185DETAILED 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
Claim status
The examiner acknowledged the amendment made to the claims on 06/18/2026.
Claims 1-5, 7-13 and 15-17 are pending in the application. Claims 1-2, 5 and 13 are currently amended. Claims 6 and 14 are newly cancelled. Claims 7-10 and 15-16 are withdrawn without traverse in response to the restriction requirement. Claim 17 is newly presented. Rest of claims are previously presented. Claims 1-5, 11-13 and 17 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5, 11-13 and 17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites a particle size of 100-300 µm for the citrus fiber raw material. The examiner does not find the support for such a limitation in the disclosure as originally filed. The instant disclosure actually recites a D99 of from 100 µm-300 µm (page 4, line 17), which does not have the same scope as the limitation about a particle size of 100-300 µm, since D99 is about the particle size distribution, not particle size. Claim 2 is rejected for the same reason.
Claims 3-5, 11-13 and 17 depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
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.
Claims 1-2, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Xu CN111248285 A (cited in the IDS submitted 01/09/2024, English disclosure relied upon for reference, hereinafter referred to as Xu).
Regarding claims 1-2 and 6, Xu teaches a beverage (e.g., a milk containing food such as low fat milk with improved taste, see page 7, line 21-30; page 14, Example 3) that comprises commercial UHT skimmed milk (page 14, Example 3, line 9-10), and a homogenized citrus fiber-based product (1C) (page 14, Example 3, line 10), wherein the homogenized citrus fiber-based product (1C) is prepared by homogenizing a mixture of citrus fiber, skimmed milk and cream (page 11, line 7-29). Additionally, Xu teaches that a starter culture can be added to the mixture of a liquid milk and citrus fiber-based composition to make a fermented milk product (page 7, line 28-30).
Further, Xu teaches that the amount of citrus fiber in the mixture of the commercial UHT skimmed milk and the homogenized citrus fiber-based product (1C) is 0.7 ‰ (e.g., 0.07%, page 14, line 11-12). Such a content of citrus fiber falls within the range as recited in claim 1, taken all the skimmed milk and cream in the mixture as the milk base.
Further, Xu teaches that the citrus fiber used in the examples is AQ Plus citrus fiber from Herbafood, which comprises 88-93% total dietary fiber, and the fiber particle size is less than 250 microns (page 10, line 7-9). The amount of total dietary fiber in the citrus fiber of Xu falls within the range of claims 1-2. The particle size as disclosed by Xu overlaps with range as recited in claims 1-2. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Given that the low fat milk with improved taste as recited in Example 3 of Xu comprises citrus fiber, skimmed milk and cream and nothing more, the limitation that the beverage does not contain a suspension stabilizer is met by Xu.
Regarding claim 17, Xu teaches that the milk containing food/beverage also encompasses milk tea (page 7, line 28), therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have added a tea raw material such as tea powder in the composition of milk and citrus fiber to make milk tea. Further, the examiner takes official notice that chocolate milk is a well-known milk based drink thus it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have added chocolate material such as cocoa powder to the mixture of milk and citrus fiber to make chocolate milk.
Claims 5 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Xu as applied to claims 1-2 above, and evidenced by Ashcroft WO 2014/082951 A2 (hereinafter referred to as Ashcroft).
Regarding claims 5 and 13, Xu as recited above teaches that the citrus fiber raw materials used to prepare the beverage is AQ Plus citrus fiber from Herbafood. As evidenced by Ashcroft (page 9, line 28- page 10, line 2), dried AQ Plus citrus fiber has a water retention capacity of about 20 times (e.g., a water binding capacity of about 20 kg water per kg of AQ Plus citrus fiber powder, page 10,, line 1-2).
Claims 3-4 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Xu as applied to claims 1-2 above, and further in view of Sendra, “Viscoelastic properties of orange fiber enriched yogurt as a function of fiber dose, size and thermal treatment”, LWT, Food Science and Technology, 2010, 43, pages 708-714 (hereinafter referred to as Sendra) and Kieserling, “Impact of pectin-rich orange fibre on gel characteristics and sensory properties in lactic acid fermented yoghurt”, Food Hydrocolloid, 2019, 94, pages 152-163 (hereinafter referred to as Kieserling).
Regarding claims 3-4 and 11-12, those claims are interpreted to recite a viscosity of the citrus fiber raw material under a specific condition, given that the claims are directed to a beverage as opposed to a process of making a beverage or a process of measuring the viscosity of a citrus fiber raw material. To this end, Xu does not teach the viscosity value of the citrus fiber raw material. What Xu teaches is that the citrus fiber serves to impart viscosity and thickening effect to the food (page 1, line 31-49).
Further, Sendra in the same field of endeavor teaches that the viscosity of a yogurt that comprises a citrus (e.g. orange) fiber is a parameter of the particle size of the citrus fiber (e.g., viscosity is higher with larger fiber particle size than with smaller fiber particles, Abstract; Conclusion); however, Kieserling in the same field of endeavor teaches that particle size of the citrus (e.g. orange) fiber also affects its ability to stabilize yogurt gel (e.g., fine fiber is able to stabilize yogurt gel over a broader deformation range than coarse fiber, and fine fiber is favorably integrated into the casein network able to additionally fortify yogurt gel; page 159, right hand column, para. 1-2).
Therefore, one of the ordinary skill in the art would have been motivated to manipulate the size of the citrus fiber below a range of less than 250 microns so as to ensure that the fiber could effectively impart the viscosity but without compromising its stabilization effect. As such, the viscosity as recited in claims 3-4 and 11-12 are merely obvious variants of the prior at, given that the viscosity of the citrus fiber is related to its particle size.
Response to Arguments
Applicant's arguments filed 06/18/2026 have been fully considered and the examiner’s response is shown below:
The 35 USC 112(b) rejection is withdrawn in view of the amendment made to the claims.
The 35 USC 103 rejection over Wang is withdrawn in view of the amendment made to claims.
Applicant argues on pages 7-8 of the Remarks that the milk product of Xu does not meet the limitation that the beverage does not contain a suspension stabilizer. In particular, applicant argues that the cream in the composition of Xu is not part of the milk base (e.g., skim milk), and such a cream is actually a suspension stabilizer.
The examiner disagrees. Page 5 line 10-25 of the instant specification recites that “The suspension stabilizing agent refers to substances commonly used in the art to maintain a beverage from being layered, such as colloid, starch, etc., specifically, for example, carrageenan, hydroxypropyl distarch phosphate, sodium carboxymethyl cellulose, pectin, agar, and diacetyl tartaric acid mono- or di- glyceride.” Cream or milk fat is not in the list of suspension stabilizers recited in the instant specification, and there is no evidence from applicant that milk fat is a suspension stabilizer. More importantly, it does not appear that instant specification is such that it has drawn a clear line between what qualifies as a suspension stabilizer and what does not. Further, page 4 line 21-22 of the instant specification recites that the milk base is fresh milk and/or reconstituted milk either of which is known to contain milk fat. Thus if applicant believes milk fat is a suspension stabilizer, then claim 1 has serious issue.
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 CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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