DETAILED ACTION
Background
The amendment dated March 25, 2026 (amendment) amending claim 20 has been entered. Claims 20, 22-23, 25 and 27-32 as filed with the amendment have been examined. Claims 1-19, 21, 24 and 26 have been canceled.
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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 25, 2026 has been entered.
Information Disclosure Statement
The references 2, 4 and 8-16 cited as non-patent literature in the information disclosure statement filed May 08, 2026 have not been considered as the citation of each of these references fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each such reference listed that is not in the English language. The references have been placed in the application file, but the information referred to therein has not been considered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 20, 22-23, 25 and 27-32 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Specifically, the inventors did not have possession of the feature recited in claim 20, at line 8, as a “wherein no step is taken to emulsify” because the specification does not disclose a plant nut milk wherein emulsifying by any means is avoided or excluded. Ample evidence supporting this position includes the following:
US 2022/0079187 A1 to Stiles et al. (Stiles), of record, at [0114] discloses that compositions defining a plant milk have droplet sizes of from 1 to 100 nm and are metastable, and is a description that characterizes an emulsion;
The instant specification at [0013] on page 9 discloses homogenization to make plant milks;
The aggregation prevention Examples at [0034] of the instant specification disclose enzyme treating Rude Health almond milk, a commercial product made by blending which the Office considers to be a form of making an emulsion (see Pure Almond, downloaded on May 22, 2026 from https://rudehealth.com/products/ultimate-almond), (Pure Almond);
The aggregation prevention Examples at [0052] of the instant specification disclose enzyme treating Rude health peanut milk a commercial product made by blending which the Office considers as a form of making an emulsion (see “Rude health launches peanut drink”, new & now, May 30, 2018 downloaded on May 22, 2026 from https://hipandhealthy.com/rude-health-launches-peanut-drink/); and,
The aggregation prevention Examples at [0052] of the instant specification disclose enzyme treating Plenish cashew milk, a commercial product made by blending which the Office considers as a form of making an emulsion (see “Cashew Drinks – Plenish Drinks”, downloaded on May 22, 2026 from https://www.plenishdrinks.com/collections/cashew-drinks), (Cashew Drinks);
A review of the two evidentiary references from 2026, Pure Almond and Cashew drinks, reveals that the products disclosed therein appear to be substantially the same thing, respectfully, as the almond and cashew milks disclosed in the instant specification.
The Office considers an emulsion as claimed to include any milk that is blended or homogenized.
Further, the instant specification fails to draw any distinction that in any way defines or discloses a milk that is not emulsified.
Claims 22-23, 25 and 27-32 are rejected as depending from a rejected base claim.
The Office would consider language to the effect that a plant nut milk contains no emulsifier or thickener/dispersant as having a proper written description. See the instant specification at [0010] and [0012].
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.
Claims 20, 22-23, 25 and 27-32 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.
In claim 20, at line 8, the term a “wherein no step is taken to emulsify” is indefinite because it is not clear what is meant by a plant nut milk wherein no step is taken to emulsify the milk. The product of Example 1 at [0034] of the instant specification starts from a Rude Health almond milk which appears to be a homogeneous, metastable emulsion as disclosed at [0114] of Stiles as having uniform droplets of almond oil or fat in sizes of from 1 to 100 nm and dispersed in water or an aqueous phase. Also, the homogeneous appearance of the Rude Health almond milk suggests that the plant nut milk has been homogenized which would mechanically emulsify it as disclosed in Stiles at [0113].
Claims 22-23, 25 and 27-32 are rejected as depending from a rejected base claim.
The Office would consider language to the effect that a plant nut milk contains no emulsifier or thickener/dispersant as being reasonably clear and definite. See the instant specification at [0010] and [0012].
Claim Rejections - 35 USC § 103
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.
Claims 20, 22-23, 25 and 27-32 are rejected under 35 U.S.C. 103 as being unpatentable over US patent application publication number US 2022/0079187 A1 to Stiles et al. (Stiles), of record, as evidenced by “Rude health launches peanut drink”, new & now, May 30, 2018 downloaded on May 22, 2026 from https://hipandhealthy.com/rude-health-launches-peanut-drink/ (Peanut drink) and CN107325977 A to Huang et al. (Huang).
References to Huang refer to its Clarivate machine translation, a copy of which has been provided with this Office action.
Regarding instant claims 20, 23 and 25, Stiles at Example 2 and [0175]-[0176] discloses a method of preparing (“providing”) a non-dairy analogue (“plant milk”) having 3 wt% protein (claim 23) and mixing it with a coffee (claim 25) beverage (“liquid beverage or food”) having a pH of about 5.15 and heated to a temperature of 65 to 70 °C to obtain a mixture without aggregation of proteins in the plant milk, wherein the obtained mixture contains 2 g of plant protein. Stiles at [0173] discloses treating the plant protein in the plant milk with a protein deamidase at 45-50 °C; and, at Example 4 at [0180]-[0182] and the accompanying Table, Stiles discloses formulating the plant milk with the protein and homogenizing it to provide the plant milk at a pH of 8.3 comprising the protein, water, sunflower oil, potassium hydroxide, sugar and from 0.01 to 0.05 wt% gum. See Figure 1 and Table 2 of Stiles showing no aggregation or feathering upon the mixing of the plant milk with coffee. The plant milk of Example 4 of Stiles includes no emulsifier.
The Office considers an emulsifier as a molecule comprising both hydrophilic and hydrophobic groups, such as a lecithin or a diglyceride. And the Office considers gums to be polysaccharides which lack a hydrophobic group and are considered as thickeners.
Further, the Office considers the claimed mixture having a pH of from 5 to 7 to include the mixture containing 2g protein made from the plant milk of Example 4 of Stiles (protein content 3 wt%, pH 8.3 or pOH (14 minus 8.3 or) pOH 5.7, [OH-]= 10-5.7 M) and from the coffee in Example 2 of Stiles (pH 5.15, [H+] = 10--5.15 M) as in Stiles at [0175]. To give a mixture with 2 g protein, the mixture comprises 100 ml of the coffee (pH 5.15, total moles H+ of 10--5.15 M X 0.1 L or 7.08 X 10-7 mol) and 200 ml of the plant milk (pH 8.3, total moles OH- of 10--5.7 M X 0.2 L or 3.98 X 10--7 mol). The mixture comprises 7.08 X 10-7 mol H+ minus 3.98 X 10-7 mol OH- or 3.10 X 10-7 mol excess moles H+ in a total volume of 0.3 L, to give an [H+] of 1.03 X 10-6 mol. This molarity of H+, in turn corresponds to a pH or -log10[H+] or -log10[1.03 X 10-6 mol] or a pH for the mixture of Stiles of 5.98.
Further still and regarding instant claim 32, Stiles does not disclose an example of deamidating a plant nut milk or an example of a method wherein the nut as a raw material of the plant nut milk is one or two or more nuts selected from almonds, cashew nuts, hazelnuts, pistachios, and peanuts. However, at [0041] Stiles discloses that suitable nondairy analogues or plant milks comprise milks from hazelnut, almond or peanut. Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Stiles to deamidate any of the hazelnut, almond, peanut or macadamia plant nut milks because Stiles at [0076] discloses the claimed plant nut milks as suitable deamidation substrates to make them more dispersible or soluble in water.
Yet further regarding instant claim 20, Stiles does not disclose an example of a plant nut milk wherein no step is taken to emulsify the plant nut milk; and does not give an example of a plant nut milk that is not somehow emulsified. However, at [0023] Stiles discloses generally deamidated plant protein in water without disclosing therein any additives; and, further at [0111] Stiles discloses thickening agents as optional, thereby including plant milk with no polysaccharide thickener. In addition, the plant milk of Stiles appears to be made in the same manner as Peanut drink and a liquid containing deamidated plant protein which can be emulsified and dispersed in water without any additives as in Huang at page 14, 2nd to last paragraph.
The plant nut milk of Stiles appears to be substantially the same thing as the plant nut milk as deamidated almond milk in the Examples at [0034] and [0052] of the instant specification. Accordingly, absent a clear showing as to how the plant nut milk Stiles differs from the claimed plant nut milk, the Office considers to be a plant nut milk of Stiles at [0041], [0023] and [0111] wherein no step is taken to emulsify it as in claim 20. See MPEP 2112.01.I.
Regarding instant claims 27–28, the enzyme used in Example 2 of Stiles is a Amano PG 500 deamidase (see [0173]) which is believed to be derived from Chryseobacterium proteolyticum or at least to be the same deamidase as that derived from Chryseobacterium proteolyticum. Further, Stiles discloses a Chryseobacterium proteolyticum deamidase at [0049]. Absent a clear showing as to how the Example 2 deamidase of Stiles differs from that of the Chryseobacterium proteolyticum deamidase, as claimed, the Office considers the Amano PG 500 deamidase of Example 2 of Stiles to be a Chryseobacterium proteolyticum deamidase. See MPEP 2112.01.I.
Regarding instant claims 29-31, Stiles at [0055] discloses a method of mixing a deamidated nondairy analog of nut milk (at [0041]) with a hot aqueous composition (at Example 2 a coffee) wherein the deamidase treated plant nut milk has not been heat treated previously with a protein deamidase. Further, at [0099] Stiles discloses a method for preparing a non-dairy analog beverage comprising (at [0100] – [0101]) treating the non-dairy analog as an unmodified substrate comprising a sterilized or protein deamidase, followed by (at [0103]) heat treating the non-dairy analog beverage.
Response to Arguments
The positions taken in the remarks accompanying the amendment dated March 25, 2026 (Reply) have been fully considered but they are not found persuasive for the following reasons:
The position taken in the Reply regarding the written description and alleging that the instant specification at [0010] distinguishes a coffee whitener from a plant milk and that the materials, compositions and methods of making a coffee whitener include homogenizing or adding additives to the composition them must all differ from and exclude a plant milk and any method of making it is not found persuasive. Respectfully, the case of In re Johnson, 558 F.2d 1008, 1019, 194 USPQ 187, 196 (CCPA 1977) is not on point. The instant specification does not disclose a plant milk and a coffee whitener as alternatives to each other. Rather, the instant specification discloses a plant milk and excludes a coffee whitener wherein there is only the plant milk left to negate, and doing so would leave behind no alternatives, or nothing at all. In re Johnson is also not applicable to the negating of alternative methods disclosed for making a coffee whitener unless those methods are also alternative methods of making a plant milk. However, in such a case one would still have to keep one of the alternative methods or they have disclaimed the whole disclosure. Notwithstanding all of that, the instant specification contradicts Applicants’ position by (at [0013] on page 9) disclosing homogenization or mixing to make plant milks, and (in the Examples at [0034] and [0052]) by disclosing what appear to be homogenized or blended commercially available plant nut milks, all of which are homogeneous dispersions and are indistinguishable from the metastable emulsions disclosed in Stiles at [0113].
Regarding the position taken in the Reply at page and indefiniteness, respectfully the amendment to the claims does not make the claims clear. As written, the claims are now confusing because they contradict Applicants own specification and all of the available evidence on the record. The actual invention disclosed at [0013], [0032] and [0054] of the instant specification discloses only examples of mechanically emulsified plant nut milks. It is not clear what can be a plant nut milk that is not subject to a step taken to emulsify.
Regarding the positions taken in the Reply and Stiles alleging that Stiles cannot render the claims obvious because it requires a step taken to emulsify, respectfully the plant nut milk as claimed and that of Stiles at [0041], [0023] and [0111], and in particular the plant milk made in Example 4 of Stiles that does not include any emulsifier or thickener, appear based on all the evidence on the record to be substantially the same thing. The Reply provides no clear showing as to how the claimed plant nut milk differs from that of Stiles. Rather, the Reply resorts to unsupported arguments that the claimed plant nut milk is not made by any step taken to emulsify, even though all starting plant nut milks disclosed appear to be homogenized or blended to give a homogeneous dispersion. Arguments citing conclusions drawn from the instant specification and not based on evidence, just like arguments of counsel cannot take the place of evidence on the record. See MPEP 716.01(c).II.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/ Examiner, Art Unit 1791
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