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 .
Election/Restrictions
Applicant’s election without traverse of Group 1, Claims 1-14 in the reply filed on 7/14/2026 is acknowledged.
Claims 15-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim.
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 1, 2, 5, 6, 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over DeWille et al. (EP 2708146), made of record by Applicant, in view of Venuti (WO 2017/182299).
Regarding Claim 1, DeWille teaches a powdered beverage composition (Paragraph 12) comprising a vitamin component comprising one or more of the claimed vitamins including vitamins A, D, E, B12, etc. (Paragraph 58), a mineral component comprising one or more minerals selected from the claimed group including iron, manganese, zinc, iodine, etc. (Paragraph 58), a fruit and vegetable component, as DeWille teaches flavoring sources that can be added to the nutritional powder that include fruit, vegetable flavors including berry, orange, pineapple, peach, lemon, lime, banana, grape and the like (Paragraph 60), and teaches a sweetening component comprising monk fruit, as DeWille teaches various artificial sweeteners which can be used and teaches that it should be noted that a natural high intensity sweetener such as stevia or monk fruit powder can be substituted for the sucralose powder (Paragraph 84). However, DeWille does not specifically teach one of the claimed fruits or vegetables. It is noted that DeWille teaches of a sizable carbohydrate component as well as other optional components to add nutrition to the powdered beverage composition (Paragraphs 42-45, 57, 58, 71).
Venuti teaches of fruit and vegetable based powdered dry compositions that can be reconstructed in water and teaches of the importance of eating sufficient amounts of fruits and vegetables (Page 2, lines 1-15) and teaches making a powdered dry composition with a wide variety of fruits and vegetables (Page 9, lines 1-5), along with various vitamins and minerals (Page 9, lines 15-25), and extracts or preparations of fruits and vegetables including dry extracts of blueberry, elderberry, tomato, strawberry, apple, spinach, carrot, etc. intense sweeteners (Page 9, lines 20-35).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have added a fruit and vegetable component comprising the fruits and vegetables taught by Venuti to the dry powdered beverage composition of DeWille in order to provide dry beverage compositions comprising vitamins, minerals, fruits, vegetables and intense sweeteners, with an increased fruit and vegetable component, and therefore with an improved nutritional profile.
Regarding Claim 2, DeWille in view of Venuti teach the powdered beverage composition has a bulk density between about 0.2g/cc to about 0.10 g/cc (g/cubic centimeter) (DeWille, Paragraph 70), which meets the limitation of a bulk density less than 0.65 g/cm3.
Regarding Claims 5 and 6, DeWille in view of Venuti teach mineral components include calcium carbonate, choline bitartrate and magnesium (DeWille, Table 5) and vitamins including vitamin B3 delivered as niacinamide, etc. (DeWille, Table 5).
Regarding Claim 10, DeWille in view of Venuti teach that the powdered beverage is configured to dissolve in water to form a reconstituted composition that is preferably translucent, where translucent products are characterized by lower number on the color scale, i.e. closer to 0) (DeWille, Paragraph 73-76), which is understood to meet the limitation of colorless. DeWille in view of Venuti teaches the nutritional powder further optionally includes flavoring sources (DeWille, Paragraph 60). Therefore, to the extent that the vitamins, minerals and fruit components taught by the prior art meet the claimed limitations of Claim 1, and no “flavorings” are added, the prior art is deemed to teach or render obvious that the reconstituted composition is flavorless and odorless.
Regarding Claim 11, as set forth above, DeWille in view of Venuti teach dissolving the nutritional powder in water, and teaches an example of 47.5 g of the powder dissolved in 8 ounces of water (DeWille, Paragraph 74), which is more than the claimed 50-75ml water, which is a maximum of 2.5oz water. However, DeWille in view of Venuti also teach varying weights of serving sizes that can be used, where the serving size for each packet can include from about 70g of powder to about 5 grams of powder (DeWille, Paragraph 65). Therefore, it is submitted that where the serving size of the nutritional beverage powder was much smaller than 47.5g, such as about 5g, a smaller volume of water would be required for its dissolution. Therefore, it is submitted that it would have been well within the skill of one of ordinary skill in the art to have determined the optimal ratio of serving size weight of the dry powder to water for the preparation of a fully dissolved nutritional beverage. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the amount of water used for dissolution involves only routine skill in the art. MPEP 2144.05 II. While DeWille in view of Venuti does not specifically teach “cold” water per se, DeWille does not teach the water has to be a particular temperature. Therefore, it would have been well within the skill of one of ordinary skill in the art to determine the optimal temperature of the water for dissolution and consumption.
Regarding Claim 12, as set forth above, DeWille in view of Venuti teach varying weights of serving sizes that can be used, where the serving size for each packet can include from about 70g of powder to about 5 grams of powder (DeWille, Paragraph 65), where “about 5 grams” single serving of nutritional powder render obvious the claimed limitation of “about 1g single serving”, as claimed, as the term “about” in the disclosed and claimed values provide for values above and below the disclosed and claimed amount.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over DeWille et al. (EP 2708146), made of record by Applicant, in view of Venuti (WO 2017/182299), and further in view of Chapman et al. (USPA 2016/0227828).
Regarding Claim 3, DeWille in view of Venuti are taken as cited above in the rejection of Claim 1 and teach carbohydrates added to the dry composition include rice-derived carbohydrates (DeWille, Paragraph 43), but fail specifically teach where the powdered beverage composition further comprises tapioca.
Chapman teaches of suitable carbohydrates that can be included in a substantially clear liquid nutritional composition include rice-derived carbohydrates including tapioca dextrin (Paragraph 49). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the rice-derived carbohydrates used in a powdered nutritional composition to provide a clear or transparent liquid beverage to have been a tapioca dextrin light of the teachings of Chapman.
Claims 4, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over DeWille et al. (EP 2708146), made of record by Applicant, in view of Venuti (WO 2017/182299), and further in view of Pressman (1997), and as evidenced by “Useful Vitamins converter” NPL (2026).
Regarding Claims 4, 13, and 14, DeWille in view of Venuti are taken as cited above in the rejection of Claim 1.
Regarding Claim 4, DeWille in view of Venuti teach various mineral components that can be added including inositol, iron and chromium (DeWille, Paragraph 58) but fails to teach the mineral component further includes molybdenum.
Pressman teaches of the nutritional importance of vitamins and minerals and teaches that trace minerals are those minerals that you need but in very small amounts and these include boron, chromium, cobalt, copper, iodine, iron, manganese, molybdenum, nickel, selenium, among others (Page 8, Paragraph 1). Therefore, since DeWille in view of Venuti teach adding other trace minerals such as chromium and iron, it would have been obvious to also add molybdenum which is also a trace minerals importance for nutritional health.
Regarding Claims 13 and 14, DeWille in view of Venuti teach amounts of the various vitamins and minerals and teach the addition of vitamin A, C, D, E, B vitamins thiamine, riboflavin, pyridoxine, vitamin B12, niacin, folic acid, K, and minerals iodine, zinc (sulfate), manganese, calcium in the form of calcium carbonate, magnesium phosphate, choline bitartrate, selenium in the form of sodium selenate, but do not teach in amounts of mcg or mg as claimed or specifically teach magnesium citrate.
Pressman is taken as cited above and teaches recommended amounts of the above disclosed vitamins as follows:
Vitamin A: 4000-5000 IU for men or women (Page 5), which is equivalent to about 1200 mcg vitamin A (Useful vitamins converter NPL). While the taught amount is higher than what is claimed, Pressman teaches that the amount of each vitamin that one needs depends on various factors including age and health (Pages 5-7). Therefore, it would have been well within the skill of one of ordinary skill in the art to have modified the amount of vitamin A in the nutritional composition depending on age and health.
Vitamin C: 60mg (Page 5). While the amount of vitamin C is slightly higher than the claimed range, Pressman teaches that the amount of each vitamin that one needs depends on various factors including age and health (Pages 5-20). Therefore, it would have been well within the skill of one of ordinary skill in the art to have modified the amount of vitamin C in the nutritional composition depending on age and health.
Vitamin D: 5mcg (Page 5), which meets the claimed range.
Vitamin E: 8-10mcg (Page 5), which meets the claimed range.
Vitamin B1 (thiamin): 2-100 mg (Page 20), which meets the claimed range.
Vitamin B3 (niacin): 15-100mg (Pages 5 and 20 for adults) and from 5-20mg for kids and adolescents (Page 49), which meets the claimed range.
Vitamin B6 (pyridoxine): 1.6-2mg (Page 5), which meets the claimed range.
Vitamin B9 (folic acid): 180-200mg (Page 5), which meets the claimed range.
Vitamin B12 (cobalamin): 2 mcg (Page 5), which meets the claimed range.
Vitamin B7 (biotin): 30-100 mcg (Page 20), which meets the claimed range.
Vitamin B5 (pantothenic acid): 4-7 mg (Page 20), which meets the claimed range.
Vitamin K2: 65-80 mcg (Page 5) which is higher than the claimed range. However, Pressman teaches that the amount of each vitamin that one needs depends on various factors including age and health (Pages 5-20). Therefore, it would have been well within the skill of one of ordinary skill in the art to have modified the amount of vitamin K2 in the nutritional composition depending on age and health.
Iodine: 150mcg (Page 8), which meets the claimed range.
Zinc: 12-15mg (Page 8), which is slightly higher than the claimed range. However, Pressman teaches that the amount of each vitamin that one needs depends on various factors including age and health (Pages 5-20). Therefore, it would have been well within the skill of one of ordinary skill in the art to have modified the amount of zinc in the nutritional composition depending on age and health.
Selenium: 70-200mcg is the safe daily dosage (Page 20), which is higher than the claimed range. However, Pressman teaches that the amount of each vitamin that one needs depends on various factors including age and health (Pages 5-20). Therefore, it would have been well within the skill of one of ordinary skill in the art to have modified the amount of selenium in the nutritional composition depending on age and health and to have stayed under the safe daily dosage.
Manganese: 2.5-5mg (Page 20), safe daily dosage (Page 20), which is higher than the claimed range. However, Pressman teaches that the amount of each vitamin that one needs depends on various factors including age and health (Pages 5-20). Therefore, it would have been well within the skill of one of ordinary skill in the art to have modified the amount of manganese in the nutritional composition depending on age and health and to have stayed under the safe daily dosage.
Blend of calcium carbonate, choline bitartrate and magnesium citrate: DeWille teaches adding calcium carbonate and choline bitartrate (Table 5) and Venuti teaches adding magnesium citrate (Example 6). Although a specific weight blend of the three minerals are not specifically taught in the art, since the prior art teaches the use of the claimed components in the dry beverage composition, it would have been well within the skill of one of ordinary skill in the supplement art to have determined optimal amounts of the disclosed minerals, depending on the final desired composition and amount of the minerals desired.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over DeWille et al. (EP 2708146), made of record by Applicant, in view of Venuti (WO 2017/182299), and further in view of Henry Jr. et al. (USPN 6,358,544).
Regarding Claim 7, DeWille in view of Venuti are taken as cited above and teach adding zinc in the form of zinc sulfate, but not specifically zinc citrate.
Henry Jr. teaches a dry mix nutritional composition comprising iron and zinc (Column 12, lines 35-40), where the zinc can be present in a variety of forms including zinc sulfate and zinc citrate, among others (Column 7, lines 10-25). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used any of the known disclosed forms of zinc in a dry mix nutritional composition. It is prima facie obvious to substitute one composition for another that is taught in the prior art to be used for the same purpose, when their equivalency is established or acknowledged by the prior art. See MPEP 2144.06 II.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over DeWille et al. (EP 2708146), made of record by Applicant, in view of Venuti (WO 2017/182299), and further in view of De Wille (USPN 5597595), and Kennison et al. (USPA 2022/0046969).
Regarding Claim 8, DeWille in view of Venuti are taken as cited above in the rejection of Claim 1 and teach carbohydrates added to the nutritional powders ca be organic or non-organic in nature (Paragraph 43) and can include flavoring sources including berry, orange, pineapple, peach, lemon, lime, banana, grape and the like (DeWille, Paragraph 60). In addition, Venuti teaches making a powdered dry composition with a wide variety of fruits and vegetables (Page 9, lines 1-5), including extracts or preparations of fruits and vegetables including dry extracts of blueberry, elderberry, tomato, strawberry, apple, spinach, carrot, etc. (Page 9, lines 20-35). DeWille in view of Venuti fail to specifically teach broccoli, cabbage, kale, parsley and raspberry.
DeWille’595 teaches using vegetable juices in powdered beverage compositions and teaches that food sources that are known sources of calcium include broccoli, cabbage and kale (Column 2, lines 40-60 and Example 9). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have added additional vegetable sources that are known sources of calcium to the powdered beverage compositions in order to further boost the nutritional profile of the beverage composition.
DeWille in view of Venuti in view of DeWille’595 fail to teach raspberry and parsley added.
Kennison teaches of nutritionally improved beverage compositions that can be in the form of powders (Paragraphs 48-50) including flavoring raw materials including red fruits such as strawberry, blueberry, raspberry and herbs including parsley (Paragraph 35). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have added additional fruit and herbal sources to the powdered beverage compositions in order to further boost the nutritional profile of the beverage composition.
Regarding Claim 9, DeWille in view of Venuti and DeWille’595 teach the nutritional powders including a carbohydrate source that can range from about 5% to about 70% of the weight of the nutritional powder (DeWille, Paragraph 55) and Venuti teaches a weight in powders of the fruit or vegetable component of about 3 to about 60% by weight or one or more vegetable extracts in an amount of up to 15% by weight (Venuti, Page 10, lines 10-30). Therefore in taking the guidelines of DeWille and Venuti into consideration, for a 100mg sample, this would provide about 5mg to 70mg carbohydrate source or up to 15mg of dried fruit or vegetable or extracts thereof, all of which would be within the claimed ranges. In addition, it would have been well within the skill of one of ordinary skill in the art to have determined the optimal level of fruit and vegetable component in the powdered nutritional composition, taking the guidelines of the prior art into consideration and the nutritional profile desired in the final beverage product.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 8/4/2026
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