DETAILED ACTION
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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-3 and 6 in the reply filed on February 17, 2026 is acknowledged. The traversal is on the ground(s) that the claims are not patentably distinct because the product must be capable of ingestion without fluid and thus the examination of the claims together would not impose a serious burden. This is not found persuasive because the intended use of the product only requires the ability of the product to perform, and does not require the method of ingestion as argued. The claims are distinct and there would be a serious search and/or examination burden for the reasons stated in the restriction requirement mailed May 9, 2025.
The requirement is still deemed proper and is therefore made FINAL. Claims 4 and 5 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “10” has been used to designate both a pre-packaged packet and a standard generic bottle of water; “20” has been used to designate both a person’s open mouth and the prepackaged packet; “30” has been used to designate both a tear and the powdered composition; and “40” has been used to designate both the powdered composition and a large black cross out. See instant specification pages 3-4. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: Claim 2 recites the caffeine is present from about 0.1-10.0%. Although other ranges of caffeine are recited in the specification, such as 1-1.5% or 3-6% (see page 3 paragraphs 1 and 2), the specification does not recite about 0.1-10.0% caffeine, and thus does not provide proper antecedent basis for the range recited in claim 2. It is suggested applicant amend the specification to include the range recited in originally filed claim 2.
Claim Objections
Claims 1-3 and 6 are objected to because of the following informalities:
Claim 1 should end with a period and not a comma.
Claim 2 should have a comma after “claim 1”.
Claims 1-3 and 6 should have a period after the claim number instead of a comma.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 6 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim 6 requires a composition consisting of by weight: about 0.1-10% caffeine, about 0.5-8% L-tyrosine, about 0.5-8% L-Glutamine, about 0.5-8% Taurine, about 0.1-5.0% vitamin B6, about 0.1-5.0% vitamin C, and about 0.1-5.0% zinc. As the term “consisting of” limits the composition claimed to only the recited components, thus specifically excluding any other unnamed components, and the claimed components do not equate to 100% weight, one skilled in the art could not make the invention as claimed. In other words, as the compositional components recited do not add up to 100% by weight of the composition, and all other non-recited components are excluded from the composition, the product as claimed cannot be made.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3 and 6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 6 recite “A fluid-less edible powdered energy composition”. It is unclear as to if the term “fluid-less” simply means that the product is a powdered composition, or if the term requires that no liquid component, i.e. fluid, is added, or if the term requires some specific moisture content, such as 0%, or 1%, etc., or if the term requires that the powder is agglomerated or compressed in some manner, such that it is not fluid, i.e. is fluid-less. For the purpose of prior art comparison, the claimed limitation will be considered in the broadest reasonable sense consistent with the specification, and thus a powder or a product without added liquids will be considered to encompass the product as claimed.
Claim Rejections - 35 USC § 102
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 following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 3 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Kemita (October 20, 2021 pages 1-2 https://kemtia.com/sports-nutrition-product-range/#toggle-id-8).
Regarding claim 1, Kemita shows an instant powdered drink, i.e. a fluid-less powdered composition, comprising: caffeine, sucrose (sugar), amino acids including L-glutamine, and vitamins including B6 (page 1, post BCAAs DRINK). As the product contains overlapping components, including caffeine and sugar which were known to provide energy, it is considered to encompass an energy composition as claimed.
Regarding the composition as not intended to be combined, diluted or mixed with anything before orally ingested, including liquid of any kind as recited in claim 3, the recited limitation is the intended use of the claimed product. The recitation of intended use of a known product does not make a claim to the previously known product patentable. Thus, the product of the prior art only needs to be capable of the claimed use in order to encompass the product as claimed. As Kemita teaches of an edible composition for oral consumption (page 1), the product of Kemita would encompass the product as claimed, i.e. one which is capable of being consumed without being combined, diluted, or mixed with other elements before oral ingestion.
Claim Rejections - 35 USC § 103
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 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.
Claims 1-3 are rejected under 35 U.S.C. 103 as obvious over Lockwood (US 2004/0071825) in view of Ferrante et al (US 9,522,161).
Regarding claims 1 and 2, Lockwood teaches a granular nutritional supplement which overcomes the problems of the prior art including the need for a pleasant flavor and ingestion of the product without a pill, tablet, or capsule which must be ingested and dissolved in the stomach prior to absorption (abstract and paragraphs 17 and 18). Lockwood teaches that supplement composition comprises: 0-57% carbohydrates, 0-15% vitamins, 0-78% amino acids, and 0-10% plant extract selected from the group including caffeine (abstract, paragraph 36, and claim 7). As the product contains overlapping components, including caffeine and carbohydrates which were known to provide energy, it is considered to encompass an energy composition as claimed.
Regarding the composition as a fluid-less powdered composition as recited in claim 1, as Lockwood teaches the supplement is formed by powdering all active ingredients and micronutrients, mixing with liquid, and drying to form sufficiently small granules (paragraphs 126 and 127), the teachings of Lockwood would encompass a fluid-less powdered composition as claimed.
Lockwood is silent to the composition as including sugar (sucrose) as recited in claim 1.
Ferrante et al (Ferrante) teaches energy compositions comprising carbohydrates, caffeine, and minerals (title and abstract). Ferrante teaches that carbohydrates, including saccharides, are the primary source of energy in human diets (column 1 lines 51-52) and that the saccharide or carbohydrate of the energy composition may be sugar, i.e. sucrose, which is easily absorbable (column 7 lines 31-34).
Regarding the composition as including sugar (sucrose) as recited in claim 1, it would have been obvious for the carbohydrate in the energy composition as taught by Lockwood to be sucrose, also known as sugar, as Ferrante teaches it was a known carbohydrate for energy compositions which was easily absorbable.
Regarding the composition as not intended to be combined, diluted or mixed with anything before orally ingested, including liquid of any kind as recited in claim 3, the recited limitation is the intended use of the claimed product. The recitation of intended use of a known product does not make a claim to the previously known product patentable. Thus, the product of the prior art only needs to be capable of the claimed use in order to encompass the product as claimed. As Lockwood teaches that the supplement can absorb on the tongue (paragraph 20), the product of Lockwood would encompass the product as claimed, i.e. one which is capable of being consumed without being combined, diluted, or mixed with other elements before oral ingestion.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
As Seen by Laizure et a (“Comparison of caffeine disposition following administration by oral solution (energy drink) and inspired powder (AeroShot) in human subjects” pages 1-8, 2017 https://pmc.ncbi.nlm.nih.gov/articles/PMC5698589/pdf/BCP-83-2687.pdf), it was known to deposit caffeine directly as a powder energy composition into the oral cavity of human subjects.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/ Primary Patent Examiner, Art Unit 1792