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 .
Status of Claims
Claim 2 and 4 are cancelled.
Claim 8 is newly added.
Overall, claims 1, 3, 5-8 are pending.
Claims 5-7 are withdrawn from examination for being directed to nonelected invention.
Claims 1, 3 and 8 are under examination.
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.
Claim(s) s 1, 3 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yamaguchi (JP2021158949, published 2021.10.11).
Regarding claim 1: Yamaguchi teaches a soymilk containing beverage. [Claim 1] The beverage of Yamaguchi has a pH of 4.6 or less. The acidic pH range is any value below 7 on the standard 0 to 14 scal. The beverage of Yamaguchi also contains magnesium. [Claim 1] Magnesium is a divalent cation. The beverage of Yamaguchi also contains soybean solid content. [Claim 1] The soybean solid that Yamaguchi teaches includes soybean protein. [Paragraphs 8 and 13] Yamaguchi teaches that the solid content can be 0.05 to 0.3% by mass. The 0.05 to 0.3% by mass is within with the claimed range of .05 to 5% by weight. Yamaguchi also teaches that the beverage contains stabilizers. [Paragraph 23] The stabilizer that Yamaguchi teaches includes water soluble soybean polysaccharide. [Paragraph 24] With respect to the magnesium, a divalent cation, Yamaguchi does not teach a concentration of 7.5mM-20 mM. Instead, Yamaguchi teaches that magnesium may be present at concentration of 5-40 % by mass. Yamaguchi also teaches that magnesium concentration may be adjusted to improve the soymilk flavor and bring out the advantage of providing a preferable salty and aftertaste. [Paragraph 12]
In the instant case, it would have been obvious for one of ordinary skill in the art before the effective filing date to have adjust the concentration of magnesium, including the claimed mM. One of ordinary skill in the art would have been motivated to do so to improve the soymilk flavor and bring out the advantage of providing a preferable salty and aftertaste. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Yamaguchi establishes that magnesium is a result effective variable.
Regarding claim 3: Yamaguchi teaches a water-soluble soy polysaccharide. [Paragraph 24]
Regarding claim 8: Yamaguchi teaches that the water-soluble soy polysaccharide may be present in the amount of 4-8 g/L, which translates to .4-.8 % by weight. [Paragraph 25] The .4-.8 % by weight of Yamaguchi is within the claimed range of 0.03-4%.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 3 and 8 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.
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 Emily M Le whose telephone number is (571)272-0903. The examiner can normally be reached M-F, 8 am-4:30pm.
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/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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