DETAILED ACTION
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 03/26/2026; and the Request for Continued Examination (RCE under 37 CFR 1.114) filed 04/23/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. §112(b) rejection of claim 16 has been withdrawn; and (2) the 35 U.S.C. §103 rejection of claim 17 over Clyde has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-3, 5-16, 18
Withdrawn claims: 11-15
Previously cancelled claims: 4
Newly cancelled claims: 17
Amended claims: 1-2, 6-7, 10, 16
New claims: None
Claims currently under consideration: 1-3, 5-10, 16, 18
Currently rejected claims: 1-3, 5-10, 16, 18
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/23/2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 3 recites that the protein in the creamer of claim 1 is milk protein. However, claim 1, from which claim 3 depends, states that the protein is at least one from the list recited in claim 1 and that the at least one protein is the only protein in the creamer. The recited list in claim 1 does not include milk protein. Therefore, claim 3 requires a protein that is excluded by claim 1. As such, claim 3 fails to include all the limitations of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-3, 5-9, 16, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Sargent (US 2004/0062846; previously cited).
Regarding claims 1, 2, and 16, Sargent teaches a foaming liquid creamer [0018], [0083] comprising a microparticulated ingredient containing protein and fat, wherein the amount of protein and fat in the microparticulated ingredient is about 0.1 wt.% to about 70 wt.%; and the amount of fat in the microparticulated ingredient is about 0.1 wt.% to about 80 wt.% [0028], [0031], [0034]. Sargent teaches that the protein may be soy protein and/or canola (corresponding to rape seed) protein [0037] as recited by present claim 1. Sargent teaches that the microparticulated ingredient may further comprise alginate and cellulose, wherein the cumulative amount of alginate and cellulose in the microparticulated ingredient is from about 0.1 wt.% to about 70 wt.% [0043]-[0044], [0049]. Sargent teaches that the creamer further comprises a secondary ingredient component [0026] wherein the secondary ingredient comprises from about 50 wt.% to about 99.5 wt.% of a bulking agent [0052]. Sargent teaches that the bulking agent may be starch [0062]. Sargent teaches that the creamer comprises from about 20 wt.% to about 95 wt.% water [0095]; and that the creamer comprises a weight ratio of microparticulated ingredient to secondary ingredient of from about 1:1 to about 5:1 [0098].
From these values disclosed in Sargent, the creamer compositions of Sargent encompass embodiments wherein the creamer has the protein, fat, alginate, cellulose, and starch concentrations recited in present claims 1 and 2. For example, a creamer of Sargent comprising 75 wt.% water; a weight ratio of microparticulated ingredient to secondary ingredient of 3:1; a concentration of 16 wt.% protein, 16 wt.% fat, 1.2 wt.% alginate; and 1.2 wt.% cellulose in the microparticulated ingredient; and a concentration of 50 wt.% starch in the secondary ingredient, the creamer would comprise 3 wt.% protein, 3 wt.% fat, 0.23 wt.% alginate, 0.23 wt.% cellulose, and 3.1 wt.% starch, which fall within the protein, fat, alginate, cellulose, and starch concentration ranges recited in present claims 1 and 2. Therefore, Sargent at least discloses overlapping ranges of protein, fat, alginate, cellulose, and starch.
Sargent teaches that the creamer further comprises an emulsifier wherein the emulsifier may be lecithin and/or monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate (corresponding to propylene glycol esters), and sorbitan monostearate (corresponding to sorbitan esters) [0054]-[0055]. Sargent teaches the secondary ingredient comprises the emulsifier in an amount from about 0.05 wt.% to about 50 wt.% [0052]; and that the creamer comprises a weight ratio of microparticulated ingredient to secondary ingredient of from about 1:1 to about 5:1 [0098].
Wherein Sargent discloses that the emulsifier may consist of lecithin, Sargent discloses a creamer composition containing 0 wt.% of monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate, and sorbitan monostearate, which falls within the concentration range recited in present claim 1. Wherein Sargent discloses that the emulsifier may be monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate, and/or sorbitan monostearate, Sargent discloses embodiments of the creamer which have the claimed concentration of monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate, and sorbitan monostearate. For example, a creamer of Sargent comprising 75 wt.% water; a weight ratio of microparticulated ingredient to secondary ingredient of 3:1; a concentration of 0.05 wt.% emulsifier comprising monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate, and/or sorbitan monostearate in the secondary ingredient, the creamer would contain monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate, and/or sorbitan monostearate in an amount of 0.003 wt.%, which falls within the range recited in present claim 16. Therefore, Sargent at least discloses an overlapping range of monoacylglycerols, diacylglycerols, diacetylated tartaric acid esters of monoglycerides, propylene glycol monostearate, and/or sorbitan monostearate.
In regard to the overlapping ranges disclosed by Sargent, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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 percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
In regard to the viscosity of the un-foamed creamer of Sargent, Sargent discloses that controlling the solids level in the creamer helps to control the viscosity of the liquid creamer [0061]. Sargent discloses a viscosity for the unfoamed liquid creamer of about 20 mPa/s to about 60 mPa/s at about 37°C (corresponding to about 20 centipoise to about 60 centipoise) [0101].
As the viscosity is a variable that can be modified, among others, by adjusting the solids level in the creamer, the viscosity would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the invention. As such, without showing unexpected results, the claimed viscosity cannot be considered critical. Accordingly, one of ordinary skill in the art before the effective filing date of the invention would have optimized, by routine experimentation of the solids level, the viscosity in the creamer of Sargent using a viscosity of about 20 mPa/s to about 60 mPa/s at about 37°C as a guide (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223). MPEP § 2144.05.II.
Regarding claim 3, Sargent teaches the invention as described above in claim 1, including the protein in the creamer may be milk protein, soy protein, and/or canola protein [0037].
Regarding claim 5, Sargent teaches the invention as described above in claim 1. Sargent does not explicitly disclose that its creamer can be foamed by shaking by hand. However, it is known in the art that shaking a liquid by hand incorporates air into the liquid, causing bubbles to form in the liquid. Since the creamer of Sargent is a liquid, the creamer of Sargent is considered to be able to be foamed by shaking by hand. Therefore, claim 5 is rendered obvious.
Regarding claim 6, Sargent teaches the invention as described above in claim 1, including the fat is coconut oil [0032].
Regarding claim 7, Sargent teaches the invention as described above in claim 1, including the creamer may further comprise a sweetener selected from the group consisting of sucrose, fructose, and sorbitol [0087].
Regarding claim 8, Sargent teaches the invention as described above in claim 1, including the creamer comprises protein, fat, alginate, cellulose, starch, and an emulsifier as described above in the rejection of claim 1. Since these ingredients do not comprise solid particulate whiteners, Sargent is considered to teach a creamer that is free from added solid white particulate whiteners.
Regarding claim 9, Sargent teaches the invention as described above in claim 1, including the creamer is a shelf-stable liquid creamer [0108].
Regarding claim 18, Sargent teaches the invention as described above in claim 1, including the creamer has a pH of about 5.5 to 7.2 [0076], which encompasses the claimed pH range. The selection of a value within the encompassing range renders the claimed pH obvious. MPEP §2144.05.I.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Sargent (US 2004/0062846; previously cited) as applied to claim 1 above, in view of Sher (US 2014/0044855).
Regarding claim 10, Sargent teaches the invention as described above in claim 1, including the creamer may comprise a buffering salt (corresponding to stabilizing salt) to maintain the pH level in the finished product [0076].
Sargent does not teach that the creamer further comprises 0.03-0.15 wt.% bicarbonate salt.
However, Sher teaches a liquid creamer comprising bicarbonate salts (corresponding to sodium and potassium bicarbonates) as buffering agents, wherein the concentration of bicarbonate salt in the creamer is about 0.5 wt.% to about 1 wt.% [0044], which overlaps within the claimed concentration. The selection of a value within the overlapping range renders the claimed concentration obvious. MPEP §2144.05.I.
It would have been obvious for a person of ordinary skill in the art at the time of filing of the present invention to have modified the buffering salt of Sargent to be bicarbonate salt as taught by Sher. Since Sargent teaches that the creamer may comprise a buffering salt to maintain the pH level in the finished product [0076], but does not specify a buffering salt, a skilled practitioner would have been motivated to consult an additional reference such as Sher in order to determine a suitable buffering salt for a liquid creamer. In consulting Sher, the skilled practitioner would also find a suitable concentration of bicarbonate salt for buffering a liquid creamer, thereby rendering the claimed bicarbonate salt and its concentration obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claim 16: Applicant amended the claim to fully address the rejection. Therefore, the rejection is withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-3, 5-10, and 16-18 over Clyde: Applicant’s arguments with respect to claim(s) 1-3, 5-10, and 16-18 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The rejection of claim 17 is moot due to the Applicant’s cancellation of the claim.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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