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
Response to Amendment
As a result of the amendments to the claim, the objection over Claim 1 have been withdrawn.
Also, the 112(b) rejection over Claims 1-3, 5-7, and 10-11 have been withdrawn.
All rejections not repeated in this Office Action have been withdrawn. 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 20 June 2025 has been considered, but is found not persuasive over the prior art of record.
Applicant argues that the process of Callewaert is not concerned with phase-stability and that one of ordinary skill in the art would understand that the process disclosed by Callewaert would not result in a phase-stable beverage without the addition of lecithin, starches, carrageenan, gellan gum, xanthan gum, locust bean gum, guar gum, and hydrocolloid ingredients (page 5-6 of the remarks). The argument is not persuasive because the cited prior art meets all the structures of the claim as discussed in the rejection of Claim 1, and therefore is construed to be a “phase-stable” beverage. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Furthermore, since Callewaert indicates that the thickeners and emulsifiers are optional, and does not indicate that the thickeners and emulsifiers are required to produce a phase stable beverage, there is no evidence to suggest that the beverage taught by the prior art would not be phase-stable when used without the thickeners and emulsifiers. Therefore, Applicant has not presented sufficient evidence that the prior art do not necessarily possess the characteristics of the claimed product. For these reasons, the prior art has been maintained.
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.
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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