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
Status of Claims
Note: The amendment of July 29th 2026 has been considered.
Claims 1 and 7 have been amended.
Claims 5-6 were cancelled.
Claims 18-20 were added.
Claims 1-4 and 7-20 are pending in the current application.
Claims 1, 2, 7-11, 15-18 and 20 are withdrawn from consideration.
Claims 3, 4, 12-14 and 19 are examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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 3, 4 and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Ogawa et al., (USPatPub. 2013/0344218 A1).
Regarding claim 3: Ogawa discloses a milk flavored beverage (i.e., oil in water emulsion) comprising between 2-4wt% vegetable oils, which are known to comprise MCT fatty acids (e.g., caprylic acid and/or capric acid) at contents that overlap the claimed contents (see Ogawa abstract; paragraphs [0020]-[0025], [0030] and [0037]-[0041]; Tables 1 and 4). Ogawa also discloses the beverage comprises emulsifiers (see Ogawa paragraphs [0034] and [0042]), but fails to disclose the HLB; However, given the fact the composition comprises at emulsion that is a water-in-oil-in-water emulsion, the HLB value for the water-in-oil part, has to be below 10, which encompass the claimed HLB value range.
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 at (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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