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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2 Oct 2025 has been entered.
Response to Amendment
All rejections not repeated in this Office Action have been withdrawn.
Claims 1-3, 8, 11, 13, 15, 26, 28, 30, 31, 42, 46, 50-53, 55-56 are currently pending in this Office Action.
Claim Rejections - 35 USC § 103
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.
Claim(s) 1, 11, 13, 15, 26, 28, 30, 31, 42, 46, 50-53, 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Boillot (CA 3086570 A1) in view of Wright (US 2015/0079235 – previously cited), Acheson et al. (US 2020/0345054 A1) and evidenced by USDA 1 (NPL reference- Seeds, chia seeds, dry, FoodData Central) and USDA 2 (NPL Reference- Lentils, dry, FoodData Central).
Regarding Claims 1, 15, and 31, Boillot discloses a plant-based food composition comprising a blend of:
a first component comprising one or more nuts (plant protein source including chia seed, flax, and pumpkin seeds, paragraph 42); and
a second component comprising one or more vegetables (legume plants, leafy vegetables, paragraph 42 page 10 line 34);
wherein the composition comprises protein, fat, and carbohydrates, wherein:
the total amount of protein to the total amount of fat are in a ratio of about 1:3 (see paragraphs 38 and 44 where the protein component is present in an amount ranging from about 10 to about 50wt% and the fat component is present in an amount ranging from about 5 to about 35wt%;
the total amount of protein to the total amount of carbohydrates are in a ratio of about 1:6 (see paragraphs 44 and 49 where the protein component is present in an amount ranging from about 10 to about 50wt% and the carbohydrate component is present in an amount ranging from about 20 to about 60wt%);
the total amount of fat to the total amount of carbohydrates are in a ratio of about 1:2 (see paragraphs 38 and 49 where the fat component is present in an amount ranging from about 5 to about 35wt% and the carbohydrate component is present in an amount ranging from about 20 to about 60wt%); that is, Boillot discloses a range that encompasses a composition comprising 10wt% protein, 30wt% fat, and 60wt% carbohydrate which satisfies limitations (i), (ii), and (iii); and wherein the composition does not comprise hemp (hemp is optional, paragraph 42).
Boillot does not specifically recite that the first component is an amount sufficient to provide about 2% to 90% of the total protein content of the composition, about 2% to 98% of the total fat content of the composition, about 0.5% to 25% of the total carbohydrate content of the composition, and about 0.5% to 70% of the total caloric content of the composition;
wherein the second component is in an amount sufficient to provide about 10% to 98% of the total protein content of the composition, about 0.5% to 95% of the total fat content of the composition, about 70% to 99% of the total carbohydrate content of the composition, and about 30% to 98% of the total caloric content of the composition (as well as the ranges required by Claims 15 and 31); and wherein the composition comprises water in an amount of 55% to 75% by weight.
However, Boillot allows for any combination of suitable protein sources, and is not specific to any particular amount to each component. Therefore, Wright is further relied on to teach a plant-based composition for infant formulas (see abstract), comprising a seed product as a source of protein (hemp seed, paragraph 10), wherein the seed product is provided in amounts including 0.1 to 100 weight percent (paragraph 12). Wright similarly discloses the claimed ratios of protein, fat, and carbohydrates (1.8g-4.5g protein, 3.3g-6g of lipids, and 9g-14g of carbohydrates, thereby providing ratios overlapping with the claimed range, paragraph 11).Since chia and hemp are both identified as sources of proteins by both Wright (paragraph 14) and Boillot, it would have been obvious to one of ordinary skill in the art to modify the amounts of chia seeds between 0.1 to 100 wt% according to the desired taste, and nutritional contents. A composition with the seed product in an amount between 0.1 to 100 wt% would have necessarily encompass the claimed ratio of the first component contributing the claimed amounts of protein, fats, carbohydrate, and caloric content. Similarly, the balance of the second component would have also varied based on the amount of the first component, such as a 1:4 ratio of chia and lentils (satisfies the claimed requirements of comprising one or more seeds, and one or more vegetables, paragraph 42), would provide a composition where the chia seed contributes (at least between chia seeds and lentil) 15% of the total protein content, 80% of the fat content, 14% of the carbohydrate content, and 25% of the caloric content, and the lentils contributes 85% of the protein content, 20% of the fat content, 86% of the carbohydrate content and 75% of the caloric content (see evidentiary references USDA 1 and USDA 2 where chia seed has a nutrition profile of 16.5% protein, 30.7% fat, 42.1% carbohydrate, 486 kcal, and lentils 23.6% protein, 1.92% fat, 62.2% carbohydrate, and 360 kcal).
Therefore, since Boillot meets the claimed requirements of (i), (ii), and (iii), as well as the first and second components, and applicant’s invention also requires chia seeds and legumes as suitable components of the composition (as per claim 13 and 30), there is a reasonable expectation that Boillot encompasses the claimed ranges of macronutrients contributed by the first and second components. Note that Examples 1-3 of Boillot discloses a combination of ingredients with no particular amounts so long as the required quantities of the macronutrients are met, thereby suggesting that the ratio of each particular ingredient would have been an obvious matter of choice. Additionally, since Boillot is directed to a nutritional formulation for administration to children between the ages of birth to full gestation (paragraph 22), it would have been obvious to one of ordinary skill in the art to modify the nutrition profile of the food composition based on taste preference, and nutritional requirement of the target group.
As to the water content, while Boillot indicates that water may be used to dilute dehydrated and concentrated forms of formulation (paragraph 59), Boillot does not specifically recite a water content of about 55% to 75% by weight. Acheson is relied on to teach a powdered infant formula (abstract) where it is noted that the serving size is apparent to one of ordinary skill in the art (paragraph 111) with an exemplary serving size of 50g powder to 150mL water, thus having a water content of 75% by weight (paragraph 113). Therefore, since both Boillot and Acheson are directed to reconstituted infant formulas, it would have been obvious to one of ordinary skill in the art to modify the water content of the formula based on the desired serving size, as well as the desired consistency. Also, the particular amount of water would have been obvious to one of ordinary skill in the art based on the desired flavor. That is, it would have been obvious to decrease the amount of water to impart a more concentrated flavor.
Regarding Claim 11, the claim is rejected over the prior art for teaching chia seed because the limitation of comprising one or more nuts is recited in the alternative and thus not required.
Regarding Claim 13, Boillot further teaches wherein the one or more seeds is chia seed (paragraph 42).
Regarding Claim 26, the claim is rejected over the prior art for teaching one or more vegetables because the limitation of comprising one or more fruits is recited in the alternative and thus not required.
Regarding Claim 28, Boillot further teaches wherein the one or more vegetable is one or more leaf vegetable (leafy vegetables, paragraph 42).
Regarding Claim 30, Boillot further teaches wherein the one or more vegetables comprises a legume (lentils, paragraph 42).
Regarding Claim 42, Boillot further teaches comprising algae (green algae, paragraph 42, page 11, line 3).
Regarding Claim 46, Boillot further teaches comprising a grain component (oat, paragraph 42).
Regarding Claim 50, Boillot further teaches wherein the composition does not comprise any ingredients that are made of an animal product or are sourced from an animal (fortified plant based formulation, see abstract).
Regarding Claim 51, Boillot further teaches wherein the composition comprises whole-foods (peanuts, paragraph 42). That is, Applicant’s specification identifies peanuts as a “whole” nut (paragraph 68).
Regarding Claim 52, Boillot further teaches wherein the composition does not comprise synthetic ingredients (natural alternative to cow’s milk, paragraph 20).
Regarding Claim 53, Boillot further teaches wherein the composition comprises organic ingredients (see Example 1, paragraph 62).
Regarding Claims 55 and 56, Boillot further teaches a method of orally administering the composition of Claim 1 to a human subject of about birth to about 5 years old (paragraph 22).
Claim(s) 2, 3, and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1, further in view of Yan et al. (US 2021/0177031).
Regarding Claim 2, Boillot further teaches a composition comprising a liquid form (see Example 1, paragraph 62), but does not specifically recite the macronutrients on the basis of 100mL of the liquid. Yan is relied on to teach a nutritional formula for infants and young children that is adjusted based on age and nutritional needs (see abstract). Yan further teaches a composition with 1.17g/100mL protein, 3.22g/100mL of fat, and 7.32g/100mL of carbohydrate (see table in paragraph 246) that is tailored for 3-6 month to prevent sub-optimal or unhealthy body composition (see the abstract). Therefore, since both Yan and Boillot are directed to nutritional compositions for infants, it would have been obvious to modify the macronutrients of a nutritional formula based on the age of the infant to prevent suboptimal body composition.
Regarding Claim 3, Yan is further relied on to teach a composition comprising 63-67 Cal/100mL (see table in paragraph 246). For reasons similar to Claim 2, it would have been obvious to one of ordinary skill in the art to modify the caloric content of the nutritional formula based on the age of the infant to prevent suboptimal body composition.
Regarding Claim 8, the claim is rejected for reasons similarly discussed in Claim 2. Boillot further teaches wherein the composition is divided into two or more portions, the portions comprising a liquid form (paragraph 60-61). The limitation “subjected to preparation” is construed as an intended use limitation. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, the two or more portions of Boillot is capable of being prepared in liquid form by mixing the two or more portions together to provide a composition with two servings.
Response to Arguments
Applicant’s arguments in the remarks filed 2 Oct 2025 has been considered, but is found not persuasive over the prior art of record.
Applicant argues on the basis that the claimed water content of 55% to 75% by weight cannot be arrived to based on the disclosure of Boillot. The argument is not persuasive in view of the new grounds of rejection. That is, Acheson is further relied on to show infant formulas being diluted with 75% by weight water. Acheson further notes that the serving size is “apparent to one of ordinary skill in the art” and that 50g powder + 150mL water is simply an exemplary guidance (paragraph 111-112). Similarly, Boillot also recites language that indicates the disclosed dilution being a guidance rather than a requirement (may be diluted, paragraph 60) and does not present any criticality for remaining within the range of 100g/L to 200g/L. For these reason, it would have been obvious to modify the water content of the dilution based on the desired concentration level.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792