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 .
Response to Amendment
The rejection of claims 30 and 34-37 under 35 U.S.C. 112b has been overcome
Upon further reconsideration the amendment filed September 9, 2026 is entered.
Claims 1, 2, 5, 7-13, 29-32, 34-37 are pending.
Claims 12-13 are withdrawn from consideration.
Claims 1, 2, 5, 7-11, 29-32 and 34-37 are rejected.
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 1-2, 5, 8-10, 29-32, 34-37 are rejected under 35 U.S.C. 103 as being unpatentable over Birch (GB 2494475) in view of Igoe (Dictionary of Food Ingredients), Takaichi (US 20050244543) and Magana (US 20160242450) and in further view of Arsan (US 20080199571) and Sliwinski (US 20090074940).
Regarding claim 1, it is noted that the claim is directed to a composition that is sugar free and not to a confectionary product or hydration therapy product that has a semi-solid or gelled structure. Additionally, the confectionery product has withdrawn from consideration as being directed to a non-elected invention (i.e. claims 12 and 13).
Regarding claims 1, 2 and 5, Birch discloses an edible composition comprising polysaccharide gelling agents at 0.25-2.5wt% (see page 2, 2nd to last paragraph). On page 2, 3rd to last paragraph, Birch discloses that the polysaccharide gelling agents can be combinations including agar, locust bean gum as well as guar gum, gum Arabic, xanthan gum, alginate, carboxymethyl cellulose and starch and therefore suggests the combination of at least agar and locust bean gum used as part of polysaccharide gelling agents that can be present at 0.25-2.5wt% in total.
Regarding the composition comprising water in an amount of at least 90wt%, Birch discloses a composition that can comprise from 0.8-2.2wt% of polysaccharide gelling agents (agar + guar gum), 0.05-0.2wt% preservative, 2-8wt% sweeteners, 0.2-0.4wt% CoQ10, 0.1-1wt% Aloe Vera, 0.1-0.2wt% flavor enhancer, 0.1-0.2wt% fruit flavour and the balance being water (see Example 1a on pages 7-8). Therefore, Birch discloses that other than water, the composition can comprise between 3.35wt% and 12.2wt% of the remaining components and therefore discloses “the balance being water.” As such, the water can be present at 87.8wt% to 96.65wt%. Therefore, Birch is teaching and suggesting that amounts of water that are at least 90wt % of water can be used as part of the composition. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists (MPEP 2144.05(I)).
Birch suggests using locust bean gum as part of the gelling composition (see page 2, 3rd to last paragraph) and also teaches using agar at 0.4-1.5wt% (see at least, example 1a and page 2, 3rd to last paragraph).
Further regarding the limitation of, “0.2 wt% to 3 wt% of polysaccharide gelling agents, wherein the polysaccharide gelling agents comprise at least agar and locust bean gum,” it is noted that the claim does not specify how much of each of agar and locust bean gum have been used and since Birch teaches using a combination of agar and locust bean gum within the range of 0.2-2.5wt%, Birch teaches and suggests the claim limitation.
Nonetheless, it is further noted as evidenced by Igoe, that locust bean gum is known to be used in amounts such as 0.1-1% for providing elasticity to agar and as a gelling agent (see Igoe, page 84, “Locust Bean Gum”). Igoe also teaches that typical usage levels of agar are 0.1-2wt% (see page 5).
Further regarding the amounts of agar and locust bean gum as part of the composition, Takaichi (US 20050244543) teaches a composition comprising agar at 0.1-1wt% (see paragraph 82), and where a thickening agent such as locust bean gum can be combined with agar (see paragraph 84, 87 and 88) which can be used in amounts such as 0.05-0.3wt% (see paragraph 91: “Each [of] the gelling agent and the thickening agent is added to the gel composition…preferably in an amount ranging from about 0.05-0.3wt%”) for controlling gelling, gel strength and gel stability as well as for mitigating water release and improving the texture of the gel (see paragraph 90).
Magana (US 20160242450) teaches that agar used at 0.2-3wt% in a gelling composition can create a brittle gel, and to provide additional elasticity locust bean gum can be added by replacing 10% of the agar with the locust bean gum (see paragraph 38). In view of Birch teaching agar at 0.4-1.2wt%, Magana’s disclosure suggests using locust bean gum at 0.04-0.12wt% (i.e. 10% of Birch’s agar).
To therefore modify Birch and to include locust bean gum at, for example, 0.1-1wt% or 0.12wt%, as taught by Igoe, Takaichi and Magana would have been obvious to one having ordinary skill in the art, for the purpose of improving the elasticity of the agar gelling composition and for serving as a moisture binder for the agar containing composition.
Regarding the composition being a sugar-free, edible composition, it is noted that Birch also discloses that the sweetener can be sucralose (see page 5, first full paragraph) therefore teaching a sugar-free composition that comprises substantially no polyols.
Regarding the composition being “edible” Birch teaches that the invention is directed to nutraceutical supplements, which are known to be foods or food products that provide health benefits (see page 1, 1st and 2nd paragraphs) and therefore is teaching and suggesting that the polysaccharide and starch composition would also have been usable as part of an edible, sugar free composition.
While Birch teaches the inclusion of other polysaccharides such as starch (see page 2, line 20), claim 1 differs from Birch in specifically reciting, “maltodextrin in an amount of about 1-3wt%” and “wherein the maltodextrin is present in an amount of about 2 wt%” as recited in claim 32.
Arsan (US 20080199571) teaches compositions that comprise hydrocolloid gelling agents such as agar and locust bean gum (see paragraph 63) for an edible composition that is capable of making gelled products (paragraph 7) and which can further comprise maltodextrin at 0.1-50wt% or at about 3wt% for balancing sweetness and preventing crystallization and providing the desired bulk and body (see paragraph 66). “About 3wt%” can also be construed to be merely close to “about 2wt%” (see MPEP 2144.05 (I)) as recited in claim 32. Arsan is thus also suggesting a range of about 0.1-3wt%.
Sliwinski (US 20090074940) teaches compositions that are edible, which can comprise locust bean gum (see paragraph 23), and agar (see paragraph 34 - where xanthan gum can be replaced with) and also comprising maltodextrin, which can be useful for dissolution of the hydrocolloids such as locust bean gum and agar (see paragraph 19). Sliwinski also broadly teaches using 0-55wt% maltodextrin as part of the dry composition (see paragraph 25) such that Sliwinski also encompasses amounts of maltodextrin from 1-3wt%.
Additionally, Sliwinski teaches that a composition can comprise 12 grams of the hydrocolloid thickening composition and 200 grams of water, for a total of 212 grams for the edible composition (see paragraph 35). Paragraph 35 relies on example 4, which has on a dry basis 50wt% waxy maize starch, 39.6wt% maltodextrin, 9wt% tara gum and 1.4wt% xanthan gum. Therefore, Sliwinski teaches that the dispersion can comprise 2.8wt% starch (6g in the 212g dispersion), 2.2wt%maltodextrin (4.75g in the 212g dispersion), 0.51wt% tara gum (1.08g in the dispersion) and 0.08wt% xanthan gum (0.17g in the dispersion) and 94.3wt% water.
Birch also teaches that the composition can be homogeneous (see page 6, lines 6-7) and therefore teaches and suggests to one having ordinary skill in the art that the polysaccharide gelling agents as part of the composition should also be a homogeneous part of the composition.
To therefore modify Birch, to include another polysaccharide such as maltodextrin, would have been obvious to one having ordinary skill in the art for the purpose of providing body, bulk, a particular sweetness and as well as for facilitating dissolution of the hydrocolloids. In view of the above teachings, the prior art is also teaching and suggesting using maltodextrin within the range of about 1wt%-3wt% and “about 2wt%” as recited in claim 32, for the purpose of providing the desired body, bulk and sweetness as well as for facilitating dissolution of the other hydrocolloids that are part of the composition.
Regarding claim 8, Birch additionally teaches that the composition of claim 1 can also include a nutrient composition or one or more vitamins (see the paragraph bridging pages 4-5).
Regarding claims 9 and 31, Birch teaches the composition comprising at least 92wt% water, because Example 1a, clearly discloses an amount of all the components that would result in the composition comprising 96.65wt% water, as already discussed above with respect to claim 1 and therefore suggests a composition which can comprise at least 92% water.
Regarding claim 10, Birch discloses that the composition can further comprises a flavorant which can be used at 0.2-0.4wt% (see example 1a, “flavour enhancer” “fruit flavour”).
Regarding claim 11, Birch also discloses that the sweetener can be sucralose (see page 5, first full paragraph) therefore teaching a sugar-free composition that comprises no polyols.
Further regarding claim 11, it is noted that Birch discloses that the sweetener can be stevia or sucralose (see page 5, 1st full paragraph) which are known to be sugar free and therefore suggests the composition comprises substantially no polyols.
While Example 1a teaches using fruit juice, it is noted that Birch further teaches on page 5, 3rd full paragraph, that fruit juice is only an example of a flavoring. Birch is thus open to other forms of flavoring.
Therefore, if it could have been construed that Birch was unclear in the composition being a “sugar-free” composition, then Magana teaches compositions comprising gelling components that can have flavoring but are sugar free (see paragraph 104), for the purpose of reducing caloric intake (see paragraph 29)
To therefore modify Birch and to ensure that the composition is sugar free would have been obvious to one having ordinary skill in the art for the purpose of reducing the caloric intake from the composition.
Regarding claim 29, in view of the teachings of Elliot, Takaichi, Magana and Igoe, the combination teaches amounts of locust bean gum, such as 0.12wt%. The combination also teaches agar used at 1.2wt% as taught by Birch. Therefore, the combination is suggesting that the locust bean gum is present in an amount of 10wt% the amount of agar.
Regarding claims 30, 34-36 and 37, it is noted that the composition as suggested by the prior art would have been capable of forming a semi-solid or gelled structure, as recited in claim 34; that is capable of forming the semi-solid or gelled and that can exhibit a firmness of at least 955g as recited in claim 30; that is capable of forming the semi-solid or gelled and that can fracture upon compression, as recited in claim 35; that is capable of forming the semi-solid or gelled and that can retain a molded shape as recited in claim 36; and that is capable of forming the semi-solid or gelled and that can retains a molded shape and have a firmness sufficient for being held by hand, as recited in claim 37. It is noted that the above limitation are directed to a particular way in which “the composition” has been further manipulated. That is, since the prior art teaches the claimed composition, the prior art would have been capable of the recited intended use.
Claims 30, 35, 36 and 37 are further limiting, “the semi-solid or gelled structure” however claim 34 is directed to the composition that is capable of forming a semi-solid or gelled structure. Therefore claim 34 is directed to a subsequent intended use of the claimed composition and claims 30, 35, 36 and 37 are directed to further properties of a subsequently produced product.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Birch (GB 2494475), as applied to claim 1 above, and as further evidenced by Naljayan et al. (Hyopmagnesemia and hypokalemia: a successful oral therapeutic approach after 16 years of potassium and magnesium intravenous replacement therapy) and Anderson (US 20130011519) and in further view of Takaichi (US 20050244543).
Regarding claim 7, it is noted that Birch discloses the inclusion of salts such as zinc and magnesium gluconate (see page 4, 2nd to last paragraph). Magnesium gluconate is a known electrolyte, as evidenced by Naljayan (see page 214 and the introduction, which discusses managing electrolyte abnormalities such as magnesium deficiency – hypomagnesemia; see page 216, left column, 1st full paragraph, which discusses using magnesium oxide or magnesium gluconate to managing hypomagnesemia). Zinc gluconate is also known to be an electrolyte as evidenced by Anderson (see paragraph 29 and page 5, claim 6).
Claim 7 differs from Birch in specifically reciting at least one electrolyte is present at greater than zero and less than 0.5wt% and wherein the at least one electrolyte component is at least one of sodium chloride, potassium chloride, disodium hydrogen citrate, potassium sulphate, calcium hydrogen phosphate, magnesium oxide, calcium carbonate, tricalcium phosphate and magnesium carbonate.
However, Takaichi teaches gel compositions that can also comprise agar (see paragraph 82) and where the composition can further include electrolytes, such as calcium carbonate (see paragraph 45) used at 0.1-0.5wt% (paragraph 47) for providing nutritional benefits for bone, teeth, blood, heart and muscles (see paragraph 40).
To thus modify Birch and to add 0.1-0.5wt% of an electrolyte such as sodium carbonate, as taught by Takaichi, would therefore have been obvious to one having ordinary skill in the art, based on the desired nutritional effect desired by the composition.
Claims 1, 2, 5, 8, 9, 11, 29-32, 34-37 are rejected under 35 U.S.C. 103 as being unpatentable over Elliott (WO 2007042096) in view of Igoe (Dictionary of Food Ingredients) and in further view of Perrine (US 20130309385) in further view of Sliwinski (US 20090074940) and Arsan (US 20080199571).
Regarding claims 1 and 11, Elliott teaches an edible composition that can comprise water at 40-95wt% (see the abstract; see page 6, lines 15-17) and which can comprise polysaccharide gelling agents such as agar, at 0.05-5wt% (see the abstract). Elliott’s range for the agar encompasses the claimed range. Further in this regard, Elliott suggests preferred amounts of agar to include 1wt% agar and therefore falls within the claimed range (page 7, lines 4-5).
Regarding the polysaccharide gelling agents comprising at least agar and locust bean gum, Elliott teaches that the agar can be used at 1wt% (see page 7, lines 4-7) and that locust bean gum can be used at less than 0.5wt% (see page 14, lines 2-6) for the purpose of addressing syneresis that would occur after defrosting a frozen gel (see page 13, line 32 to page 14, line 2). Therefore, Elliott is teaching and suggesting using agar at 1wt% and locust bean gum at less than 0.5wt% thus, falling within the claimed range of 0.2-3wt%. Igoe further evidences the use of locust bean gum for providing elasticity and has been known to be used at 0.1-1wt% (see page 84).
Therefore, it would have been obvious to one having ordinary skill in the art to use amounts of locust bean gum such as within the range of 0.1-1wt% for providing elasticity to agar. The combination would thus have suggested amounts of agar and locust bean gum within the claimed range of 0.2-3wt%.
Elliott also teaches on page 6, lines 15-17 that the composition does not comprise sugar or polyols, and therefore teaches a sugar free, edible composition.
Elliott also teaches that the edible composition can comprise a modified starch which can “preferably” be less than 1wt% (see page 13, lines 22-32), thus teaching and suggesting a starch-derived polysaccharide within the range of “about 1-3wt%.” as recited in claim 1.
Claim 1 differs in specifically reciting that using maltodextrin within the range of “about 1-3wt%.” Claim 32 differs in specifically reciting that maltodextrin is present in an amount of about 2wt%.
Perrine teaches maltodextrin as part of a composition that also includes gelling agents such as agar and locust bean gum (see paragraph 55-56), where the maltodextrin can be used in amounts such as 0.1-30wt% and 2-25wt% for the purpose of enhancing the flavor (see paragraph 79) and therefore overlaps with the claimed range and therefore presents a prima facie case of obviousness (see MPEP 2144.05(I)). Perrine is also suggesting a range of 0.1-2wt%.
It would therefore have been obvious to one having ordinary skill in the art, to have modified the combination and included 0.1-2wt% maltodextrin for providing a desired degree of flavor enhancement to the edible composition.
If it could have been construed that Perrine did not provide sufficient specificity, then it is further noted that:
Sliwinski (US 20090074940) teaches compositions that are edible, which can comprise locust bean gum (see paragraph 23), and agar (see paragraph 34 - where xanthan gum can be replaced with) and also comprising maltodextrin, which can be useful for dissolution of the hydrocolloids such as locust bean gum and agar (see paragraph 19). Sliwinski teaches that a composition can comprise 12 grams of the hydrocolloid thickening composition and 200 grams of water, for a total of 212 grams for the edible composition (see paragraph 35). Paragraph 35 relies on example 4, which has on a dry basis 50wt% waxy maize starch, 39.6wt% maltodextrin, 9wt% tara gum and 1.4wt% xanthan gum. Therefore, Sliwinski teaches that the dispersion can comprise 2.8wt% starch (6g in the 212g dispersion), 2.2wt%maltodextrin (4.75g in the 212g dispersion), 0.51wt% tara gum (1.08g in the dispersion) and 0.08wt% xanthan gum (0.17g in the dispersion) and 94.3wt% water.
Sliwinski also broadly teaches using 0-55wt% maltodextrin as part of the dry composition (see paragraph 25) such that Sliwinski also encompasses amounts of maltodextrin from 0-2.2wt%, thus reading on “about 2wt%” as recited in claim 32.
Arsan (US 20080199571) teaches compositions that comprise hydrocolloid gelling agents such as agar and locust bean gum (see paragraph 63) for an edible composition that is capable of making gelled products (paragraph 7) and which can further comprise maltodextrin at 0.1-50wt% or at about 3wt% for balancing sweetness and preventing crystallization and providing the desired bulk and body (see paragraph 66). “About 3wt%” can also be construed to be merely close to “about 2wt%” (see MPEP 2144.05 (I)) as recited in claim 32. Arsan is thus also suggesting a range of about 0.1-3wt%.
Elliott teaches that the use of small amounts of modified starch if present at all are preferably less than 1wt% (see page 13, lines 28-32). By teaching that “small amounts” of modified starch can be used, and that less than 1wt% is a preference it would have been obvious to one having ordinary skill in the art that Elliott is not seen to exclude other amounts of modified starch being used that can still be construed as “small.” Elliott teaches on page 6, lines 10-11 that the gel part does not have to be homogeneous in composition, but this would clearly have suggested that the gel part “could” be homogeneous in composition if a homogeneous composition was desired. On page 14, lines 3-5, Elliott teaches using about 0.5wt% locust bean gum (i.e. tara gum) and therefore teaches similar amounts of locust bean gum as Sliwinski. Sliwinski teaches that 2.2wt% maltodextrin can be useful for dissolving the locust bean gum hydrocolloids. In view of this, to modify Elliott, and to use about 2.2wt% maltodextrin or 0.1-3wt% would have been obvious to one having ordinary skill in the art for facilitating dissolution of hydrocolloid gelling agents as well as for providing a particular flavor as suggested by Perrine as well as for balancing sweetness, and preventing crystallization and providing the desired bulk and body to the composition as suggested by Arsan.
Regarding claim 2, Elliott further teaches that the polysaccharide gelling agent can also include xanthan gum or guar gum (see page 14, line 2-3; “xanthan gum…guar gum and/or locust bean gum) and where Igoe evidences that guar gum has been known to be used in amounts such as 0.1-1wt% as a thickener and stabilizer (see page 70), and which would therefore fall within the claimed range of 0.2-3wt% of the polysaccharide gelling agents.
Regarding claim 5, Elliott teaches that the agar can be used at 1wt% (see page 7, lines 4-7) and that locust bean gum can be used at less than 0.5wt%, such as 0.2wt% (see page 14, lines 2-6) for the purpose of addressing syneresis that would occur after defrosting a frozen gel (see page 13, line 32 to page 14, line 2).
Regarding claim 8, Elliott teaches the composition of claim 1, further comprising nutrient compositions, such as fat (see at least, the abstract; see page 6, lines 15-17) and protein, which can be construed as a nutrient.
Regarding claims 9 and 31, as discussed above with respect to claim 1, Elliott teaches that the water content can be 95wt% and thus falls within the range of at least 92wt%.
Regarding claim 29, Elliott teaches including locust bean gum at amounts such as 0.2wt% as a moisture binder in gelling compositions to address the syneresis that would occur after defrosting a frozen gel composition, (see page 13, line 32 to page 14, line 6). Elliott teaches compositions that can also comprise gelling agents such as agar at 0.08-3wt% or 0.1-1wt% agar (see page 5, lines 2-5; page 7, lines 4-7) up to 95wt% water (see the abstract and page 6, lines 15-16). Therefore, Elliot is suggesting using 0.2wt% locust bean gum with 1wt% agar, such that the locust bean gum is about 20% the amount of agar.
Regarding claims 30, 34-36 and 37, it is noted that the composition as suggested by the prior art would have been capable of forming a semi-solid or gelled structure, as recited in claim 34; that is capable of forming the semi-solid or gelled and that can exhibit a firmness of at least 955g as recited in claim 30; that is capable of forming the semi-solid or gelled and that can fracture upon compression, as recited in claim 35; that is capable of forming the semi-solid or gelled and that can retain a molded shape as recited in claim 36; and that is capable of forming the semi-solid or gelled and that can retains a molded shape and have a firmness sufficient for being held by hand, as recited in claim 37. It is noted that the above limitation are directed to a particular way in which “the composition” has been further manipulated. That is, since the prior art teaches the claimed composition, the prior art would have been capable of the recited intended use. Claims 30, 35, 36 and 37 are further limiting, “the semi-solid or gelled structure” however claim 34 is directed to the composition that is capable of forming a semi-solid or gelled structure. Therefore claim 34 is directed to a subsequent intended use of the claimed composition and claims 30, 35, 36 and 37 are directed to further properties of a subsequently produced product.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to claim 1 above, which relies on Elliott (WO 2007042096) as the primary reference, and in further view of Takaichi (US 20050244543).
Claim 7 differs from Elliott in specifically reciting at least one electrolyte is present at greater than zero and less than 0.5wt% and wherein the at least one electrolyte component is at least one of sodium chloride, potassium chloride, disodium hydrogen citrate, potassium sulphate, calcium hydrogen phosphate, magnesium oxide, calcium carbonate, tricalcium phosphate and magnesium carbonate.
However, Takaichi teaches gel compositions that can also comprise agar (see paragraph 82) and where the composition can further include electrolytes, such as calcium carbonate (see paragraph 45) used at 0.1-0.5wt% (paragraph 47) for providing nutritional benefits for bone, teeth, blood, heart and muscles (see paragraph 40).
To thus modify Elliott and to add 0.1-0.5wt% of an electrolyte such as sodium carbonate, as taught by Takaichi, would therefore have been obvious to one having ordinary skill in the art, based on the desired nutritional effect desired by the composition.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over combination as applied to claim 1 above, which relies on Elliott (WO 2007042096) as the primary reference, and in further view of Birch (GB 2494475)
Regarding claim 10, Elliott teaches that the composition can comprise fat, for instance, which would have provided some degree of flavor (see page 5, lines 12-14). It is also noted that Elliott teaches that the gel composition can comprise a vanilla or chocolate taste, (see page 6, lines 12-17), which further suggests at least one flavourant.
Claim 10 differs in that the last least one flavoring is in an amount greater than zero up to about 0.5wt%.
Regarding claim 10, Birch discloses gelling compositions as already discussed above, that further comprises a flavorant which can be used at 0.2-0.4wt% (see example 1a, “flavour enhancer” “fruit flavour”).
To therefore modify Elliott’s gelling composition o include a flavor at 0.2-0.4wt% would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design based on achieving a particular flavor to the gelling composition.
Response to Arguments
On pages 8-9 of the response, Applicant urges that the claim 32 limitation of, "about 2wt%" is not new and the Office Action relies on Arsan and Sliwinski to support the use of maltodextrin within the claimed range of 1-3wt%.
These urgings have been considered and the amendment is entered.
On pages 13-15 of the response, Applicant urges that on page 13, line 22 to page 14, line 33, Elliott teaches that small amounts of moisture binders can be tolerated and that modified starch if present at all, is preferably present at less than 1 wt% and therefore does not provide a reason to incorporate a starch-derived material at the presently claimed amount. Applicant urges that the Office Action does not explain why a POSITA would rely on Elliott as a reason to introduce a moisture binder into Birch, yet disregard Elliott's express guidance to minimize or omit such materials. Applicant urges that the teachings of Arsan and Sliwinski do not cure this deficiency but rather, only disclose the existence of maltodextrin at a particular concentration but do not supply the missing reason to incorporate maltodextrin into Birch's composition.
These urgings are not seen to be sufficient to overcome the rejection. It is respectfully noted that Elliott's teachings of less than 1wt% of material such as starch or modified starch as a preference are not seen to teach away from using amounts that fall within the range of "about 1-3wt%," as recited in claim 1. That is, Elliott’s teaching of preferably less than 1wt% would overlap with the claimed “about 1-3wt%.” Furthermore, disclosed examples or preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (see MPEP 2123(II)). Additionally, Arsan teaches that 0.1- 3wt% maltodextrin, for example, can be desirable for balancing sweetness and preventing crystallization while also providing the desired bulk and body to a composition that also uses agar and locust bean gum for making gelled edible products (paragraph 66) and therefore provides additional motivation to use maltodextrin within the claimed range of "about 1-3wt%". Sliwinski also teaches that maltodextrin can be useful for helping to dissolve hydrocolloids such as locust bean gum and agar (see paragraph 19). Therefore, Arsan and Sliwinski provide further motivation to use maltodextrin in an amount that falls within the claimed range of "about 1-3wt%" and "about 2wt."
On page 15-16 of the response, Applicant urges that Elliott expressly states that "such materials may be omitted and, if present, are preferably maintained below the presently claimed range." Applicant urges that this disclosure undermines the rationale for using Elliott to modify Birch in the manner proposed and that the fact that Elliott may not legally "teach away" from every amount above its preferred range does not itself provide an affirmative reason to select an amount within Applicant's claimed range.
These urgings are not sufficient to overcome the rejection because Elliott is not relied on in the rejections relying on Birch as the primary reference. Furthermore, Elliott is teaching that as a preference the small amounts of modified starch are preferably less than 1wt% but this is not seen to teach away from using other amounts of a modified starch in “small” amounts such as taught by Perrine for providing a particular flavor to the composition; Sliwinski, for facilitating dissolution of the other hydrocolloids that are part of Elliott’s composition; and Arsan for balancing sweetness and preventing crystallization and providing the desired bulk and body.
On pages 15-16 of the response, Applicant urges that the fact that maltodextrin may provide sweetness, prevent crystallization, provide bulk or facilitate dissolution in other formulation systems does not by itself establish a reason to introduce 1-3wt% maltodextrin into Birch’s materially different composition, particularly where Elliott directs the skilled person to minimize or omit the relevant starch-containing materials.
These arguments have been considered but are not persuasive for the reasons discussed directly above. It is further noted that the prior art is teaching that maltodextrin can be used in compositions that comprise polysaccharide gelling agents that are similar to those taught by Birch, with an advantage of helping to dissolve the gelling agents, while additionally providing sweetness, preventing crystallization and providing bulk. Therefore, the secondary references provide motivation on their own to include maltodextrin within the claimed range. Further regarding Elliott, it is not seen that Elliott is excluding using amounts of a modified starch in amounts greater than 1wt%, especially as amounts such as those taught by Perrine and Sliwinwki can also be construed as “small amounts” of a modified starch, for a specific purpose.
Further on page 16 of the response, Applicant urges that the rejection while identifying known functions and concentrations of maltodextrin in separate formulations does not establish why a POSITA would have selected and incorporated that ingredient at the claimed amount into Birch’s composition with a reasonable expectation fo success.
These arguments are not persuasive because using maltodextrin for balancing sweetness, providing a desired bulk and body, as taught by Arsan would have been equally applicable to Birch, especially because both Arsan and Birch are directed to compositions that comprise gelling agents. Similarly, Sliwinski is also directed to a composition that comprises gelling agents, and further teaches that maltodextrin can help to dissolve locust bean gum and agar, which have been taught by Birch. Since Birch is also teaching a composition that is a homogeneous solution (see page 6, lines 6-7), using maltodextrin as part of Birch’s composition would also have been obvious to one having ordinary skill in the art for helping to dissolve the hydrocolloids as well as for providing a particular flavor to the composition. Therefore, the prior art is teaching and suggesting to one having ordinary skill in the art, specific reasons for including maltodextrin as part of Birch’s composition.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
WO2012013295 discloses a composition that can comprise agar and locust bean gum (see page 4, lines 20-23) and can also comprise 1-12% maltodextrin (see page 4, lines 14-18) for controlling crystallization (page 7, lines 1-11).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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