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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6 April 2026 has been entered.
Response to Amendment
The prior art rejection has been maintained. See response to arguments below.
Claims 1-3, 5-7, 10-11, and 20 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, 5, 10-11, 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Callewaert (EP 2476317 A1 – cited in IDS filed 8/18/2022) in view of Bringe et al. (US 2013/0142933 A1).
Regarding Claim 1, Callewaert discloses a non-dairy (paragraph 1) phase-stable (stably dispersed in a liquid, paragraph 20) protein beverage (almond drinks, see title) comprising: a first protein source, wherein the first protein source is an almond paste (paragraph 9), and a water source (“aqueous medium, more preferably water”, paragraph 20), wherein the non-dairy phase stable protein beverage is free of lecithin, starches, carrageenan, gellan gum, xanthan gum, locust bean gum, guar gum, and hydrocolloid ingredients (the steps of adding emulsifiers or thickeners are optional, paragraph 43, step c). That is, lecithin is identified as optional additional ingredients (paragraph 94), starches, carrageenan, xanthan gum, locust bean gum, guar gum, and hydrocolloids are listed as examples of suitable thickeners which, as noted above, are optional (paragraph 96), and gellan gum is not recited within the Callewaert reference.
While Callewaert discloses a buffering agent (tricalcium phosphate, paragraph 101), Callewaert does not specifically recite the amount of the buffering agent but notes that the salt agent is provided for its flavoring, stabilizing and/or buffering effects. Bringe is relied on to teach a non-dairy beverage composition comprising almond butter (see Example 5, paragraph 50), and further comprises a similar buffering agent (tricalcium phosphate, paragraph 30) to fortify the composition and to maintain a desired pH level during pasteurization. Bringe incorporates tricalcium phosphate at an approximate range of 0-1% (equivalent to 0 to 10,000ppm, Example 1, paragraph 39). Note that each ingredients were weight according to the Exampled formula (paragraph 38); therefore, all recitation of percentages are construed as weight percentage. 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).
Since both Callewaert and Bringe are directed to almond beverages comprising a tricalcium phosphate as a buffering agent, and Callewaert is also directed to a pasteurized or sterilized product (paragraph 64), it would have been obvious to one of ordinary skill in the art to use the amount taught by Bringe for the purpose of maintaining a desired pH level during pasteurization.
Regarding Claim 5, Callewaert further teaches comprising sweeteners (paragraph 98), fruit extract (strawberry flavoring, paragraph 98), flavorings (cocoa powder, paragraph 98), vitamins (paragraph 100), minerals (potassium, paragraph 98), plant extracts (vanilla flavoring, paragraph 98), and plant based nutritive additives (fiber, paragraph 98).
Regarding Claim 10, Callewaert further teaches wherein the buffering agent is a salt of phosphate (tricalcium phosphate, paragraph 102).
Regarding Claim 11, while Callewaert provides a salt agent for its buffering effects (paragraph 101), he does not specifically recite a pH level; however, Bringe further teaches wherein the pH of the beverage is 7.5 to 9.5 which overlaps with the claimed range (paragraph 12). Bringe was also relied on to modify the amount of the buffering agent for the purpose of maintain a desired pH level during pasteurization. Therefore, it would have been obvious to one of ordinary skill in the art to adjust the pH level of the almond drink to the overlapping level based on desired acidity level.
Also, since the cited prior art suggest all the structures of Claim 1, “Products of identical chemical composition can not have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01.
Regarding Claim 20, Callewaert further teaches comprising a flavoring (paragraph 21).
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1, further in view of Guo (CN 102960463 A- see machine translations).
Regarding Claims 2-3, Callewaert is silent to wherein a second protein comprises one of nuts, seeds, grains, legumes, and combinations thereof (Claim 2), and wherein the second protein source is a nut paste derived from the group consisting of cashews, hazelnuts, macadamia nuts, walnuts, coconuts, and combinations thereof (Claim 3).
Guo is relied on to teach a plant protein drink (see abstract) comprising both almond paste and cashew paste (a mix of almond and cashew are grounded to a slurry, see paragraph 7, step 3 of the translations). Since both Callewaert and Guo are directed to non-dairy protein drinks comprising almond paste as a source of protein (see paragraph 2 of Callewaert), it would have been obvious to one of ordinary skill in the art to further comprise additional sources of protein derived from cashew paste based on flavor preference.
Claim(s) 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1, further in view of Abarbanel (NPL Reference- A Genius Trick So You’ll Never Run Out of Nut Milk Again).
Regarding Claims 6 and 7, the combination is silent to the specific water source. It is noted that Claim 6 is directed to a filtered water source derived from different methods of water filtration; therefore, the filter water sources are construed as a product by process limitation. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113.
Abarbanel is relied on to teach a beverage comprising almond butter and filtered water (nut butter per cup…2 cups of filtered water. ‘I love the nut and see butter trick for cashew, coconut, almond…, page 3, paragraph after “Instagram content”). That is, Abarbanel is directed to making a beverage at home comprising almond butter and a water source, wherein the water source is a filtered water source (as required by Claim 6).
Since both Callewaert and Abarbanel are directed to beverage compositions comprising almond butter/paste and water, it would have been obvious to one of ordinary skill in the art to use filtered water based on choice. As to Claim 7, since Abarbanel is directed to a convenient method of making nut milk derived from nut butter at home (“making nut milk at home is the obvious solution…” page 2, last paragraph), it would have been obvious to one of ordinary skill in the art to use filtered water that is derived from a municipal water source (i.e. tap water) since it is an available source of water that one may filter at home. It is construed that “filtered water” meets the implied structures of a filtered water source made by a filtration method selected from the group consisting of reverse osmosis, distillation, nano-filtration, electrodialysis, and ultra-filtration.
Response to Arguments
Applicant’s arguments in the response filed 6 April 2026 has been considered, but is found not persuasive over the prior art.
As to the advisory action, Applicant argues that Callewaert does not disclose a similar process for making an almond composition and does not disclose the use of buffering agents or recognize that buffering agents are necessary before a first homogenization, UHT heat treatment, and second homogenization to avoid phase separation. However, the arguments are not persuasive because Callewaert explicitly teaches the use of buffering agents (“salt agent may have a flavoring, stabilizing and/or buffering effect”, emphasis added, see paragraph 101). Also, Callewaert explicitly discloses adding the buffering agent prior to a heat treat (see paragraph 106 where tricalcium phosphate is added prior to the UHT heat treatment and homogenization). As to Applicant’s argument that Callewaert does not recognize that adding the buffering agent prior to heat treatment is necessary to avoid phase separation, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). It is maintained that since Callewaert discloses adding the buffering agent prior to heat treatment, there is a reasonable expectation that Callewaert’s composition would be phase-stable. In any case, it is noted that the claims are directed to a composition claim and cannot be further limited by the process disclosed in the specification. That is, the claim simply recites a phase-stable protein beverage comprising a first protein source, a buffering agent, a water source, and wherein the beverage is free of lecithin, starches, carrageenan, gellan gum, xanthan gum, locust bean gum, guar gum, and hydrocolloid ingredients. Therefore, since the prior art meets all the limitations of the compositions, the prior art composition is construed to also render a phase-stable beverage.
As to the Office Action, Applicant argues on the basis that Callewaert is not concerned with phase-stability and one of ordinary skill in the art would understand the process disclosed by Callewaert would not result in a phase stable beverage without the addition of one or more of lecithin, starches, carrageenan, gellan gum, xanthan gum, locust bean gum, guar gum, and hydrocolloid ingredients. Applicant also asserts that In re Best cannot be applied to the obviousness rejection because there is evidence to the contrary that one of ordinary skill in the art would not assume that the Callewaert reference is phase-stable without the use of thickeners and emulsifiers.
The arguments are found not persuasive because the claim is directed to a composition and recites in the preamble that the composition, as a whole, forms a phase-stable beverage. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. See MPEP 2112.01. II. Since the prior art suggest the claimed composition, it is therefore construed that the composition taught by the prior art is also phase-stable absent additional limitations not taught by the prior art that would directly lend the claimed composition stability in its phases.
In response to Applicant’s arguments that there are evidence to suggest the contrary, and that one of ordinary skill in the art would not expect Callewaert to produce a phase-stable beverage, the argument is not persuasive because while Callewaert does not explicitly indicate a phase-stable beverage when no thickeners and emulsifiers are used, the method employed by Callewaert suggest a phase-stable beverage. That is, Applicant’s Specification indicate that methods of making a phase-stable protein beverage comprises blending the ingredients including a protein source, a water source, and a buffering agent, further including a step of homogenizing, and thermal processing to create a thermally processed protein beverage to create a phase stable protein beverage (page 3, lines 19-27). This is similarly taught in Callewaert where the blended ingredients may be homogenized prior to heat treatment (paragraph 16). Therefore, since Callewaert follows a similar method of producing a thermally processed protein beverage, there is a reasonable expectation that the beverage of the prior art would also be a phase-stable beverage. For these reasons, it is maintained that the prior art beverage is also a phase-stable beverage while being free of lecithin, starches, carrageenan, gellan gum, xanthan gum, locust bean gum, guar gum, and hydrocolloid ingredient. "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) See MPEP 2123 I and II. That is, though the exampled embodiments comprises stabilizers and thickeners, the references does not teach away from a composition that is free of stabilizers and thickeners, especially since the stabilizers and thickeners are disclosed as being optional (paragraph 10, step C).
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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