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 1/20/2026 has been entered. Claims 1, 4-13 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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 and 4-13 are rejected under 35 U.S.C. 103 as being unpatentable over Bradley (US 2014/0212565 A1).
Regarding Claim 1, Bradley teaches a beverage (Abstract) comprising fiber [0034]. Bradley teaches that the fiber may contain, e.g., soluble fibers and insoluble fibers [0035] such as inulin and psyllium [0036].
Bradley does not address a ratio of soluble to insoluble fibers in the texturizing fiber component. However, given that Bradley teaches fibers (i.e. psyllium) taught as appropriate texturizing fibers (instant Claim 1 and instant Specification at Page 9, Line 8), the fiber of Bradley is interpreted to have the ratio of soluble to insoluble fibers as claimed.
Bradly additionally does not address a specific ratio of inulin to other fibers.
However, different fiber components are known in the art to have different effects on a comestible product. 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 Claims 4-6, Bradley teaches the inclusion of, e.g. soy protein [0044], which is a plant extract and a non-animal protein component.
Regarding Claims 7-9, Bradley teaches the use of sweeteners such as steviol glycosides [0079], sucralose, aspartame, saccharin, acesulfame potassium [0076]. Bradley additionally teaches the use of rebaudioside A [0079].
Regarding Claim 10, Bradley teaches the use of sweetness enhancers [0080].
Regarding Claim 11, Bradley teaches a variety of beverage types including ready to drink beverages, powdered, beverages, and dairy beverages [021]. Bradley does not specifically teach a dairy analogue. However, where Bradley teaches a variety of beverage types, it would have been obvious to one of ordinary skill to utilize the composition of Bradley in any beverage, including a dairy analogue.
Regarding Claim 12, Bradley teaches the use of soy protein [0044], which is an extract from soybeans.
Regarding Claim 13, Bradley teaches the use of soy protein [0044], which is a plant protein.
Response to Arguments
Applicant’s arguments filed 1/20/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that the ratio of pea and psyllium fiber, and the relative amounts of fibers with prebiotic function, is found to have a positive impact on the texture of flavored products. Applicant cites examples from the Specification as providing specific benefits and argues that the claimed parameters are not arbitrary. Applicant additionally argues that Bradley does not address a ratio of soluble to insoluble fibers or a specific ratio of inulin to other fibers, and does not suggest that fiber components influence taste or texture, and one having ordinary skill would therefore not be motivated to modify the fiber components of a comestible product.
This argument is not convincing.
First, Applicant has not claimed specific taste or property textures.
Second, where Bradley teaches the inclusion of both soluble and insoluble fibers in a beverage product, it would have been obvious to have included any ratio of soluble to insoluble fibers, including in the ratios claimed.
Third, Applicant’s examples compare the claimed fiber blend against no fiber (Examples 2 and 5) and dextrin only (Example 3). Applicant has not demonstrated the criticality of the combination of both soluble and insoluble fiber, nor their weight ratio. The showings in the specification are therefore not commensurate in scope with the claims. Applicant has also not compared the claimed invention with the closest prior art.
Fourth, where Bradley teaches fibers (i.e. psyllium) taught as appropriate texturizing fibers (instant Claim 1 and instant Specification at Page 9, Line 8), the fiber of Bradley is interpreted to have the ratio of soluble to insoluble fibers in the texturizing fiber component as claimed.
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
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