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 Application
Receipt of the Response and Amendment after Non-Final Office Action filed 01/08/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: the 35 U.S.C. 112(b) rejections of claims 1, 2, 4, 5, 11, 12, 17, 20, 25, 29, 40, 41, 44, 45, 47, 48, and 49 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49
Withdrawn claims: None
Previously canceled claims: 7, 9, 10, 13-15, 18, 19, 21-24, 26-28, and 30-38
Newly canceled claims: None
Amended claims: 1, 2, 4-6, 11, 12, 17, 20, 25, 29, 40-42, 44, 45, and 47-49
New claims: None
Claims currently under consideration: 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49
Currently rejected claims: 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49
Allowed claims: None
Claim Rejections - 35 USC § 102
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 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bhaskar et al. (U.S. 2013/0196051 A1).
Regarding claim 1, Bhaskar et al. discloses a beverage ([0010]) comprising about 4-15% w/w casein ([0010], 2-25% w/w milk protein concentrate (MPC); [0016], where the MPC comprises “most preferably greater than 70% of the solids-not-fat” of milk protein with a casein:whey ratio “most preferably between 90:10 and 80:20”) with a calcium to casein ratio of about 1.8-3.2g calcium to 100g casein ([0066], Table 1, where the “Low Viscosity MPC” comprises 1.5% calcium and 83% protein, which equates to 1.81g calcium per 100 g protein, and approximately 2.13g calcium per 100g casein, assuming the MPC comprised 85% casein by weight of the total protein), about 0-15% w/w fat ([0010]), about 0-30% w/w carbohydrate ([0010]), where the casein is provided by a calcium-depleted MPC ([0010]), and wherein the beverage does not contain stabilizers that are a polysaccharide thickener or a calcium chelator ([0010], where no stabilizer is indicated as being required; [0044]-[0045], where calcium chelation is optional).
As for claim 2, Bhaskar et al. discloses a beverage ([00010]) comprising about 7.5-15% w/w casein ([0010], 2-25% w/w milk protein concentrate (MPC); [0016], where the MPC comprises “most preferably greater than 70% of the solids-not-fat” of milk protein with a casein:whey ratio “most preferably between 90:10 and 80:20”) with a calcium to casein ratio of about 1.8-3.2g calcium to 100g casein ([0066], Table 1, where the “Low Viscosity MPC” comprises 1.5% calcium and 83% protein, which equates to 1.81g calcium per 100 g protein, and approximately 2.13g calcium per 100g casein, assuming the MPC comprised 85% casein by weight of the total protein), about 0-15% w/w fat ([0010]), about 0-30% w/w carbohydrate ([0010]), where the casein is provided by a calcium-depleted MPC ([0010]), and wherein the beverage contains about 0-5% w/w polysaccharide thickener and does not contain a calcium chelator ([0010], where no stabilizer is indicated as being required; [0044]-[0045], where calcium chelation is optional).
As for claim 3, Bhaskar et al. discloses the beverage as being a sterilized beverage ([0034]).
As for claim 4, Bhaskar et al. discloses the beverage as having a calcium to casein ratio of about 1.8-3.1g of calcium per 100g of casein ([0066], Table 1, where the “Low Viscosity MPC” comprises 1.5% calcium and 83% protein, which equates to 1.81g calcium per 100 g protein, and approximately 2.13g calcium per 100g casein, assuming the MPC comprised 85% casein by weight of the total protein).
As for claim 5, Bhaskar et al. discloses the casein as being provided by a combination of a non-calcium depleted dairy ingredient with a calcium depleted dairy ingredient ([0047]).
As for claim 6, Bhaskar et al. discloses the casein as being provided by an MPC with about 5-45% calcium depletion ([0038]).
As for claim 8, Bhaskar et al. discloses the casein as being provided at least in part by calcium depleted MPC ([0010]).
As for claim 11, Bhaskar et al. discloses the beverage comprises about 4.5-19% w/w milk protein ([0010]).
As for claim 12, Bhaskar et al. discloses the beverage as having a shelf life of at least 3 months ([0113]-[0114]).
As for claim 16, Bhaskar et al. discloses the beverage as further comprising whey protein ([0048]).
As for claim 17, Bhaskar et al. discloses the beverage comprises about 0-20% w/w carbohydrate ([0010]).
As for claim 20, Bhaskar et al. discloses the beverage wherein about 7-100% of the energy is provided by protein ([0010]).
As for claim 25, Bhaskar et al. discloses the beverage as having received a sterilizing heat treatment ([0034]).
As for claim 29, Bhaskar et al. discloses a process of making a beverage, the process comprising heating at a sterilization temperature an aqueous mixture ([0034]) comprising about 4-15% w/w casein ([0010], 2-25% w/w milk protein concentrate (MPC); [0016], where the MPC comprises “most preferably greater than 70% of the solids-not-fat” of milk protein with a casein:whey ratio “most preferably between 90:10 and 80:20”) with a calcium to casein ratio of about 1.8-3.2g calcium to 100g casein ([0066], Table 1, where the “Low Viscosity MPC” comprises 1.5% calcium and 83% protein, which equates to 1.81g calcium per 100 g protein, and approximately 2.13g calcium per 100g casein, assuming the MPC comprised 85% casein by weight of the total protein), about 0-15% w/w fat ([0010]), about 0-30% w/w carbohydrate ([0010]), where the casein is provided by a calcium-depleted MPC ([0010]), and wherein the beverage does not contain stabilizers that are a polysaccharide thickener or a calcium chelator ([0010], where no stabilizer is indicated as being required; [0044]-[0045], where calcium chelation is optional).
As for claim 39, Bhaskar et al. discloses the beverage as being a sterilized beverage ([0034]).
As for claim 40, Bhaskar et al. discloses the beverage as having a calcium to casein ration of about 1.8-3.1g of calcium per 100g of casein ([0066], Table 1, where the “Low Viscosity MPC” comprises 1.5% calcium and 83% protein, which equates to 1.81g calcium per 100 g protein, and approximately 2.13g calcium per 100g casein, assuming the MPC comprised 85% casein by weight of the total protein).
As for claim 41, Bhaskar et al. discloses the casein as being provided by a combination of a non-calcium depleted dairy ingredient with a calcium depleted dairy ingredient ([0047]).
As for claim 42, Bhaskar et al. discloses the casein as being provided by an MPC with about 5-45% calcium depletion ([0038]).
As for claim 43, Bhaskar et al. discloses the casein as being provided at least in part by calcium depleted MPC ([0010]).
As for claim 44, Bhaskar et al. discloses the beverage comprises about 4.5-19% w/w milk protein ([0010]).
As for claim 45, Bhaskar et al. discloses the beverage as having a shelf life of at least 3 months ([0113]-[0114]).
As for claim 46, Bhaskar et al. discloses the beverage as further comprising whey protein ([0048]).
As for claim 47, Bhaskar et al. discloses the beverage comprises about 0-20% w/w carbohydrate ([0010]).
As for claim 48, Bhaskar et al. discloses the beverage wherein about 7-100% of the energy is provided by protein ([0010]).
As for claim 49, Bhaskar et al. discloses the beverage as having received a sterilizing heat treatment ([0034]).
Response to Arguments
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 1, 2, 4, 5, 11, 12, 17, 20, 25, 29, 40, 41, 44, 45, 47, 48, and 49 based on amendments to the claims. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49 over Bhaskar et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant indicated that the relevant claims have been amended to delete micellar casein as a casein source and to specify that the beverages do not include citrate salts, thus allegedly overcoming the anticipation rejections in view of Bhaskar et al. (Applicant’s Remarks, p. 15, ¶2).
However, the claims were rejected due to the casein source being milk protein concentrate, not micellar casein. Deletion of micellar casein does not alter the claim rejections. Also, the claim rejections indicated that the disclosed beverage does not contain stabilizers that are a polysaccharide thickener or a calcium chelator, citing paragraph [0010], where no stabilizer is indicated as being required; and paragraphs [0044]-[0045], where calcium chelation is optional. Including citrate salt in the group of calcium chelators does not alter the rejection, since calcium chelation was initially determined to be optional. The claim amendments are thus insufficient to overcome the anticipation rejections.
Applicant emphasized that Bhaskar et al. does not explicitly disclose a beverage excluding calcium chelators but instead discloses an example beverage that includes potassium citrate (Applicant’s Remarks, p. 15, ¶3).
However, paragraphs [0044]-[0045] disclose two alternative mechanisms for calcium depletion, where calcium chelation is described in paragraph [0045]. Manipulation of calcium concentration via dialysis/ultrafiltration/diafiltration as taught in [0044] would not involve the addition of a calcium chelator, though, and such an embodiment would meet the limitations of the present claims that require the omission of calcium chelators.
Applicant then argued that paragraphs [0043]-[0045] refers to the treatment of the MPC ingredient not the preparation of a beverage (Applicant’s Remarks, p. 15, ¶4). Applicant asserted that Bhaskar et al. discloses the addition of a calcium chelator to its nutritional formulation (Applicant’s Remarks, p. 15, ¶5).
However, Applicant has pointed to no other disclosure in Bhaskar et al. that involves specific addition of a calcium chelator to a beverage with an indication that such a component is required. The potassium citrate in the beverage of Example 2 is added as part of a mineral mixture and is not described as being a chelating agent or a required component ([0107], [0054]). Even if paragraphs [0043]-[0045] refer only to the preparation of the MPC ingredient, the claims remain anticipated due to no other indication that a calcium chelator is required in the preparation of a beverage.
Applicant’s arguments are unpersuasive.
The rejections of claims 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49 have been maintained herein.
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.
Claims 1-6, 8, 11, 12, 16, 17, 20, 25, 29, and 39-49 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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