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 .
This office action is in response to applicant’s submission dated October 24, 2025. Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
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.
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 27-31, 33, 38, 41, 43, 46, 47, 52, 53 and 56-60 are rejected under 35 U.S.C. 103 as being unpatentable over White et al. (US 20130129879 A1) in view of Blaak et al. (US 20190275076 A1) and Nguyen et al. (Tribological method to measure lubricating properties of dairy products, Journal of Food Engineering).
With respect to Claim 27, White et al. presents a vegetable milk comprising a vegetable protein isolate [0002] and the method of making said vegetable milk. [0009] The vegetable milk may comprise a soy protein isolate, sweetening agents, flavoring agents, emulsifying agents, such as carrageenan (a hydrocolloid), stabilizing agents, lipid material, such as sunflower oil, fibers, probiotics, and more. [0028]
In a specific embodiment of the composition, White et al. describes a soy milk formulation of 3.2% soy protein isolates comprising about 88% water, 2.5% sugar, 0.03% mixed carageenans, 0.041% sodium chloride, 1.0% sunflower oil, 0.2% potassium citrate, 0.05% dipotassium phosphate, and 0.131% sodium citrate. [Table 3] The composition disclosed by White et al. reads on the limitations described in step a, b, c, e, f, g, and h, wherein the potassium salts and sodium citrate are buffering agents, the mixed carrageenans read on hydrocolloid agent, sodium chloride reads on flavor modification agent, sugar reads on sweetening agent, and sunflower oil reads on vegetal fat.
White et al. allows for the composition to comprise fiber, but is silent to an embodiment that comprises short and long chain inulin, a ratio of short to long chain inulin, and the coefficient of friction of the plant-based dairy milk alternative.
Blaak et al. teaches a dietary fiber composition comprising a combination of one or more inulin-type fructans. [0022] Blaak et al. teaches that embodiments are envisaged wherein the inulin-type fructan comprises a combination, such as a combination of short and long chain inulin products. [0032] Blaak et al. also teaches that inulin can be derived from chicory roots. [0029] This teaching reads on the limitation of a plant-based texturizing fiber comprising a combination of long and short chain inulin. Blaak et al. teaches a preferred embodiment of the invention, wherein the degree of polymerization of the long chain inulin is at least 20 and less than 60 [0028] and the degree of polymerization of the short chain inulin is within the range of 6-10. [0030] Blaak et al. teaches that the composition may be added to nutritional drinks and other fortified beverages [0101] in an amount between 0.1% and 5% [0106] and that the composition is beneficial for the treatment of weight conditions such as obesity. [0021]
Additionally, Blaak et al. teaches that the short chain inulin can comprise at least 60% of the inulin composition [0029] and that the whole composition may contain resistant starch such that the ratio of inulin to starch is between 1/5 and 10/1. [0050] A composition comprising short and long chain inulin as taught by Blaak et al. wherein the short chain inulin is 60% of the composition and the ratio of inulin to starch is between 1/5 and 10/1 would comprise about 60% short chain inulin, 30% long chain inulin, and 10% starch, resulting in a short to long chain inulin ratio of 2:1. This ratio overlaps with the range recited in step d.
Blaak et al. is silent to the coefficient of friction of the dairy mixtures.
Nguyen et al. presents a study of tribology motivated by the growing interest in its ability to ascertain the properties of food during consumption, [Abstract] specifically with respect to fluid viscosity and the coefficient of friction [Page 28, Col. 1, Par. 3] in dairy and non-dairy products. [Page 28, Col. 2, Par. 1] Nguyen et al. tests the viscosity and friction coefficient of milk with fats of 0.1%, 1.3%, 2.0%, 3.8%, and 4.9%. [Table 1] The results show that the friction of coefficient for all milk samples at 10mm/s are within 0.2 to 0.6. [Fig. 7]
Due to the nature of White et al. being that of imitating the properties of dairy milk, it would have been obvious for one to optimize the properties of the plant-based milk alternative to match that of dairy milk.
White et al., Blaak et al., and Nguyen et al. exist within the same field of endeavor in that they are all concerned with the properties and production of food compositions. White et al. presents an embodiment of the invention wherein the amounts of water, vegetal fat, plant protein, buffering agent, hydrocolloid, sweetening agent, and flavor modifier all lie within the ranges recited in step a, b, c, e, f, g, and h.
Blaak et al. presents a motivation for the addition of short and long chain inulin, with degrees of polymerization that overlap with the limitation recited in step d, to nutritional beverages due to their health benefits, including a range of possible additions between 0.1-5%, as well as a ratio of short to long chain inulin comprising the value of 2:1. Additionally, Nguyen et al. presents a study of the rheological properties of dairy beverages using tribology, providing data that milk of a variety of fats contents between 0.1-4.9% all have a friction coefficient within 0.2 to 0.6. According to the MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside the ranges disclosed by the prior art’ a prima facie case of obviousness exists.”
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have combined the soy milk taught in White et al. with the short and long chain inulin taught in Blaak et al. in order to achieve a plant-based dairy milk alternative with the same composition as the one recited in steps a-h of Claim 27, and with a coefficient of friction taught in Nguyen et al. that overlaps with the limitation recited as between 0.2-0.6 at 10 mm/s.
With respect to Claim 28, White et al. teaches a soy milk composition that is prepared as an oil in water emulsion. [0090] This reads on the limitation recited in claim 28.
With respect to Claim 29, White et al. teaches a soymilk composition that comprises 1% vegetal fat in the form of sunflower oil. [Table 3] Nguyen et al. presents data describing the coefficient of friction of dairy milk with fat content between 0.1% and 4.9%. [Fig. 7] The coefficient of friction for dairy milk with fat content of 0.1%, 1.3%, 2.0%, and 3.8% all have a coefficient of friction between 0.3 and 0.5. [Fig. 7]
In the endeavor of producing a plant-based milk alternative, one would have been motivated to design a beverage with a similar coefficient of friction to that of dairy milk. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have optimized the friction of coefficient of the plant-based dairy alternative taught by White et al. by using the disclosure of the friction coefficient of dairy milk by Nguyen et al. to arrive at the range recited by claim 29.
With respect to Claims 30 and 31, White et al. teaches a soymilk composition that comprises and 1% vegetal fat in the form of sunflower oil. [Table 3] Nguyen et al. presents data describing the viscosity of dairy milk with fat content between 0.1% and 4.9% over a range of 0.1-1000s-1 shear rate. [Fig. 4] Nguyen et al. also teaches that the mouthfeel of drinks is primarily dominated by the flow behavior of the beverage. [Page 27, Col. 2, Par. 1]
One would have been motivated to modify the viscosity of a plant-based dairy alternative in order to improve the mouthfeel of the beverage. Nguyen et al. teaches a method of measuring viscosity as well as recorded values for a range of dairy beverages. Within the values for 1s-1 and 1000s-1 shear rate are milk samples that have a viscosity of about 45-55mPa and 2.9-3.5mPa. [Fig. 4]
In the endeavor of producing a plant-based milk alternative, one would have been motivated to design a beverage with a similar viscosity to that of dairy milk. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have optimized the viscosity of the plant-based dairy alternative taught by White et al. and the disclosure of the viscosity of dairy milk by Nguyen et al. to the range recited by the limitation of claim 30 and 31.
Additionally, the ranges recited in claims 30 and 31 reflect the obvious optimization of the viscosity of a plant-based dairy milk alternative. Therefore, it would have been obvious to one of ordinary skill in the art to have optimized the viscosity of a plant-based dairy milk alternative to the ranges of viscosity recited in claims 30 and 31.
With respect to Claims 33 and 38, White et al. in view of Blaak et al. teaches a soy milk dairy alternative that uses long and short chain inulin. Blaak et al. teaches a preferred embodiment of the invention, wherein the degree of polymerization of the long chain inulin is between 22-29 [0028] and the degree of polymerization of the short chain inulin is within the range of 6-10. [0030]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant application, to have produced a plant-based milk alternative taught by White et al. with the inulin taught by Blaak et al. using long chain inulin between 21 and 60 DP and short chain inulin between 3 and 11 in order to produce the invention recited in claims 33 and 38.
With respect to Claims 41 and 43, White et al. in view of Blaak et al. teaches the addition of long and short chain inulin to beverages such as plant-based dairy milk alternatives. Blaak et al. teaches that the inulin composition may be added to a product in an amount of at least 0.1% and less than 5% total weight. [0106]
A range comprising values from 0.1-5% long and short chain inulin would constitute a range that overlaps with the range recited in claim 41 and 43. According to the MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.”
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application to have produced a plant-based dairy milk alternative comprising short chain inulin between 0.5% and 1.5% and long chain inulin between 0.15% and 1.5% by utilizing the teaching of a soy milk by White et al. with the teaching of long and short chain inulin by Blaak et al. in order to produce the invention recited by claims 41 and 43.
With respect to Claim 46, White et al. in view of Blaak et al. teaches a plant-based dairy milk alternative that incorporates long and short chain inulin. Blaak et al. also teaches that inulin can be derived from chicory roots. [0029]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used inulin obtained from a plant selected from a group comprising chicory by combining the plant-based dairy milk alternative taught by White et al. with the teaching by Blaak et al. in order to produce the invention recited in claim 46.
With respect to Claim 47, the plant-based dairy milk alternative taught by White et al. is aqueous. [0090] The reads on the limitation recited in claim 47.
With respect to Claims 52 and 53, White et al. teaches a plant-base dairy milk alternative that comprises lipid materials, such as sunflower oil. [0028] Additionally, in a specific embodiment of the invention, White et al. uses a combination of vegetables fats, including coconut oil. [Table 16] It would have been obvious to try to combine sunflower oil and coconut oil in a single embodiment of the invention due to the finite number of vegetable oil options taught in White et al. and the teaching of a composition comprising more than one lipid source.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have combined the embodiments taught in White et al. in order to produce a plant-based dairy milk alternative with the vegetal fat recited in claim 53.
With respect to Claims 56-58, the plant-based dairy milk alternative taught by White et al. comprises plant protein from a soy source [0027], such as soy protein isolate. [0028] This reads on the limitations recited in claims 56-58.
With respect to Claims 59 and 60, White et al. teaches embodiments of the plant-based dairy milk alternative comprising embodiment wherein the plant protein is present in an amount between 3.2% [Table 3] and 0.57%. [Table 11] It would have been obvious to one of ordinary skill in the art to optimize the protein content of the plant-based dairy milk alternative in order to achieve a desirable amount of protein.
A range created by the embodiments taught by White et al. would be from about 3.2%-0.57%. this overlaps the amounts recited in claims 59 and 60. According to the MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” This range reads on a plant protein between 0.1-2% as recited in claim 59 and a soy protein isolate of about 0.5%.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant application, to have used the teaching of White et al. in view of Blaak et al. and Nguyen to produce a plant-based dairy alternative comprising between 0.1%-2% plant protein and a plant-based dairy alternative comprising 0.5% soy protein isolate, thereby rendering claims 59 and 60 obvious.
Response to Arguments
Applicant's arguments, starting on Page 6, filed October 24, 2025 have been fully considered but they are not persuasive.
Applicant asserts on Page 7, Lines 24-31, “The instant application provides plant-based dairy milk alternatives comprising inulin polymers that have desirable organoleptic properties, specifically including pleasing mouthfeel … This texture and mouthfeel was achieved using specific combinations and ratios of inulin fibers”, and that the application, “demonstrated that inulin, in specific chain lengths and combinations, achieved a coefficient of friction and viscosity that closely resembled dairy whole milk.”
Applicant continues this assertion on Page 8, Lines 16-19, “Unlike Blaak, which uses inulin to modulate gut microbiota and SCFA production, the present invention uses a specific blend of short and long chain inulin to replicate the mouthfeel and friction profile of dairy milk. This functional use of inulin as a rheological and tribological modifier in plant-based milk is not taught or suggested by Blaak.”
Applicant is reminded that, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims.” Applicant’s assertion that the organoleptic properties of the instant invention were achieved through the addition of inulin amount to limitations not recited in the claims.
Additionally, the composition taught by White et al. in view of Blaak et al. and Nguyen read on the composition recited in claim 27 of the instant invention, as described in the rejection of claim 27 above. According to MPEP 2145 II, “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” The composition of White et al. in view of Blaak et al. and Nguyen et al. would have had the same latent properties of the instant invention due to its identical composition. For these reasons, applicant’s assertions are found to be unpersuasive.
Applicant asserts on Page 8, Lines 19-22, “Blaak teaches ratios of inulin to resistant starch, not short to long chain inulin. The claimed ratio of short:long chain inulin (1:0.15 to 2:1) is critical to achieving the desired tribological properties and is not disclosed or suggested in Blaak”.
Applicant is directed to the rejection of Claim 27 above and the rejection of Claim 45 in the Office Action mailed, July 25, 2025, wherein the composition of Blaak et al. is taught to comprise short and long chain inulin wherein the short chain inulin is 60% [0028] of the composition and the ratio of inulin to starch is between 1/5 and 10/1, [0050] resulting in a composition comprising about 60% short chain inulin, 30% long chain inulin, and 10% starch, resulting in a short to long chain inulin ratio of 2:1.
Therefore, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Page 8, Lines 29-31 through Page 9, Lines 1-2, “these prior art documents do not provide any reason or motivation to combine or replace some or all of the hydrocolloids of White with the inulin and resistant starch combinations of Blaak. Additionally, there is no disclosure in either of these references that would provide one of skill in the art with a reasonable expectation of successfully achieving the desired mouthfeel in the soymilk of White by making this substitution or addition of Blaak's disclosed combination of inulins and resistant starches”.
According to MPEP 2145 II, “It is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements”. Additionally, MPEP 2145 X. C states, “A teaching, suggestion, or motivation to combine references that is found in the prior art is an appropriate rationale for determining obviousness”.
There need not be an expectation of success for the combination in the prior art before the effective filing date of the application for the teachings of White et al. in view of Blaak et al. to render the instant invention obvious. Despite this, Blaak et al. teaches that the composition may be added to nutritional drinks and other fortified beverages, [0101] such as the beverage taught by White et al. Additionally, Blaak et al. teaches that the composition is beneficial for the treatment of weight conditions such as obesity. [0021] Though this motivation is different from the motivation applicant provided in their arguments (but is not recited in the claims), there is still motivation to combine.
For these reasons, applicant’s arguments are found to be unpersuasive.
Applicant asserts on Page 9, Lines 5-7, “Nguyen provides friction data for dairy milk but does not teach how to achieve similar tribological properties in plant-based systems. The present invention achieves this through a novel inulin blend, which Nguyen does not disclose or suggest.”
Applicant’s assertion with respect to Nguyen et al. amounts to an attack on the reference individually, and according to MPEP 2145 IV, “One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”. Nguyen is used in combination with Blaak et al., which discloses an inulin blend, and White et al. which discloses a plant-based dairy alternative. For this reason, applicant’s assertion is found to be unpersuasive.
In light of the above responses, the rejections of claims 27-31, 33, 38, 41, 43, 46, 47, 52, 53 and 56-60 are maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791