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 .
Applicant’s amendment filed 4/16/2026 has been entered. Claims 1, 2, 13-17, 19, 21, 23 and 25 were amended. Claims 12 was cancelled. Claim 13 is under examination Applicant has broadened the scope of claim 1 and 2 to include the limitation of previously elected claim 12. Therefore, claims 1-11 now read on the elected species as amended. Therefore claims 1-11, 13, 17 and 18 are under examination.
Claims 14-16 and 19-25 remain withdrawn.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/7/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 recites the composition of claim 2, wherein the level of polyphenol is from about 0 wt.% to about 1 wt.% whereas claim 2 limits the level of polyphenol from about 0.1 wt.% to about 0.7 wt.%. The range and claim 3 does not further limit the previous range claimed. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 1-11, 13, 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Patel et al. (US 2003/0104108; published June 5, 2003) in view of Kendrick (US 2007/0218170, published September 20, 2007), Yajima et al. (US 2007/207187; published September 6, 2007) and Pires et al. (Development of new bilberry based snacks: Nutritional, chemical and bioactive features (Food Chemistry 334, 2021).
Applicant claims a nutritional composition comprising a composition in a serving size of from about 25-60g comprising 5-35 grams protein, 50-200 mg polyphenol, 2.5-24 grams fiber, 0-6 grams vitamins and minerals, 1-15 grams carbohydrates and 0-6 grams fat, wherein the ratio of nutrients to carbohydrate and fat exceed 1.5:1 on a dry weight basis, and wherein the composition further comprises an antioxidant booster that provides polyphenol in amount of about 20-120 mg, and an antioxidant booster comprising bilberry, green tea, isoquercetin, echinacea, vitamin C and zinc.
(Claim 1)
Applicant claims a nutritional composition comprising nutrients comprising protein, polyphenol, fiber, vitamins and minerals, wherein the protein is from about 20-60 wt.%, the polyphenol is from a source which provides a level from about 0.1-0.7 wt.% the fiber is from about 10-40 wt.%, the vitamins and minerals are in an amount of from about 0-10 wt.%, carbohydrates in an amount of from about 3-25 wt.% and fat in an amount from 0-10 wt.%, wherein the ratio of nutrients to carbohydrate and fat exceed 1.5:1 on a dry weight basis, and wherein the composition further comprises an antioxidant booster that provides polyphenol in amount of about 2-6 wt.%, and an antioxidant booster comprising bilberry, green tea, isoquercetin, echinacea, vitamin C and zinc.
(Claim 2)
Claims 4-6 are drawn to inherent properties of the composition in claim 2.
With respect to claim 1-3, 7-11, 13, 17 and 18, Patel et al. teach ready-to-drink soy beverages comprising soy, fruit and vegetable juices (abstract). The isoflavones found in soy inherently have phenolic structure [0005]. Major isoflavones include genistein, daidzein and glycitein [0006; limitation of claim 8]. Table 1 teaches a known soy protein containing isoflavones, wherein GeniSoy comprises 14 grams protein (43 wt.%), 0 grams of fat and 14-70 mg isoflavone (polyphenol, 0.4-2 wt.%) in a 35 gram serving and wherein Health Source comprises 20 grams protein (76 wt.%), 1 gram fat (1 wt.%) and 55 mg isoflavones (polyphenol, 1.8 wt.%) in a 29 gram serving [0009]. Fortified vitamins and minerals present in the beverages include folic acid (vitamin B9), zinc, vitamin A, magnesium, vitamin C, vitamin E, vitamin D, iron and calcium [0040; limitation of claim 7]. The soy protein is selected from soy flakes, protein isolate, soy flour, soy protein fiber, soy whey and mixtures thereof [0037]. The beverages are fortified with one or more vitamins selected from vitamin C and additional minerals include zinc [0040]. Beverages provide 10-30% total calories from protein, 70-90% total calories from carbohydrates and less than 6% total calories from fat [0057]. The soybeans are processed by extracting the oil and leaving the defatted soybean flakes comprising protein, fiber, whey, protein isolate, protein concentrate and flour [0058-59]. The carbohydrates range from 10-70% wt./wt. of the total beverage [0064]. The second component is a source of carbohydrates selected from fruit juice concentrates including blueberry [0065; limitation of claim 11].
Patel et al. teaches soy fiber and various fruit juices but does not specify 2.5-24 grams fiber and an antioxidant booster comprising bilberry, green tea, isoquercetin and echinacea. With respect to claim 10, Patel et al. teach flavorings but does not specify chocolate or vanilla. It is for this reason that Kendrick, Yajima et al. and Pires et al. are joined.
Kendrick teach alkaline soluble fiber compositions preferably comprising inulin (abstract). Increasing dietary intake of soluble fiber is desirable because it lowers blood cholesterol, moderates blood glucose levels, assists in weight management, and reduces risk of developing certain cancers [0005]. The beverage compositions of comprise soluble fiber sources from soluble soy fiber [0037]. Soy fiber provides an excellent source of fiber, about 15% by weight because it acts as a prebiotic and lowers LDL and triglycerides [0043]. Increasing dietary fiber intake from 10 gram per day to 25-30 grams is shown to improve health [0054]. The compositions provide from 0-60 grams of soluble fiber [0055]. Flavoring agents include fruit flavors as well as chocolate which are selected to enhance taste [0088]. Herbs and botanicals that can be included are selected from bilberry extract [0090]. The compositions also include green tea which is rich in polyphenols and EGCG an extremely powerful antioxidant which prevents cancer, inflammation and infection [0092]. Formulations may also include bilberry extract which facilitates eye health, strengthens capillaries and veins and alleviates digestive issues [0093].
Yajima et al. teach food compositions comprising whey protein, green tea and blueberry (abstract). Additional immunostimulatory substances included in the formulations include vitamin C, zinc, echinacea and polyphenols [0088]. The green tea powder improves flavor and improves color of the protein to improve palatability [0265].
Pires et al. teach nutritional food products comprising bilberry (abstract). Bilberry is also known as European blueberry and have been linked to their antioxidant potential due to high levels of anthocyanins associated with antimicrobial, anti-inflammatory and anti-mutagenic properties and treating type 2 diabetes and cardiovascular diseases (page 1). The bilberries art taught to inherently comprise quercetin-3-O-glucoside (isoquercetin) (page 6, section 3.2). Therefore, the findings support the interest of formulating bilberry-based snacks supplemented with edible petals or fruits (page 9).
Patel, Kendrick, Yajima et al. and Pires et al. are all drawn to food products. Therefore, it would have been prima facie obvious to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include 2.5-24 grams fiber with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include 2.5-24 grams of fiber because Kendrick teaches soy fiber provides an excellent source of fiber, acts as a prebiotic and lowers LDL and triglycerides and increasing dietary fiber intake from 10 gram per day to 25-30 grams wherein the compositions provide from 0-60 grams of soluble fiber.
It would have been prima facie obvious to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include chocolate, bilberry and isoquercetin with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include bilberry as an antioxidant booster because Kendrick teaches that bilberry facilitates eye health, strengthens capillaries and veins and alleviates digestive issues and chocolate as a flavorant and Pires et al. teach bilberry is also known as European blueberry and inherently comprise quercetin-3-O-glucoside (isoquercetin).
It would have been prima facie obvious to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include green tea with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include green tea because Kendrick teaches extremely powerful antioxidant which prevents cancer, inflammation and infection and Yajima et al. green tea also improve palatability.
Finally, it would have been prima facie obvious to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include echinacea with a reasonable expectation of success. One of ordinary skill would have been motivated before the time of filing to combine the teachings of Patel, Kendrick, Yajima et al. and Pires et al. to include echinacea because Yajima et al. teach immunostimulatory substances included in the formulations include vitamin C, zinc, echinacea and polyphenols. Therefore, adding echinacea to a formulation comprising vitamin C and zinc would have been prima facie obvious.
Response to Arguments
Applicant's arguments filed 4/16/2026 have been fully considered but they are not persuasive. Applicant argues Patel, Kendrick, Yajima and Pires fail to teach the claimed composition comprising 20-120 mg polyphenol because Kendrick teaches 20-200µg green tea, Yajima is silent to the amount of polyphenol and Pires teaches a significantly smaller amount. The examiner is not persuaded by this argument because Patel teaches GeniSoy comprises 14-70 mg isoflavone (polyphenol) [0009]. Since the claims do not require that the polyphenol is different from the combination in claim 1 any polyphenol is encompassed in the scope of the claim. The specification states polyphenols can be synthetic or naturally occurring in plant, vegetable, frult or other sources [0022]. Therefore the rejection has been maintained.
Applicant also argues that Kendrick fails to teach 25-24 grams of fiber in a serving size of 25-60 grams in dry weight. The Examiner is not persuaded by this argument because Patel teach GeniSoy comprises 14 grams protein, 0 grams of fat and 14-70 mg isoflavone (polyphenol) in a 35 gram serving and wherein Health Source comprises 20 grams protein, 1 gram fat and 55 mg isoflavones (polyphenol) in a 29 gram serving [0009] and Kendrick teach increasing dietary fiber intake from 10 gram per day to 25-30 grams is shown to improve health [0054]. Since both Patel and Kendrick are drawn to soy food products one of ordinary skill would have been motivated to increase fiber into this range in a single serving to aid in improving health and reach dietary requirements.
Applicant further argues the claimed composition results in a significant improvement in cholesterol levels. The Examiner has considered the results however the data to support the unexpected result are not presented in the form of a side-by-side comparison. Evidence supporting the results is lacking. Mere conclusions that the booster had unexpected results are not entitled weight without accompanying evidence in the specification or a declaration. See MPEP 716.02(b). Therefore, the rejection has been maintained.
Conclusion
No claims allowed.
THIS ACTION IS MADE FINAL. 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 DANIELLE D JOHNSON whose telephone number is (571)270-3285. The examiner can normally be reached Monday-Friday 9:00 am-5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany Barham can be reached at 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
DANIELLE D. JOHNSON
Examiner
Art Unit 1611
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