DETAILED ACTION
Amendments made February 27, 2026 have been entered.
Claims 1 and 3-17 are pending;
Claims 11-15 have been withdrawn.
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 .
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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 27, 2026 has been entered.
Claim Rejections - 35 USC § 112
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 previous rejection of claims 1, 3-10, 16, and 17 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made February 27, 2026.
Claim Rejections - 35 USC § 102/103
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The 35 U.S.C. 102(a)(1) rejections over Sweeney et al (US 2005/0008754) have been withdrawn in light of applicant’s amendments made February 27, 2026 which require coffee extract.
The 35 U.S.C. 103 rejections over the primary reference Sweeney et al (US 2005/0008754) have been withdrawn in light of applicant’s amendments made February 27, 2026 which require that the package is configured to allow the contents of the package to expand during freezing of the liquid. It is noted that although Sweeney is not specific to the limitation, the package of Sweeney would be expected to be able to function in the claimed manner because it was flexible, and without the package allowing for expansion, it would break, thus defeating the natural purpose of packaging as a barrier. Regardless, the 103 rejections of Sweeney have been withdrawn in light of the prior art reference Macpherson which explicitly teaches said limitation. Applicant is referred to MPEP 2120 which states that rejections should be confined strictly to the best prior art. With the amendment considered and the full scope of the claims as presently written, Macpherson is the best prior art, and thus, as stated above, the previous rejections have been withdrawn in light of the amendments made February 27, 2026.
Claims 1, 3, 5, 6, 8, 9, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Macpherson (WO 2011/146339) in view of Arbuckle (Ice Cream 4th Edition, pages 58, 62-63, 73-75, and 86) and as evidenced by SnapCalorie (“Eiskaffee” pages 1-6).
Regarding claims 1 and 6, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee (Paragraphs 21, 23, 24, 32 Figure 1, claims 1, 6, 16, and 33), which as evidenced by SnapCalorie, page 4, is a liquid coffee extract and ice cream beverage
Regarding the beverage as non-alcoholic as recited in claim 1, as Macpherson does not require the addition of alcohol to the beverage, and the disclosed coffee beverage eiskaffee was not defined as including alcohol (see SnapCalorie page 4), the teachings of Macpherson encompass, or at least make obvious the beverage as non-alcoholic. To form the product as disclosed, i.e. without ingredients not disclosed, would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding the package as flexible and configured to allow the contents of the package to expand when the liquid is frozen and broken up by hand after freezing as recited in claim 1, the claimed limitation is a recitation of the intended use of the claimed product, and thus only requires the ability of the prior art product to perform. The claims do not require freezing and defrosting, or a frozen beverage, or breaking of said beverage, but rather a flexible package which would be capable of allowing the beverage, if frozen, to expand and subsequently be broken up by hand. As Macpherson teaches that the beverage packaging comprises a flexible wall to accommodate the expansion of the beverage solution as it transitions from its liquid to solid state during the freezing process (paragraph 45), the packaged liquid beverage product of Macpherson is considered to encompass or at least make obvious the product as claimed. It is noted that in the same manner that the package is flexible, and thus allows the beverage to expand, the flexibility of the package would allow for a consumer to break the frozen beverage by hand as it defrosts.
Regarding the beverage as comprising buttermilk as recited in claim 1, Macpherson is silent to the beverage as comprising buttermilk. However, as discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee, which as evidenced by SnapCalorie, page 4, is a liquid coffee extract and ice cream based beverage. Arbuckle teaches ice cream ingredients, wherein buttermilk was taught to supply non-fat milk solids to the mix, contribute a richness of flavor, and was especially desirable in low fat ice creams (page 63, chapter heading and paragraph 1). It would have been obvious for the ice cream in the eiskaffee beverage of Macpherson to comprise a portion of the non-fat milk solids as supplied from buttermilk for its known benefits, including providing a richness in flavor as shown by Arbuckle. To use a known ice cream ingredient, wherein ice cream was disclosed would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding claim 3, as discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee. Further, as evidenced by SnapCalorie, eiskaffee contained 11.3% solids (about 11.33g/100g, pages 2-3) which is within the claimed range.
Regarding claim 5, Macpherson is silent to the beverage as comprising another dairy protein in addition to a buttermilk protein, or a plant protein. However, as discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee, which as evidenced by SnapCalorie, page 4, is a liquid coffee extract and ice cream beverage. Arbuckle teaches that whole milk is a very desirable source of fat and milk solids non-fat (MSNF) in ice cream (page 58 Sources of Fat, paragraph 2). As discussed above, it would have been obvious for the ice cream in the eiskaffee beverage of Macpherson to comprise a portion of the non-fat milk solids as supplied from buttermilk for its known benefits. It would have been further obvious for the other milk solids nonfat to come from whole milk as Arbuckle teaches that whole milk is a very desirable source of fat and MSNF in ice creams. To use a known ice cream ingredient, wherein ice cream was disclosed would have been obvious and well within the purview of one of ordinary skill in the art. It was known that milk contained protein, and thus the addition of whole milk would add another dairy protein to the beverage composition.
Regarding claim 8, Macpherson is silent to the beverage as comprising hydrocolloids selected from the group consisting of cellulose, alginate, gellan gum, locust bean gum, starch, xanthan gum, and combinations of these as recited in claim 8. However, as discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee, which as evidenced by SnapCalorie, page 4, is a liquid coffee extract and ice cream beverage. Arbuckle teaches properly stabilized ice cream will not taste as cold, will melt to a creamer consistency, and will maintain a smooth texture (page 86, paragraphs 4 and 5). Arbuckle teaches that at one time or another most gums have been used as ice cream stabilizers, but for reasons of price or functionality have been generally replaced by alginates, CMC (carboxy methyl cellulose), and guar and locust bean gum (page 86 paragraph 8). It would have been obvious for the ice cream in the eiskaffee beverage of Macpherson to comprise stabilizers for a creamier consistency and to maintain a smooth texture, wherein alginates, cellulose, and/or locust bean gum would be obvious to use for reasons of price or functionality in view of Arbuckle. To use a known ice cream ingredient, wherein ice cream was disclosed would have been obvious and well within the purview of one of ordinary skill in the art.
Regarding claim 9, as discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee. Further, as evidenced by SnapCalorie, eiskaffee contained about 11.3% solids (about 11.33g/100g) of which 7.2 grams are sugars, i.e. saccharides (pages 2-3). Thus, the eiskaffee beverage of Macpherson would comprise about 63.7% (7.2/11.3) saccharides on a solids basis which is within the claimed range.
Regarding claim 16, Macpherson is silent to the beverage as comprising a saccharide comprising allulose, glucose syrup having a DE of about 25-42, or a combination thereof as recited in claim 16. However, as discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee, which as evidenced by SnapCalorie, page 4, is a liquid coffee extract and ice cream beverage. Arbuckle teaches corn syrup is used in ice cream to provide an economical source of solids, a firmer and heavier body, and improve the shelf life of the finished products (page 73 Corn Sweeteners). Arbuckle teaches there has been much interest in low conversion corn syrup solid products (DE 28-38) because they help increase solids and maintain product properties and sweetness (page 73 last paragraph, page 74 first two paragraphs, and page 75 third paragraph). It would have been obvious for the ice cream in the beverage product of Macpherson to comprise corn syrup to provide an economical source of solids, a firmer and heavier body, and/or improve the shelf life of the finished products in view of Arbuckle. It would have been further obvious for the DE of the corn syrup to be from 28-38 as Arbuckle teaches that said DE maintains product properties and sweetness. To use a known ice cream ingredient, wherein ice cream was disclosed would have been obvious and well within the purview of one of ordinary skill in the art.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Macpherson (WO 2011/146339) in view of Arbuckle (Ice Cream 4th Edition, pages 58, 62-63, 73-75, and 86) and as evidenced by SnapCalorie (“Eiskaffee” pages 1-6), further in view of Staff (Harvard TH Chan, “Cold brew coffee as healthy as the hot kind” July 2017, page 1).
As discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee, which as evidenced by SnapCalorie, page 4, is a liquid coffee extract and ice cream based beverage
Macpherson does not teach the coffee extract as extracted between 0-90C as recited in claim 7.
Staff teaches that cold brew coffee is made by steeping coffee grounds in cold water, wherein the cold brew is just as healthy as regular coffee, may even be healthier, and is often considered tastier because it’s less acidic (page 1).
Regarding the extract as extracted between 0-90C as recited in claim 7, the claimed limitation is a product by process limitation, and thus, the process is considered in the manner in which it affects the claimed product. In the instant case, the extraction temperature affects the acidity, and thus taste of the final product. It would have been obvious to one of ordinary skill in the art for the coffee extract of Macpherson to be cold brew as it is tastier and may be healthier as taught by Staff. As Staff teaches that cold brew is with cold water, the use of cold brew would be expected to encompass a product produced by the process as claimed.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Macpherson (WO 2011/146339) in view of Arbuckle (Ice Cream 4th Edition, pages 58, 62-63, 73-75, and 86) and as evidenced by SnapCalorie (“Eiskaffee” pages 1-6), further in view of Jones (US 6511693).
As discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage. Macpherson teaches the containers are desired to be drunk directly from (paragraph 0040) and that at least some portion of the container comprises a flexible wall (paragraph 45).
Macpherson is not specific to the package as a pouch as recited in claim 4.
Jones et al teaches a frozen slushy drink, including coffee flavored drinks, in a flexible pouch, wherein the packaged product is immediately consumable by a consumer (abstract and column 1 lines 50-55). Jones teaches that the squeezable pouch is portable and may be disposed of after consumption and that consumers typically seek foods that require minimal preparation time, are conveniently packaged, and/or are portable (column 1 lines 22-25 and 65-67).
It would have been obvious for the flexible walled packaged beverage as taught by Macpherson to be a pouch as Jones teaches that pouches can package frozen beverages, and provide a portable and convenient packaging means which consumers typically seek out.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Macpherson (WO 2011/146339) in view of Arbuckle (Ice Cream 4th Edition, pages 58, 62-63, 73-75, and 86) and as evidenced by SnapCalorie (“Eiskaffee” pages 1-6), further in view of Zieger et al (WO 97/43913).
As discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee, which as evidenced by SnapCalorie, page 4, is a liquid coffee extract, sugar containing, and ice cream beverage
Macpherson is silent to beverage as aseptically processed and suitable for storage at ambient temperature as recited in claim 10.
Zieger et al (Zieger) teaches a method of forming a slush beverage (title), and that it is preferred that precautions be taken to exclude bacteria, such as with the use of aseptic processing (page 20 paragraph 1). Zieger further teaches that liquids with a high content of sugar are an ideal place for microorganisms to grow, and thus microbiological stability is important (page 3 paragraph 2).
It would have been obvious for the sugar containing beverage of Macpherson to be aseptically processed, and thus suitable for storage at ambient temperatures, in order to prevent bacteria and/or be microbiologically stable in view of Zieger. It is noted that ambient temperature is that of the surrounding environment and thus, although typical, it would not be limited to room temperature. This is consistent with the term as used in the art, as well as with the instant disclosure which gives an example of ambient temperature as 15C (59F). As the product of the prior art would be processed to reduce bacteria, it would be suitable for storage at ambient conditions. The position of the office is further supported as the prior art teaches of the same processing, i.e. aseptic, as claimed and disclosed.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Macpherson (WO 2011/146339) in view of Arbuckle (Ice Cream 4th Edition, pages 58, 62-63, 73-75, and 86) and as evidenced by SnapCalorie (“Eiskaffee” pages 1-6), further in view of Woodyer et al (US 2016/0302463).
As discussed above, Macpherson teaches freezing a packaged liquid coffee extract containing beverage including eiskaffee. Further, as evidenced by SnapCalorie, eiskaffee contained about 11.3% solids (about 11.33g/100g) of which 7.2 grams are sugars, i.e. saccharides (pages 2-3). Thus, the eiskaffee beverage of Macpherson would comprise about 63.7% (7.2/11.3) sugars on a solids basis.
Macpherson is silent to the beverage as including about 10-70% allulose as recited in claim 17.
Woodyer teaches although desirable in terms of taste and function excess intake of nutritive sweeteners has been associated with health issues (paragraphs 2 and 3), and that allulose can be used as a full or partial replacement to provide the bulk, sweetening, and the other functions of nutritive sweeteners while avoiding the negative health issues (abstract and paragraphs 7-11). Woodyer teaches foods for replacement include coffee beverages, frozen drinks, and dairy drinks, wherein in certain embodiments the beverage comprises from 2-7% allulose by total weight (paragraphs 17, 139, and 140).
It would have been obvious for the sugar in the beverage compositions taught by Macpherson to be replaced in full or in part by allulose to improve the health effects of the product in view of Woodyer. Thus, the product of the prior art would contain up to about 63.7% allulose on a solids basis, wherein the exact amount would be based on the desired sweetness and health effects.
Response to Arguments
Applicant’s arguments with respect to the prior art rejections 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.
Applicant’s arguments concerning unexpected results, see page 11 of the remarks filed February 27, 2026 have been considered but are not convincing.
Applicant argues that as explained in the present specification at paragraph 25, the use of hydrocolloids have particular effects of influencing the texture of the partly melted beverage and help maintains fat as an evenly distributed suspension and can reduce the size of the ice crystal. This argument is not convincing at least because the evidence is not commensurate in scope with the claims and the results do not appear unexpected over the prior art. Specifically, the evidence is limited to specific hydrocolloids in specific amounts and does not fairly represent the breadth of the claims which is essentially greater than 0% and up to less than 100% of the recited hydrocolloids; and Arbuckle teaches of the known and numerous benefits of hydrocolloids in frozen compositions, such as and including, affecting crystallization and influencing the texture (page 86).
Conclusion
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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