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
Election /Restriction
Applicant's election with traverse of Group I claims 1, 4 and 5 in the reply filed on 7/23/2026 is acknowledged. However, upon considering the arguments, discussed below, examiner has decided to consider both the groups I and II together which will not have any serious search burden. However, group III is maintained and the arguments made with respect to Group I vs III (Group II will be considered as Group II) is addressed below. The traversal is on the ground(s) that
(a) Applicants argued under section (A) that First, “ Accordingly, the Examiner's proposed examples of thickeners for gels, pharmaceutical products, or non-food topical applications are not products made by the process as claimed. A process that instead produces one of those materially different products would no longer satisfy claim 6”.
(b) Second, the proposed alternative dry-mix process does not identify a process that makes the Group I product as claimed. The Requirement refers to combining Sanzan gum with protein powder as a dry mix for later dissolution, but it does not include the claimed mono- and diglycerides of fatty acids, the claimed (50-75): 100 mass ratios, or a resulting compound protein beverage comprising that claimed stabilizer”.
In response to (a), examiner intends to mean that the multiple steps of “mixing” more than one component, “adding water” followed by mixing colloid solution etc. are commonly used steps to make other products as mentioned above which is other than protein beverage. However, examiner can consider additionally the method steps can be applicable to make other beverages other than compound protein beverage. For example, the method can be used to make non-protein containing drinks such as sports-type beverages, tea -based beverages, coffee- based beverages etc. and without Sanzan gum -containing stabilizers including without Sanzan gum and mono-and diglycerides of fatty acids.
In response to (b), it is to be noted that examiner intends to mean powdered composition which comprises protein powder and Sanzan gum -containing stabilizers including without Sanzan gum and mono-and diglycerides of fatty acids in dry form.
However, applicants’ further arguments made under sections (B) and ( C) are not addressed. The reason is and as mentioned above that examiner agreed to make the restrictions with Group I claims 1-5 and Group II claims 6-15. Accordingly,
(a) item # 3 and item #4 in the last office action should be combined to have Group I : Claims 1-5 and deleting item #4 and
(b) item #5 will be Group II, claims 6-15.
Therefore, it will be restriction between Group I claims 1-5 and Group II claims 6-15 and
(c) item #7 in the last office action should be considered as follows:
Inventions group II and group I are related as process of making and product
made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case, the method steps can be applicable to make beverages other than compound protein beverage. For example, the method can be used to make dairy beverage ( not compound beverage), peptide, amino acid containing beverage, or non-protein containing drinks such as sports-type beverages (may include peptide, amino acid), tea -based beverages, coffee- based beverages etc. and without Sanzan gum -containing stabilizers including without Sanzan gum and mono-and diglycerides of fatty acids. In the instant case, the product as claimed can be made by another and materially different process e.g., which comprises combining protein powder and Sanzan gum -containing stabilizers including without Sanzan gum and mono-and diglycerides of fatty acids in dry form.
3. Accordingly, claims 6-15 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. Applicant timely traversed the restriction (election) requirement in the reply filed on 7/23/2026.
The requirement is still deemed proper and is therefore made FINAL.
Status of the application
4. Claims 1-15 are pending in this office action.
Claims 6-15 have been withdrawn.
Claims 1-5 have been rejected.
Claim Objections
5. Claims 2, 3 objected to because of the following informalities: Claims 2, 3 recite “Withdrawn” claims. However, applicant’s arguments and based on the discussion as discussed under “Election/Restriction” above, examiner has considered claims 2, 3 to be in group I for further consideration. Therefore, the status of claims 2, 3 will be back to “Original”. Appropriate correction is required.
Claim Rejections - 35 USC § 103
6. 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.
7. 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.
8. 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.
9. Claim(s) 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (CN 110122726 A).
10. Regarding claims 1-3, it is to be noted that it is evidenced by applicant’s specification that that Compound protein beverages are high-quality protein supplements that are prepared with vegetable proteins and dairy products as main raw materials, have high nutritional values, and are easily digested and absorbed by the human body (at least in PGPUB , in [0003]). Zhang et al. discloses the protein beverage is the mixtures of plant protein plus milk protein together with other ingredients (at least in Example 6 C). Therefore, Zhang et al. discloses the claimed “compound protein beverage” as claimed in claim 1. Zhang et al. also discloses that such compound protein beverage is made using combinations of plant protein and milk (animal origin) protein together (Under Summary of the invention, under section F “ sterilizing and filling, step C). Therefore, Zhang et al. meets the claim limitation of “Compound protein beverage” of claim 1.
Regarding the claim limitation of ‘Sanzan gum containing stabilizer’ and ‘Sanzan gum and mono-and diglycerides of fatty acids’, Zhang et al. discloses that the beverage contains Sanzan gum and glycerin monostearate in an amount of sanzan gum 5-50 and glycerin monostearate 50-95 ( at least under Summary of the Invention lines 5-10 ). It is known that glycerin monostearate is a type of mono-glyceride (google ).
Regarding the ratio, it is understood that the ratio derived from the disclosed amounts of sanzan gum 5-50 and glycerin monostearate 50-95 ( at least under Summary of the Invention lines 5-10 ) is, at least overlapping the claimed ratio of 50-75 (Sanzan) :100 (mono- and diglyceride). It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
11. Regarding claims 4, 5, Zhang et al. discloses the compound protein beverage contains stabilizer and that for a protein beverage prepared when the stabilizer is not less than 0.15% of protein beverage quality or preferably, 0.15 %-0.45 % of protein beverage when preparing the stabilizer of protein beverage mass (at least on page 4, Under “Summary of the invention, paragraph 10). Therefore, it encompasses the claimed range value of from 0.15% to 0.175% of a mass of the compound protein beverage as claimed in claim 5. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
12. One pertinent prior art by Li et al. (CN 110463770 A) teaches all the components including vegetable protein beverage (filed 12, See Abstract), but does not teach specifically “compound protein” (i.e. vegetable protein plus milk or animal protein etc.) as claimed in claim 1. This is true for other prior arts in the IDS filed 12/12/2024. However, only one prior art by Zhang et al. (CN 110122726 A ) which is on record in the applicants filed IDS (12/12/2024), has disclosed “compound protein” in combination with other components and used as primary prior art to address claims 1-5 in this office action.
13. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 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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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
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