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 .
In the claims submitted October 18, 2023, claims 1-6 are pending in the application. Claims 3-6 are withdrawn from consideration (see below).
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1 and 2) in the reply filed on October 31, 2025 is acknowledged. Claims 3-6 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Inventions, there being no allowable generic or linking claim.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because they fail to show Figure 11 as described in paragraph [0048] of the specification. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
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.
Claims 1 and 2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sargent et al. US 20040062846 (hereinafter “Sargent”).
With respect to claim 1, Sargent relates to a coffee beverage composition (paragraphs [0001], [0002], [0012], [0071], [0107], and [0109]).
Regarding the recitation of comprising a coffee component and a creamer composition, the creamer composition comprising casein or a salt thereof and an oil, wherein the weight ratio of the casein or salt thereof to the oil is about 0.005:1 to about 0.035:1 in claim 1, Sargent teaches the coffee beverage composition comprises a coffee component and a creamer composition. The ratio of the sodium caseinate (casein salt) to the oil in the creamer composition is 0.035:1 (0.6% sodium caseinate : (8.5% coconut oil + 8.5% canola oil)) or 0.036:1 (calculated from 2% sodium caseinate : (27.5% coconut oil + 27.5 canola oil)) in the examples (paragraphs [0001], [0002], [0012], [0071], [0107], [0109], [0115], and [0131]; and P10, Table 2 and P13, Table 6).
With respect to claim 2, Sargent is relied upon for the teaching of the coffee beverage composition as addressed above in claim 1.
Regarding the recitation of wherein upon reconstitution of the coffee beverage composition in water at a temperature of at least 70⁰C to form a coffee beverage a creamy layer is formed on top of the beverage, wherein the creamy layer comprises a plurality of oil droplet aggregations in claim 2, it is noted that this recitation relates to the future intended use of the claimed coffee beverage composition. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Additionally, Sargent teaches a composition that is identical to the claimed composition as addressed above in claim 1, and there is no structural difference between the composition of claim 1 and the composition of Sargent. Further, Sargent teaches the creamer composition delivers a creamy, rich, improved mouthfeel and thickness, smooth and emulsion-like organoleptic character when used in beverage products, and the coffee beverage composition may be combined with hot water to form a creamy coffee beverage (paragraphs [0002], [0010], [0012], [0071], [0107], and [0109]). Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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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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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793