DETAILED ACTION
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 present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Claims 1 – 8 are rejected under 35 U.S.C. 103 as being unpatentable over Meshulam et al. US 2019/0200799 in view of Bell et al. US 2018/0116251 as further evidenced by Pascual et al. US 2005/0276898 in view of Lavie US 2009/0317519 as further evidenced by Marulich US 3,826,829.
Regarding claim 1, Meshulam discloses a beverage composition which comprises a beverage (current drink) (paragraph 11), a foamed topping composition in fluid communication with a topmost surface of the beverage, and a printed image on a topmost surface of the foamed topping composition (paragraph [0055]). Further, Meshulam discloses the foamed topping composition is substantially free of dairy (milk substitute) (paragraph [0164]). Claim 1 differs from Meshulam in the foamed topping composition comprising a vegetable fat and water.
Bell discloses a foamed topping composition substantially free of dairy (non-dairy) in fluid communications with a topmost surface of a beverage (paragraph [0009]) which foamed topping composition comprises a vegetable fat and water (paragraph [0077]). Bell is providing a foamed topping composition substantially free of dairy in order to reduce the cost of beverage production for beverage having a foamed topping, avoid possible injury to the consumer that may be caused by scalding or burning of the consumer when producing said foamed topping, as well as to provide a consistent beverage product while avoiding overheating of the beverage product foam during beverage preparation which would result in off flavours all of which are believed to be applicant’s reasons for doing so as well. To therefore modify the foam milk substitute of Meshulam and provide a foamed topping composition substantially free of dairy comprising a vegetable fat and water as taught by Bell would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
With respect to “a foamed topping composition having a thickness of about 10 mm to about 70 mm”.
Once it was known to provide a foamed topping composition on which an image would be able to be printed on a topmost surface it is not seen that patentability would be predicated on the specific thickness of the foamed topping composition the image would be printed on. Limitations relating to the thickness of the foamed topping composition are would not be sufficient to patentably distinguish over the prior art. The mere scaling up of a prior art foam topping composition capable of being scaled up will not establish patentability in a claim to an old foamed topping composition so scaled (MPEP § 2144.04 IV.A.). Nevertheless as further evidenced by Pascual it was known to provide foamed topping compositions that would be substantially free of dairy that would have a thickness of between about 10 mm to 70 mm (2 cm to 3 cm) (example 3).
Claim 1 differs from Meshulam in view of Bell as further evidenced by Pascual in the beverage composition comprises “a carbonated soft having a temperature ranging from about -10º C to about 21º C”.
First it is noted that Meshulam discloses the beverage composition to which an image would be applied would comprise a carbonated beverage, i.e., beer (paragraph [0011]), which is usually served at a temperature ranging from about -10º to about 21º C.
Nevertheless, Lavie discloses that it was well established and conventional in the art to print images on carbonated beverages, that is to say carbonated soft drinks, and beverages having a temperature ranging from about -10º to about 21º C (ice-based drinks (slurries) or the like) (paragraph [0044]). Since Lavie clearly distinguishes between carbonated beverages, as opposed to bubbly alcoholic beverages it is clear that Lavie is referring carbonated soft drinks. As further evidenced by Marulich it was quite old and well established in the art to provide carbonated ice-based drinks, that is, carbonated beverages having a temperature ranging from about -10º to about 21º C and therefore it would have been obvious given the art taken as a whole and in particular Lavie to the ordinarily skilled artisan to have printed images on carbonated soft drinks having a temperature ranging from about -10º to about 21º C.
Regarding “the printed image is stable for about 10 minutes to about 60 minutes after application to the foamed topping composition”, since Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich have disclosed the invention, i.e., the composition comprising vegetable fat and water, as claimed it would be expected that the printed image would be able to be stable for about 10 minutes to about 60 minutes.
Regarding claim 2, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich discloses that foamed topping compositions that are substantially free of dairy, that is to say liquid non-dairy compositions that would be in fluid communications with a top most surface of a beverage would typically and normally comprise an emulsifier, a stabilizer, and optionally a protein, sweetener, and a flavouring agent (‘251, paragraph [0077]) making it obvious to the ordinarily skilled artisan to have provided the substantially free of dairy foamed composition with an emulsifier and a stabilizer. Further whilst a protein, sweetener, and a flavouring agent are recited as being optional and therefore not required Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich discloses that a protein, sweetener, and a flavouring agent were conventional ingredients normally found in substantially free of dairy foamed toppings and the inclusion of said optional ingredients would have been obvious.
Regarding claim 3, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich discloses the vegetable fat would be partially or wholly hydrogenated vegetable oil (hydrogenated soybean oil, hydrogenated coconut oil) (‘251, paragraph [0103] and [0105]).
Regarding claim 4, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich discloses the emulsifier would be mono and diglycerides (‘251, paragraph [0079]).
Regarding claim 5, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich discloses the stabilizer would be microcrystalline cellulose (‘251, paragraph [0080]).
Regarding claim 6, claim 2 from which claim 6 depends does not require a protein to be present. Nevertheless, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich disclose that the foamed topping composition would optionally container a protein in the form of soy protein (‘251, paragraph [0077]).
Regarding claim 7, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich disclose the foamed topping would comprise a vegetable fat , a stabilizer, an emulsifier, sodium caseinate, sucrose (‘251, paragraph [0077]), and sorbitol (‘251, paragraph [0085]). Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich further disclose that the types and amounts ingredients may be varied to generate a desired set of formula properties (‘251, paragraph [0078]), which is to say that Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich is disclosing that the ingredient percentages would be conventionally and routinely optimized to produce the desired properties of the foamed topping product. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions (MPEP § 2155.06 II).
Regarding claim 8, Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich discloses the printed image would comprise one or more edible inks (‘799, paragraph [0081], [0110]).
Response to Arguments
Applicant's arguments filed 14 January 2026 have been fully and carefully considered but they are not found persuasive.
Applicant urges that Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich disclose the beverage composition would not be a carbonated soft drink. This urging is not deemed persuasive.
As set forth above in the rejections Lavie makes a distinction between carbonated beverages and bubbly alcoholic beverages which is to say that Lavie clearly is disclosing the provision of a carbonated soft drink.
Applicant urges that Meshulam in view of Bell as further evidenced by Pascual in view of Lavie as further evidenced by Marulich do not disclose non-dairy compositions that can be expelled from a pressurized container into a beverage. This urging is not found persuasive.
Here applicant is urging limitations not found in the claims. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies, that is, non-dairy compositions that can be expelled from a pressurized container into a beverage, are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant urges that Bell does not disclose any working examples that rely on carbonated soft drinks. Applicant urges that Pascual only teaches foamed topping compositions designed for melting or dispersing in less that about 20 seconds. Applicant urges that Lavie does not teach carbonated soft drinks with an external foamed topping comprising vegetable fat and water. Applicant further urges that Marulich also does not teach carbonated soft drinks with an external foamed topping comprising vegetable fat and water. Here applicant is urging each of the references individually when the rejections have been made over a combination of the references as a whole.
In response to applicant's urgings against the references individually, 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).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 16 February 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792