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, claim 26-45 in the reply filed on 02/23/2026 is acknowledged.
Claim 46-52 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II and III, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/23/2026.
Application Status
Claim 26-45 are under examination.
Claim 46-51 are withdrawn from examination.
Claim 1-25 are cancelled.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/29/2026; 11/06/2025; 10/13/2025; 06/26/2025; 03/26/2025; 03/11/2025; 02/13/2025; 08/20/2024; 03/11/2024; and 02/16/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 39, 44 and 45 are objected to because of the following informalities: throughout all these claims, there are missing antecedent reference(s) i.e. “the” or “said”; since the component(s) were mentioned in the preceding claims to which the claim(s) is depended upon.
For example, claim 26, recites “total protein” in line 10, should be “the total protein” since antecedent basis has been established in line 2; and claim 27 recites “micellar casein in an amount” should be “the micellar casein in the amount” since antecedent basis have been established in claim 26. There are multiple occurrences of similar objections throughout claims 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 39, 44 and 45, and appropriate correction is required.
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.
Claim 26-45 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.
Regarding claim 26, 41 and 42, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 27, 28, 29, 30, 33, 35, 37, 38 and 39, the phrase "even more preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 28, 29, 30, 31, 32, 33, 34, 35, 37, 38 and 39 the phrase "more preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 27, 28, 29, 30, 31, 33 and 35, the phrase "most preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 26 recites the limitation "the range" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 26 recites the limitation "the sum of the amounts" in line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim 26 recites “a weight ratio (emphasis) between” in line 7, however the claim recites “the range of 0.001 – 0.2” in line 11 is “the sum (emphasis) of the amounts of catechin, epicatechin, gallocatechin, epigallocatechin, catechin 3, gallate, epicatechin 3-gallate, gallocatechin 3-gallate, and epigallocatechin 3-gallate, and total protein”; hence is not clear if Applicant intend the range is to the total (sum) weight of amounts of catechin, epicatechin, gallocatechin, epigallocatechin, catechin 3, gallate, epicatechin 3-gallate, gallocatechin 3-gallate, and epigallocatechin 3-gallate, and total protein or a weight ratio. Additionally, it is not clear if there is a weight ratio between amounts of catechin, epicatechin, gallocatechin, epigallocatechin, catechin 3, gallate, epicatechin 3-gallate, gallocatechin 3-gallate, and epigallocatechin 3-gallate, to (emphasis) total protein, since there is no recitation of ratio which is usual denoted as for example 1 : 1 or 1 to 1. The claim is indefinite.
In claim 39 recites the pH in the range of 6.0-8.0, however it is not clear if the limitation range is farther limiting claim 26, which also recites “a pH in the range of 6-8”, hence the claim is indefinite.
Claim 43 recites the limitation "the solids" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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) 26-45 are rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger et al. (US 2019/0216106, IDS submitted on 03/11/2024, U.S. Patent App. Publication Cite No. 7).
Regarding claim 26, 27, 30, 31, 32, 33, 34, 35, and 39, Geistlinger et al. (Geistlinger) discloses a food product, diary product (‘106, [0008]) including yoghurt-like food product, yogurt drinks (nutritional liquid) (‘106, [0017], [0053]) and a pH range of between 7 and 7.5 (‘106, [0110]), which is in range with cited range of claim 26 and 39.
Geistlinger discloses the food product comprising between 0.5% to 14% by weight of total protein (‘106, [0163], claim 235), which overlaps the cited range in claim 26 and 33. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). With respect to “micellar casein in an amount of at least 50% w/w relative to total protein” in claim 26; “50-69 % w/w” in claim 27; “50-59% w/w” in claim 30; “50-90% w/w” in claim 31; “70-84% w/w” in claim 34; “85-99% w/w” in claim 35; Geistlinger discloses the food product comprising micelle protein, caseins (‘106, [0113], [0115], [0116]) wherein the micelle protein, caseins in an amount of between 0.1% to 95% wt. of the micelles protein (‘106, [0114]). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Geistlinger discloses the food product comprising other components (‘106, [0134]) including catechins (106, [0130]) in an amount between 0.001% to 12% by weight (‘106, [0134]), wherein a weight ratio of the catechins to the total protein in a range of 0.0007:1 to 240:1, which overlaps the cited range in claim 26 and 32. Calculation as follows, 0.001:14 = 0.0007:1 and 12:0.5 = 240:1.
Regarding claim 28 and 29, Giest linger discloses the food product comprising whey protein (106, claim 175, claim 177). Geistlinger discloses the food product comprising the micelle protein, caseins (‘106, [0113], [0115], [0116]) wherein the micelle protein, caseins in the amount of between 0.1% to 95% wt. of the micelles protein (‘106, [0114]). Geistlinger discloses a total casein protein to total whey protein ratio is between about 10 to 1 and about 1 to 10 (‘106, claim 178), which overlaps the cited range.
Regarding claim 36, Geistlinger discloses the food product comprising milk protein (‘106, [0017]).
Regarding claim 37 and 38, Geistlinger does not explicitly disclose a caloric content (energy content) as recited in claim 37 and 38. However, it is well known in the food art to optimize the amounts of fat(s), carbohydrate(s) and protein(s) to provide a desired caloric content (energy content). It would have been obvious to one of ordinary skill in the art to optimize Geistlinger’s amounts of fat(s), carbohydrate(s) and protein(s) to provide a desired caloric content (energy content) for a specific consumer’s diet.
Regarding claim 40, 41 and 42, Geistlinger discloses the food product is pasteurized (heat-treated, sterile) (‘106, [0154], [0156], [0223], [0231]).
Additionally, note MPEP 2113 I. PRODUCT-BY-PROCESS CLAIMS ARE NOT LIMITED TO THE MANIPULATIONS OF THE RECITED STEPS, ONLY THE STRUCTURE IMPLIED BY THE STEPS
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Regarding claim 43, 44 and 45, Geistlinger discloses the food product comprising water in an amount between 2% to 95% by weight (‘106, [0136]) which overlaps the cited range. Additionally, Geistlinger teaches the food product in a powder format (‘106, [0218]) obtained by spray-drying. Additionally, note MPEP 2113 I. PRODUCT-BY-PROCESS CLAIMS ARE NOT LIMITED TO THE MANIPULATIONS OF THE RECITED STEPS, ONLY THE STRUCTURE IMPLIED BY THE STEPS
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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