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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 26, 2025 has been entered.
Status of Claims
Claims 1-2, 5-11 and 15-26 are pending in this application. Claims 3-4, 12-14 and 21 are canceled. Claims 1 and 11 are amended. Claims 23-26 are newly added.
Claim 6, 15, 23 and 25 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention or species, there being no allowable generic or linking claim.
Claims 1, 2, 5, 7-10, 16-20, 22, 24 and 26 are examined in light of the elected species of gelatin and water.
Previous Rejections
Rejections and/or objections not reiterated from previous office actions are hereby withdrawn as are those rejections and/or objections expressly stated to be withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Rejections Maintained/New Rejections
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The rejection of claims 1, 5, 7-10, and 16-20 and newly added to claim 24 under 35 U.S.C. 101 because the claimed invention is directed to a natural product without significantly more is maintained.
The claim(s) recite(s) a plant-based oil and gelatin. This judicial exception is not integrated into a practical application because the claims only recite natural products (i.e., plant-based oil, gelatin), without any additional elements that are sufficient to amount to significantly more than the judicial exception. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims either recite only natural products, without any additional elements recited, or the additional elements (e.g., water mineral salts, vitamins, etc.) are also natural products, and/or do not change the structure, function, or other properties of the natural product as to integrate the judicial exception into a practical application. A detailed analysis follows.
The claimed invention is directed to an article comprising one or more plant-based oil present in an amount 32 wt-% to 57 wt%; and one or more of: gelatin present in amount from 4 wt-% to 10 wt-%, and agar present in amount from 0.8 to 5 wt-%, wherein the one or more plant-based oil is a solid at 25°C, wherein the article is solid set and homogeneous, and wherein each wt-% is with respect to the weight of the article (e.g., see claim 1). Additional components may be present, e.g. water, mineral salts, vitamins, thickener, emulsifier, and/or polyol sweetener (e.g., claims 7-9, 16-20). These compositions are not markedly different from their closest naturally occurring counterpart because the active components in the plant-based oil of the claimed composition are already present in the oil itself, and the composition as a whole does not have activity which is markedly different from the plant itself. For example, coconut oil is already known to have positive benefits against many oral and systemic conditions, including reduction of plaque (i.e., biofilm), because of the presence of lauric acid which is a major fatty acid component; e.g., see Saher at abstract; page 97). Therefore, the composition is not markedly different from the plant itself, as the oil as the oil in the composition may contain the same active component(s) as the plant itself.
Step 1: Is the claim to a process, machine, manufacture or composition of matter?
The claims are drawn to a composition of matter.
Step 2A, Prong 1: Does the claim recite an abstract idea, law of nature, or natural phenomenon?
The claims are drawn to a plant-based oil and gelatin. However, both the plant-based oil and gelatin are themselves natural products, and there is no indication in the record of any markedly different characteristics (either structural or functional) of the composition as broadly claimed. For example, there is no evidence of record that the components present have any structural differences in the composition instantly claimed as compared to their nature-based counterparts. Additionally, the nature-based plant-based oil is already known to have oral health benefits, including inhibition of biofilm (see Saher reference cited above), which function is also cited for the instantly claimed plant-based oil (e.g., see as-filed specification, pages 8-9).
Step 2A, Prong 2: Does the claim recite additional elements that integrate the Judicial Exception into a practical application?
Claims 1, 5, 10, 21 and 22 only recite plant-based oil and gelatin, which are naturally occurring, as discussed above.
Claims 7-9, 16-17, and 19-20 recite additional elements which are also naturally occurring (e.g., water, mineral salts, polyol sweeteners, vitamins).
When the nature-based product is a combination produced from multiple components, the closest counterpart may be the individual nature-based components of the combination. See MPEP 2016.04(c)(II)(A). The naturally occurring plant (in this case, the plant-based oil, e.g., coconut oil) is already known to have oral health benefits, including inhibition of biofilm (see reference cited above). Therefore, the instantly claimed combinations do not possess “markedly different characteristics” from that of the prior art (i.e., having a property not found in the prior art). Inherent or innate characteristic of the naturally occurring counterpart cannot show a marked difference; see MPEP 2106.04(c)(II).
Claim 18 recites emulsifiers which do not integrate the judicial exception into a practical application, as the recited emulsifiers do not change the structure or function as to integrate the plant-based oil into a practical application.
Step 2B: Does the claim recite additional elements that amount to significantly more than the Judicial Exception?
Each of the elements recited in the claims are natural products and additional elements which do not integrate the judicial exception into a practical application. No other limitations are recited in the instant claims that would add significantly more to the Judicial Exception.
Examiner’s Note: The specification as filed provides data for compositions having different amounts of gelatin, describing the compositions as “homogeneous” or not “homogeneous”; e.g., see Examples 1-3 and 11-12, and Comp. Exs. C1-C3 and C8-C9. However, the Examples tested include numerous additional components other than those listed in independent claim 1, and it is not clear how those additional components affect the homogeneity of the compositions. For example, Examples 11 and 12, and Comparative Examples 8 and 9, all have 6.0% gelatin, but Examples 11 and 12 are “homogeneous”, while Comparative Examples 8 and 9 are not “homogeneous”, and thus any criticality of the amount of gelatin to integrate the judicial exception into a practical application is not clear.
Accordingly, the claimed composition recites a natural product that is not markedly different in structure from naturally occurring elements and hence reads on patent ineligible subject matter under the above guidelines. See MPEP 2106.07.
To transform an unpatentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature. Essentially, appending conventional steps specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patent-eligible. The Court provides long standing exceptions (laws of nature, natural phenomena, and abstract ideas) to categories of patent eligibility defined in 35 U.S.C.§ 101. A claim that recites a law of nature or natural correlation, with additional steps that involve well- understood, routine, conventional activity previously engaged in by researchers in the field is not patent-eligible, regardless of whether the steps result in a transformation for the reasons cited above.
Claiming the inherent properties such as the high concentrations or the bioavailability of a natural product (like Nicotinamde Riboside) is insufficient to make a natural product patentable if those properties are inherent to the molecule or composition. (See ChromaDex, Inc. v. Elysium Health, Inc., 59 F.4th 1280 (Fed. Cir. 2023). These are chemical and physical properties such as the alkalinity of a chemical compound or the ductility or malleability of metals.
Claim Interpretation
Claim 22 recites, “plant-based oil.” No limiting definition is provided for “plant-based oil” in the specification as originally filed. The Examples in the specification incorporate the material “Wecobee M” by Stepan, described as “a triglyceride derived from fully hardened palm kernel oil” (as evidence, see Wecobee M Product Bulletin, page 1). Therefore, the phrase “plant-based oil” is construed according to its broadest reasonable interpretation, to include oils derived directly from a plant (e.g., coconut oil), as well as components thereof (e.g., triglycerides).
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.
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.
The rejection of claims 1, 2, 5, 7-10, 16, 19, 20 and 22 and newly applied to claims 24 and 26 under 35 U.S.C. 103 as being unpatentable over Pan et al. (“Pan”, US 2006/0263412, cited by Applicant in the IDS filed 12 April 2022) in view of Arfsten et al. (“Arfsten”, US 2014/0154394), Chen et al. (“Chen”, US 2010/0062988), and Kulkarni et al. (“Kulkarni”, US 20080020024), as evidenced by Norwell (product information for MOI-STIR®) is maintained.
Pan teaches a confectionery product for delivering of at least one active for preventing, reducing or alleviating the symptoms of dry mouth comprising a water dissolvable or erodible shell comprising a saliva stimulating agent; and a core component comprising a saliva substitute and optionally, a saliva stimulating agent (e.g., see paragraphs [0006] - [0010]). The core may be in a solid state form (e.g., paragraph [0017]). The confectionary product can be in the form of a lozenge (e.g., paragraph [0039]), and therefore may be solid set (i.e., does not flow at room temperature).
The core and shell may also include fats and oils as a core fill component (e.g., paragraph [0018]), and/or as taste masking agents, such as hydrogenated coconut oils (e.g., paragraph [0035]). Pan expressly teaches that fats and oils such as medium chain triglycerides are useful as core fill components. (See [0018]). Triglycerides are called for in instant claim 1. Other materials that may be added to the core and/or shell include viscosity modifying agents and demulcents, (i.e., throat coating agents) (e.g., paragraph [0033]), such as pectin and gelatin (e.g., paragraph [0036]). Pan teaches that emulsifiers are an optional ingredient and are therefore not required. (See [0034]).
Pan does not specifically teach wherein the article comprises an amount of triglycerides or plant-based oil of 32 wt-% to 57 wt-% (claims 1 and 21-22), such as hydrogenated vegetable oil (claim 2). These deficiencies are made up for with the teachings of Arfsten, Chen and Kulkarni.
However, Arfsten teaches a filling composition (e.g., abstract). The filling composition may be sweet, e.g. a confectionery filling (e.g., paragraph [0068]). Typical sweet filling composition may comprise solid fats (e.g., paragraph [0071]). Typical solid fats include hydrogenated oils (e.g., paragraph [0072]). Examples of hydrogenated oils include hydrogenated vegetable oil (e.g., paragraphs [0004] and [0005)). Hydrogenated oils are called for in instant claim 2.
Chen teaches a chewable composition comprising a wax-like agent (e.g., abstract). Suitable wax-like agents include hydrogenated vegetable oil (e.g., paragraph [0071]). The wax-like agent is present in the range of from about 1% to about 80% (e.g., paragraph [0075)). 1 to 80% overlaps with the 32 to 57% called for in instant claims 1, 21 and 22.
Generally, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. Pan teaches wherein the product comprises fats and oils. Accordingly, it would have been obvious to one of ordinary skill in the art to have incorporated hydrogenated vegetable oil into the product since it is a known and effective oil for confectionery compositions as taught by Arfsten.
It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to have incorporated about 1% to about 80% hydrogenated vegetable oil into the product since this is a known and effective amount of hydrogenated vegetable oil for edible compositions as taught by Chen.
Regarding the amount of gelatin (claims 1, 5), Pan combined with Arfsten and Chen do not specifically teach an amount of gelatin from 4 wt-% to 10 wt-%.
However, Kulkarni is in the same field of oral articles (e.g., abstract; paragraph [0002]) and teaches mucosa-coating agents such as pectin and gelatin provide benefits of imparting throat soothing and throat coating properties, and may be present in amounts ranging from about 0.01% to about 5% by weight (e.g., paragraph [0037]). About 0.01% to about 5% overlaps with the from 4 to 10 wt% called for in instant claims 1, 21 and 22. Kulkami teaches that gelatin is a mucosa-coating agents that provides the benefits of throat soothing and throat coating properties, so it is taught to be a results-effective variable. Therefore, it would be no more than routine experimentation to experiment to find the optimal plant-based oil to gelatin weight ratio (called for in claims 22 and 24) or the optimal triglyceride to gelatin weight ratio (called for in instant claim 1).
Therefore, it would have been obvious to a person having ordinary skill in the art at the time of the earliest effective filing date to include gelatin as already taught by Pan in amounts which overlap those instantly claimed; thus arriving at the claimed invention. One skilled in the art would be motivated to do so, with a reasonable expectation of success, because said amounts provide benefits of imparting throat soothing and throat coating properties to oral articles, as taught by Kulkarni.
Regarding claim 7, Pan teaches water can be present in the core fill components at levels optionally from about 10% to about 15% by weight of the fill component (e.g., paragraph [0025]). 10 to 15% overlaps with the at least 10% called for in instant claim 7. 10 to 15% also overlaps with the no greater than 35 wt% called for in instant claims 1, 21 and 22.
Regarding claims 8 and 9, Pan teaches optional ingredients include sweeteners such as sugar alcohols such as sorbitol, xylitol, and mannitol (polyol sweeteners), and vitamins such as E and B12 (e.g., paragraph [0031]).
Regarding claim 10, it is noted the claim recites intended uses of the article, and does not impart any additional structural limitations apart from what is already claimed. Since Pan already teaches its compositions delivers at least one active for preventing, reducing or alleviating the symptoms of dry mouth (e.g., paragraph [0006]), the compositions are capable of at least one of the recited uses.
Regarding claim 16, Pan teaches other optional but compatible materials that may be added to the core and/or shell include viscosity modifying agents (i.e., thickeners) and emulsifiers (e.g., paragraphs [0018], [0034]).
Regarding claims 19 and 20, Pan teaches ingredients may include polyol sweeteners (e.g., paragraph [0031]), mineral elements including magnesium, which can be supplied as dibasic potassium phosphate (e.g., paragraph [0031]). While Pan does not specifically recite “magnesium chloride”, Pan teaches magnesium as a useful mineral element, and also teaches suitable saliva substitutes include MOI-STIR®, which includes magnesium chloride (as evidence, see Norwell product information for Moi-stir®, page 1), and thus the skilled artisan would find it obvious to include magnesium in the composition of the prior art.
The rejection of claims 1, 2, 5, 7-10, 16, 17, 19, 20, 22 and newly applied to claims 24 and 26 under 35 U.S.C. 103 as being unpatentable over Pan in view of Arfsten, Chen, and Kulkarni as applied to claims 1, 2, 5, 7-10, 16, 19, 20, 22, 24 and 26 above, and further in view of Lorenzi et al. (“Lorenzi”, 2006/0188612) is maintained.
The inventions of Pan, Arfsten, Chen, and Kulkarni are delineated above (see paragraph 17, above).
Specifically regarding claim 17 ( and more generally regarding the remaining claims), the combined prior art of Pan, Arfsten, Chen, and Kulkarni do not specifically teach a thickener which is fumed silica.
However, Lorenzi teaches centre-filled hard boiled candies, wherein the filling comprises a thickener (e.g., abstract). Suitable thickeners include fumed silica (e.g., paragraph [0018]). Pan teaches wherein the product comprises viscosity modifying agents. Accordingly, it would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to have incorporated fumed silica into the product of Pan since this is a known and effective viscosity modifying agent for a confectionery composition, as taught by Lorenzi.
The rejection of claims 1, 2, 5, 7-10, 16, 18-20 and 22 and newly applied to claims 24 and 26 under 35 U.S.C. 103 as being unpatentable over Pan in view of Arfsten, Chen, and Kulkarni as applied to claims 1, 2, 5, 7-10, 16, 19, 20, 22, 24 and 26 above, and further in view of Piatko et al. (“Piatko”, US 2014/0170289) is maintained.
The inventions of Pan, Arfsten, Chen, and Kulkarni are delineated above (see paragraph 17, above).
Specifically regarding claim 18 ( and more generally regarding the remaining claims), the combined prior art of Pan, Arfsten, Chen, and Kulkarni do not specifically teach an emulsifier such as polyglyceryl-6 distearate.
However, Piatko teaches edible compositions comprising fats including hydrogenated vegetables oils (e.g., abstract; paragraph [0009]) in amounts of 5-40% (e.g., paragraph [0032]). The compositions further comprise an emulsifier (e.g., paragraph [0008]) including Polyaldo HGDS, i.e. polyglyceryl-6 distearate (e.g., paragraph [0032]). Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to have incorporated polyglyceryl-6 distearate into the product of Pan since this is a known and effective emulsifier for an edible composition containing hydrogenated vegetable oil, as taught by Piatko.
Response to Remarks
Applicants’ arguments of January 15, 2025 have been fully considered and are found to be unpersuasive as described further below.
Section 101 Rejections
Applicants note the amendments to the claims to provide limitations regarding oil-to-gelatin ratios and oil-to-agar. Applicants point to Tables 1 and 2 as support for the amended limitations. Applicants address the section 101 rejections by asserting that combinations of naturally-occurring products are not precluded from patentability under Sec. 101, and a homogenized solid-set article of oil, water and gelatin in the specified amounts has a distinct physical form than any of the naturally occurring components. Applicants assert that Examples 11 and 12 compared to Comparative Examples 8 and 9, each having 6% gelatin, differ by the oil-to-gelatin ratio. There is too much oil within Comparative Examples 8 and 9 to form a homogenous article.
Response
The 101 rejections are maintained and applied to the newly presented claims for the following reasons and those described in the rejection above. The claims still only recite natural products (i.e., plant-based oil, gelatin), without any additional elements that are sufficient to amount to significantly more than the judicial exception. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims either recite only natural products, without any additional elements recited, or the additional elements (e.g., water mineral salts, vitamins, etc.) are also natural products, and/or do not change the structure, function, or other properties of the natural product as to integrate the judicial exception into a practical application.
As discussed in the Sec. 101 rejection, claiming the inherent properties such as the high concentrations or the bioavailability of a natural product (like Nicotinamde Riboside) is insufficient to make a natural product patentable if those properties are inherent to the molecule or composition. (See ChromaDex, Inc. v. Elysium Health, Inc., 59 F.4th 1280 (Fed. Cir. 2023). These are chemical and physical properties such as the alkalinity of a chemical compound or the ductility or malleability of metals.
Respectfully, there is still insufficient evidence of record that the components present have any structural differences in the composition instantly claimed as compared to their nature-based counterparts. Additionally, the nature-based plant-based oil is already known to have oral health benefits, including inhibition of biofilm (see Saher reference cited above), which function is also cited for the instantly claimed plant-based oil (e.g., see as-filed specification, pages 8-9).
The specification as filed and Tables 1 and 2 on pages 12 and 13 in Applicants’ comments dated January 15, 2025 provide data for compositions having different amounts of gelatin, describing the compositions as “homogeneous” or not “homogeneous”; e.g., see Examples 1-3 and 11-12, and Comp. Exs. C1-C3 and C8-C9. However, the Examples tested still include numerous additional components other than those listed in independent claim 1, and it is still not clear how those additional components affect the homogeneity of the compositions. For example, Examples 11 and 12, and Comparative Examples 8 and 9, all have 6.0% gelatin, but Examples 11 and 12 are “homogeneous”, while Comparative Examples 8 and 9 are not “homogeneous”. Respectfully, with only the brief discussion in Applicants’ comments of the section 101 rejection that there is too much oil within Comparative Examples 8 and 9 to form a homogeneous article, it still remains unclear whether there is any criticality of the amount of gelatin to integrate the judicial exception into a practical application. As noted by Applicants, the amount of gelatin is the same in each of the examples. Respectfully, it is still unclear whether there is criticality to any of the claimed limitations in the independent claims.
Obviousness Rejections
Applicants argue that nothing in the Pan disclosure would have led a skilled artisan to select fats/oil, gelatin and water for use in combination with any expectation of achieving a solid-set homogeneous article at the claimed oil-to-gelatin or oil-to-agar weight ratios. Nothing in the Pan disclosure suggests that oils/fats and water will emulsify in the presence of gelatin/agar, in the absence of emulsifier, nor remain stable. None of Arfsen, Chen or Kularni cure the deficiencies of Pan.
Arfsen teaches an oil encapsulated with a protein shell and is silent about the incorporation of water and homogenizing oil and water with specific weight ratios of gelatin or agar. Nothing in the Arfsen disclosure would motivate a skilled artisan to select fats/oil, gelatin and water from the laundry lists in Pan to incorporate within the confectionary product with any expectation of achieving a solid-set homogeneous article at the claimed oil-to-gelatin or oil-to-agar weight ratios.
Nothing in the Chen disclosure would motivate a skilled artisan to select fats/oil, gelatin and water to incorporate within the confectionary product with any expectation of achieving a solid-set homogeneous article.
Kulkarin is silent regarding mixing fats/oil and water together and homogenizing oil and water with specific weight ratios of gelatin or agar. Nothing in Kularin teaches that gelatin can homogenize fats/oils to achieve a solid-set homogeneous article. Norwell is cited only to show that magnesium chloride is used within saliva substitutes and is not reflective of claim 1. Lorenzi and Piatko do not cure the deficiencies of Arfsten, Chen, Kulkarno and Lorenzi.
Response
The claims are still drafted with the language of comprising, so additional components such as additives are within the scope of the claim language. It should be noted that Pan teaches an emulsifier only as an optional and compatible but not required ingredient. (See, e.g., paragraphs [0018], [0034]). It should also be noted that gelatin is known to be an amphiphilic macromolecule with both water loving and oil loving parts, allowing it to bridge oil and water phases. In Karim et al (2009) Fish gelatin: properties, challenges and prospects as an alternative to mammalian gelatins. Food Hydrocolloids, 23(3), 563-576, it was reported in 2009 that gelatin acts as an emulsifier in oil and water systems because it contains hydrophobic regions along its protein chains that migrate to the oil-water interface. Therefore, as described in the rejection above, gelatin would be added as a demulcent that would wet the throat and make the oral article more readily and pleasantly consumed, and it would act as somewhat of an emulsifier, contributing to the stability of the oral article as well.
With respect to claims 18 and 22, Pan teaches that emulsifiers are optional and compatible in its compositions, should the formulator desire to add one. Specifically, Pan teaches other materials that may be added to the core and/or shell include viscosity modifying agents (i.e., thickeners) and emulsifiers Piatko is prior art that teaches edible compositions comprising fats including hydrogenated vegetables oils (e.g., abstract; paragraph [0009]) in amounts of 5-40% (e.g., paragraph [0032]) that further comprise an emulsifier (e.g., paragraph [0008]) including Polyaldo HGDS, i.e. polyglyceryl-6 distearate (e.g., paragraph [0032]). Therefore, it would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to have incorporated polyglyceryl-6 distearate into the product of Pan. It would be obvious since Pan teaches that this is a known and effective emulsifier for an edible composition containing hydrogenated vegetable oil, as taught by Piatko.
Applicants’ argument that nothing in the prior art teaches or would motivate a skilled artisan to select fats/oil, gelatin and water to incorporate within the confectionary product with any expectation of achieving a solid-set homogeneous article is not found to be persuasive for the reasons set out in detail in the rejection, including that gelatin is taught to be a demulcent that will make the oral article more readily and pleasantly consumed.
Specifically, Kulkami teaches that gelatin is a mucosa-coating agents that provides the benefits of throat soothing and throat coating properties, so it is taught to be a results-effective variable as well as having good and motivating reasons for its inclusion in the oral article. Therefore, it would be no more than routine experimentation to experiment to find the optimal plant-based oil to gelatin weight ratio (called for in claims 22 and 24) or the optimal triglyceride to gelatin weight ratio (called for in instant claim 1). The homogeneity can be achieved through gelatins effect as an emulsifier and can also be achieved through the use of a well-known emulsifier, whose use is taught by the art such as Pan and Piatko. The solid set is already achieved in Pan in the confectionary product in the form of a lozenge (e.g., paragraph [0039]), and therefore may be solid set (i.e., does not flow at room temperature). The teachings of Arfsten teach solid compositions as well. Therefore, these limitations are taught and the combination of these teachings are motivated by the prior art as described above.
Conclusion
No claim is allowed.
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/SARAH CHICKOS/
Examiner, Art Unit 1619
/DAVID J BLANCHARD/Supervisory Patent Examiner, Art Unit 1619