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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claim 1-6 and 16 in the reply filed on 09/01/2026 is acknowledged.
Claim 7-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 09/01/2026.
Application Status
Claim 1-6 and 16 are under examination.
Claim 7-15 are withdrawn from examination.
Claim 1-6 and 16 are rejected.
Claim Objections
Claim 3 and 4 are objected to because of the following informalities: the recitation of “liquid oat composition” in claim 3, line 2-3; and in claim 4, line 2-3, should be “of the liquid oat composition” since antecedent basis has been established in claim 1, line 1. Appropriate correction is required.
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.
Claim 4 is 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 4 recites “comprising a buffer in an amount…” is not clear if Applicant intend to have an additional buffer than the buffer recited in claim 3. It is not clear if the limitation is farther limiting claim 3; hence the claim is indefinite.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-6 and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Triantafyllou (US 9,743,684 B2).
Regarding claim 1 and 2, Triantafyllou discloses a liquid oat base (liquid oat composition) (‘684, col. 1, ln. 5-7) comprising milled groats, dehulled oats (oat derived material) with a 8% to 13% by weight dry substance (‘684, col. 3, ln. 61-64), which is in range with the cited range. Triantafyllou discloses the liquid oat base (liquid oat composition) comprising 20% or more protein deamidation degree (‘684, col. 4, ln. 16-18), which is in range with at least 10% as recited in claim 1, and in range with at least 11% as recited in claim 2. With respect to recitation of “for coffee or tea whitening” in claim 1, is considered intended use of the claimed composition. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Regarding claim 3, 4, 5 and 16, Triantafyllou discloses the liquid oat base (liquid oat composition) comprising di- and tricalcium phosphate and calcium carbonate (‘684, col. 5, ln. 19-22) (buffer). With respect to claim 3 and 4, the recitation of “to buffer 150 ml of coffee to a pH of at least 5.7 when adding 20 ml liquid oat composition” in claim 3; and “to buffer 150 ml of coffee to a pH of at least 5.9 when adding 20 ml liquid oat composition” in claim 4; is considered a functional limitations of the claimed product when the claimed product comprising a buffer is added to an amount of coffee; hence it has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or substantially identical process, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitation that stem from the claimed structure (product). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spade, 15 USPQ2d 655,1658 (Fed. Cir. 1990).
Regarding claim 6, Triantafyllou discloses the liquid oat base (liquid oat composition) comprising oat starch which has been partially hydrolyzed (‘684, col. 3, ln. 65-67; col. 4, 1-8).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Stiles et al. (US 2022/0079197 A1) discloses non-dairy analog beverage formulation (composition) comprising deaminated refined protein component (abstract) from sources including oat ([0041]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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