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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-14 and 38 in the reply filed on 11/17/2025 is acknowledged.
Claims 20, 23-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/17/2025.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 9 is rejected 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.
Claim 9 recites the limitation "the fat" in line 1. There is insufficient antecedent basis for this limitation in the claim. It appears that claim 9 should depend from claims 7 or 8.
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-3, 7-8, 10-14 and 38 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2019/0320689 (Beliciu).
Regarding claim 1, Beliciu discloses a ready-to-drink beverage comprising a plant protein blend which comprises three proteins: a legume protein, a whole grain protein, and a dairy protein [0017]. The legume protein may be derived from chickpea [0018] and the whole grain protein may be derived from oat protein [0019]. In addition to the protein components, water or juice are added to form the beverage [0031, 0058].
Regarding claims 2 and 3, fructooligosaccharides or galacto-oligosaccharides may be added [0045].
Regarding claims 7-8, fat may be added in an amount of up to 2% [0032, 0109] and may be sunflower oil, canola oil, or palm oil.
Regarding claims 10 and 11, vitamins and minerals may be added [0043, 0064].
Regarding claim 12, the juice may be apple [0058].
Regarding claims 13 and 14, the beverage contains 3-5wt% legume protein and 3-5wt% whole grain protein [0035].
Regarding claim 38, the wheat protein may be lightly hydrolyzed [0021].
Claim(s) 1, 7-8, 10, and 13-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2019/0110501 (Triantafyllou).
Regarding claims 1 and 13-14, Triantafyllou discloses a viscosity enhanced oat base or drink comprising the oat base or drink supplemented by vegetable protein isolate. The vegetable protein isolate may be chickpea. The oat base is aqueous; thus, an amount of a first liquid is present [0013, 0015, 0022]. Oat base is disclosed as having about 1-3.5wt% protein, thus the oat base is considered to provide an amount of oat-derived protein [abstract, 0006, 0016]. The total protein of the oat base is raised to 2wt% to 5wt% or more, thus the amount of vegetable protein isolate added to the oat base to reach this total would be 1wt%-1.5wt% (claim 10, [0025]).
Regarding claims 7 and 8, fat may be present, for example rapeseed oil [0004, 0061]
Regarding claim 10, the drink may include vitamins [0015].
Claim(s) 1, 7-8, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 105394507 (Bengbu) (cited on IDS filed 08/09/2023).
Regarding claim 1, Bengbu discloses a beverage comprising chickpea and oat which inherently provide an amount of protein of each material [0007]. The beverage includes “an amount of water”; thus, providing an amount of a first liquid.
Regarding claims 7 and 8, avocado is added; thus, a plant-based fat is present in the beverage.
Regarding claims 7-8 and 10, highland barley is present in the beverage which is discloses as being rich in fat and vitamin B group [0004]. Thus, plant-based fat and vitamins are present due to the presence of highland barley.
Claim(s) 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 105331503 (Zhang) (cited on IDS filed 08/09/2023).
Zhang discloses a white wine including chickpea and oat which provide an amount of protein in each. Zhang discloses that water is the main component in the wine.
Claim Rejections - 35 USC § 103
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.
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.
Claim(s) 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0320689 (Beliciu) OR US 2019/0110501 (Triantafyllou) OR CN 105394507 (Bengbu) in view of WO 2021/062346 (Higiro).
Beliciu discloses a ready-to-drink beverage comprising a plant protein blend which comprises three proteins: a legume protein, a whole grain protein, and a dairy protein [0017] but does not expressly disclose the addition of prebiotic fiber, in the form of inulin thereto. Triantafyllou also discloses a plant-protein containing beverage but does not disclose a prebiotic, such as inulin, added thereto. Bengbu discloses a beverage comprising chickpea and oat which inherently provide an amount of protein of each material [0007].
Higiro discloses beverages including beverages containing plant proteins including oats (page 13). Higiro discloses that dietary fibers, prebiotics and macronutrient weight management agents in the form of carbohydrates, each may be provided as inulin (pages 24, 29, and 30). It would have been obvious to provide inulin (prebiotic fiber) to the plant-protein containing beverage of Beliciu, Triantafyllou or Bengbu as suggested by Higiro for the inherent gut biome benefits conferred by prebiotics.
Claim(s) 2, 5, 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0320689 (Beliciu) in view of US 2021/0068414 (Takahashi).
Beliciu discloses a ready-to-drink beverage comprising a plant protein blend which comprises three proteins: a legume protein, a whole grain protein, and a dairy protein [0017] but does not expressly disclose the addition of prebiotic fiber, in the form of an HMO.
Regarding claims 2 and 5, Takahashi discloses a nutritional composition comprising bacteria, probiotics and HMOs which may be added to food and drink to promote proliferation of probiotics having low ability to assimilate human milk oligosaccharides (HMOs) in the presence of HMOs (abstract). It would have been obvious to add the nutritional composition of Takahashi to the beverage of Beliciu to promote proliferation of probiotics having low ability to assimilate human milk oligosaccharides (HMOs) in the presence of HMOs. One of ordinary skill would reasonably expect the benefits disclosed by Takahashi to be conferred upon the beverage of Beliciu by the addition thereto.
Regarding claim 6, the HMOs may be 2’-fucosyllactose, 3’-fucosyllactose, sialyllactose (3’ and 6’), lacto-N-tetraose and lacto-N neotetraose [0054 of Takahashi].
With regard to claim 9, as noted above, Beliciu discloses sunflower oil.
Claim(s) 2, 5, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0110501 (Triantafyllou) in view of US 2021/0068414 (Takahashi).
Triantafyllou also discloses a plant-protein containing beverage but does not disclose a prebiotic, such as an HMO, added thereto.
Regarding claims 2 and 5, Takahashi discloses a nutritional composition comprising bacteria, probiotics and HMOs which may be added to food and drink to promote proliferation of probiotics having low ability to assimilate human milk oligosaccharides (HMOs) in the presence of HMOs (abstract). It would have been obvious to add the nutritional composition of Takakasi to the beverage of Triantafyllou to promote proliferation of probiotics having low ability to assimilate human milk oligosaccharides (HMOs) in the presence of HMOs. One of ordinary skill would reasonably expect the benefits disclosed by Takahashi to be conferred upon the beverage of Triantafyllou by the addition thereto.
Regarding claim 6, the HMOs may be 2’-fucosyllactose, 3’-fucosyllactose, sialyllactose (3’ and 6’), lacto-N-tetraose and lacto-N neotetraose [0054 of Takahashi].
Claim(s) 2, 5, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over CN 105394507 (Bengbu) in view of US 2021/0068414 (Takahashi).
Bengbu discloses a beverage comprising chickpea and oat which inherently provide an amount of protein of each material [0007].
Regarding claims 2 and 5, Takahashi discloses a nutritional composition comprising bacteria, probiotics and HMOs which may be added to food and drink to promote proliferation of probiotics having low ability to assimilate human milk oligosaccharides (HMOs) in the presence of HMOs (abstract). It would have been obvious to add the nutritional composition of Takakasi to the beverage of Triantafyllou to promote proliferation of probiotics having low ability to assimilate human milk oligosaccharides (HMOs) in the presence of HMOs. One of ordinary skill would reasonably expect the benefits disclosed by Takahashi to be conferred upon the beverage of Triantafyllou by the addition thereto.
Regarding claim 6, the HMOs may be 2’-fucosyllactose, 3’-fucosyllactose, sialyllactose (3’ and 6’), lacto-N-tetraose and lacto-N neotetraose [0054 of Takahashi].
Claim(s) 9 is rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0110501 (Triantafyllou) in view of US 2021/0068414 (Takahashi) and further in view of US 2019/0320689 (Beliciu).
Triantafyllou discloses a beverage as discussed above and discloses fat may be added thereto in the form of a vegetable oil. Triantafyllou does not disclose sunflower oil. Beliciu also discloses a beverage discussed above and discloses the addition of palm, canola or sunflower oil. It would have been obvious to use a known vegetable oil, such as sunflower oil, to provide the oil component in the beverage of Triantafyllou as suggested by Beliciu. One of ordinary skill with the teaching of vegetable oils by Triantafyllou and the disclosure of a selection of vegetable oils by Beliciu would have found it obvious to use any of those suggested by Beliciu, including sunflower oil, with the expectation of successfully providing the oil component to the beverage in a manner acceptable to a consumer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/ Primary Examiner, Art Unit 1793