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 .
This office action is in response to amendment filed 3/20/26. Claims 1,3,6,8,11-12,15,17,19 are amended and claims 5,9, are cancelled. Claims 1-4,6-8,10-20 are pending.
The previous 112 second paragraph , 102, 103 rejections are withdrawn due to the amendment.
A new ground of rejection follows.
Claim Rejections - 35 USC § 112
Claims 12,16 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 12 is vague and indefinite. The claim recites beverage composition but the body of the claim only recites protein blend, a gum blend and lecithin. There is no recitation of any liquid; thus, it’s unclear what in intended by “ beverage”.
In claim 16, the limitation “ wherein the liquid comprises” is vague and indefinite because it’s unclear what liquid the claim is referring to. Claim 12 does not recite any liquid.
Claim Rejections - 35 USC § 103
Claim(s) 1-2, 4,6-8,10-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hakim ( GB 2578450) in view of Bertocco (WO 2022/046608).
For claims 1-2, 17, hakim discloses a protein composition comprising a protein blend of a first plant ingredient and a second plant ingredient, a third plant ingredient, a gum blend and lecithin. ( see page 5 line 26, page 6 lines 34-36, line 7 lines 1-3, page 11 lines 34-35,page 16 lines 11-12, page 15 lines 8-10) . Hakim discloses the first protein is pea protein in amount of 10-70% and a second protein at concentration of 1-50% and the second protein is rice. While the claim recite that the first protein is the blend of rice and pea. However, the difference is only in the wording because all the proteins are mixed to form the composition. There is no feature to distinguish which is first or second. The critical part is it’s a blend of pea and rice and Kahim discloses the blend. ( see page 8 lines 23-30). Hakim also discloses another protein including pumpkin protein. The disclosure of pumpkin protein indicates pumpkin seed protein because the protein in pumpkin is in the seed. ( see page 6 lines 15-17). Hakim discloses the composition comprising sunflower lecithin in amount of .1-3%. ( see page 15 lines 8-15)
For claim 4, Hakim discloses the first protein is in amount of 10-70% and second protein is in amount of 1-50% which is equivalent to the claimed first plant ingredient comprising a blend. The amount of each protein contains values falling within the claimed ranged ( see page 8 lines 23-25)
For claims 6,7, the claim recites the second plant ingredient further comprises protein including pea protein and rice protein. Hakim discloses protein including rice protein, pea protein etc.. The recitation of its being second plant ingredient is only a different in terminology because the claims are directed to composition in which the ingredients are mixed. There is no feature distinguishing the rice protein and pea protein being part of the second plant protein or first plant protein. The amount in claim 7 is encompassed in the range of 1-50% rice protein (page 6 lines 11-17,page 8 lines 23-30)
For claim 8, Hakim discloses the composition comprising sunflower lecithin in amount of .1-3%. The limitation “ lecithin can further includes soy lecithin” is considered optional because of the recitation “ can include”. ( see page 15 lines 8-15)
For claims 10,18, Hakim discloses the composition comprising sweetener, creamer, flavor etc.. ( see pages 15)
For claim 12, Hakim discloses a protein beverage comprising the protein composition and a liquid. The protein composition comprising a protein blend of a first plant ingredient and a second plant ingredient, a gum blend and lecithin. ( see page 5 line 26, page 6 lines 34-36, line 7 lines 1-3, page 11 lines 34-35,page 16 lines 11-12, page 15 lines 8-10, page 18 lines 5-10) . Hakim discloses the first protein is pea protein in amount of 10-70% and a second protein at concentration of 1-50% and the second protein is rice. While the claim recite that the first protein is the blend of rice and pea. However, the difference is only in the wording because all the proteins are mixed to form the composition. There is no feature to distinguish which is first or second. The critical part is it’s a blend of pea and rice and Kahim discloses the blend. ( see page 8 lines 23-30). Hakim also discloses another protein including pumpkin protein. The disclosure of pumpkin protein indicates pumpkin seed protein because the protein in pumpkin is in the seed. ( see page 6 lines 15-17). Hakim discloses the composition comprising sunflower lecithin in amount of .1-3%. ( see page 15 lines 8-15)
For claim 13, Hakim discloses the composition comprising sweetener, creamer, flavor etc.. ( see pages 15)
For claim 16, Hakim discloses the liquid is water. ( see page 18 lines 5-10)
For claim 20, Hakim discloses forming the composition into tablets. Thus, it’s inherent the composition is in powder form to be able to form into tablets. ( see page 17 lines 5-11)
Hakim does not disclose the gum blend as in claims 1,12, the score as in claims 2,14,17 and the sizes as in claims 15,19.
Bertocco discloses a protein composition comprising stablizers such as xanthan gum and gum Arabic. Bertocco discloses that the PCSAAS reflects the high quality of the protein. On their own, the proteins don’t have the right balance of indispensable AA. But, when mixed in the proper ratios, the plant-based protein composition combined to form complete protein, achieving a PDCAAS of 1. (see paragraph 0031,0070)
It would have been obvious to one of ordinary skill in the art to use a blend of the gum depending on the extent of stabilizing desired. Such parameter can readily be determined through routine experimentation by one of ordinary skill in the art. All the gums claimed are known as shown in Hakim and Bertocco. It would have been an obvious matter of choice to select gum Arabic, xanthan gum and guar gum because they all are known to serve as stabilizer as shown in Hakim and Bertocco. It would have been obvious to use the gum within the range of .1-2% disclosed in Hakim. It would have been obvious to one of ordinary skill in the art to determine the particle size depending on the textural feel and solubility desired. Such parameter can readily be determined through routine experimentation by one of ordinary skill in the art. As to the PDCAAS, Hakim discloses the same proteins and the proportion are within the ranges claimed. Bertocco shows that the proteins when combine in proper ratios forms complete protein achieving a PDCAAS of 1. Thus, it’s obviously inherent, the combination disclosed in Hakim has the PDCAAS within the claimed range.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hakim in view of Bertocco as applied to claims 1-2,4,6-8,10-20 above, and further in view of Sherwood (ES 2490600)
Hakim does not specifically disclose soy protein.
Sherwood discloses a method of manufacturing a protein drink. Sherwood teaches combination of protein including soy protein, rice protein, pea protein can be used. ( see abstract)
Hakim discloses the use of at least three different protein from different sources including legume protein, rice protein, ,flower protein etc.. It would have been obvious to one of ordinary skill in the art to select another legume protein such as the soy protein disclosed in Sherwood when desiring the taste, nutritional profile and flavor provided by the soy protein. Sherwood shows soy protein, rice protein and pea protein can all the be used. Thus , the addition of soy protein is totally compatible with the Hakim composition.
Response to Arguments
Applicant's arguments filed 3/20/26 have been fully considered but they are not persuasive.
The argument directed at the 102 rejections will not be addressed because they are withdrawn due to the amendment. The 103 rejection over Bertocco as primary reference is not addressed because the rejection is withdrawn due to amendment. The new rejection is as set forth above.
Applicant states that the present application links the claimed particle size distribution to improved mouthfeel and textural performance. The statement is the precise premise of the rejection. The Hakim composition is a powder. The size of the powder would affect the textural feel and thus the taste of the composition. A powder with fine particles size will have a different textural feel from a powder with large particle sizes. Thus, the particle sizes are result-effective variable depending on the textural mouthfeel and taste desired. Such parameter can be determined through routine experimentation to obtain the most optimum product in taste and mouthfeel. Applicant argues the office action does not adequately address the application’s disclosure of the claimed compositions provide improved sensory and rheological performance. The basis of this argument is not understood. There is no sensory or rheological property recited in the claims. Thus, it’s not limitation requiring consideration. Features disclosed in specification are not imported into the claims; they are not considered if they are not recited in the claims. Applicant argues the present record does not support the inherency finding relied on for the PDCAAS. The examiner respectfully disagrees. Hakim discloses the same proteins and the proportion are within the ranges claimed. Bertocco shows that the proteins when combine in proper ratios forms complete protein achieving a PDCAAS of 1. Thus, it’s obviously inherent, the combination disclosed in Hakim has the PDCAAS within the claimed range. Hakim discloses the same proteins and proportions overlap. Thus, the examiner has established basis for inherency. If applicant contends otherwise, the burden of proof is shifted to applicant to show that the feature is not inherent.
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.
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May 21, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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