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 April 17, 2026. Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 17, 2026, has been entered.
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 carageenans 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 [0028], 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, including the friction coefficient, as recited in the instant claim.
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 claimed invention, 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 claimed invention, 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 claimed invention, 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 claimed invention, 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 claimed invention 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 claimed invention, 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 claimed invention, 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 claimed invention, 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 April 17, 2026 have been fully considered but they are not persuasive.
Applicant summarizes their assertions on Page 8, Paragraph 1, including “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” on lines 3-4; “White does not teach or suggest the use of inulin fibers” on line 9; “Nguyen provides friction data for dairy milk but does not teach how to achieve similar tribological properties in plant-based systems” on lines 12-13. Applicant concludes, “one of skill in the art would not recognize based on the cited prior art that selecting a specific combination of the fibre blend out of the many possible permutations taught by Blaak et al. to the invention of White et al. would achieve the mouthfeel taught by Nguyen”.
It is examiner’s position that the deficiencies asserted by applicant herein are explained in the rejections set forth and considered in the responses below.
Applicant asserts on Page 9, Lines 3-4, that Blaak et al. “expressly characterizes these materials by average DP values and distributions, not by binary cut-offs or discrete mass fractions at DP =20” and continues on lines 7-8, “Blaak et al., discloses only a distribution of chain lengths and expressly includes intermediate-length inulin species”. Applicant concludes, on lines 10-13, “The Examiner’s calculation improperly collapses the three-component distribution into a two-component system and therefore does not compute the true short-chain-to-long-chain weight ratio of the compositions disclosed by Blaak et al.”.
Examiner directs applicant to MPEP 2145 X. D, 1, which states, “the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternative because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed”. Applicant cites a single embodiment of the invention taught by Blaak et al. in the prior assertion, but fails to account for the embodiment comprising a combination of short and long chain inulin. [0032] Additionally, the disclosure of Blaak et al. not only teaches a range of short and long chain inulin ranging from 2-60 DP, as asserted by applicant, but also discrete lengths desired within the categories of short [0030] and long [0028] that overlap with the ranges recited in claim 1 and exclude the intermediate chain lengths.
For these reasons, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Page 9, Lines 13-16, that “Blaak et al., does not disclose the weight-average DP of its ‘long-chain’ fraction, and therefore does not establish that the material constituting the remainder of the inulin composition (i.e., the non-short chain inulin fraction) satisfies the requirement of the currently pending claim 27 of long chain inulin having an ‘average DP greater than 20’”.
Applicant is directed to MPEP 2144.01, which states, “[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would be reasonably expected to draw therefrom”. It would have been reasonable for a skilled artisan in the field of endeavor to envisage a composition of short and long chain inulin comprising the ranges recited in the instant claim 1 using the teaching of Blaak et al. by extrapolating the amount of long chain inulin in a composition comprising short and long chain inulin and starch, from the embodiment taught comprising 60% short chain inulin and 10% starch.
For this reason, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Page 9, Lines 26-27, that, “Nguyen measures friction coefficients for dairy products”, explaining on Page 10, lines 1-2, that, “the reported values (approximately 0.2-0.6 depending on fat content and normal load) arise from fat-mediated lubrication mechanisms”, concluding on lines 4-6, “Nguyen neither discloses nor suggests inulin, dietary fiber, or polymer chain-length-dependent lubrication, and therefore is not reasonably pertinent to the problem addressed by currently pending claim 22”. Applicant also asserts on Page 10, Lines 12-13, that, “The Office Action further provides no articulated rationale or reasonable expectation of success” and again on lines 24-27, that, “it is incumbent upon the Examiner to provide a reasoned explanation of a POSITA’s motivation to combine the cited references and what or how a POSITA would have had a reasonable expectation of successfully combining the references to obtain the claimed composition”.
Applicant is directed to MPEP 2145 III, which states, “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, relevance to MPEP 2145 II, “Mere recognition of properties in the prior art does not render nonobvious an otherwise known invention” and IV, “One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references”.
Regardless of the mechanism, Nguyen et al. teaches the physical properties of dairy milk, including the limitation recited in claim 27. Additionally, the invention of White et al. is directed to non-dairy beverages designed to imitate the organoleptic properties of dairy milk. One of ordinary skill in the art would have been motivated to develop a non-dairy composition according to White et al. with the inulin of Blaak et al. and the physical properties of dairy milk taught in Nguyen et al. in order to more closely imitate the beverage that is being imitated. Finally, the composition taught by the combination comprises all the limitations recited in the instant claim, and, therefore, the composition would be reasonably expected to possess the same latent properties as the invention recited in claim 27.
For this reason and those stated above, applicant’s assertions are found to be unpersuasive, and the rejections of claims 27-31, 33, 38, 41, 43, 46-47, 52-53, and 56-60 are upheld.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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