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 1-9 are pending in the current application.
Claims 8-9 are withdrawn from consideration (see discussion, below).
Claims 1-7 are examined in the current application.
Election/Restrictions
Claims 8-9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the election requirement in the reply filed on December 15th 2025.
Applicant's election with traverse of claims 1-7 in the reply filed on December 15th 2025 is acknowledged. The traversal is on the grounds that the claimed invention has unity of invention because the claims are drawn to categories that are considered to have unity as set forth in 37 §CFR 1.475 (b), that is, the claims recite a product and the process of use of said product, and a process specially adapted for the manufacture of said product.
This is not found persuasive because, a posteriori analysis provides lack of unity. As set forth in MPEP §1850, while the lack of unity of invention may be directly evident “a priori” i.e., before considering the claims in relation to any prior art, or it may only become apparent, “a posteriori,” i.e., after taking the prior art into consideration, as detailed in the election requirement mailed on October 28th 2025.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
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 1-7 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by or rejected under 35 U.S.C. 103(a) as being unpatentable over NPL “Hildebrand Farms Dairy Root Beer Milk” (‘Hildebrand’) (from https://www.kroger.com/p/hildebrand-farms-dairy-root-beer-milk/0085176500209). Evidenced by Indyk et al., “Determination of Orotic Acid, Uric Acid, and Creatinine in Milk by Liquid Chromatography” (from Journal of AOAC Internation Vol. 87, No. 1, 2004), NPL “Purine Content in Milk” (from Chrome AI 1-10-2026), NPL Ozturk et al., “Effects of industrial heat treatments on the kinetics of inactivation of antimicrobial bovine milk xanthine oxidase” (from Science of Food (2019) 13) and NPL “Section 7 – Japan Standard Commodity Classification” (‘Section 7’) (from https://www.soumu.go.jp/english/dgpp_ss/seido/8.htm).
Regarding claims 1 and 5: Hildebrand discloses a root beer flavored milk (see Hildebrand pages 1-2). Given the fact milk comprises about 9-24 µg/ml of uric acid (see Indyk abstract), and since the density of milk is about 1g/ml, Hildebrand discloses root beer flavored milk comprising between 9µg to 24ug of uric acid per 1g of milk (i.e., (9µg/ml)/(1g/ml) to (24µg/ml)/(1g/ml) of uric acid), which meets the claimed limitations.
Regarding claim 2: Hildebrand discloses a root beer flavored milk (see Hildebrand pages 1-2). Given the fact milk comprises about 0.14 to 0.15 mg of purines per 100ml (see Purine Content in Milk page 1), and since the density of milk is about 1g/ml, Hildebrand discloses root beer flavored milk comprising between 1.4µg to 1.5µg of purines per 1g of milk (i.e., (140µg/100ml)/(1g/ml) to (150µg/100ml)/(1g/ml) of purines), which meets the claimed limitations.
Regarding claim 3: Hildebrand discloses a root beer flavored milk (see Hildebrand pages 1-2). Given the fact milk comprises about 9-24 µg/ml of uric acid (see Indyk abstract) (i..e., 9µg to 24ug of uric acid per 1g of milk – see discussion above) and 0.14 to 0.15 mg of purines per 100 ml (see Purine Content in Milk page 1) (i.e., 1.4µg to 1.5µg of purines per 1g of milk – see discussion above), the content of uric acid over the content of purines (i.e., [(X)/(Y)]) is between 6 and 17 (i.e., (9µg/g)/(1.5µg/g)= 6 and (24µg/g)/(1.4µg/g)= 17), which meets the claimed limitations.
Regarding claim 4: Hildebrand discloses a root beer flavored milk (see Hildebrand pages 1-2). Since processed dairy beverages are classified under middle classifications 71-76 in Japan Standard Commodity (see Section 7, pages 1-2; Specification paragraph [0008]), Hildebrand meets the claimed limitations.
Regarding claims 6 and 7: Hildebrand discloses a root beer flavored milk (see Hildebrand pages 1-2), which is a pasteurized milk product. Since pasteurization inactivates 95% of the xanthine oxidase in milk (see Ozturk abstract), Hildebrand meets the claimed limitations.
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