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 .
Status of the Claims
Acknowledgement is made of the response filed on January 23, 2026. In that response, claim 9 was amended and claim 10 was cancelled. Claims 1, 9, and 11-16 are treated on the merits in this action. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Requirement for Information
Takahashi is assigned to the Applicant, and names a co-inventor of this application. Pursuant to 37 C.F.R. 1.105 (see MPEP §704.10) Applicant is requested to provide the following information: the particle size distribution referred to, but not provided, in Takahashi (see p.3 seventh para., p.6 last para., p.7 first para.) for its Example formulations. This information is relevant to the particle size limitations in claims 11-15.
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.
Claim(s) 9 is rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Takai (JP2009027926A; for citations see the machine translation of the Description).
Takai is drawn to “a powdered beverage containing 100% plant components that does not contain food additives” (p.1 second-last para.; see entire document), which is to be “dispersed in a beverage liquid such as water” (p.1 first full para.). Applicant defines “dry powder of green leaves” includes a powder of squeezed juice of green leaves or a powder of an extract thereof (Specification para.[0024]). Takai teaches using “dried juice of the plant to bind the plant powder and form[ ] granules during granulation (p.2 first para.). Because the “dried juice” binds the plant powder, “the dry powder of the green leaves is used in an amount of 100 wt% of the granulated product” as in claim 9.
Benefits of doing so include providing “powdered beverage with 100% plant ingredients” (id.). Because the powder dissolves quickly when a liquid (usually water) is added, it remains uniformly dispersed, feels “clean and good” in the throat, satisfies palatability, and provides nutrients (id.; see p.3 fifth-sixth paras.). Juice of young barley leaves (i.e., grains) and ashitaba or “tomorrow leaves” are “preferable because they have high binding properties and are easy to form granules, and the green color is vivid and the visual vegetable feeling is enhanced” when dispersed in the liquid (p.2 third para.; see p.2 second para.). “Plants to be used for the plant powder” specifically include young barley leaves, ashitaba, and the others in claim 9 (p.2 fifth para., p.4 first-second paras.).
In “[Examples 1 to 3]” (p.4), “10 g each of the powdered beverages of Example 1 and 2” having “100% plant raw material” were “put into a 300 mL glass cup, added with 200 mL water, stirred with a spoon for beverage, and dispersed in water to obtain a score”. Thus 10g of the powdered beverage occupied at most 100 mL (300 mL glass cup minus 200 mL water), meaning a maximum specific gravity of 0.1 g/mL for the powdered beverage.
Response to Arguments
Applicant’s arguments with respect to claim(s) 9 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.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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, 9, and 11-16 are rejected under 35 U.S.C. 103 as being unpatentable over Takahashi (JP 2017099318 A; citations are to the attached machine translation) in view of Zeng (Zeng, Y., et al., Preventive and Therapeutic Role of Functional Ingredients of Barley Grass for Chronic Diseases in Human Beings, Oxidative Medicine and Cellular Longevity Volume 2018, Article ID 3232080, https://doi.org/10.1155/2018/3232080) as evidenced by Okawa (JP 2015002715A; for citations see the attached machine translation of the Description).
Takahashi teaches a granulated green juice composition comprising collagen and green barley foliage (i.e., prior to maturation), having a bulk density of 0.1-1 g/ml or 0.1-1 g/cm3 (title; abstract; p.2 ninth-tenth paras. “Furthermore, the present invention is a food and drink composition for granular green juice containing collagen and barley stems and / or leaves, and has a bulk density of 0.1 g / mL to 1 g / mL”; p.4 eighth-last paras.), e.g., 0.1 g/cm3. Takahashi teaches fluidized bed granulation which produces granules having voids therebetween. The barley leaves are pulverized before granulation (p.2 last three paras.).
Takahashi does not expressly teach a product wherein the dry powder of the young barley leaves is in an amount of 100 wt.% of the granulated product as in claims 1 and 9; however barley leaf powder comprises one of the two main active agents in Takahashi.
Zeng teaches health benefits of barley grass powder, as rich in vitamins, minerals, amino acids, dietary fiber, chlorophyll, and SOD enzymes, among others (title; abstract; Tables 1, 2). Barley grass has hypolipidemic, hypoglycemic, constipation preventive, anticancer, antioxidant, and anti-inflammatory activities (p.4 rt.col.). “Daily consumption of barley grass powder promotes sleep; regulates blood sugar and pressure; enhances immunity and liver function; detoxifies acne skin; improves gastrointestinal function; prevents constipation; has anticancer and anti-inflammatory effects; alleviates atopic dermatitis; loses weight and hypolipidemic; reduces gout and hyperuricemia; prevents heart disease; has bone injury recovery, lustihood, and anti-fatigue effects; repairs memory; has antiaging effect; and so on” (pp.4-5).
It would have been prima facie obvious for one having ordinary skill in the art before the effective filing date to modify the teachings of Takahashi and devise its granules to comprise barley leaves in dominant concentrations or 100% as recited in claims 1 and 9. The skilled person would have been motivated to do so because both Takahashi and Zeng are drawn to edible dry compositions for green juice, Zeng teaches that barley grass leaves provide vitamins, minerals, amino acids, dietary fiber, chlorophyll, and SOD enzymes among others, and the skilled person could maximize those benefits by using just the barley grass leaves. As evidenced by Okawa granules of instant drink or food compositions containing granulated powder of leaves from just one individual herbal ingredient (mulberry leaf) were known in prior art.
Takahashi does not expressly teach the details of particle size distribution recited in claims 11-15. However it is noted that these claims refer to the particles of the dry powder used to make the granulated product of claim 1. In other words the particles of the dry powder do not exist as such in the product claimed, because the dry powder is the raw material. Those raw material particles are aggregated into a granulated product of claims 1, 9, and10. Regarding the limitations in claims 11-15 that are drawn to the particles of the dry powder prior to being made into the granulated product, i.e., the raw material, the following is noted:
Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect:
(A) statements of intended use or field of use, including statements of purpose or intended use in the preamble,
(B) "adapted to" or "adapted for" clauses,
(C) "wherein" or "whereby" clauses,
(D) contingent limitations,
(E) printed matter, or
(F) terms with associated functional language.
This list of examples is not intended to be exhaustive... For more information about these types of claim language and how to determine whether they have a limiting effect on claim scope, see MPEP §§ 2111.02 through 2111.05.
MPEP §2103(I)(C) (emphases added). Here the particles of dry powder, i.e., the raw material, is not recited in independent claims 1 and 9. These claims also do not recite any features of the aggregated particles. The recited specific gravity relates to the granulated product, not the particles of the dry powder prior to granulation. Therefore particle size distribution of the dry powder does not limit the scope of the claims and are not afforded patentable weight.
Assuming arguendo that the size distribution of the raw material dry powder is afforded patentable weight, it would have been prima facie obvious for one having ordinary skill in the art before the effective filing date to prepare Takahashi’s granules using raw materials having the median particle diameters and particle size distribution recited in claims 11-15. The skilled person would have been suggested to do so because Takahashi teaches pulverized barley foliage powder sizes of 30 mesh or under 595 microns such that for “the barley foliage powder and other materials [ ] uniform mixing is easy” (p.3 second para.). Furthermore Takahashi teaches, “characteristics of barley foliage powder are not particularly limited… the average particle size of 3 µm or more and 30 µm or less” is preferable for throat feel and touch, and “easy to granulate by a granulation process” (p.3 sixth para.). The under-595 µm range at large, and the average powder size of 30 µm overlap the size distribution range in claims 11-15. Optimization within prior art conditions or through routine experimentation does not support patentability absent comparative evidence of criticality of the claimed range. See MPEP § 2144.05 (II) (citations omitted).
Response to Arguments
Applicant's arguments filed January 23, 2026 have been fully considered but they are not persuasive. Applicant argues that Takahashi in view of Zeng as evidenced by Okawa does “not disclose, teach, or suggest the removal of collagen”. (Remarks, 10, January 23, 2026.) Applicant focuses on the mass ratio of collagen to barley stem and leaf to argue that “there is no unambiguous disclosure [of] more of barley foliage” over collagen. (Remarks, 11 (emphases in original).)
In response it is noted that the prima facie obviousness does not depend predominantly on the mass ratio between barley leaf and collagen. The rejection is based on Takahashi in view of Zeng as evidenced by Okawa, with Zeng providing a motivation to make a green juice powder that is made of barley grass leaves only, to provide a granule product that offers barley grass leaves’ own health benefits. While a mass ratio of more of barley foliage than collagen might further support prima facie obviousness, it is not dispositive.
Furthermore the machine translation raises confusion regarding the mass ratio. According to the machine translation, “a mass ratio (the former: the latter) of the collagen powder and the barley stem and / or leaf powder in the raw material powder is 1: 0.13 or more and 1.2 or less” (p..2 seventh para.). Here “1:0.13 or more” means greater than or equal to 7.7, i.e., more than 7-fold collagen. “1.2 or less” means collagen could comprise up to 120% of barley foliage powder, or it could be much less such as 0.1, meaning collagen only comprises 10% of barley foliage powder. Another part of Takahashi states, the “mass ratio of the collagen powder to the barley foliage powder (the former: the latter) is preferably 1: 1.2 or less, particularly preferably 1: 1 or less” (p.3 eighth para. (emphasis added)). This part clearly indicates a larger portion of the barley foliage powder than collagen. These discrepancies possibly could be due to the machine translation. If so Applicant could provide a correct translation if deemed necessary. However the rejection does not rely on the mass ratio as a factor that overrides Takahashi in view of Zeng as evidenced by Zeng.
Applicant further contends that Takahashi requires collagen as an essential component for beauty and health and removing collagen would render its composition unsatisfactory for its intended purpose. (Remarks, 12-13.)
In response it is noted that Takahashi as well as Zeng refers to the benefits of barley foliage. The “composition for eating and drinking green juice containing barley stems and / or leaves (hereinafter referred to as “stems and leaves”) facilitates vitamins, minerals, dietary fiber, amino acids, chlorophyll, SOD enzyme, etc. of barley stems and leaves. It is known as a health food that can be ingested more easily, and is easier to drink than a food and drink composition for green juice using other plant materials such as kale.” (p.2 first para.). “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” MPEP § 2141 (II)(C)(citations omitted). While Takahashi teaches combining collagen with barley foliage powder to deliver benefits of both substances, providing a “green juice” powder containing only barley foliage powder for its own health benefits would have been prima facie obvious to the skilled person.
Applicant argues next that “Takahashi does not teach and suggest removing collagen complete as suggested by the Office at all”, and Zeng “merely generically teaches …barley grass for chronic diseases”. (Remarks, 13.)
In response it is noted that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Here Takahashi refers to “excellent beauty and health effects” of “green juice containing collagen and green leaves plants such as barley stalks and leaves” (p.2 second para.), and a desire to mask unpleasant odor of collagen and disagreeable taste of odor-masking agents by using barley leaf powder. The “composition for eating and drinking green juice containing barley stems and / or leaves (hereinafter referred to as “stems and leaves”) facilitates vitamins, minerals, dietary fiber, amino acids, chlorophyll, SOD enzyme, etc. of barley stems and leaves” are “known as a health food that can be ingested more easily, and is easier to drink than a food and drink composition for green juice using other plant materials such as kale.” (Takahashi, p.2 first para.). Zeng on the other hand teaches health benefits of barley grass powder itself such as hypolipidemic, hypoglycemic, constipation preventive, anticancer, antioxidant, and anti-inflammatory activities (p.4 rt.col.). Therefore the skilled artisan would have been motivated to modify Takahashi’s powder by excluding collagen and its unpleasant odor or taste, but still provide a product comprising the ample health effects from barley grass powder alone which Zeng teaches and Takahashi also acknowledges. Okawa evidences that other such products were known in prior art.
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 H. S. PARK whose telephone number is (571)270-5258. The examiner can normally be reached on weekdays.
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/H. SARAH PARK/Primary Examiner, Art Unit 1614