate (e.g., 800-1200 ppm polyphosphate, 0012).
Griffity teaches that potassium polyphosphate having a DP of 400-20,000 (e.g., Kurrol’s salt, which is known to have a formula of (KPO3)x with x being 400-20,000 as evidenced by Henson column 2, line11-13) is a suitable food preservative (column 1, line 61-62).
Both Sherwood and Aninruli are directed to beverages that comprise a preservative, and where Aninruli teaches that potassium polyphosphate can be used a preservative, Griffity establishes that potassium polyphosphate (e.g., (KPO3)x ) that has a DP of 400-20,000 can be used a food preservative. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Sherwood by substituting the mixture of sodium polyphosphate and potassium polyphosphate (e.g., (KPO3)x ) having a DP of 400-20,000 for sorbate or benzoate as a preservative in the beverage of Sherwood with reasonable expectation of success, for the reason that prior art has established that sorbate, benzoate and mixture of sodium polyphosphate and potassium polyphosphate having a DP of 400-20,000 are functional equivalents for use a food preservative. See MPEP 2144.06 II. Substituting equivalents known for the same purpose is prima facie obvious.
On the amount of metaphosphate (e.g., polyphosphate) in the rehydratable composition as recited in claims 19-20, Akinruli teaches that the beverage comprises 0.08-0.12% metaphosphate (e.g., 800-1200 ppm polyphosphate, 0012) and Sherwood teaches that 10-20 ounces of water is mixed with 14.25 gram of dry mix to make a beverage (0181) , thus the amount of the polyphosphate by eight of the dry mix is 1.7- 4.8% (calculation: 10-20 ounces of water is ~280-60 g, then weight of the drink is (280-560) g+14.25 g = 294.25-574.25 g, and the amount of polyphosphate is (294.25-574.25) g x 0.08-0.12% =(0.24- 0.68) g, and the amount of polyphosphate by weight of the dry mix is (0.24- 0.68) g/14.25 = 1.7- 4.8%).
On the amount of potassium metaphosphate by weight of the dry weight of the composition and by weight of (potassium metaphosphate + sodium metaphosphate) as recited in claims 12 and 24, where Akinruli teaches that both potassium polyphosphate and sodium polyphosphate are suitable preservatives in a beverage, and the two can be combined in a beverage, one of the ordinary skill in the art would have been motivated to manipulate the ratio the two in the combination such that they could effectively prevent spoilage and maintain freshness of the beverage, provided that the total amount of the polyphosphate is 1.7-4.8% by weight of the dry mix. Alternatively, where Akinruli teaches 0.08-0.12% metaphosphate blend of sodium and potassium, the proportion of each in the metaphosphate blend is reasonably 0-100% within 0.08-0.12% % thus encompassing the ranges as recited in the claim. As such the proportions as recited in claims 12 and 24 are merely obvious variants of the prior art.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Sherwood US Patent Application Publication No. 2007/0148307 A1 (hereinafter referred to as Sherwood) in view of Akinruli US Patent Application Publication No. 2009/0196955 A1 (hereinafter referred to as Akinruli).
Regarding claim 25, Sherwood teaches a protein beverage concentrated powder comprising pea protein (0090), and one or more preservative such as sorbate and benzoate (0065). Further, Sherwood teaches the protein beverage concentrated powder is made by mixing individual ingredient in powder form (0097), and that the protein beverage concentrated powder can be diluted with a liquid such as water, fruit juice, alcohol, milk, etc., to prepare a beverage (0093). A beverage as disclosed by prior art reads on the limitation about the aqueous food composition that is not for enteral nutrition.
Where Sherwood teaches diluting the protein beverage concentrate with water, juice, etc. to make a beverage, one of ordinary skill in the art would have been motivated to add water or juice of any temperature to the protein beverage concentrated powder depending on personal preference (e.g., hot drink, cold drink, or room temperature drink). An aqueous food composition in the form of aqueous suspension of solid pea protein particles is necessarily formed by the prior art process, since the actual step as disclosed by prior art is the same as the process of claim 25.
Sherwood teaches a preservative such as sorbate and benzoate, but is silent regarding the preservative being mixture of sodium metaphosphate and potassium metaphosphate.
Akinruli teaches that sorbate, benzoate, sodium metaphosphate (e.g., sodium polyphosphate), potassium metaphosphate (e.g., potassium polyphosphate) or the mixture of sodium polyphosphate and potassium polyphosphate is suitable for use as a preservative in a beverage (0005; 0012; 0029 and 0031).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Sherwood by substituting the mixture of sodium polyphosphate and potassium polyphosphate for sorbate or benzoate as a preservative in the beverage of Sherwood with reasonable expectation of success, for the reason that prior art has established that sorbate, benzoate and mixture of sodium polyphosphate and potassium polyphosphate are functional equivalents in preserving a beverage. See MPEP 2144.06 II. Substituting equivalents known for the same purpose is prima facie obvious.
Response to Arguments
Applicant's arguments filed 01/26/2026 have been fully considered and the examiner’s response is shown below:
The examiner note that Nishitani in view of Griffity and Terp is no longer relied upon in the instant office action, rendering the arguments about the documents on pages 4-7 of the Remarks moot.
Regarding the 35 USC 103 rejection over Sherwood in view of Akinruli, applicant argues that one of ordinary skill in the art seeking substances to improve texture would not have considered using the phosphate described in Akinruli on the basis of Sherwood, as both documents deal with phosphates as preservatives.
The arguments are considered but found unpersuasive, for the reason that the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). In the instant case, one skilled person will modify Sherwood with Akinruli because prior art has established that sorbate, benzoate and mixture of sodium polyphosphate and potassium polyphosphate are functional equivalents in preserving a beverage. See MPEP 2144.06 II. Substituting equivalents known for the same purpose is prima facie obvious.
Applicant argues on pages 8-10 of the Remarks that the instant specification discloses a synergy between sodium and potassium metaphosphate, which is unexpected. In particular, applicant asserts that the synergy between sodium and potassium metaphosphate across the range of 0.0025-8% potassium metaphosphate and in the K /(K +Na) range of 5-60%.
The examiner disagrees. None of the examples alone or in combination has shown that a synergy exists in the K /(K +Na) range of 5-60% wherein the amount of potassium metaphosphate is 0.0025-8%. For example, the Table presented in the Remarks which is a reproduction of Example 6 merely shows that samples with K /(K +Na) at 10%, 20%, 35% and 50% has superior sensory score (e.g., 2) to those with K /(K +Na) at 1%, 2%, 80% and 100% (e.g., 3 to 5). How would one could jump to the conclusion that such a showing has demonstrates that K /(K +Na) range of 5-60% is critical? Would one expect a K /(K +Na) at 5% or 60% will be as good as that at 10% or 50%? Further, the examiner notes that samples of K /(K +Na) at 10%, 20%, 35% and 50% do not even have the same potassium metaphosphate concentrations by weight of the dry mix to begin with, which further complicates the situation since there are now two variables. A reasonable comparison is to fix the amount of potassium metaphosphate to a certain value within 0.025-8% and vary the K /(K +Na) to show that a ratio of 5-60 will result in a superior result to those that is outside of 5-60.
Applicant is further invited to pages 14-15 of the office action issued 09/24/2025 for the examiner’s reasoning that applicant has not provided sufficient data to demonstrate a synergy between potassium metaphosphate and sodium metaphosphate.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/CHANGQING LI/ Primary Examiner, Art Unit 1791