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
Claims 1, 4-6, 8-16, 19-21, 25, 26, 29, 31 and 33 are pending and examined in the current application.
Claims 25, 26, 29, 31 and 33 are withdrawn from consideration (see discussion, below).
Claims 1, 4-6, 8-16 and 19-21 are examined in the current application.
Election/Restrictions
Applicant’s election without traverse of claims 1, 4-6, 8-16 and 19-21 in the reply filed on 11/13/2025 is acknowledged.
Claims 25, 26, 29, 31 and 33 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/13/2025.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
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, 4-6, 8-16 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Gaspard (USPatPub. 2019/0223483 A1).
Regarding claims 1, 6, 8, 15, 19 and 20: Gaspard discloses a powdered sensory modifier compound to be added to edible compositions (i.e., food or beverage), wherein the sensory compound comprises a sweetener (e.g., steviol), plant and/or animal protein, 60% 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]).
Regarding claims 4 and 13: Gaspard discloses the sensory modifier compound is present in the edible composition at concentration from 1000ppm to 2000ppm (see Gaspard paragraph [0082]).
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: Gaspard 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 Gaspard paragraph [0114]).
Regarding claim 14: Gaspard discloses the sensory modifier compound comprises fiber, a hydrocolloid, lecithin, or a combination thereof (see Gaspard paragraph [0102]).
Regarding claims 11, 12 and 21: Gaspard discloses a powdered sensory modifier compound to be added to edible compositions (i.e., food or beverage) and comprising animal and/or plant protein and is present in the edible composition at concentration from 1000ppm to 2000ppm (see Gaspard abstract; paragraphs [0082], [0102] and [0114]). Gaspard also discloses when the compound is added to beverage, the final concentration of the protein in the beverage is from 200ppm to 50,000ppm (see Gaspard paragraph [0114]), which overlaps the claimed protein content. As set forth in MPEP 2144.05, in the case where the claimed range “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).
Regarding claim 16: Gaspard discloses a powdered sensory modifier compound to be added to edible compositions (i.e., food or beverage) (see Gaspard abstract; paragraphs [0081], [0082], [0102] and [0114]), but fails to disclose the effect on the flavor intensity. However, given the fact the sensory modifier compound in Gaspard is the similar to the claimed sensory modifier compound, it is examiner opinion the claimed flavor intensity effect is inherently present in 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).
Conclusion
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 on (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
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