DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the AIA first to file provisions. 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 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.
Application Status
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/4/2026 has been entered.
Claims 1, 3-6, 8-11, and 15 are currently pending and being examined.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
In this action, 3 IDS documents have been considered. See the attached PTO 1449 forms.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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, 3-6, and 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over A. Grazela (CP Kelco US, Inc Research Disclosure included in IDS) in view of Stiles et al. 2021/0289804 and Lim et al. US 2022/0369659.
Regarding claims 1 and 8:
Grazela teaches a vegan creamer composition (page 2, example 3) comprising sugar beet pectin (GENU® BETA pectin) and a bulking agent (Sugar).
While Grazela discloses the use of almond butter as a fat/oil for the same purpose, Grazela does not teach vegetable oil in an amount of from about 15 wt% to about 50 wt%, from about 25 wt% to about 50 wt%, or from about 35 wt% to about 50 wt% of the creamer composition, and Grazela does not teach wherein the creamer composition is in a form of a powdered vegan creamer.
Stiles discloses a related non-dairy creamer (abstract) substitute that lists vegetable oil as an alternative to almond oil and a long list of other vegetable oils (see [0072], e.g., coconut, sunflower, palm oils, etc.). Regarding the creamer composition being a powdered creamer, Stiles discloses the “non-dairy analog may optionally be dried to obtain powders. Drying may be performed in a suitable way, including but not limited to spray drying, dry mixing, agglomerating, freeze drying, microwave drying, drying with ethanol, evaporation, refractory window dehydration or combinations thereof.” ([0115]). Stiles does not appear to teach more than 10% vegetable content by weight, however Lim discloses a related creamer product having a vegetable oil content from 23% to as high as 45% by weight of the creamer composition ([0084]).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the creamer composition of Grazela by substituting vegetable oil for the almond oil in the composition, as is suggested possible by Stiles, in the event the product was to be marketed to consumers with nut allergies, and obvious to try, for a person having ordinary skill in the art, increasing the vegetable oil content to 15% or more, since Lim discloses a related creamer showing higher weight percentages of vegetable oil as beneficial. It would have further been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, that if the creamer was desired to be powdered, a person having ordinary skill in the art would look to Stiles’ disclosure and dry out the creamer with any old and well-known method of doing so, which Stiles lists, since powdered creamers have a number of benefits, including being less expensive to transport without water present.
Regarding claim 3:
The combination of Grazela, Stiles, and Lim teaches the creamer composition according to claim 1, as discussed above, wherein the creamer composition comprises the pectin in an amount of from about 0.1 wt % to about 2.5 wt (0.25% according to the table).
Regarding claim 4:
The combination of Grazela, Stiles, and Lim teaches the creamer composition according to claim 1, as discussed above, wherein the pectin and the vegetable oil are present in a pectin: oil weight ratio of from about 1:25 to about 1:20 (approx. 1:21.5 according to the values from the table).
Regarding claim 5:
The combination of Grazela, Stiles, and Lim teaches the creamer composition according to claim 1, as discussed above, wherein the pH of the creamer composition is at least about pH 5 (with the absence of any pH modifiers, the pH should be expected to be approximately 7).
Regarding claim 6:
The combination of Grazela, Stiles, and Lim teaches the creamer composition according to claim 1, as discussed above, wherein the creamer composition further comprises a base (e.g., the deionized water can be considered a base).
Regarding claim 9:
The combination of Grazela, Stiles, and Lim teaches the creamer composition according to claim 1, as discussed above, but does not teach wherein the creamer composition comprises the bulking agent in an amount of from about 10 wt % to about 80 wt % (Grazela discloses 6.7% sugar bulking agent), however, it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the percentage of the bulking agent (sugar) by increasing it to over 10%, in order to increase the sweetness of the product.
Regarding claim 10:
The combination of Grazela, Stiles, and Lim teaches the creamer composition according to claim 1, as discussed above, wherein the creamer composition further comprises a foaming aid (Stiles, [0201] further uses pea protein as a foaming agent).
Regarding claim 11:
As discussed in the rejection of claim 1 above, the combination of Grazela, Stiles, and Lim teaches a creamer composition comprising sugar beet pectin, vegetable oil and a bulking agent.
The combination does not teach a beverage capsule comprising said composition.
However, Examiner maintains the official notice (now applicant admitted prior art) that beverage capsules containing creamers are old and well-known in the art and it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the creamer composition by providing it in a beverage capsule, in order to make it portable for use in a variety of settings.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Grazela, Stiles, and Lim, as applied above, and further in view of Leser et al. US 2019/0029281.
Regarding claim 15:
As discussed in the rejection of claim 1 above, the combination of Grazela, Stiles, and Lim teaches a vegan powdered creamer composition comprising sugar beet pectin, vegetable oil and a bulking agent in the claimed amounts (see claim 1 rejection above).
The combination of Grazela, Stiles, and Lim does not explicitly teach a method for producing the creamer composition comprising: (i) providing an aqueous phase comprising the creamer composition; (ii) mixing the aqueous phase, the oil phase, and the bulking agent to form a pre-emulsion; (iii) homogenising the pre-emulsion to form an emulsion concentrate; and (iv) drying the emulsion concentrate to form a powdered creamer composition.
In a related creamer composition, Leser discloses the steps of (i) providing an aqueous phase comprising the creamer composition; (ii) mixing the aqueous phase, the oil phase, and the bulking agent to form a pre-emulsion; (iii) homogenising the pre-emulsion to form an emulsion concentrate; and (iv) drying the emulsion concentrate to form a powdered creamer composition (e.g., see claim 15).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the combination of Grazela, Stiles, and Lim, by producing the composition according to the method of Leser, in order to provide a powdered product from the liquid ingredients via a tried and tested method.
Response to Arguments
Applicant’s remarks have been carefully considered but are moot due to the new grounds of rejection made in this action, necessitated by amendment. While Applicant remarks how powdered creamers are generally produced, the remarks do not lay out a factual basis of why simply drying out the liquid composition of Grazela, Stiles, and Lim would not lead to a dried-out powdered version of the same, especially in view of Stiles teaching that “[t]he non-dairy analog may optionally be dried to obtain powders. Drying may be performed in a suitable way, including but not limited to spray drying, dry mixing, agglomerating, freeze drying, microwave drying, drying with ethanol, evaporation, refractory window dehydration or combinations thereof.” ([0115]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARIUSH SEIF whose telephone number is (408) 918-7542. The examiner can normally be reached on Monday-Friday 9:30 AM-6:00 PM PST.
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/DARIUSH SEIF/Primary Examiner, Art Unit 3731