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
2. Applicants’ arguments and amendments filed on 9/02/2025, have been fully considered. Examiner has considered a new secondary prior art by Vosters et al. WO 2016/010820 A1 to make new ground of rejection for the prior “Previously presented” claims in order to make better understanding and more clear office action. Therefore, the following action is non-final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 1-3, 5-12, 14, 16-21 are pending in this office action.
Claim 21 is independent claim.
Claims 12, 14, 16-20 have been withdrawn.
Claims 13, 15 are cancelled.
Claims 1-3, 5-11, 21 have been rejected.
Claim Rejections - 35 USC § 112
4. 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.
5. Claims 2, 3, 5-11 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.
6. Regarding claim 2, it is to be noted that both the alternate claim limitations of claim 21 (i) and (ii) is claimed in claim 2. However, claim 2 depends on claim 1. Claim 1 claims the method steps claiming only one of the alternate claim limitations of claim 21 (i). However, claim 2 which depends on claim 1 claims identical alternative claim limitations of claim 21 (i) and (ii). Claim 2 does not directly depend on claim 21. This makes claim 2 indefinite.
Regarding claim 3, similarly, it is to be noted that claim 21 claims claim 21 (ii) which is an alternative claim limitation of claim 21 and claimed in claim 3. However, claim 3 depends on claim 2 and claim 2 depends on claim 1 which claims only one of the alternate claim limitations of claim 21 (i).
This renders claim 3 indefinite. Therefore, a 112 second paragraph rejection is made for the claims 2, 3 and claims 5-11 which depend on claim 3.
Claim Rejections - 35 USC § 103
7. 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.
8. 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.
9. 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.
10. Claim(s) 21, 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Angelides (US 2012/0231431) in view of NPL Basics (Applicants submission of NPL prior art as filed on 4/22/2022]) and as evidenced by NPL Sewaandi et al. and as evidenced by NPL Water intake (SEE at least under Healthline, page 2).
11. Regarding claims 21 and 1-2, Angelides et al. discloses that instructions to manage diabetes are available ([0056], at least on Table 6, page 5 first two lines and page 6 e.g. “health care) to follow dietary regimen which includes a serving size which includes fruit and lots of water (page 6 lines 7-8, 12) and a serving of carbohydrate contains 15 grams from the list of carbohydrates which includes fruit also (page 7 last 20 lines). Angelides also discloses that 3-4 servings of carbohydrate in each meal which contains 3 meals in a standard meal plan for a day (page 8 lines 1-10). Angelides also discloses that healthy eating includes consuming a variety of foods from each group (Angelides at page 8 line 6). Fruit can be one group from carbohydrate as a serving size contributing 15 grams approximately and other carbohydrates may include grains, vegetables etc. (page 7, sixth line from bottom).
Angelides is silent specifically about “natural sugar from 3 g to 12 g” from fruit as claimed in claim 21.
NPL Basics discloses that fruit is the source of carbohydrate containing natural sugar and it can provide one serving size which is a portion of the meal and it provides balanced meal (at least on page 2 upper part, page 3, upper right side, page and page 5, under “Plate Method at Breakfast).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Angelides with the teaching of NPL Basics to consider fruit as one serving size carbohydrate in order to provide source of natural sugar in order to have a portion of the meal and it provides balanced meal (at least on page 2 upper part, page 3, upper right side, page and page 5, under “Plate Method at Breakfast).
However, Angelides et al. in view of NPL Basics et al. do not disclose how much simple sugar is in the total carbohydrate (sugar) in fruit.
12. Regarding the above claim limitation of “natural sugar from 3 g to 12 g” Angelides discloses that one serving of carbohydrate is 15 gm which can be from fruit also (at least in 11th line and sixth line from bottom of page 7). It is known (any google search) and also as evidenced by NPL Sewaandi et al. that fruits have large amount of simple sugar in the total sugar (carbohydrate) content (at least pages 8, 9, Tables 1, 2 , SEE Mango as an example).
Therefore, it is within the skill of one of ordinary skill in the art to consider one serving of desired 15-gram carbohydrate source containing amount of fruit (in Angelides et al., 11th line and sixth line from bottom of page 7) which will provide the amount of simple sugar in the claimed range between 3-12 gm in “a serving size”. The amount of simple sugar in 15 gm carbohydrate containing fruit depends on type of fruit etc. which is optimizable.
Absent showing of unexpected results, the specific amount of simple sugar in the 15 gm carbohydrates containing fruit to satisfy the requirement of 3-12 gm simple sugar as claimed is not considered to confer patentability to the claims. As the amount of carbohydrate and simple sugar in the carbohydrate are variables that can be modified, among others, by adjusting the type of fruits etc., the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the type of fruit having 15 gm carbohydrate in the carbohydrate in Angelides et al. , to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired 3-12 gm simple sugar (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
13. Regarding “at least 8Oz water content”, it is to be noted that Angelides discloses to drink lots of non -calorie drink e.g. water (at least on page 13 lines 20-21, e.g. “Drink lots of non -calorie like water; and page 5 lines 26-28 from bottom, about 2/3rd of the page area). It is to be noted that official notice is taken that it is recommended that a person have 8 glasses of water per day which is also is also evidenced by NPL Water intake (Page 1). Therefore, it meets at least “8Oz water a day” as claimed in claim 21. Therefore, it meets claimed “at least 8 Oz water’ as claimed in claim 21. Therefore, Angelides et al. meets claim 21 (i)
14. Regarding the claim limitation “for a period of days”, as claimed in claim 21, however, no prior art teaches that fruit should be compulsory for each meal and snack. As because fruit provides carbohydrate having major portion is simple sugar, therefore, one of ordinary skill in the art would have been motivated with the teaching of Vosters et al. to keep fruit as a serving” in one of the meal plans with a reasonable expectation of success in order to provide small amounts of simple sugar in a day which is just to balance the diet for the whole day which contributes less calorie ( at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10) and is helpful for diabetic person also (at least on page 2, fourth paragraph) as discussed in the office action above.
15. Regarding the claim limitation of “ every 2.5-4.5 hours” during each day”, Angelides discloses that “A standard meal plan includes three meals and a bedtime snack (at least on page 8, lines 1-3). Therefore, if we consider the whole day, the total number of meals including snack can be served every 2.5-4.5 hours during the day.
16. Regarding the claim limitation of “ and per day, at least three of the serving size of fruit or fruit juice that provides between 3 g and 12 g of natural sugar in combination with at least 8 oz. of water”, it is to be noted that Anglides et al. teaches 3-4 servings of carbohydrates at each meal (page 8 line 1) having 3 meals and a bedtime snack daily (page 8 lines 1-2). It is also to be noted that Angelides also discloses that “Indeed Angelides teaches that healthy eating includes consuming a variety of foods from each group” and each meal should be about the same food (Angelides at page 8 line 6). Therefore, Fruit can be considered one serving size of 15 gm carbohydrate in each meal and can be provided to 3 meals and a bedtime snack daily (i.e. per day) (page 8 lines 1-2) to meet “and per day, at least three of the serving size of fruit or fruit juice that provides between 3 g and 12 g of natural sugar in combination with at least 8 oz. of water”. The combination of 8Oz of water with fruit has discussed above.
17. Regarding claims 1, 21, it is to be noted that the steps of ‘receiving’, determining’ and presenting as claimed in claim 1, and step of claim 2 are considered to be obvious to one of ordinary skill in the art to perform from the disclosed teachings as disclosed by Angelides et al.
It is also to be noted that the term ‘processor at the receiving step of claim 2, is interpreted as a processor of the data processing system as evidenced by applicants specification (in PGPUB [0032]). Angelides discloses the record keeping system (at least in Fig 2, [0008]). Therefore, it is within the skill of one of ordinary skill in the art to modulate the system to receive by the at least one processor to keep record of the time and consumption of the ingestion of the servings/meal in a systematic manner from the teachings of the disclosed record keeping system of Angelides (at least in Fig 2, [0008]) with a reasonable expectation of success to have the detailed report for future analysis and need. Therefore, it meets claim 2.
18. Claim (s) 21, 2, 3, 5-11, are rejected under 35 U.S.C. 103 as being unpatentable over Angelides (US 2012/0231431) in view of NPL Basics (Applicants submission of NPL prior art as filed on 4/22/2022]) in view of Vosters et al. WO 2016/010820 A1 and as evidenced by NPL Sewaandi et al. (in J Food Quality, pages 1-11, 2020) and as evidenced by NPL Water intake (SEE at least under Healthline, page 2).
19. Regarding claims 2, 3, 21, it is to be noted that 112 second paragraph rejection is made for claims 2, 3 as discussed above. However, if we consider claim 3 ultimately depends on claim 1, then the serving size fruit is to be considered to address also. In this situation, the rejection made for claim 1 and claim 21 using NPL Basics is applicable for claim 3 also.
20. Regarding claims 2, 3, 21, it is to be noted that the steps of ‘receiving’, determining’ and presenting as claimed in claim 1, and step of claim 2 are considered to be obvious for claim 3 also which depends on claim 2.
21. Regarding claim 3, as discussed for claim 1 above, it is to be noted that the steps of ‘receiving’, determining’ and presenting as claimed in claim 1, and step of claim 2 are considered to be obvious for claim 3 also which depends on claim 2 which is to be considered by one of ordinary skill in the art to perform from the disclosed teachings as disclosed by Angelides et al.
22. Regarding the claim limitation “for a period of days”, as claimed in claim 21, it is applicable here also as discussed for claim 21 above to reject claims 21 and 1.
23. Regarding the claim limitation of “every 2.5 to 4.5 hours during each day”, as claimed in claim 21, it is applicable here also as discussed for claim 21 above to reject claims 21 and 1.
24. Regarding the claim limitation of claim 21 (ii) which is also claimed in dependent claim 3, that Angelides et al. discloses that ‘try to eat at least 30z serving of whole grain’ (at least on page 5 lines 27-29).
However, Angelides et al. is specifically silent about “no more than 80 g carbohydrate of which at least 90% are complex carbohydrates” as claimed in the alternate claim limitation of claim 21 (ii), and in claims 2, 3.
It is to be noted that if we consider the disclosed 3-4 servings at each meal as disclosed by Angelides et al. (at least on page 8, lines 1-3) and “a serving of carbohydrate contains 15 gram carbohydrate and carbohydrate includes grains, starchy vegetables, fruits etc. (at least on page 7, last few about 10 lines from bottom) which can account for the approximate amount of 15x3-4 servings =60 gm carbohydrate which will meet “a meal containing no more than 80 gm carbohydrate” as claimed in claims 21, 2, 3.
It is known that starchy vegetables etc. contain complex carbohydrate. However, Angelites is specifically silent about this claim limitation of and 90% of the carbohydrate is complex carbohydrate.
Vosters et al. discloses that in some aspects of the present disclosure, at least 50%> of the carbohydrates in the healthier food option are complex carbohydrates. In other aspects, at least 60%, at least 70%, at least 80% or at least 90% of the carbohydrates in the healthier food option may be complex carbohydrates (at least on page 6 paragraph 9). In one aspect, 100% of the carbohydrates in the healthier food option may be complex carbohydrates. Complex carbohydrate sources may include whole-grain breads, granary breads, rye breads, high fiber cereal, oats, bran, muesli, cassava, pasta, potatoes with skin on, yams, starchy vegetables, peas, beans, lentils, and the like (at least on page 6 paragraph 9) which contributes less calorie ( (at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10). This is helpful for diabetic person also (at least on page 2, fourth paragraph).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Angelides et al. with the teachings of Vosters et al. to consider at least 90% of the carbohydrates in the healthier food option as complex carbohydrates (at least on page 6 paragraph 9) which contributes less calorie ( (at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10) and is helpful for diabetic person also (at least on page 2, fourth paragraph).
25. Regarding claim 5, if we consider the disclosed 3-4 servings at each meal as disclosed by Angelides et al. (at least on page 8, lines 1-3) and “a serving of carbohydrate contains 15 gram carbohydrate and carbohydrate includes grains, starchy vegetables, fruits etc. as disclosed by Angelides et al., (at least on page 7, last few about 10 lines from bottom) where, one of ordinary skill in the art would have been motivated to combine the teachings of Angelides with the teaching of Vosters et al. in order to consider “a serving size for at least one component of the meal” selecting from whole-grain breads, granary breads, rye breads, high fiber cereal, oats, bran, muesli, cassava, pasta, potatoes with skin on, yams, starchy vegetables, peas, beans, lentils, and the like (at least on page 6 paragraph 9) which contributes less calorie ( (at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10). This is helpful for diabetic person also (at least on page 2, fourth paragraph) having at least 90% of the carbohydrates in the healthier food option as complex carbohydrates (at least on page 6 paragraph 9) which contributes less calorie ( (at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10) and is helpful for diabetic person also (at least on page 2, fourth paragraph).
26. Regarding claim 6, Angelides et al. discloses that Glycemic Index is a measure of the effects of carbohydrates on blood sugar levels e.g. carbohydrate that break down rapidly have high GI and carbohydrate that break down slowly have low GI (at least on page 10, lines 9-10). Angelides et al. also discloses the method of determining sugar by determining blood sugar, ketone etc. (at least in Figs 1, 2, Table 1, [0018], [0022]). It is within the skill of one of ordinary skill in the art to use the disclosed methods as discussed, to further determine, by the processor, the glycemic response associated with each identified component. Vosters et al. discloses that “at least 90% complex carbohydrate containing components in the servings” in claim 3 from which claim 6 depends contribute less calorie ( (at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10).
27. Regarding claim 7, as discussed, Angelides et al. discloses that Glycemic Index is a measure of the effects of carbohydrates on blood sugar levels e.g. carbohydrate that break down rapidly have high GI and carbohydrate that break down slowly have low GI (at least on page 10, lines 9-10). Angelides et al. also discloses the method of determining sugar by determining blood sugar, ketone etc. (at least in Figs 1, 2, Table 1, [0018], [0022]). Vosters et al. discloses that “at least 90% complex carbohydrate containing components in the servings” in claim 3 from which claim 6 depends contribute less calorie ( (at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10).
It is within the skill of one of ordinary skill in the art to use the disclosed methods as discussed, to further determine, by the processor, the glycemic response associated with each identified component.
It is within the skill of one of ordinary skill in the art to determine, by the processor as disclosed by Angelides in view of Vosters et al. as discussed above, to perform standardization of the meal by evaluating the effectiveness of the individual component(s) to have the amounts which will meet the claimed amount of claim 3 from which claim 7 depends and the glycemic response (sugar level) for the component(s) containing to bring the meal within requirement as claimed in claim 7. This is optimizable and discussed below.
28. Regarding claim 8, the rejection made for claim 7 is applicable to claim 8 also. In addition, it is to be noted that it is within the skill of one of ordinary skill in the art to consider the disclosed prior art by Angelides in view of NPL Basics to perform the processing step “wherein the presenting one or more steps to bring the meal within the requirement comprises providing one or more steps to reduce the amount of carbohydrates provided by the meal’. This is also optimizable.
29. Regarding claim 9, the rejection made for claim 7 is applicable to claim 8 also. In addition, it is to be noted that it is within the skill of one of ordinary skill in the art to consider the disclosed prior art by Angelides in view of Vosters et al. to perform the processing wherein the presenting one or more steps to bring the meal within the requirement comprises providing a recommended serving size for at least one input component”.
30. Regarding claim 10, the rejection made for claim 7 is applicable to claim 8 also. In addition, it is to be noted that it is within the skill of one of ordinary skill in the art to consider the disclosed prior art by Angelides in view of Vosters et al. to perform the processing step “wherein the presenting one or more steps to bring the meal within the requirement comprises providing a recommended serving size for each input component”.
30. Regarding claim 11, the rejection made for claim 7 is applicable to claim 8 also. In addition, it is to be noted that it is within the skill of one of ordinary skill in the art to consider the disclosed prior art by Angelides in view of NPL Basics and Vosters et al. to perform the processing step “wherein the presenting one or more steps to bring the meal within the requirement comprises providing one or more steps to reduce the blood sugar spike caused by high GI causing carbohydrate component (Angelides page 10 lines 1-25) that will be caused by the meal.
Claims 7-11 are optimizable.
Absent showing of unexpected results, the number of steps to bring the meal within the requirement is not considered to confer patentability to the claims. As the amount of carbohydrate and simple sugar in the carbohydrate are variables for each individual vegetables, fruits etc., that can be modified, among others, by adjusting the type of non-starch vegetables and fruits etc., the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the one or more steps to determine the alterations, reduction of the blood sugar spike by selecting , the types of vegetables , fruits etc. on the amount of carbohydrate and sugar to bring the meal within the requirement in Angelides et al. and NPL Basics (page 5,6), to amounts, including that presently claimed, in order to obtain the desired effect e.g. at most 80 gm carbohydrate of which at least 90% are complex carbohydrate (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Response to arguments
31. Applicants argued on second page, last two lines of second paragraph that “Nor does anything in Angelides teach or suggest that a person ingest, per day, at least three of the serving size of fruit or fruit juice that provides between 3 g and 12 g of natural sugar in combination with at least 8 oz. of water” .
In response, it is to be noted that the claimed “a serving size” of fruit is 3-12 gm of natural sugar. The disclosed three to servings of carbohydrates at each meal can include fruit as a serving size as disclosed by NPL Basics to modify 3-4 servings of Angelides (page 8 lines 1-3) having three meals and one snack each day as meal plan (page 8 lines 1-3) which can account for the claimed “at least three of the serving size of fruit or fruit juice that provides between 3 g and 12 g of natural sugar” and water is also addressed in detail in the office action above.
32. Argument (Third page, Second paragraph, mid-section) : Applicant argued that “Indeed, although the Office Action states that it “would have been obvious to split [3-4 servings of carbohydrate] in an interim period of whole day which can overlap the claimed range of 2.5-4.5 hours of claim] 21,” Angelides specifically teaches otherwise. Indeed, the 3-4 servings of carbohydrate referred to by Angelides refers to the number of servings of carbohydrates at each meal, with the standard meal plan including three meals. See Angelides at page 8, lines 1-3. Therefore, Angelides does not teach splitting 3-4 servings of carbohydrates up, it teaches that 3-4 servings of carbohydrates be ingested together at each meal”.
In response, this is corrected with further editing in this non-final office action.
33. Argument (Third page, Second paragraph, mid-section): Further, Angelides states that a standard meal plan includes three meals and a bedtime snack. See Angelides at page 8, lines 1-3. Even if one were to select fruit or fruit juice as the bedtime snack, therefore (which is neither taught nor suggested) and choose to drink 8 ounces of water along with that fruit or fruit juice (which is also neither taught or suggested), that would only account for one of the recited formulas per day — not the 3-4 per day recited in claim 21. Further, that snack would be between 15 and 30 grams of fruit of fruit juice (1-2 servings for a snack, with each serving being approximately 15 grams), which is likely to provide natural sugar in an amount above the 3-12 g recited in claim 21.
In response, Examiner does not agree. The reason is discussed in the office action above. In brief, as discussed above, even if claim 21 recites “for a period of days”, however, no prior art teaches that fruit should be compulsory for each meal and snack. As because fruit provides carbohydrate having major portion is simple sugar, therefore, one of ordinary skill in the art would have been motivated with the teaching of Vosters et al. to keep fruit as a serving” in one of the meal plans with a reasonable expectation of success in order to provide small amounts of simple sugar in a day which is just to balance the diet for the whole day which contributes less calorie ( at least on page 6 paragraph 8) and a low glycemic load (at least on page 6 paragraph 10) and is helpful for diabetic person also (at least on page 2, fourth paragraph) as discussed in the office action above.
34. Arguments(Third page, Fourth paragraph): “Nor does Angelides teach or suggest that each meal contains no more than 80 g carbohydrates of which at least 90% are complex carbohydrates. Though Angelides may suggest that each meal contain between 45 and 60 grams of carbohydrates (3-4 servings for a meal, with each serving being approximately 15 grams), it says nothing of at least 90% of those carbohydrates being complex carbohydrates. Indeed, Angelides teaches that “[c]Jarbohydrates include grains, breads, cereals, dried beans, starchy vegetables, fruits, milk and yogurt, juice, sweets and desserts,” i.e. a mix of predominantly simple and predominantly complex carbohydrates, with no instruction around the selection of complex vs. simple carbohydrates. See Angelides at p. 7, bottom 20 lines (cited by the Examiner).
In response, that is why a new secondary prior art by Vosters et al. is used to address “at least 90% of those carbohydrates being complex carbohydrates”. However, this was considered to be obvious because Angelides is a broad disclosure and teaches vegetables, grains etc.
35. Arguments (Fourth page, second paragraph, mid-section): “Thus, although a person may choose an amount of mixed berries or blueberries that provides an amount of natural sugar within the range recited in claim 21 as a snack, Applicant respectfully submits that the cited art does not suggest limiting all snacks to fruit, limiting all fruit to mixed berries or blueberries, and then limiting the size of the snack to 15 gram of carbohydrates, where Angelides teaches that the serving of carbohydrates for a snack should be between 15 and 30 grams”.
In response, these are not considered in this office action. Examiner has considered NPL Sewaandi et al. as evidentiary reference which is not AI generated.
36. Arguments: (Fourth page, Last paragraph) “For the limitation of “a meal containing no more than 80 g carbohydrates of which at least 90% are complex carbohydrates, the Office Action cites to Basics. Office Action at para. 10. Asan initial matter, Applicant does not understand the calculation performed by the Examiner in paragraph 10 (page 6), but to the extent that it appears to try to 1 Applicant does not accept a Google “Al Overview” as necessarily providing a factually accurate answer, particularly where that overview appears refer to some vague mixture of berries”.
In response, this is addressed using a new secondary prior art by Vosters et al.
37. Arguments ( Sixth page, Second paragraph): “Thus, Basics neither teaches nor suggests that each meal comprises a carbohydrate component that contains no more than 80 g carbohydrates of which at least 90% are complex carbohydrates, and therefore does not cause a significant blood sugar spike. Rather, Basics allows for, and even provides examples of, meals that contain greater amounts of simple carbohydrates and that will cause significant blood sugar spikes”.
In response, this is addressed using a new secondary prior art by Vosters et al.
38. Arguments ( Sixth page, Third paragraph):: “Further, because Basics itself teaches a healthy diet for diabetics, Applicant respectfully submits that it would not have been obvious for a person of ordinary skill in the art to modify the meals of Basics or the ratios of complex and simple carbohydrates contained therein, in what the Examiner strangely refers to as optimization (optimization of what?). Indeed, the Examiner states that a person of ordinary skill in the art would have been motivated to modify Angelides with meals of Basics “to make the proportion amounts of the components in order to make diabetic friendly nutritionally balanced meal,” see Office Action at pages 6-7, but then goes on to conclude that one would further modify the teachings of Basics by limiting the taught meals (which the Office Action describes as a “diabetic friendly nutritionally balanced meal”) to something else entirely — namely meals satisfying the present claim element — without any such explanation as to why other than the vague assertion that it would be “optimizable.”
In response, examiner has made new ground of rejection using a new secondary prior art by Vosters et al. and the statements made using the teachings of Basics in the prior office action (see Office Action at pages 6-7) does not exist.
39. Arguments (Affidavit: Sixth page last paragraph): Finally, with respect to the Examiner’s apparent conclusion that Applicant must cite to unexpected results, though Applicant does not believe that any such unexpected results are necessary to overcome the present rejection, Applicant nevertheless directs the Examiner to the Declaration of Dr. Patrick Angelo, Jr., originally submitted in the parent application, U.S. Pat. App. No. 16/027,808 and resubmitted herewith, as a showing of unexpected results. In particular, Applicant directs the Examiner to paragraphs 3 and 8 of that declaration, which explains that the meal requirement of present claim 21 (that each meal comprises a carbohydrate component that contains no more than 80 g carbohydrates of which at least 90% are complex carbohydrates) is a critical part of the unexpected results achieved by the presently claimed invention”.
In response, it is to be noted that affidavit as filed on 9/2/2025, item #3, recites “importantly, each prescribed formula contains between 3 and 9 grams of natural sugar provided by fruit or fruit juice, and at least 8 ounces of water and each meal contains no more than 80 g carbohydrates of which at least 90% are complex carbohydrates, i.e. each meal contains a maximum of 8 g simple sugar”. However, independent claim 21 recites “or” as alternative and not “and” as a link as in item #3 is used to claim both claim 21 (i) and (ii) together.
Regarding item #4, examiner has addressed it in the office action above.
Conclusion
40. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792