DETAILED ACTION
Background
Claims 1-24 stand pending in the instant application. Claims 1-17 as filed with the instant application on May 03, 2024 have been examined. Claims 18-24 have been withdrawn from consideration. No amendments have been filed.
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 .
Election/Restrictions
Applicant’s election without traverse of the invention of Group I, claims 1-17 drawn to a composition in the reply filed on May 18, 2026 is acknowledged.
Claims 18-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Information Disclosure Statement
Cite number 55 in the Information disclosure statement dated September 03, 2025 was not considered because it is not available as prior art and does not reference available prior art.
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 2-12 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.
In each of claims 2-12, at line 2, the recited amounts are indefinite because the term “per serving of the composition” does not set forth a clear denominator or basis. The instant specification gives several examples of a “serving”, including (at page 29, lines 10-19) disclosing several possible “servings” which may or may not be limited in mass and (at page 29, lines 19-29) disclosing several possible fluid servings but with no limit or guidance on the size of a serving, or any standard therefor. While the Office interprets the term ‘serving’ broadly, the scope of such a serving in each claim is not clear.
In claim 2 at lines 2-3, the recited amount of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine, and tryptophan in “g per serving” is indefinite for lacking units in the recited serving.
The Office interprets the claimed amount of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine, and tryptophan as being based on the total weight of serving.
In claim 3 at line 2 the recited amount of tart cherry in “g per serving” is indefinite for lacking units in the recited serving.
The Office interprets the claimed amount of tart cherry as being based on the total weight of serving.
In claims 4-12, in each claim at line 2 the following recited amount in “wt% per serving” is indefinite for lacking units in the recited basis of a serving:
The amount of leucine in claim 4;
The amount of isoleucine in claim 5;
The amount of valine in claim 6;
The amount of lysine in claim 7;
The amount of phenylalanine in claim 8;
The amount of threonine in claim 9;
The amount of histidine in claim 10;
The amount of methionine in claim 11; and
The amount of tryptophan in claim 12.
Is the recited weight % of a serving an amount based on the total weight of the serving, based on the total mass of the serving, based on the total volume of the serving, based on the total solids of the serving, or based on some other unit of measure?
The Office interprets the recited wt% of each recited amino acid leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine, and tryptophan as being based on the total weight of the serving.
Claim Rejections - 35 USC § 102
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 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.
Claims 1-12 and 14-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN113826911 A to Lin et al. (Lin), as evidenced by Mohsen et al., Effect of substitution of soy protein isolate on aroma volatiles chemical composition and sensory quality of wheat cookies, International Journal of Food Science and Technology 2009, 44, 1705–1712 (Mohsen).
All references to Lin refer to its Clarivate Machine Translation, a copy of which is included with this Office action.
Unless otherwise indicated, all percentages (5) disclosed without units are interpreted as a weight % (wt%), which is considered interchangeable with mass %.
Regarding instant claims 1 and 14-17, Lin at Abstract on pages 1 and 2 discloses a nutritional composition suitable for recovering fatigue after exercise in the form of a powder (claim 15). In Embodiment 7 on page 6, Lin discloses a nutritional solid beverage suitable for recovering fatigue after movement, comprising: soybean peptide powder 5 g, branched-chain amino acid 4 g (L-leucine 2 g, L-isoleucine 1 g, L-valine 1 g), taurine 0.4g, turmeric 0.5g, acid cherry powder 0.3g (“tart cherry”), as well about 1.05 g of other ingredients including sucralose, steviosides and mogrosides (“flavor enhancers” - claim 14). Further, Lin discloses a method of weighing and uniformly mixing the raw materials to obtain the mixture, uniformly mixing the mixture in powder form with water (claims 16 and 17). See also page 4, 3rd full paragraph disclosing that its tart cherry powder promotes muscle recovery after movement.
Further, the Office considers the claimed essential amino acids of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine and tryptophan as included in the soybean peptide or protein of Embodiment 7 of Lin, as disclosed at Table 1 on page 1706 of Mohsen.
Regarding instant claims 2-3, the Office considers the composition of Embodiment 7 of Lin as being substantially the same thing as the claimed composition and as comprising a single serving of the composition having 11.27 g total weight, wherein the composition of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine, and tryptophan comprises 9g per serving as in claim 2 and about 0.3 g (300 mg) per serving of tart cherry as in claim 3.
Regarding instant claims 4-6, the Office considers the composition of Embodiment 7 of Lin as comprising a single serving of the composition having 11.27 g total weight, wherein the serving comprises at least about 2 g leucine or a least about 20 wt% of the serving as in claim 4; comprises at least about 1 g isoleucine or at least about 10 wt% of the serving as in claim 5; and comprises at least about 1 g valine or at least about 10 wt% of the serving as in claim 6.
Regarding instant claims 7-12, the Office considers that the soy protein of Embodiment 7 of Lin comprises all claimed essential amino acids of lysine, phenylalanine, threonine, histidine, methionine and tryptophan, as is disclosed at Table 1 on page 1706 of Mohsen. Further, the Office considers the soy protein in Embodiment 7 of Lin to comprise about 5.7 wt% lysine, 4.8 wt% phenylalanine, 3.2 wt% threonine, 2.4 wt% histidine, 1.2 wt% methionine and 0.9 wt% tryptophan (Table 1 at 1706 of Mohsen). The soy protein comprises 5 g of 11.27 g of the serving in Embodiment 7 of Lin, or about 44 wt% of the total weight of the serving of the composition. Accordingly, a serving of the nutritional composition of Embodiment 7 of Lin comprises about 2.5 wt% lysine as in claim 7; about 2.1 wt% phenylalanine as in claim 8; about 1.4 wt% threonine as in claim 9; about 1.1 wt% histidine as in claim 10; about 0.55 wt% methionine as in claim 11; and, about 0.4 wt% tryptophan as in claim 12.
Claims 1, 11-12, 14 and 16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2016/0271198 A1 to Jones et al., as evidenced by Wilkinson et al., "Effects of leucine-enriched essential amino acid and whey protein bolus dosing upon skeletal muscle protein synthesis at rest and after exercise in older women," Clin. Nutr., December 2018, 37(6 Part A): 2011-2021 (Wilkinson), of record.
Unless otherwise indicated, all percentages (5) disclosed without units are interpreted as a weight % (wt%), which is considered interchangeable with mass%.
Unless otherwise indicated, all percentages (5) disclosed without units are interpreted as a weight % (wt%), which is considered interchangeable with mass %.
Regarding instant claims 1, 14 and 16, Jones at [0118] discloses a nutritional composition comprising: tart cherry juice concentrate, whey protein, flavor and monk fruit juice concentrate (“flavor enhancers” - claim 14). Further, Jones at [0119]-[0122] discloses a method of wherein the mixture is dissolved or suspended in water (“liquid”) as in claim 16. Further, the Office considers the claimed essential amino acids of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine and tryptophan as included in the whey protein at [0188] of Jones, as disclosed at Table 2 on page 2013 of Wilkinson.
Regarding instant claims 11-12, the Office considers the whey protein composition of Jones at [0118] as comprising the composition in Table 2 at p. 2013 of Wilkinson. The formulation at [0118] of Jones comprises 4.2 wt% whey protein which comprises about 2 wt% of methionine and about 2 wt% of tryptophan. Therefore, a serving of the formulation at [0118] of Jones comprises about 0.084 wt% methionine as in claim 11; and, about 0.084 wt% tryptophan as in claim 12.
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.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over CN113826911 A to Lin et al. (Lin), as evidenced by Mohsen et al., Effect of substitution of soy protein isolate on aroma volatiles chemical composition and sensory quality of wheat cookies, International Journal of Food Science and Technology 2009, 44, 1705–1712 (Mohsen), as applied to claim 1, above and further in view of US2006/0198899 A1 to Gardiner et al. (Gardiner).
All references to Lin refer to its Clarivate Machine Translation, a copy of which is included with this Office action.
Unless otherwise indicated, all percentages (5) disclosed without units are interpreted as a weight % (wt%), which is considered interchangeable with mass%. As applied to claim 1, Lin at Embodiment 7 on page 6 discloses a composition comprising all of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine, and tryptophan, and that further comprises tart cherry.
Lin does not disclose its recovery compositions as further comprising creatine monohydrate.
Gardiner at [0002] discloses a supplemental dietary composition including whey protein concentrate for supporting muscle growth, recovery, and/or strength and that can be easily mixed with a polar solvent using a spoon. Further, at [0005] and at [0019] Gardiner discloses a composition further comprising creatine monohydrate. At [0018], Gardiner discloses that creatine increases strength, energy and muscle size as well as cell volumization and hydration.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Gardiner for Lin to include creatine monohydrate in its recovery composition. Both references disclose powder compositions for workout recovery comprising all essential amino acids and made for mixing with water. The ordinary skilled artisan in Lin would have desired to include the creatine monohydrate of Gardiner in its powder composition to further help enhance muscle recovery.
Claims 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0271198 A1 to Jones et al., as evidenced by Wilkinson et al., "Effects of leucine-enriched essential amino acid and whey protein bolus dosing upon skeletal muscle protein synthesis at rest and after exercise in older women," Clin. Nutr., December 2018, 37(6 Part A): 2011-2021 (Wilkinson), as applied to claim 1 above.
Unless otherwise indicated, all percentages (5) disclosed without units are interpreted as a weight % (wt%), which is considered interchangeable with mass%.
As applied to claim 1, Jones at [0118] discloses a composition comprising all of leucine, isoleucine, valine, lysine, phenylalanine, threonine, histidine, methionine, and tryptophan, and that further comprises tart cherry.
Jones does not disclose an example of its composition in powdered form as in claim 15; and further, Jones does not disclose an example of its composition in powdered form and dissolved or suspended in water as in claim 17. However, Jones discloses a powder formulation at [0034] and at [0110] discloses the compositions mixed with water. The ordinary skilled artisan in Jones would have found it obvious to make a powder composition as in claim 15 and dissolve it in water as to make a beverage as in claim 17 because Jones discloses that water miscible powders and drink dosages are desirable forms of its composition.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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