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 .
The amendment filed 11/18/2025 has been entered. Claims 1-17, 19-27 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], 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 19 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, 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 19 recites the limitation of an oilseed protein at 5-15 wt% of a beverage, which does not further limit Claim 1. 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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-9, 11-12, 16-17, and 19-27 are rejected under 35 U.S.C. 103 as being unpatentable over White (US 20130129879).
Regarding Claim 1, White teaches a beverage (Abstract) comprising lecithin [0028] and oilseed proteins [0007].
White teaches e.g. 6.5% of a plant protein [0164], which lies within the claimed range.
White teaches that the beverage has “improved” protein solubility [0105] but does not discuss the specific protein solubility.
However, where White speaks to the effects of improved protein solubility, e.g. improved mouthfeel [0105], one of ordinary skill would have been able to have adjusted the protein solubility to arrive at the amounts as claimed through no more than routine experimentation.
White does not address the viscosity of the beverage. However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the viscosity property as claimed.
Regarding Claims 2-5, White teaches the use of lecithin but does not specifically address the use of a plant-based lecithin, sunflower lecithin, native, or hydrolyzed lecithin. However, it would have been obvious to one of ordinary skill in the art to utilize any lecithin, including a plant-based, sunflower, native, or hydrolyzed lecithin, in the product of White. One would have been motivated to make such a modification since plant-based, sunflower, native, and/or hydrolyzed lecithin are commonly used in the art.
Additionally, regarding Claim 4, since White teaches the use of lecithin and does not specifically teach modification of the lecithin, it would have been obvious to have utilized a native, i.e. unmodified lecithin, in the product of White.
Regarding Claim 6 and 7, White teaches the use of canola protein [0007].
Regarding Claim 8-9 and 11-12, White teaches the use of plant-based proteins such as pea and legume proteins [0007].
Regarding Claims 16 and 17, White teaches the use of lecithin [0028] and oilseed proteins [0007]. White teaches the addition of e.g. 6.5% of a plant protein [0164] and 0.12% lecithin (Page 18, Example 15), which is a ratio of 1:54 of lecithin:protein, which lies within the claimed range.
Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding Claim 19, White teaches the addition of oilseed protein at, e.g. 6.5% [0164], which lies within the claimed range.
Regarding Claims 20-22, White teaches the addition of oil such as sunflower oil [0028].
Regarding Claims 23 and 24, White teaches the addition of ascorbic acid [0028], sodium hydroxide [0040], sodium carbonate [0047], antifoaming agent [0088], and citric acid [0094]. Note that since Claim 24 recites species considered to be processing aids, the product of White is considered to contain processing aids, as claimed.
Regarding Claim 25, White teaches the addition of lecithin [0028] to a mixture which comprises oilseed proteins [0007] and water [e.g. 0094]. Note that the selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Regarding Claim 26, White teaches that the beverage is thermally processed [0214].
Regarding Claim 27, White teaches that the beverage is homogenized [0213].
Claims 2, 3, and 5 are rejected under 35 U.S.C. 103 as being unpatentable over White as applied to Claim 1, above, and in view of Sternchemie Lipid Technology (https://www.sternchemie.com/wp-content/uploads/2021/06/PRESS-RELEASE-Sternchemie_SternPur-S-DH-50.pdf, June 2021).
Regarding Claims 2, 3, and 5, White teaches the use of lecithin but does not specifically address plant-based, sunflower, or hydrolyzed lecithin.
Sternchemie Lipid Technology teaches that hydrolyzed sunflower lecithin (which is a plant-based lecithin) offers unusual stability for beverages (Page 2, Paragraph 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilized a hydrolyzed sunflower lecithin in the beverage of White. One would have been motivated to make such a modification since Sternchemie Lipid Technology teaches that hydrolyzed sunflower lecithin offers advantages for beverages.
Claims 10 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over White as applied to Claim 1, above, and in view of McCulloch (https://www.healthline.com/nutrition/best-vegan-protein-powder, August 2018).
Regarding Claims 10, 13, 14, and 15, White teaches the use of any vegetable protein [0007] but does not specifically address the use of a mixture of pulse protein and cereal protein.
McCulloch teaches that pea (which is a pulse) protein and rice protein are rich in branched-chain amino acids (Page 2, Paragraph 3 and Page 4, last paragraph), but pea protein is low in methionine (Page 2, Paragraph 2) and rice protein is low in lysine (Page 4, “Brown Rice Protein”, Paragraph 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize pea protein and brown rice protein in the beverage of White. One would have been motivated to make such a modification to utilize plant-based proteins rich in branched-chain amino acids. One would have been additionally motivated to utilize a mixture of these proteins, since McCulloch teaches that the proteins have different amino acid profiles.
Response to Arguments
Applicant’s arguments filed 11/18/2025 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that White teaches lecithin as a thickener, and not to improve protein solubility. Applicant additionally argues that White teaches that sodium hexametaphosphate is required to solubilize soy protein isolate.
This argument is not convincing. First, the claim does not require that lecithin be used as an agent to improve protein solubility. Second, White teaches the benefits of protein solubility (e.g. improved mouthfeel at [0105]), it would therefore have been obvious to one having ordinary skill to have adjusted the protein solubility to the claimed levels. Additionally, the instant Claim “comprises” the claimed components and therefore does not exclude the presence of, e.g. hexametaphosphate or any other beverage ingredient.
Applicant additionally argues that the working examples of the application demonstrate the surprising effect of lecithin improving the solubility and heat stability of proteins. Applicant additionally argues that since White utilizes a lower amount of protein than the claimed beverage and additionally does not utilize lecithin as a solubility improver, a skilled artisan would not expect that beverage containing lecithin and the claimed concentration of protein would have improved protein solubility and heat stability.
This argument is not convincing. First, note that White teaches the protein amounts as claimed. Second, where White teaches the protein amounts as claimed and the lecithin as claimed, it would have been obvious to have included them both in a beverage. Additionally, note that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. See MPEP 2145 II. Additionally, note that heat stability of the claimed composition is not claimed.
Regarding rejections in combination with Sternchemie and McCulloch, note that sufficient motivation is provided to utilize the features taught by Sternchemie and McCulloch in the beverage of White as discussed above in regards to the Claim(s).
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.
/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791