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 .
Status of the Application
The status of the claims upon entry of the 06/03/2024 amendment stands as follows:
Pending claims: 1-110
Withdrawn claims: None
Canceled claims: 3, 5, 7-13, 15-17, 21, 23, 24, 26, 27, 29, 30, 32-35, 38-43, 45-56, 59, 61, 63-70, 73, 76-78, 80-84, and 86-110
Amended claims: 2, 4, 6, 14, 18-20, 22, 25, 28, 31, 36, 44, 57, 58, 60, 62, 71, 74, 75, 79, and 85
New claims: None
Claims currently under consideration: 1, 2, 4, 6, 14, 18-20, 22, 25, 28, 31, 36, 37, 44, 57, 58, 60, 62, 71, 72, 74, 75, 79, and 85
Currently rejected claims: 1, 2, 4, 6, 14, 18-20, 22, 25, 28, 31, 36, 37, 44, 57, 58, 60, 62, 71, 72, 74, 75, 79, and 85
Allowed claims: None
Specification
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
The abstract of the disclosure is objected to because it does not recite that which Applicant alleges is new in the art. Specifically, the abstract does not recite clarifying the beverage with rOVA. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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.
Claims 19, 31, 71, and 85 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.
Claim 19 recites the limitation “the powdered agent” in line 2. There is insufficient antecedent basis for this limitation in the claim, since claim 19 depends from claim 1 but claim 18 provides antecedent basis for an agent that is powdered.
Regarding claim 31, the phrase “e.g.” 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).
Claim 71 recites the limitation “the clarified and/or fined vegan beverage composition comprising undesirable solutes” in lines 3-4. There is insufficient antecedent basis for this limitation in the claim, since claim 1 recites only the production of a clarified and/or fined vegan beverage composition but not a clarified and/or fined vegan beverage composition that still comprises undesirable solutes after the separation step.
Claim 85 recites the limitation “the products” in lines 1-2. There is insufficient antecedent basis for this limitation in the claim, since parent claim 1 provides antecedent basis for “an agent”.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2 and 25 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 2 appears to improperly claim what was intended to be a range of from 0.01-7% agent. The claim instead claims as alternative limitations an amount of agent that is (i) less than about 7% or (ii) greater than about 0.01%. Any concentration of agent will fall within one of those two limitations, which are not required to be met simultaneously. Claim 2 thus fails to further limit the subject matter of claim 1.
Claim 25 fails to further limit the subject matter of claim 1, since the only limitation is that “step (b) occurs for up to 24 hours or more than 24 hours”, which would encompass any time period.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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, 2, 4, 6, 14, 18-20, 22, 25, 28, 31, 36, 37, 44, 57, 58, 60, 62, 71, 72, 74, 75, 79, and 85 are rejected under 35 U.S.C. 103 as being unpatentable over Olcese et al. (U.S. 2011/0305804 A1) in view of Anchel (U.S. 2020/0138066 A1).
Regarding claim 1, Olcese et al. discloses a method for producing a clarified beverage composition, the method comprising (i) obtaining a beverage composition comprising undesirable solutes; (ii) contacting the beverage composition with an agent for clarifying to remove/reduce undesirable solutes from the beverage composition, wherein the contacting provides a solution/slurry comprising the beverage composition and complexes of the agent formed with the undesirable solutes (claim 1); and (iii) separating the complexes from the solution/slurry to obtain the clarified beverage composition (claim 13), where the beverage may be vegan (claim 3).
Olcese et al. does not specifically disclose the clarifying agent as being recombinant ovalbumin (rOVA).
However, Anchel discloses rOVA ([0007]) that may be used as a clarifying agent ([0029], [0030], [0032]).
It would have been obvious to one having ordinary skill in the art to use the rOVA taught in Anchel as a clarification agent in the process of Olcese et al. First, Olcese et al. teaches that the clarification/fining agent may be “any material that may be added to a beverage or beverage component that facilitates the removal of a species that is present in the solution”, and provides egg white as an example ([0017]). Olcese et al. further indicates that the product may comprise fruit and/or vegetable juice ([0030], claim 3), which suggests to a skilled practitioner that a product would be desirable to individuals having a diet restricted to vegetarian or vegan consumable products. A skilled practitioner would thus be motivated to utilize only processing agents that conform to the standards of such restricted diets and would consult Anchel to determine a suitable clarification agent. Since Anchel discloses the rOVA is considered an animal-free component ([0006]) and that it is useful as a clarification agent ([0029], [0030], [0032]), a skilled practitioner would find the use of rOVA as the clarification agent of Olcese et al. to be obvious.
As for claim 2, Olcese et al. disclose the amount of a different fining agent being added as being about 0.1-5 gm/L ([0034]), which would result in a solution/slurry comprising less than about 7% w/v clarification agent.
As for claim 4, Olcese et al. disclose the amount of a different fining agent being added as being about 0.1-5 gm/L ([0034]), which would result in a solution/slurry comprising less than about 3% w/v clarification agent for at least some embodiments. Use of rOVA as the clarification agent would be obvious according to the rationale discussed previously in relation to claim 1.
As for claim 6, Olcese et al. disclose the amount of a different fining agent being added as being about 5 gm/L ([0034]), which would result in a solution/slurry comprising 0.5% clarification agent. Use of rOVA as the clarification agent would be obvious according to the rationale discussed previously in relation to claim 1.
As for claim 14, Olcese et al. discloses the addition of additives in general ([0044]). Anchel discloses the processing agent as functioning as a preservative or antimicrobial agent ([0032]). The inclusion of an antimicrobial agent or preservative in the agent would thus be obvious.
As for claim 18, Anchel discloses the agent as being in a powder form or in liquid form ([0107]).
As for claim 19, Anchel discloses that addition of egg white proteins “in lyophilized form” (i.e., powder) are dissolved in solution ([0172]), such that a skilled practitioner would reasonably expect that addition of such a lyophilized component to the beverage solution of Olcese et al. ([0017]) would result in dissolution of the lyophilized component. Thus, dissolving a powdered agent in the beverage composition would be obvious to a skilled practitioner.
As for claim 20, Olcese et al. discloses agitating the beverage composition during the contacting step ([0042]).
As for claim 22, Olcese et al. discloses the separating step as comprising filtration ([0043]).
As for claim 25, Olcese et al. discloses the contacting step may occur for about 1 hour to 7 days ([0042]), which renders obvious the claimed period of up to 24 hours.
As for claim 28, Olcese et al. disclose the contacting step as occurring at about room temperature (i.e. ambient temperature) ([0042).
As for claim 31, Olcese et al. discloses the method as removing phenolic compounds from the beverage ([0043]).
As for claim 36, Olcese et al. discloses the beverage as being a vegetable-based beverage composition ([0039]).
As for claim 37, Olcese et al. discloses the beverage as being substantially clear (“clarified beverages”) ([0004]).
As for claim 44, Olcese et al. disclose the beverage as being an alcoholic beverage ([0013]).
As for claim 57, Anchel discloses the rOVA protein as comprising an amino acid sequence that is at least 97% identical to SEQ ID NO. 2 (Fig. 1, SEQ ID No. 1).
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As for claim 58, MPEP 2112.01 I states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” Since the claimed rOVA protein is understood as being substantially identical to that found in native egg white, the claimed method is presumed as being as effective as a comparable method using native egg white as a clarifying agent for a beverage composition.
As for claim 60, the effectiveness is understood as being an improvement in clarity as taught in Olcese et al. ([0004]).
As for claim 62, Anchel discloses the rOVA as being a protein ([0007]), such that its addition to a beverage would provide protein fortification to the extent some rOVA remains in the beverage after separation of protein complexes.
As for claim 71, Anchel discloses recombinant ovomucoid (rOVD) ([0007]). Use of rOVD as a clarification agent would be obvious for the same reasons detailed previously in relation to claim 1 as applied to rOVA. Olcese et al. discloses the use of multiple fining agents in order to selectively manipulate the concentrations of various unwanted components ([0035]), which renders the claimed steps of performing a second sequence of clarification/separation steps with a different clarification agent obvious.
As for claim 72, Olcese et al. disclose the amount of a different fining agent being added as being about 0.1-5 gm/L ([0034]), which would result in a solution/slurry comprising less than about 3% w/v clarification agent for at least some embodiments. Use of rOVD as the clarification agent would be obvious according to the rationale discussed previously in relation to claim 71.
As for claim 74, Anchel discloses the rOVD protein as comprising an amino acid sequence that is SEQ ID NO. 76 (Fig. 3, SEQ ID No. 3).
As for claim 75, MPEP 2112.01 I states: “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” Since the claimed rOVD protein is understood as being substantially identical to that found in native egg white, the claimed method is presumed as being as effective as a comparable method using native egg white as a clarifying agent for a beverage composition.
As for claim 79, Olcese et al. indicates treatment with a fining agent cause an improvement in clarity ([0004], [0017]).
As for claim 85, Anchel discloses the agent as being a synthetic product (p. 23, SEQ ID NO 1, “Description of Artificial Sequence: Synthetic polypeptide”).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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