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 .
Election/Restrictions
Applicant’s election without traverse of Group I and the species of non-carbonated, natural colorant, and pH of 7 or above in the reply filed on March 19, 2026 is acknowledged. Claims 3, 12-13, and 15-23 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claim.
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.
Claims 5 and 8 are 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 5 recites “the plant-based protein is…”. Claim 1, from which claim 5 depends recites the beverage comprising “one or more plant-based proteins”. It is unclear as to if “the plant-based protein” recited in claim 5 is limiting the one or more proteins to one protein, or if the claim still encompasses more than one protein, wherein at least one of “the proteins” is selected from those named in the Markush grouping. For the purpose of prior art comparison as long as the prior art discloses a protein within the Markush group it is considered to encompass the claimed invention.
Claim 8 recites “the protein is present in a weight percentage of about 1% to about 5%”. Claim 1, from which claim 5 depends recites the beverage comprising “one or more plant-based proteins”. It is unclear as to if “the protein” recited in claim 8 is in reference to a singular protein recited in claim 1, or to the one or more proteins, or to the total proteins in the beverage composition. For the purpose of prior art comparison, the claimed will be considered in the broadest reasonable sense in that one or more plant proteins, or a total protein within the claimed range will be considered to encompass the claimed invention.
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.
Notes:
The term “about” is defined in the instant specification paragraph 12 as plus or minus 10% of the named value, not exceeding 100%, unless otherwise stated.
“Plant-based protein” refers to a protein derived from plant (instant specification paragraph 15).
“Processing aid” refers to a substance or substances that can be used to facilitate the manufacturing of a food product (instant specification paragraph 16).
In comparison to pure water (instant specification paragraph 37)
ΔE =
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Claims 1, 4-10, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al (WO 2019/027725).
Patel et al (Patel) teaches of liquid nutritional compositions, i.e. compositions which may be consumed as a beverage and thus are considered a beverage composition, comprising: water and a plant-based protein (abstract, paragraphs 10, 22, and 47, and claim 1). It is noted that the recitation of a beverage is intended use and only requires the ability of the product to perform. As Patel teaches of a liquid food product it is considered to encompass a beverage as claimed.
Regarding the delta E value and the inclusion of colorant in the composition as recited in claim 1, Patel is not specific to the composition with the claimed delta E as comprising a colorant as claimed. However, Patel teaches that the liquid composition, i.e. the beverage, has an L value of not less than 80, which would encompass up to 100 which represents pure white; a Hunter a value of -10 to 10; and a Hunter b value of -5 to 25 (paragraphs 34-35 and claims 1-3), and thus the liquid composition taught by Patel would encompass or at least make obvious a delta E value within the claimed range. For example, when L = 91, a = 0, and b =0. Furthermore, as Patel teaches that the L, a, and b values represent color, and that additives can be included to modify physical characteristics, including colorants, (paragraphs 36 and 46), it would have been further obvious to include a colorant in the liquid composition, i.e. the beverage to adjust the color of the product as desired. Thus, the product as claimed is considered at least obvious over the teachings of the prior art.
Regarding claim 4, as Patel teaches the water as water (see at least paragraph 48 and example 1), the inclusion of water in its natural form, i.e. non-carbonated would be encompassed, or at least an obvious suggestion of the prior art.
Regarding claim 5, Patel teaches that the protein is a plant-based protein including pea, soy, and rice (paragraph 22 and claims 12 and 15).
Regarding claims 6-7, as noted above a pH of 7 and above was elected. Patel teaches that the liquid composition, i.e. the beverage has a pH of about 6-7.5 (abstract and paragraph 19).
Regarding claim 8, as discussed above the claimed limitations are unclear. Regardless, Patel teaches the beverage comprises protein from about 0.03-0.05g per ml which equates to about 3-5% protein (paragraph 23, 1 ml of water is about 1 gram). Additionally, Patel exemplifies the plant protein in an amount of 1.69% (Table 1). Thus, the teachings of the prior art are considered to encompass the claimed product.
Regarding claim 9, Patel is not specific to the coloring agent as present from about 0.05-100ppm as recited in claim 9, however as Patel teaches that the L, a, and b values represent color, and that additives can be included to modify physical characteristics, including colorants, (paragraphs 36 and 46), it would have been obvious to include an amount of colorant in the liquid composition, i.e. the beverage, to adjust the color of the product as desired. Thus, the claimed range is considered obvious over the teachings of the prior art.
Regarding claim 10, as discussed above, Patel teaches that the beverage may comprise colorants. Colorants were either natural or not, and thus the use of natural coloring agents as claimed is considered obvious as there are only two options for the colorant. In other words, one of ordinary skill in the art producing the product taught by Patel would necessarily include a natural, or non-natural colorant.
Regarding claim 14, Patel teaches the nutritional composition, i.e. beverage, comprises additional ingredients including sweeteners, flavors, minerals, and non-mineral nutritional supplements (paragraphs 36-43 and 46). It would have been particularly obvious to include said additives for their known functions, such as sweetening, flavor, and/or nutrition.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Patel et al (WO 2019/027725), further in view of Homyak et al (US 2021/0274807).
As discussed above, Patel teaches of liquid nutritional compositions, i.e. beverage, comprising: water, additives including minerals, and a plant-based protein. Patel teaches the beverage comprises protein from about 0.03-0.05g per ml which equates to about 3-5% protein (paragraph 23, 1 ml of water is about 1 gram). Additionally, Patel exemplifies the plant protein in an amount of 1.69% (Table 1).
Patel is silent to the beverage as comprising about 0.01-0.5% tripotassium phosphate as recited in claim 2.
Homyak et al (Homyak) teaches the inclusion of phosphate salts, wherein the salt composition comprises 5-100% tripotassium phosphate and wherein the salt to protein on a dry weight basis is 10-95%, facilitates the manufacture of beverage products containing plant-based proteins by greatly improving their solubility (abstract, paragraphs 7-11, 16, 21-25, 31, 47, 49, 98, and 101-102, and claims 1, 3, 4, 6, 15, 17, and 28).
It would have been obvious for the plant-based protein composition of Patel to comprise a salt composition comprising 5-100% tripotassium phosphate, wherein the salt to protein ratio was 10-95%, to facilitate the manufacture of the product and improve protein solubility in view of Homyak. Thus, the compositions taught by Patel which comprises about 3-5% protein or 1.69% protein would comprise about 0.05% of the salt composition (1.69% plant-based protein in a 3% ratio with salt) to about 4.9% of the salt composition (5% plant-based protein in a 98% ratio with salt), and about 0.0025% tripotassium phosphate (0.05% of the salt composition comprising 5% tripotassium phosphate) to 4.9% tripotassium phosphate (4.9% of the salt composition comprising 100% tripotassium phosphate) in view of Homyak.
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al (WO 2019/027725), further in view of Igoe et al (Dictionary of Food Ingredients, 4th Edition Aspen Publications 2001, pages 167-169). It is noted that the rejection of claim 10 is an alternative to the rejection as presented above.
As discussed above, Patel teaches of liquid nutritional compositions, i.e. beverage, comprising: water, additives including colorings, and a plant-based protein. Patel is not specific to the coloring as natural as recited in claim 10, preferably selected from anthocyanin, cyclohexane dione dimer, phycocyanin, or an agent derived from the reaction of an iridoid and amino acid as recited in claim 11.
Igoe et al (Igoe) teaches that colorants are either artificial or natural and that the colorant determination includes desired hue, water solubility, and stability (page 167, Colors, paragraph 2). Igoe teaches that anthocyanin has excellent compatibility with food and good stability (page 169, Table 4, Beets).
It would have been obvious for the coloring in the product taught by Patel to be anthocyanin, i.e. a natural colorant, as it has excellent compatibility with foods and has good stability as shown by Igoe.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2024/0074464 teaches of an optically clear protein beverage with a pH of 4.6-11.0 comprising an L value of 90-100, an a value of -10 to 10, and a b value of -10 to 10.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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