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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 9/2/25 has been entered.
Claim 1 is amended and claims 29-30 are added. Claims 1,3-4,29-30 are pending.
The previous 112 first paragraph and second paragraph rejections are withdrawn due to the amendment.
Applicant continues to argue the restriction. The restriction requirement was made final in the office action mailed on 9/5/24. The different inventions lack corresponding technical features. Applicant argues each of the claims of Group II are subcombination and each of the claims of Group III and IV are especially adapted to obtain the composition of claim 1. The claims are not subcombination or especially adapted. The claims of the groups are different inventions because the claims of all the groups do not have the same technical features. The common feature ,shared by the different inventions, of fruit preparation comprising whey protein and fruit ingredient does not make a contribution over the prior as Pedersen (2016/0262412) discloses the combination. Claims 5-6,7-8,10-12,14-15,18-20,24-27 remain withdrawn.
Claim Rejections - 35 USC § 112
Claims 1,3-4 and 29-30 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) contains 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.
In the amendment, applicant amends claim 1 to recite “ wherein the fruit preparation forms a viscous gel, wherein the fruit pieces are in suspension in the gel”. This limitation is not supported. Applicant points to page 13 table 1, table 4. However, none of the description in table 4 discloses that the fruit pieces are in suspension in the gel Claim 29 is also not totally supported. Applicant points to table 1 example 8. The example discloses “ 92 degrees C for 3 minutes”. There is no disclosure of “ about 92”. The term “ about” cannot be added unless it’s specifically disclosed because the scope is different. The same problem is noted for claim 30 for “ about 1.41”. There is no disclosure of “ about”
Claim Rejections - 35 USC § 103
Claim(s) 1,3-4,29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pedersen ( 2016/0262412) in view of Evans ( WO 2010/105014).
For claims 1,4, Pedersen discloses a high protein fruit preparation comprising fruit ingredient, including fruit pieces in amount of at least 10%, at least 20, at least 30, at least 2% whey protein, preferably at least 6%, more preferably at least 8%, water, 5-70% sugar and at most 5% thickening agent which is considered an additive. The ingredients are disclosed to be optional because they may be added; they are not required. The fruit preparation has a pH in the range of 3-5 and a viscosity of 500-4000cP. Example 4 discloses several fruit preparation; no 2 comprises 33% strawberry, about 28% sucrose, about 28% water and 10% protein. Pedersen discloses the high protein fruit and/or vegetable preparation is preferably pumpable but may still have a slightly gelly and/or viscous character which allows it to keep whole fruit or fruit pieces suspended during storage. ( see also paragraphs 0215-0217,0222,0244,0290,0300,0303,0304)
For claim 3, Pedersen discloses the fruit preparation comprises organic acid in the range of .1-5%. ( see paragraph 0293,0295)
For claim 29, Pedersen discloses heating the packaged preparation in the temperature range of 70-150 degrees. Thus, the product is pasteurized. ( see paragraph 0210)
For claim 30, Pedersen discloses the viscosity in the range of 500-4000cP. The claimed 1.41 Pa*s is 1410cP which falls within the range in Pedersen. ( see paragraph 0300)
The recitation of less than 8% water, up to 59% sugar and up to 10% additives include 0 amount of additive, water and sugar. In any event, Pedersen discloses sugar and additives falling within the ranges claimed. The amounts of fruit ingredient and protein, the pH and the viscosity also fall within the claimed ranges. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir.1990). It would have been obvious to vary the amount of water depending on the fruit ingredient used and the fluidity desired. For instance, if fruit juice is used, less water will be required versus solid fruit ingredient or if a very viscous beverage is desired versus a more fluid one. Determining amount of water would have been within the skill of one in the art.
Pedersen does not disclose the consistency, adding Ca in the amount as in claim 1.
Evans discloses composition comprising monatin and calcium. Evans teaches that the calcium enhances the perceived sweetness of the composition as compared to composition having the same amount of monatin and lacking calcium. The food product comprising the composition includes jam, jelly , fruit product, fruit preparation etc… The amount of calcium added is at least 50ppm ( .005%), at least, 700ppm, at least 1600ppm etc… An amount of calcium added to the composition may depend in part on the type of food product and whether the food product has any intrinsic calcium. ( see paragraphs 0007, 00038)
Since the fruit preparation disclosed in Pedersen has a viscosity falling within the claimed range, it is expected the consistency of the preparation is also within the claimed range because the viscosity of the composition affected its consistency. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the consistency to know how fluidity of the preparation. The temperature at which the viscosity and consistency are measured are processing parameter which does not determine the patentability of the composition. Pedersen discloses in paragraph 0072 that the sweeteners added include monatin. Pedersen also discloses in paragraphs 0353-0358 fruit preparation containing fruit, whey protein and one or more additional ingredients. As shown in Evans, calcium enhances the perceived sweetness of composition comprising monatin. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add calcium as taught in Evans when monatin is used as the sweetener in the Pedersen preparation to enhance the sweetness perception, especially in view of Pedersen teaching that addition ingredients can be added. One of ordinary skill in the art would have been further motivated to add calcium to also enhance the nutrition of the preparation because Ca is an essential mineral. It would have been obvious to one of ordinary skill in the art to follow the guideline of Evans for the amount and to adjust according to properties desired through routine experimentation. The claimed amount is equivalent to 801-2000ppm. The range is taught in Evans. As to the temperature of pasteurization, this is a difference in processing which does not determine the patentability of the product.
Response to Arguments
Applicant's arguments filed 9/2/25 have been fully considered but they are not persuasive.
In the response, applicant argues that the teaching of Pedersen is to increase the proportion of water in order to obtain a pumpable gel, whereas Pedersen does not have a requirement of maintaining fruit pieces in suspension, for which adding water as taught by Pedersen is clearly detrimental. This argument is not persuasive. Applicant had not pointed to any disclosure in Pedersen that states adding water is detrimental. Pedersen discloses the addition of water and shows in the examples that the amount of water can vary. It would have been obvious to one of ordinary skill in the art to determine the appropriate amount of water depending on the property desired. For instance, it would have been obvious to use less water when a very viscous beverage is desired versus a more fluid one. Determining amount of water would have been within the skill of one in the art. Pedersen specifically discloses in paragraph 0222, “ the preparation is preferably pumpable but may still have a slightly gelly and/or viscous character which allows it to keep whole fruit or fruit pieces suspended during storage”. This disclosures shows that Pedersen desires to have the fruit pieces in suspension in the gel. Applicant argues the claimed feature of fruit pieces in suspension in the gel is obtained also by adjusting the pasteurization temperature. The pasteurization temperature is a processing parameter which does not determine the patentability of the product. Furthermore, Pedersen discloses heating in the range of 70-150 degrees C. Pedersen also discloses the fruit pieces are in suspension in the gel.
Applicant points to the showing in the instant specification. The showing in the specification is inconclusive to show a causative effect of pasteurization and calcium amount with syneresis. There is no repeatable example. The showing is only for 1 amount of calcium and 1 temperature range. There is no evidence to conclude that the same end result will be obtained with all amounts of calcium in the claimed range. Furthermore, examples 4 and 8 differs more than just in temperature. The viscosity of example 4 is different from example 8. Also, there is no quantifiable amount to define between syneresis and slightly syneresis. Also, the showing is not against the prior art. Applicant argues neither Pedersen nor Evans provide any teaching or suggestion about the criticality of a corresponding pasteurization temperature. The showing does not establish the criticality of the pasteurization temperature. Furthermore, the claims are directed to a product. The pasteurization temperature is a processing parameter that does not determine the patentability of the product. Pedersen discloses the property of viscous gel with fruit pieces in suspension of the gel. Pedersen also discloses heating in the temperature range of 70-150 degrees C. Applicant further argues claims 29 and 30. The claims do not define over Pedersen. For claim 29, Pedersen discloses heating the packaged preparation in the temperature range of 70-150 degrees. Thus, the product is pasteurized. ( see paragraph 0210)
For claim 30, Pedersen discloses the viscosity in the range of 500-4000cP ( paragraph 0300). The claimed 1.41 Pa*s is 1410cP which falls within the range in Pedersen. The temperature at which the viscosity and consistency are measured are processing parameter which does not determine the patentability of the composition. The fruit pieces are in suspension in the gel as disclosed in paragraph 0222.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIEN THUY TRAN whose telephone number is (571)272-1408. The examiner can normally be reached Monday-Thursday.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
November 25, 2025
/LIEN T TRAN/Primary Examiner, Art Unit 1793