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 .
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.
Claims 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Maebuchi USPGPub 20130071541 and Shirreffs “The optimal sports drink”, Schweizerische Zeitschrift für Sportmedizin und Sporttraumatologie 51 (1), 25–29, 2003.
Regarding claims 1 and 3, Maebuchi teaches a liquid soy protein composition comprising a polyglycerol fatty acid ester with an average polymerization degree of 10, a constituent fatty acid having 14 carbon atoms and an HLB of 16. [0023,0032]
The composition is prepared by mixing the ingredients and heating the solution to 85°C for 30 minutes. These heating conditions fall within the ranges of time and temperature identified in [0027] of applicant’s specification as filed as providing sterilization.
Maebuchi therefore explicitly teaches all of the limitations of claims 1 and 3 except for the addition of a salt containing seasoning.
Maebuchi further teaches that ingesting peptide in drink form is convenient and that sports beverages are a known type of beverage for ingesting peptides.
Shirreffs teaches sports beverages contain sodium in quantities ranging from 5-45 mmol/L.
Maebuchi and Shirreffs are both directed to sports beverages. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have included a sodium salt containing seasoning in the beverage of Maebuchi where the sodium is present at a concentration ranging from 5-45 mmol/L as taught by Shirreffs since these values were conventional in the art at the time the application was filed. Present claims 1 and 3 require sodium to be present in an amount of 0.5 wt% or greater in terms of dietary salt equivalent which when converted to a molar concentration of sodium requires 0.8 mmol/L or greater. (0.005 g NaCl/100g bev x 1 mol NaCl/58.44 g NaCl x 1 mol Na/1 mol NaCl x 10 (100g bev)/1 L bev) As such, modifying Maebuchi with the concentration of sodium suggested by Shirreffs satisfies this limitation. Therefore, claims 1 and 3 are rendered obvious by the modification of Maebuchi with Shirreffs.
Regarding claim 2, Maebuchi teaches a content of vegetable protein in the beverage of 5 wt% [0032] and that emulsifier can be present in the range of 1-10 wt% with respect to the peptide content. [0029]
Response to Arguments
Applicant’s arguments with respect to claim 1-3 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.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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