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 .
Claim Objections
Claims 1, 3-4, 7 and 10-11 are objected to because of the following informalities:
Claim 1 recites “the iron compound” in line 4 and should be “the micronized iron compound” to remain consistent.
Claim 3 recites “the iron compound” in line 2 and should be “the micronized iron compound” to remain consistent.
Claims 3 and 4 each recites “an instant beverage composition according to claim 1” and since the claim is a dependent claim, it should be changed to “The instant beverage composition according to claim 1”.
Claim 7 recites “the instant beverage” in line 2 and appears should recite “the instant beverage product” to remain consistent.
Claim 10 recites “The composition according to claim 9”. To remain consistent the claim should be amended to recite “The instant beverage composition according to claim 9. Claim 10 also recites “the herbal product” and appears should recite “the instant herbal product” to remain consistent.
Claim 11 recites “the instant beverage” in line 2 and appears should recite “the instant beverage product” to remain consistent.
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.
Claims 1, 3-15 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.
Regarding claim 1, claim 1 recites “the particle size” in line 4. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 4, claim 4 recites “the iron compound” it is unclear if this is referring to the micronized iron compound or an iron compound that is not micronized.
Regarding claims 13-15, claims 13-15 each recites “the instant beverage” in line 2. It is unclear whether this is referring to the “instant beverage composition” or “instant beverage product”.
Claims 3-12 are rejected by virtue of their dependence on a rejected base claim.
Claim Rejections - 35 USC § 103
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.
Claims 1, and 3-15 are rejected under 35 U.S.C. 103 as being unpatentable over Banken US 2005/0175761 in view of Moille US 2018/0133267 in view of Rekhif US 6,344,223 in view of Pesaro US 2021/0290507.
Regarding claim 1, Banken discloses an instant beverage composition (soluble powdered products including those for preparing a beverage) ([0086]) comprising a) an iron compound ([0053]) and b) and instant beverage product ([0086]).
Claim 1 differs from Banken in the recitation that the iron compound is specifically micronized, and wherein the particle size is in the range of 2-50 micron.
Moille discloses that a micronized iron compound has better bioavailability ([0038]). Moille discloses that the microparticles can have a size between 0.1 and 100 micrometers in size ([0018], [0039]-[0041]) encompassing the claimed range (MPEP 2144.05.I). It would have been obvious to one of ordinary skill in the art to modify the iron compound of Banken to be micronized and wherein the particle size in the range of 2-50 micron to provide the product with better bioavailability of iron.
Claim 1 differs from Modified Banken in the recitation that the instant beverage is an instant tea product, instant herbal product, instant coffee product or instant cocoa product.
However, Banken suggests instant beverages in general (‘761, [0086]) and the particular type of instant beverage is therefore seen to be a matter of taste preference.
Additionally, Rekhif discloses that instant beverages suitable to be fortified with iron includes a powdery product including instant coffee, cocoa containing mixtures and the like (col.2, lines 46-51). It would have been obvious to one of ordinary skill in the art to modify the instant beverage product of Modified Banken to be an instant coffee or instant cocoa product as suggested by Rekhif since Banken suggests instant beverages in general and Rekhif recognizes suitable instant beverages for fortification with iron include instant coffee and cocoa beverages. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Additionally, Pesaro teaches known instant drinks include instant tea drinks including green, black rooibos, herbal ([0423]) as well as instant coffee, and instant cocoa ([0415]). It would have been obvious to one of ordinary skill in the art to modify the instant beverage product of Banken to be an instant coffee, instant cocoa, instant tea or instant herbal product as taught by Pesaro since Banken suggests instant beverages in general and Pesaro recognizes known instant drinks include instant coffee, instant cocoa, instant tea or instant herbal products. It has been held that “Combining prior art elements according to known methods to yield predictable results” supports a conclusion of obviousness (MPEP 2143.I.A).
Regarding claim 3, claim 3 is rejected for the same reasons given above as for claim 1.
Regarding claim 4, it is noted that Banken discloses that the iron compound is substantially water insoluble (‘761, [0053], [0062]) and additionally since the iron compound (micronized ferric pyrophosphate) is the same as that claimed, claimed properties are presumed to be inherent (MPEP 2112.01.I,II).
Regarding claims 5 and 6, Modified Banken discloses that the micronized iron compound is micronized ferric pyrophosphate (‘761, [0053]) (‘267, [0018], [0037], [0038]).
Regarding claims 7-11, claims 7-11 are rejected for the same reasons given above as for claim 1.
Regarding claim 12, Modified Banken discloses that the edible composition typically comprises up to 30%, per serving of the composition of a given metal (‘761, [0048]), therefore encompassing the claimed range (MPEP 2144.05.I). Additionally, Banken discloses that the amount of transition metal compound will depend on the type used and how frequently the type of edible composition is intended to be consumed (‘761, [0048]). Therefore, it additionally would have been obvious to one of ordinary skill in the art to routinely adjust the amount of micronized iron compound in the instant beverage composition based on the type used and how frequently the instant beverage composition is intended to be consumed (MPEP 2144.05.II).
Regarding claim 13, Modified Banken discloses that the instant beverage further comprises milk powder (‘761, [0092]-[0095]).
Regarding claim 14, Modified Banken discloses that the instant beverage further comprises a sugar and/or sweetener (‘761, [0098]-[0101]).
Regarding claim 15, Modified Banken discloses that the instant beverage further comprises a nutrient and/or flavoring (‘761, [0092]-[0095], [0106])..
Conclusion
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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