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
Status of the application
2. Claims 21-40 are pending in this application.
Claims 21-40 have been rejected.
Claim Rejections - 35 USC § 112
3. 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.
4. Claims 21-40 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.
Claims 21, 32, 33 recite the term “milk-like beverage”. This renders claims 21,32, 33 indefinite. Therefore, all dependent claims which depend upon independent claims 21, 32 are also indefinite, and, therefore, all the claims render 112 second paragraph rejection.
Claim 28 recites “laboratory-sourced milk substance”. It is unclear what is meant by the term “Laboratory-sourced milk substance” which renders claim 28 indefinite.
Claim Rejections - 35 USC § 103
5. The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
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-AlA) 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.
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
7. The factual enquiries set forth in Graham v. John Deere Co., 383 U.S. 1,148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S. C. 103(a) are summarized as follows:
a. Determining the scope and contents of the prior art.
b. Ascertaining the differences between the prior art and the claims at issue.
c. Resolving the level of ordinary skill in the pertinent art.
d. Considering objective evidence present in the application indicating obviousness or non-obviousness.
It is to be noted that examiner is making two sets of separate 103 (a) obviousness rejections by addressing “cow milk” and also by addressing “Plant based milk” (starts from paragraph #29) as claimed in independent claims 1, 22, 36 and presented below.
8. Claims 21-25, 28, 29, 31-33, 36, 38-40 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chanvrier et al. (CN105705032 A) in view of Goldberg et al. US 2013/0052234 in view of Francois et al. (EA 026602 B1).
9. Regarding claims 21, 32, Chanvrier et al. discloses a food grade sheet that includes milk, milk powder, almonds, oats ( at least on page 7, second paragraph) which can be reconstituted into water or milk (at least in claim 1, 8 of Chanvrier et al.). Therefore, it reads on “milk substance” as claimed in claims 21, 32.
Chanvrier et al. is silent about “a water-soluble polymer”.
Goldberg et al. discloses that water soluble polymer can be carrageenan which can be used in such an edible oral strip composition ([0065]). Therefore, carrageenan will serve as a binding agent in the composition as claimed in claims 21, 32.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Chanvrier et al. by including the teaching of Goldberg et al. to introduce water soluble polymer carrageenan to serve as binding agent in such a composition ([0064], [0065]).
Chanvrier et al. in view of Goldberg et al. are silent about the claim limitation of “A package” and “Instructions for reconstitution’.
Francois et al. discloses that such product can be packaged with an instruction label for use (at least in claim 6 and claim 10 of Francois et al.). It is to be noted that the disclosed written proposal, recommendations, instructions, are made for similar product e.g., pouring the milk product into the cereal. However, it is within the skill of one of ordinary skill in the art to make such an instruction label to be used for the reconstitutable sheet in dry form with the instructions manual to guide with recommendations to make dissolution of the water reconstitutable sheet from dehydrated milk substance with the appropriate volume of liquid (e.g., water) to convert into liquid milk in order to make the reconstituted edible product from milk sheet as claimed in claims 21, 32. Therefore, this package comprising necessary components with the instructions manual in dry form which serves as kit.
One of ordinary skill in the art would have been motivated with a reasonable expectation of success to carry dehydrated strip in a convenient manner and dissolving the sheet in an appropriate volume of liquid during journey, or for the need of making liquid milk to be used as food, when necessary.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Chanvrier et al. in view of Goldberg et al. by including the teaching of Francois et al. to include an instruction label to be used as re-substitutable sheet using the recommended appropriate volume of liquid in order to have convenience to the user customer to use such a kit with necessary components in sheet (dry) form to carry and use conveniently for making the reconstituted liquid milk from milk sheet as claimed in claims 21, 32.
Even if Francois et al. does not specifically recite a sheet that includes a milk substance, however, Francois et al. is used to teach such related product can be packaged with an instruction label for use (at least in claim 6 and claim 10 of Francois et al.). According to MPEP 2143.01, Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation- suggestion-teaching test as a guard against using hindsight in an obviousness analysis).
Regarding the claim limitation “wherein dissolving the sheet in the appropriate amount of a liquid comprising water in a container make a pre- determined amount of milk-like beverage” as claimed in claims 21, 32 is considered as it is a common and known method.
It is to be noted that at least for claims 21 and 32, claims 21 and 32 do not claim any specific amount of liquid e.g. can be water. It is well within the ability of one of ordinary skill in the art to determine the appropriate amount of water needed to perform the step using the appropriate dosage amounts of liquid (i.e., can be volume of water) to make a desired unspecified predetermined amount suitable as dissolvable dosage for desired consistency to meet claims 21, 32.
It would have been obvious and it is within the skill of one of ordinary skill in the art to consider an appropriate amount of liquid comprising water in a container to make predetermined amount of the milk-like beverage for desired consistency with a reasonable expectation of success to enjoy the liquid beverage from the sheet.
10. Regarding claims 22, 23, it is to be noted that the specified instructed claimed steps of “the sheet is agitated after the sheet and the liquid comprising water are combined in the container” as claimed in claim 22 and “at least one of physically or mechanically agitated” as claimed in claim 23, are known steps. It is within the skill of one of ordinary skill in the art and one of ordinary skill in the art would have been motivated to perform the steps of agitation either by physically (i.e. hand or spoon) or mechanically (i.e. electric mixer or agitator) with a reasonable expectation of success in order to make homogeneous mixture in the form of dissolvable dosage form with desired consistency to meet claims 22, 23.
11. Regarding claims 24, 25, if we consider the teachings of disclosed prior arts as taught and discussed for claim 21 above, it is understood that when milk -based sheet composition is dissolved in liquid e.g. including water, it will be liquid milk product. Therefore, when one of ordinary skill in the art would follow the instructions to agitate the milk-based sheet in the liquid being water, after proper mixing, being dissolved, milk is made which meets the claim limitation of “ e liquid being water, and the instructions being for making a liquid milk”.
12. Regarding claims 28, 36, Chanvrier et al. discloses a food grade sheet that includes milk, milk powder, almonds, oats ( at least on page 7, second paragraph) which can be reconstituted into water or milk (at least in claim 1, 8 of Chanvrier et al.). It is to be noted that the broadly disclosed “milk” can read on dairy milk of claim 28.
13. Regarding claims 31, 38, 39, Chanvrier et al. discloses that the sheet can have a thickness between 0.5 mm and 2 mm (at least in claim 1 of Chanvrier et al.).
14. Regarding claims 29, 40, Chanvrier et al. in view of Goldberg et al. in view of Francois et al. are silent about “predetermined portion size” as claimed in claim 40. However, it is within the skill of one of ordinary skill in the art to determine one or more number of sheets necessary together which can address a portion size for one meal or daily consumption based on its daily nutritional requirement with respect to the amount of nutritional components e.g. carbohydrate, protein etc. present in each sheet and , accordingly, number of sheets to be used as measurement lines or dose demarcations to make the final product.
As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the number of one or more sheets and the volume of water to be considered to dissolve the sheet in Hoffman Chanvrier et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. which will meet an optimal portion size and/or daily nutritional requirement (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
15. Regarding claim 33, Chanvrier et al. discloses that the sheet containing milk, milk powder can be reconstituted into water or milk (at least in claim 8 of Chanvrier et al. (at least on page 7, second paragraph).
16. Claims 26, 27, 34, 35 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chanvrier et al. (CN105705032 A) in view of Goldberg et al. US 2013/0052234 in view of Francois et al. (EA 026602 B1) as applied to claims 21, 32 and further in view of BERGER et al. (EP 0776165 B1) and further in view of Reh et al. WO 2016102313 A1.
17. Regarding claims 26, 27, 34, 35, Chanvrier et al. discloses a food grade sheet that includes milk, milk powder, almonds, oats ( at least on page 7, second paragraph) which can be reconstituted into water or milk (at least in claim 1, 8 of Chanvrier et al. ).
However, Chanvrier et al. is silent about plant-based milk and its particle size.
BERGER et al. discloses a method of preparation of almond milk from almond powder, as well as the products obtained (under Description, paragraphs 1-4 and claim 1 of Berger et al.). BERGER et al. also discloses that it provides from a vegetable raw material a product capable of replacing with milks of animal origin, and in particular milk from cow, to serve as the basis for the creation of a range new products intended for human consumption and to achieve great food hygiene, especially for those individuals having allergies (i.e. bad tolerance) from cow's milk proteins, especially in young children (at least under Description paragraphs 2-4 and claim 1 of Berger et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Chanvrier et al. to include the teaching of Berger to make and use almond milk for human consumption in order to achieve great food hygiene, especially for those individuals having allergies (i.e. bad tolerance) from cow's milk proteins, especially in young children (at least under Description paragraphs 2-4 and claim 1 of Berger et al.).
Berger is silent about the claimed particle size as claimed in claims 26, 27.
REH discloses the method of making almond milk from almond powder having particle size distribution less than 100-micron size (at least Under Example 5, Methods, Fig 4B) meets claimed range amount from 1-500 micron of claim 26 and 1-250 micron of claim 27. Reh also discloses that the method of making almond milk from this particle size containing powder provides the benefit of having enhanced mouthfeel and aroma (At least in Abstract).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Chanvrier et al. in view of BERGER et al. to consider almond powder having particle size 100 micron or less which provides the benefit of having enhanced mouthfeel and aroma (At least in Abstract).
18. Claims 30, 37 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chanvrier et al. (CN105705032 A) in view of Goldberg et al. US 2013/0052234 in view of Francois et al. (EA 026602 B1) as applied to claim 21 and claim 32 and further in view of Tang et al. CN 110786403 A.
19. Regarding claims 30, 37, Chanvrier et al. discloses that the sheet in fry form has moisture content between 3-8% (page 5, Under Description, paragraph 5). However, Chanvrier et al. is silent about moisture analyzer OHAUS MB27.
Tang et al. discloses that the moisture content in food granule particles is determined using automated OHUAS-MB27 -type automatic water content measuring apparatus (Page 4, lines 8-10).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Chanvrier et al. to include the teaching of Tang et al. to use automated OHUAS-MB27 -type moisture analyzer suitable to determine moisture content in food granule particles using automated moisture content measuring apparatus (Page 4, lines 8-10).
Even if Tang et al. discloses moisture content measurement in similar food product as granule form, however, Tang et al. discloses moisture content measurement method and moisture analyzer to determine moisture content in similar food product containing food art.
According to MPEP 2143.01, Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation- suggestion-teaching test as a guard against using hindsight in an obviousness analysis).
Conclusion
20. 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.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571 -272-1000.
/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792