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 .
DETAILED ACTION
Status of Claims
Note: The amendment of June 24th 2026 has been considered.
Claims 1, 11-13 and 25 have been amended.
Claims 2-4, 7, 17, 18, 22-24, 27-30, 32 and 34 have been cancelled.
Claims 1, 5, 6, 8-16, 19-21, 25, 26, 31 and 33 are pending in the current application.
Claims 25, 26, 31 and 33 are withdrawn from consideration.
Claims 1, 5, 6, 8-16 and 1-21 are examined in the current application.
Any rejections not recited below have been withdrawn.
Election/Restrictions
Claims 25, 26, 31 and 33 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the election requirement in the reply filed on November 11th 2025.
Applicant's election with traverse of claims 1, 4-6, 8-16 and 19-21 in the reply filed on November 11th 202 is acknowledged. The traversal is on the ground that the unity between Groups I-II is not broken as Beliciu et al. (USPatPub. 2019/0320689 A1), fails to meet the special technical feature of the amended claims reciting the sensory modifier comprising at least 20wt% of dicaffeoylquinic acids. This is not found persuasive, because while Beliciu fails to meet the at least 20wt% dicaffeoylquinic limitation, Gaspard (USPatPub. 2019/0223483 A1) discloses a powdered sensory modifier compound to be added to edible compositions, wherein the sensory compound comprises a sweetener (e.g., steviol), plant and/or animal protein, at least 60wt% of dicaffeoylquinic acid or salt thereof and monocoumaroylquinic acids (e.g., chlorogenic acid) (see Gasprd abstract; paragraphs [0066], [0067], [0075], [0078]-[0081], [0102] and [0114]). Accordingly, the technical feature of a sensory modifier comprising at least 20wt% ducaffeoylquinic is not a special technical feature and the claims are not so linked within the meaning of PCT Rule 13.2 so as to form a single inventive concept, and unity between Group I-II is broken.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 103
In view of the amendment filed on June 24th 2026, the rejection of claims 1, 4-6, 8-16 and 19-21 under 35 USC §103 over Gaspard had been withdrawn, and new rejection under 35 USC §103 over Sherwood in view of Gaspard is applied (see discussion, below).
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 5, 6, 8-16 and 19-21 stand rejected under 35 U.S.C. 103 as being unpatentable over Sherwood et al., (USPatPub. 2008/0050498 A1) in view of Gaspard et al., (USPatPub. 2019/0223483 A1).
Regarding claims 1, 6, 8, 11-13, 15, 19 and 20: Sherwood discloses a powdered protein beverage mix comprising from 10wt% to 91.7wt% protein (see Sherwood abstract; paragraph [0103]), wherein the protein is plant-based protein and/or animal milk protein (see Sherwood paragraphs [0094]-[0096]). Since the protein contents recited in claims 1 and 12 overlap the protein content in Sherwood, a prima facie case of obviousness exists (see MPEP §2144.05). Sherwood further disclose the powdered protein beverage mix comprises non-limiting amount of sweetener as a filler (i.e., about 0wt% to about 100wt%), and/or as a flavoring agent at amounts to attain desired flavor (see Sherwood paragraphs [0067] and [0097]). Sherwood also discloses using stevia leaf extract as a sweetener (see Sherwood paragraph [0067]), but fails to disclose the claimed sensory modifier; However, Gaspard discloses a potent powdered sensory modifier compound to be added to edible compositions, such as foods or beverage concentrates (powdered, or liquid), wherein the sensory compound has reduced off-flavors and bitterness (see Gaspard abstract; paragraph [0005]). Gaspard further discloses and the sensory compound comprises a sweetener (e.g., steviol), 25wt% or more of dicaffeoylquinic acid or salt thereof and monocoumaroylquinic acids (e.g., chlorogenic acid) (see Gaspard abstract; paragraphs [0066]. [0067], [0075], [0078]-[0081], [0102] and [0114]).
Therefore, it would have been obvious to a skilled artisan at the time the application was filed to have modified Sherwood and to have used the sensory modifier compound as the flavorant/sweetener in the powdered protein beverage mix, in order to attain a product with desired flavor, without the bitterness and off-flavors, and thus arrive at the claimed limitations.
As to the sensory modifier content in the composition recited in claim 1: Gaspard discloses the sensory modifier compound is present in the edible composition at concentration from 1000ppm to 2000ppm, or 1ppm to 1000ppm, depending on the edible composition (e.g., a beverage concentrate, or a ready-to-drink beverage) (see Gaspard paragraph [0082], [0102] and [0114]). Accordingly, Sherwood modified by Gaspard, meets the claimed limitations.
Regarding claim 5: Gaspard discloses the dicaffeoylquinic acid or dicaffeoylquinic salt comprises at least one compound selected from the group consisting of 1,3- dicaffeoylquinic acid, 1,4-dicaffeoylquinic acid, 1,5-dicaffeoylquinic acid, 3,4-dicaffeoylquinic acid, 3,5-dicaffeoylquinic acid, 4,5-dicaffeoylquinic acid, and salts thereof, and wherein the sensory modifier comprises a monocaffeoylquinic component selected from the group consisting of chlorogenic acid, neochlorogenic acid, cryptochlorogenic acid, and salts thereof (see Gaspard paragraphs [0066], [0067], [0075] and [0078]-[0081]).
Regarding claims 9 and 10: Sherwood discloses the plant and/or animal protein is selected from group consisting of pea protein, soy protein, corn protein, potato protein, wheat protein, pulse protein, chickpea protein, canola protein, and combinations thereof, and/or casein, whey, hydrolyzed whey, and combinations thereof (see Sherwood paragraphs [0094]-[0096]).
Regarding claims 14 and 15: Sherwood discloses the powdered protein beverage mix comprises additional sweetener, fiber and/or hydrocolloid (see Sherwood paragraphs [0104]-[0105]).
Regarding claim 16: Gaspard discloses a potent powdered sensory modifier compound to be added to edible compositions, such as foods or beverage concentrates (powdered, or liquid), wherein the sensory compound has reduced off-flavors and bitterness (see Gaspard abstract; paragraph [0005]), but fails to disclose the effect on plant-protein bitterness; However, given the fact the sensory modifier compound in Gaspard appears to be the same as the sensory modifier compound recited in the claims, it is examiner’s position the claimed plant-protein flavor intensity reducing effect is inherently present Sherwood modified by Gaspard. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 21: Sherwood discloses the final beverage composition, attained from water dilution of the protein beverage mix, comprises 0.01wt% to 15wt% of protein (see Sherwood abstract), Gaspard discloses the sensory modifier compound is present in the edible composition at concentration from 1000ppm to 2000ppm, or 1ppm to 1000ppm, depending on the edible composition (e.g., a beverage concentrate, or a ready-to-drink beverage) (see Gaspard paragraph [0082]). Accordingly, the diluted (i.e,. ready-to-drink) beverage in Sherwood modified by Gaspard, meets the claimed limitations.
Response to Arguments
Applicant's arguments filed on June 24th 2026 have been fully considered but they are not persuasive.
In view of the amendment filed on June 24th 2026, the rejection of claims 1, 4-6, 8-16 and 19-21 under 35 USC §103 over Gaspard had been withdrawn, and new rejection under 35 USC §103 over Sherwood in view of Gaspard is applied (see discussion, above).
Applicant argues on pages 7-8 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because Gaspard discloses a powdered sweetening/flavoring composition comprising protein, but fails to disclose 50wt% protein. The examiner agrees and amended the rejection of the pending claims accordingly. Thus, the claims are rejected over Sherwood in view of Gaspard (see discussion, above).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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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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/ASSAF ZILBERING/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
