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
Applicant’s remarks and amendments, filed 3 December 2025 in response to the non-final rejection mailed 4 June 2025, are acknowledged and have been fully considered. Applicant’s amendments to the claims are acknowledged. The listing of claims filed 3 December 2025 replaces all prior versions and listings of the claims.
Claims 20, 22-24, 26-34, and 36-54 are pending. Claims 25 and 35 are canceled by Applicant’s amendment. Claims 20, 23, 24, 26, 27, 29-33, 36, 39, 43, 46, 48, and 51 are amended. Claims 20, 22-24, 26-34, and 36-54 are being examined on the merits.
Response to Amendment
Any previous rejection or objection not mentioned herein is withdrawn.
Applicant’s arguments and amendments, on page 7 of the reply filed 3 December 2025 with respect to the rejection of Claim 20 under 35 USC § 112(b) have been fully considered. The rejections of Claim 20 is withdrawn due to amendment of the claim.
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 20, 22-24, 26-34, and 36-54 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 20 recites the limitation “wherein the fat comprises one or more fatty acids comprising omega-6 and omega-3 with a ratio of the omega-6 to the omega-3 of 3:1 to 4:1,” and Claim 26 indicates that the one or more fatty acids are selected from the group consisting of sunflower oil, flax seed oil, medium chain triglyceride (MCT), and sunflower lecithin. Claims 27-34 place further limitations on these four fatty acids. This limitation is indefinite, however, because as indicated on page 9 of the response submitted on 3 December 2025, the Applicant indicates that MCT is not an omega-3 or omega-6 fatty acid. Additionally, it is noted that neither flax nor sunflower oils have the required omega-3 or omega-6 fatty acid ratio. Since the claim indicates that one or more of the fatty acids must comprise the claimed ratio, and none of the compounds of claims 26-34 comprise the indicated ratio, these limitations are unclear.
Based upon the wording of Claim 26 and for the sake of expediting prosecution, however, the limitation of the ratio of the omega-6 to the omega-3 of 3:1 to 4:1 is being interpretated as inclusive of the compounds of Claim 26.
Claim Rejections - 35 USC § 103
(grounds modified as necessitated by amendment)
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 20, 22-24, 26-34, 36-46, and 49-54 are rejected under 35 U.S.C. 103 as being unpatentable over Beverage Industry (Komplete Ultimate Meal Replacement Shakes, 2013, 5 pages) and Grubiak (How to choose a supplemental nutrition shake, March 2018, 15 pages) in view of Neal et al. (WO 2013/148685 A1).
The instant claims are as of record, drawn to a method of making a nutrition composition comprising combining and mixing steps wherein the composition is a liquid which is pasteurized or sterilized and comprises pea protein, water, a fat, brown rice syrup solid, and agave syrup.
Beverage Industry teaches a meal replacement shake (nutrition composition; liquid) comprising purified water (as required for instant Claims 20 and 50), organic brown rice syrup solids, organic blue agave, pea protein (intact pea protein), organic sunflower oil (fat; one or more fatty acids; as required for instant Claims 20 and 26), sunflower lecithin (one or more fatty acids comprising omega-6 and omega-3 with a ratio of the omega-6 to the omega-3 of 3:1 to 4:1; as required for instant Claims 30 and 31), organic inulin (prebiotic fiber; as required for instant Claims 36-38), a vitamin and mineral blend comprising vitamin E acetate (DL-alpha-tocopheryl acetate), niacinamide, zinc oxide, calcium pantothenate, pyridoxine hydrochloride, riboflavin, thiamine hydrochloride, vitamin A palmitate, folic acid, biotin, chromium picolinate, phytonadione, sodium molybdate, potassium iodide, and vitamin D ergocalciferol (vitamin D2; Beverage Industry, pages 1-2; as required for instant Claims 40 and 41), and concentrates or extracts (phytochemical extracts) comprising broccoli sprout, camu, tomato, acai, turmeric, garlic, basil, oregano, cinnamon, elderberry, chokeberry, raspberry, spinach, kale, brussels sprouts, green coffee extract (extracts of green arabica coffee bean), green tea, onion, apple, acerola, black currant, blueberry, and bilberry (Beverage Industry, pages 1-2; as required for instant Claims 20, 44, and 45).
Grubiak teaches supplemental nutrition shakes (nutrition composition; liquid; as required for instant Claim 20) that are free of common allergens including gluten, milk, wheat, soybeans, peanuts, tree nuts, fish, shellfish, and corn (Grubiak, page 10; as required for instant Claim 49) comprising brown rice syrup solids, organic agave syrup, organic pea protein (intact pea protein, as required for instant Claim 20) organic high linoleic sunflower oil (fat; fatty acid; as required for instant Claims 20 and 26-28), organic flax seed oil (as required for instant Claims 20 and 29), and medium chain triglycerides derived from coconut oil (fat; one or more fatty acids comprising omega-6 and omega-3 with a ratio of the omega-6 to the omega-3 of 3:1 to 4:1; Grubiak, page 11; as required for instant Claims 32 and 34).
Neither Beverage Industry nor Grubiak teach wherein the respective ingredients are mixed, combined, pasteurized, or sterilized; or wherein the nutritional composition comprises amino acids.
Neal et al. teach nutritional compositions including intact pea protein wherein the compositions are made utilizing protein-in-water slurries (pea protein slurry; as required for instant Claim 20, step (a)), protein-in-fat slurries (protein-fat slurry; as required for instant Claim 20, step (b)), and carbohydrate-mineral slurries (e.g., brown rice syrup solids, agave syrup, and minerals of instant Claim 41), which are blended (mixed) together (Neal et al., [0109]-[0110], page 31; as required for instant Claim 20). The nutritional products of Neal et al. are sterilized (aseptic) and placed in aseptic packaging (Neal et al., [0108], page 31; as required for instant Claims 20 and 22), and can comprise amino acids including L-cysteine and L-tryptophan (Neal et al., [0056], pages 16-17; as required for instant Claim 42).
Beverage Industry, Grubiak, and Neal et al. are relied upon for the reasons discussed above. If not expressly taught by the references, based upon the overall beneficial teaching provided by this reference with respect to the compositions disclosed therein, the adjustments of particular conventional working conditions (e.g., determining one or more suitable weight range of intact pea protein (Claim 23), protein composition (Claim 24), weight of fatty acids (Claim 27, 29-31, and 33), weight of prebiotic fiber (Claim 39), weight of vitamin and mineral blend (Claim 43), weight of phytochemical extract (Claim 46), and mixing times (Claims 51-54) in which to perform such a method arriving at the claimed composition), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the instant application to combine the teachings of Beverage Industry, Grubiak, and Neal et al. to arrive at the claimed invention. Beverage Industry and Grubiak both teach the claimed compositions and a skilled artisan would be able to apply the positive teachings of Neal et al. regarding mixing ingredients and aseptic sterilization, which improves mouthfeel and texture (Neal et al., [0112], page 32), as well as the inclusion of amino acids that can regulate metabolic pathways to improve health, growth, development, and reproduction (Neal et al., [0054], page 16). A skilled artisan could therefore combine the teachings of Neal et al. with the compositions of Beverage Industry and Grubiak with a reasonable expectation of success.
Claims 20, 22-24, 26-34, and 36-54 are rejected under 35 U.S.C. 103 as being unpatentable over Beverage Industry (Komplete Ultimate Meal Replacement Shakes, 2013, 5 pages) and Grubiak (How to choose a supplemental nutrition shake, March 2018, 15 pages) in view of Neal et al. (WO 2013/148685 A1) as applied to Claims 20, 22-24, 26-34, 36-46, and 49-54 above, and further in view of Singletary (Nutrition Today, 2016, 102-112).
The instant claims and teachings of Beverage Industry, Grubiak, and Neal et al. are as of record.
Beverage Industry, Grubiak, and Neal et al. do not teach wherein the composition further comprises rosemary extract.
Singletary teaches that rosemary extract is known to alleviate metabolic disorders such as obesity and diabetes and is a potent antioxidant (Singletary, page 107).
Singletary is relied upon for the reasons discussed above. If not expressly taught by the references, based upon the overall beneficial teaching provided by this reference with respect to the biological activity of rosemary extract, the adjustments of particular conventional working conditions (e.g., determining one or more suitable weight range of rosemary extract (Claim 48) to arrive at such a composition), is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan.
It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the instant application to include rosemary extract in the compositions taught by Beverage Industry and Grubiak made in the manner taught by Neal et al. A skilled artisan would have a reasonable expectation of success for inclusion of rosemary extract in a nutritional composition due to antioxidant effects and various biologically active phytochemicals with diverse health benefits (Singletary, Summary, page 110).
From the teachings of the reference, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 3 December 2025 have been fully considered but they are not persuasive.
Applicant argues that none of the cited references, alone or in combination, teach or suggests a method of making a liquid nutrition composition by combining and mixing the ingredients in the order of (a) to (e), however as described above, Neal teaches nutritional compositions including intact pea protein wherein the compositions are made utilizing protein-in-water slurries, protein-in-fat slurries, and carbohydrate-mineral slurries which are blended together, sterilized, and placed in aseptic packaging (Neal et al., [0109]-[0110], page 31; [0108], page 31). Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. See MPEP § 2144.04.
Applicant further argues that the fatty acids MCT oil, flax seed oil, and sunflower oil do not comprise a ratio of omega-6 to the omega-3 of 3:1 to 4:1. Claim 26, however, indicates that the one or more fatty acids comprising omega-6 and omega-3 with a ratio of the omega-6 to the omega-3 of 3:1 to 4:1 are selected from the group consisting of sunflower oil, flax seed oil, medium chain triglyceride (MCT), and sunflower lecithin. This implies that the fatty acids of Claim 26 are being defined as having a ratio of omega-6 to the omega-3 of 3:1 to 4:1. Applicant argues that none these fatty acids do not have the ratio, however, and therefore it is unclear what Applicant intended to claim. Based upon the wording of the claims and for the sake of expediting prosecution the limitation of the ratio of the omega-6 to the omega-3 of 3:1 to 4:1 is being interpretated as inclusive of the compounds of Claim 26.
Since both Grubiak and Beverage Industries teach compositions comprising the claimed fatty acids, and Neal et al. teach a method for making the compositions, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER L CAIN whose telephone number is (703)756-1318. The examiner can normally be reached M-Th 11:00am to 5:00pm EST.
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/J.L.C./Examiner, Art Unit 1655
/AARON J KOSAR/Primary Examiner, Art Unit 1655