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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed August 19, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1, 4-7, 9, 15, 21-26
Withdrawn claims:
None
Previously canceled claims:
2-3, 8, 10-14, 16-20
Newly canceled claims:
None
Amended claims:
1
New claims:
None
Claims currently under consideration:
1, 4-7, 9, 15, 21-26
Currently rejected claims:
1, 4-7, 9, 15, 21-26
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4, 6-7, 9, 15 and 21-26 are rejected under 35 U.S.C. 103 as being unpatentable over Waksman (US 2020/0329726 A1) in view of Rousset (US 2020/0236981 A1).
Regarding claim 1, Waksman teaches a creamer composition (Title) comprising:
40% by weight water (16 kg water for a 40 kg batch; [0181]-[0182]), which falls in the claimed range of “40-90% w/w”;
12-50% by weight vegetable oil (i.e., vegetal oil; [0005]), which overlaps with the claimed range of “5-15% w/w”;
1-8% by weight plant protein ([0005]), which overlaps with the claimed range of “0.0001-5% w/w”;
0.5-5% by weight sodium bicarbonate (i.e., a buffering agent; [0005]), which falls within the claimed range of “0.0001-5% w/w”.
Furthermore, Waksman teaches that the product comprises citric acid in any suitable form ([0019]). Therefore, in embodiments where the citric acid is pure citric acid powder, the composition would logically be free from citrus juice. Waksman also teaches that the creamer composition is made without artificial additives ([0005]) and that artificial additives include hydrocolloids, stabilizers, emulsifiers, or whitening agents ([0003]). Although Waksman discloses that the protein may be partially hydrolyzed, one of ordinary skill would recognize that use of the word “may” does not preclude the use of an unhydrolyzed protein in the invention of Waksman. As such, Waksman’s disclosure contains an embodiment where the protein was not subjected to hydrolysis.
Although the inventive product of Waksman is a powdered creamer composition (Abstract), Waksman teaches that the creamer is made by mixing liquid ingredients and homogenizing prior to spray-drying ([0189]). The intermediate product of homogenized creamer meets the limitations of claim 1 as described above.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Waksman does not teach wherein the particle size distribution of the composition has at least 90% or greater or particles with a maximum dimension equal to or less than 2 µm, wherein particle size distribution is maintained up to 240 days at from 15[Symbol font/0xB0]C to 25[Symbol font/0xB0]C or the composition having a pH of 7-9.5.
However, in the same field of endeavor, Rousset teaches of a liquid creamer composition comprising plant oils and proteins (Abstract) with a pH from 7 to 7.5 ([0078]), which falls within the claimed range of “7-9.5”. Rousset also teaches the composition having a d90 particle size of < 2 µm ([0020]), where d90 is the size in microns of the particle size distribution where 90% of the particles by volume lie below that diameter ([0025]). Rousset also teaches that the creamers is stable for at least 9 months (which encompasses the claimed range of “up to 240 days”) at a temperature of about 0.5[Symbol font/0xB0]C-20[Symbol font/0xB0]C (which overlaps with the claimed range of “from 15[Symbol font/0xB0]C to 25[Symbol font/0xB0]C”; [0028]) and that the creamer has excellent homogeneity such that the creamer does not have any separation, clogs, clumps, or gelling ([0029]). Because the creamer of Rousset maintains homogeneity, it logically follows that the creamer maintains particle size distribution.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Waksman to have the pH, particle size distribution, and stability of the creamer taught by Rousset. One would be motivated to make this modification because Rousset teaches that the creamer has a long storage and pleasant mouthfeel ([0007]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 4, Waksman also teaches that preferred vegetable oils include coconut oil or palm kernel oil (i.e., palm oil).
Regarding claim 6, Waksman also teaches that the plant protein may be pea protein, chickpea protein, or lentil protein ([0009]), which are all known pulse proteins.
Regarding claim 7, Waksman teaches a variety of plant proteins that are not pea protein such as soy protein, rice protein, etc. ([0009]).
Regarding claim 9, Waksman teaches that the composition comprises sodium bicarbonate ([0005]).
Regarding claim 15, Waksman teaches a creamer composition (Title) comprising:
40% by weight water (16 kg water for a 40 kg batch; [0181]-[0182]), which falls in the claimed range of “40-90% w/w”;
12-50% by weight vegetable oil (i.e., vegetal oil; [0005]), which overlaps with the claimed range of “5-15% w/w”;
1-8% by weight plant protein ([0005]), which overlaps with the claimed range of “0.0001-5% w/w”;
0.5-5% by weight sodium bicarbonate (i.e., a buffering agent; [0005]), which falls within the claimed range of “0.0001-5% w/w”.
25-80% by weight carbohydrates in the dry composition, which may be sugar (i.e., a sweetening agent; [0016]). In a case where the liquid version comprises 40% by weight water ([0181]-[0182]) and 60% solids, the liquid composition would comprise 15% to 48% by weight of a sweetening agent, which overlaps with the claimed range of “17-25 w/w”.
Furthermore, Waksman teaches that the product comprises citric acid in any suitable form ([0019]). Therefore, in embodiments where the citric acid is pure citric acid powder, the composition would logically be free from citrus juice.
Although the inventive product of Waksman is a powdered creamer composition (Abstract), Waksman teaches that the creamer is made by mixing liquid ingredients and homogenizing prior to spray-drying ([0189]). The intermediate product of homogenized creamer meets the limitations of claim 1 as described above.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Waksman does not teach a nut base composition, a single hydrocolloid agent, a flavor modification agent, wherein the particle size distribution of the composition has at least 90% or greater or particles with a maximum dimension equal to or less than 2 µm or wherein particle size distribution is maintained up to 240 days at from 15[Symbol font/0xB0]C to 25[Symbol font/0xB0]C.
However, in the same field of endeavor, Rousset teaches of a creamer comprising:
0.1% to 1% by mass protein ([0074]) and that the protein may be almond or peanut protein (i.e., a nut base; [0061]);
an embodiment comprising 0.1% gellan gum and 0.1% guar gum (100 g gellan gum and 100 g guar gum per 100 kg of composition; [0096]) for a total of 0.2% hydrocolloid agents;
0.211% flavoring agents (111 g of natural flavors and 100 g of sea salt per 100 kg composition; [0096]), which falls within the claimed range of “0.1% to 5% w/w”.
Rousset also teaches that the creamer has a d90 particle size of < 2 µm ([0020]), where d90 is the size in microns of the particle size distribution where 90% of the particles by volume lie below that diameter ([0025]). Rousset also teaches that the creamers is stable for at least 9 months (which encompasses the claimed range of “up to 240 days”) at a temperature of about 0.5[Symbol font/0xB0]C-20[Symbol font/0xB0]C (which overlaps with the claimed range of “from 15[Symbol font/0xB0]C to 25[Symbol font/0xB0]C”; [0028]) and that the creamer has excellent homogeneity such that the creamer does not have any separation, clogs, clumps, or gelling ([0029]). Because the creamer of Rousset maintains homogeneity, it logically follows that the creamer maintains particle size distribution.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Waksman to include the ingredients and have the particle size distribution and stability of the creamer taught by Rousset. One would be motivated to make this modification because Rousset teaches that the creamer has a long storage and pleasant mouthfeel ([0007]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Although Rousset does not teach 0.2%-0.8% w/w of a single hydrocolloid agent, Rousset teaches that the gum of the composition is selected from gellan gum, guar gum, or a combination thereof ([0067]). Therefore, It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the gellan gum and guar gum combination of Example 1 with the use of a single hydrocolloid at the same inclusion amount. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Regarding claims 21 and 24, Waksman does not teach the composition having a pH of 7 to 7.5.
However, in the same field of endeavor, Rousset teaches of a liquid creamer composition comprising plant oils and proteins (Abstract) with a pH from 7 to 7.5 ([0078]), which matches the claimed range of “7-7.5”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Waksman with the pH as taught by Rousset. One of ordinary skill would have been motivated to make this modification because Rousset teaches that this pH helps neutralize the acids from coffee or other beverages ([0078]).
Regarding claims 22 and 25, Waksman does not teach wherein the particle size distribution of the composition has at least 90% or greater or particles with a maximum dimension equal to or less than 1 µm
However, in the same field of endeavor, Rousset also teaches the composition having a d90 particle size of < 2 µm ([0020]; which encompasses the claimed range of “less than 1 μm”), where d90 is the size in microns of the particle size distribution where 90% of the particles by volume lie below that diameter ([0025]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Waksman to have the particle size distribution and stability of the creamer taught by Rousset. One would be motivated to make this modification because Rousset teaches that the creamer has a long storage and pleasant mouthfeel ([0007]).
Regarding claims 23 and 26, Waksman does not teach wherein the composition has a shelf life of up to 240 days when stored at 15[Symbol font/0xB0]C to 25[Symbol font/0xB0]C.
However, in the same field of endeavor, Rousset also teaches that the creamers is stable for at least 9 months (which encompasses the claimed range of “up to 240 days”) at a temperature of about 0.5[Symbol font/0xB0]C-20[Symbol font/0xB0]C (which overlaps with the claimed range of “from 15[Symbol font/0xB0]C to 25[Symbol font/0xB0]C”; [0028]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Waksman to have the particle size distribution and stability of the creamer taught by Rousset. One would be motivated to make this modification because Rousset teaches that the creamer has a long storage and pleasant mouthfeel ([0007]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Waksman (US 2020/0329726 A1) in view of Rousset (US 2020/0236981 A1) as applied to claim 1, and further in view of Wingerd (Wingerd, Shane. “Eating Paste – Almond Paste”. Culinary Alchemy, published February 15, 2012 [accessed online January 31, 2025] https://culinaryalchemist.blogspot.com/2012/02/eating-paste-almond-paste.html).
Regarding claim 5, Waksman teaches that the composition may comprise crushed or milled plant parts such as nuts (i.e., a nut base; [0009]).
Waksman does not teach that the nut base composition comprises 10% to 98% nut matter.
However, in the same field of endeavor, Wingerd teaches an almond paste comprising 45-50% almonds (p. 1, ¶ 1).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the crushed or milled nuts of Rousset with the use of almond paste as described by Wingerd. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another art equivalent and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1, 3-7, 9-10, and 15-20 over Waksman and Rousset: Applicant’s arguments filed August 19, 2026 have been fully considered but they are not persuasive.
Applicant argued that Waksman explicitly discloses the molecular weight for protein and that the plant protein may be subjected to hydrolysis. Applicant further states that all of the Examples in Waksman use hydrolyzed protein and as such, a person of ordinary skill would understand hydrolysis of the protein to be essential to Waksman’s stabilizing mechanism. Applicant further asserts that such a person would have had a reasonable expectation of success in including non-hydrolyzed proteins (Remarks, p. 5, ¶ 6- p. 6, ¶ 3).
This argument has been considered but is not persuasive. Although Waksman discloses that the protein may be partially hydrolyzed, one of ordinary skill would recognize that use of the word “may” does not preclude the use of an unhydrolyzed protein in the invention of Waksman. As such, Waksman’s disclosure contains an embodiment where the protein was not subjected to hydrolysis. Waksman disclosure to does explicitly preclude the use of a non-hydrolyzed plant protein. MPEP §2123(I) states “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989) and “The court held that the prior art anticipated the claims even though it taught away from the claimed invention. ‘The fact that a modem with a single carrier data signal is shown to be less than optimal does not vitiate the fact that it is disclosed.’” Celeritas Technologies Ltd. v. Rockwell International Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522-23 (Fed. Cir. 1998).
Applicant further argued that Rousset does not cure this deficiency because Rousset does not teach or suggest non-hydrolyzed plant protein (Remarks, p. 6, ¶ 4).
This argument has been considered but is not persuasive. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Examiner maintains that Rousset is adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious.
Applicant further argued that the Examiner relies on Rousset’s teaching of long term stability, but Rousset’s stability is achieved via an in-situ reaction where acids from natural juice react with a natural alkaline. Applicant further asserts that the Examiner’s position that Waksman’s citric acid could serve the same purpose as the citric acid of Rousset is unfounded. Applicant alleged that Rousset’s Example 5 demonstrates that citric acid alone does not replicate the chelation. Applicant also argued that the Examiner’s proposed modification of Waksman with the pH, particle size distribution, and stability of the creamer taught by Rousset are properties that Rousset only achieves with the use of citrus juice, and that the Examiner is asserting that these properties exist independent of the composition (Remarks, p. 7, ¶ 2- p. 9, ¶ 1).
This argument has been considered but is not persuasive. Rousset’s comparative Example 5 uses specifical sodium citrate, which is a salt, not an acid. As such, Example 5 of Rousset is fundamentally different than the combination of citric acid and baking soda as described by the disclosures of both Rousset and Waksman. Furthermore, Rousset discloses that the stability is provided by the in-situ chemical reaction where acids, such as citric and/or malic acid react with the baking soda ([0076]). One of ordinary skill in the art would have had a reasonable expectation of success in having the same in-situ reaction of citric and baking soda in the product of Waksman.
Additionally, MPEP §2141(IV) states “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” The Applicant has not provided any evidence to support their assertion that the citric acid of Waksman would have a patentably distinct difference from the use of a citric acid containing juice as disclosed by Rousset.
Applicant argued that Waksman is directed to a powdered creamer composition and that the homogenized liquid stage only exists momentarily before being spray-dried. Thus the challenge of a liquid creamer is fundamentally different than that of the claimed invention (Remarks, p. 9, ¶ 2-3).
This argument has been considered but is not persuasive. Although the final product of Waksman is directed to a spray-dried composition, there is nothing in the disclosure of Waksman to demonstrate that the liquid intermediate of Waksman is incapable for use as a coffee creamer. MPEP §2123(I) states “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). Thus, the liquid intermediate of Waksman modified by Rousset is sufficient to teach the claimed invention.
Applicant then argued that Rousset does not teach room temperature stability and that the portion of overlapping ranges is minimal (Remarks, p. 9, ¶ 4- p. 10, ¶ 1).
This argument has been considered but is not persuasive. MPEP §2144.05(I) states “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).” Because the claimed range for stability overlaps with the range disclosed by Rousset, a prima facie case of obviousness has been established. The claim does not specify that the temperature range must be achieved without the use of refrigeration.
Applicant further argued that claim 15 recites the use of a single hydrocolloid agent, and that the reliance on Rousset’s disclosure of both gellan and guar gum is deficient (Remarks, p. 10, ¶ 2-3).
This argument has been considered but is not persuasive. The Examiner maintains that because Rousset discloses that the gum of the composition is selected from gellan gum, guar gum, or a combination thereof ([0067]), one of ordinary skill would have modified the composition to use a total of 0.2% of a single hydrocolloid rather than 0.1% gellan gum and 0.1% guar gum. MPEP §2143(B) states the claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art. Thus, the claimed amount of hydrocolloids is obvious.
Applicant further argued that Waksman’s range for carbohydrates is for a dried composition, and would result in a different composition in a liquid creamer with 40 to 90% water and that Rousset’s only exemplified sweetener is in an amount of 27%, which falls outside the claimed range (Remarks, p. 11, ¶ 1).
This argument has been considered but is not persuasive. As described in the 35 USC §103 rejection of claim 5 above, the liquid composition of Waksman would still comprise a sweetening agent in an amount that overlaps the claimed range. As such, Waksman discloses the claimed range of sweetening agent. Regarding Applicant’s argument that Rousset’s only exemplified sweetener is in an amount of 27%, Rousset is not relied upon to teach the claimed amount of sweetening agent. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Examiner maintains that Rousset is adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious.
Applicant also argued that neither reference teaches a nut base composition at the claimed weight percentage in a liquid creamer formulation (Remarks, p. 11, ¶ 2).
This argument has been considered but is not persuasive. As described in the 35 USC §103 rejection of claim 15 above, Rousset teaches of a liquid creamer ([0015]) comprising protein ([0074]) and that the protein may be almond or peanut protein (i.e., a nut base; [0061]).
Claim Rejections – 35 U.S.C. §103 of claims 5 over Waksman, Rousset, and Wingerd: Applicant’s arguments filed August 19, 2026 have been fully considered but they are not persuasive.
Applicant argued Wingerd is a personal baking blog post about making marzipan and is not analogous art. Applicant alleged that one of ordinary skill would not consult a home baking blog (Remarks, p. 11, ¶ 6- p. 12, ¶ 1).
This argument has been considered but is not persuasive. MPEP §2141.01(a)(I) states “In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. 103 , the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). Note that "same field of endeavor" and "reasonably pertinent" are two separate tests for establishing analogous art; it is not necessary for a reference to fulfill both tests in order to qualify as analogous art.” Wingerd is considered analogous art because it is reasonably pertinent to a problem faced by the inventor (i.e., the composition of a nut paste) even though it is not the same field of endeavor of creamer compositions.
The Examiner maintains that it would have been obvious to one of ordinary skill in the art to use a nut paste as taught by Wingerd in the composition of Waksman in view of Rousset with a reasonable expectation of success. MPEP §2141(IV) “Once Office personnel have issued a rejection that establishes the Graham factual findings and concludes, in view of the relevant evidence of record at that time, that the claimed invention would have been obvious as of the relevant time, the burden then shifts to the applicant to (A) show that the Office erred in these findings or (B) provide other evidence to show that the claimed subject matter would have been nonobvious.” The Applicant has failed to provide evidence that the nut paste of Wingerd would not function in the composition of Waksman.
The rejections of claims 1, 4-7, 9, 15, and 21-26 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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