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 .
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites the limitation of “sugar having at least 75% by weight”. Tis recitation is grammatically incorrect. Applicant is encouraged to correct this phrase consistent with the language that is provided in the in the instant specification: “sugar in the range of 75% by weight”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-3, 5 and 8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The instant claim 1 has been amended to include the following limitations:
wherein the tea cube consists of sugar having at least 75% by weight, instant tea in the range of 3-10% by weight, micronized tea in the range of 3-10% by weight, and flavors in the range of 1-5% by weight.
Neither instant specification nor original claims provide support for the recitation of “consists of” in the phrase “wherein the tea cube consists of”. The instant specification and original claims provide support for the recitation of tea cube comprising:
sugar in the range of 75% by weight,
instant tea in the range of 3-10% by weight,
micronized tea in the range of 3-10% by weight, and
flavors in the range of 1-5% by weight.
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.
Claim(s) 1-3, 5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Ikeda et al (JP 2015211659 A) in view of Zhang (CN 107912545 A) and Finken (US RE01799 E).
Independent claim 1 recites the following:
A method for making tea cubes containing a blend of granular sugar, dry extract of either black or green teas, micronized tea and flavour, the method comprising:
providing tea leaves, wherein the tea leaves have been micronized in a jet mill to simulate performance of instant tea without contributing any stickiness;
preparing sugar and flavour for mixing and incorporating them with micronized tea; and deciding the particle size distribution of sugar depending upon the percentage (%) of non-sugar ingredients in the cube formulation forming the micronized tea leaves, instant tea, sugar and flavour into tea cubes in a sugar cube forming machine; and
wherein the tea cube consists of sugar having at least 75% by weight, instant tea in the range of 3-10% by weight, micronized tea in the range of 3-10% by weight, and flavors in the range of 1-5% by weight.
In regard to claims 1-5 and 8, Ikeda et al discloses a method for making a tea cube (a solid beverage) ([0023]) containing a blend of granular sugar ([0025]), dry extract of either black of green tea ([0024]), micronized tea and flavor ([0024]).
More specifically in regard to claims 1-5 and 8, Ikeda et al discloses a method for producing a molded solid beverage having excellent solubility and shape retention ([0001]). Ikeda et al discloses kneading and homogenizing a raw material composition comprising dry powder of a plant and/or a plant extract and sugars ([0010]).
Ikeda et al discloses a powder composition containing 2.5 to 40.0 mass% of dry powder of a plant and/or a plant extract and 60.0 to 97.5 mass% of sugars having a sugar content of disaccharides or less ([0011]).
In regard to the plant material, Ikeda et al discloses “[t]he plant may be any plant that has traditionally been used as a food or beverage, and examples of such plants include dried powders of tea leaves (including Japanese tea, Chinese tea, and black tea leaves), fruits, coffee beans, aromatic plants (such as cinnamon bark and cherry leaves), and/or dried powders of extracts of such plants. Of these, the dried powder of a plant is preferably a dried powder of tea leaves, such as matcha” ([0014]).
In regard to the sugar material, Ikeda et al discloses “[e]xamples of the sugars having disaccharides or less include disaccharides such as sucrose (including sugar, powdered sugar, and granulated sugar), maltose, lactose, and trehalose, and monosaccharides such as glucose, fructose, and galactose. Of these, sucrose is preferred as the disaccharide, and glucose is preferred as the monosaccharide” ([0014]).
In regard to the additional materials such as flavor, Ikeda et al discloses “[i]In addition to the above, various powdered ingredients that have been conventionally used in beverages can be blended within the range that does not impair the effects of the present invention. Such ingredients include sugars with three or more sugars (oligosaccharides, powdered syrup, dextrin, etc.), (artificial) sweeteners, dairy products, thickeners, emulsifiers, and food additives such as salts, flavorings, colorings, acidulants, pH adjusters, antioxidants, preservatives, etc” ([0014]).
In regard to the recitation of tea cubes and forming of tea cubes, Ikeda et al discloses “[t]he solid beverage according to the present invention can be molded into any shape, such as a trapezoid, cube, tablet, (semi)sphere, hexagonal column, etc., by compression molding using a general-purpose tablet press or food press, or by pressing by hand” ([0019]). Hence,
Further in regard to the process of forming of tea cubes, Ikeda et al discloses:
Next, a method for producing a solid beverage according to the present invention will be described.
<Method for Producing Solid Beverage> The solid beverage according to the present invention can be simply produced through the following steps (i) to (iii).
(i) Step of Kneading and Homogenizing the Raw Material Composition This step involves mixing and kneading the above-mentioned components (A) to (C) to obtain a homogenous composition.
A general-purpose powder mixer (for example, a mixer manufactured by Aikosha Seisakusho Co., Ltd.) can be used for the mixing and kneading.
Although not necessarily an essential step, it is more preferable to add a stirred mixture of components (B) and (C) to component (A) and knead the mixture, as this may shorten the time required for kneading.
(ii) Compression Molding of Raw Material Composition and Demolding Step The raw material composition that has undergone step (i) can be molded by a general-purpose method using a tablet press or a press (or by pressing by hand).
For example, the raw material composition can be suitably molded by filling a mold and applying pressure with a press.
After molding, the raw material composition can be released from the mold by inverting the mold and applying light vibration to the mold.
In the present invention, it is not necessary to coat the mold with a release agent, and the step of sliding a part of the mold to extrude the raw material composition is not essential.
(iii) Step of Drying the Raw Material Composition This is a step of drying the raw material composition that has been subjected to step (ii) using a general-purpose dryer to obtain a solid beverage ([0021]).
Ikeda et al discloses molded solid beverage having excellent solubility and shape retention ([0001]). The “dried powder of tea leaves” (i.e. dried powder of a plant) disclosed by Ikeda et al reads on micronized tea leaves.
Ikeda et al discloses “the dry powder of the plant extract is spray-dried or freeze-dried powder of tea extract” ([0014]). Hence, Ikeda et al discloses obtaining a liquid tea extract and further spray-drying or freeze-drying the extract to obtain tea powder that is further included in the tea cube product. The “dried powders of tea extracts” reads on instant tea. Tea can impart wide range of colors. Therefore, enhancement of tea color is an inherent result of using instant tea (i.e. dried powders of tea extracts).
Ikeda et al also discloses mixing dried powder of tea leaves (micronized tea leaves), dried powders of tea extract (instant tea), sugar and flavor ([0014]) and further forming a compressed cube from such mixture ([0019]).
In regard to the sugar material, Ikeda et al discloses “[e]xamples of the sugars having disaccharides or less include disaccharides such as sucrose (including sugar, powdered sugar, and granulated sugar), maltose, lactose, and trehalose, and monosaccharides such as glucose, fructose, and galactose” ([0014]). It is understood that all these material would have a different particle size. One of ordinary skill in the art would have been motivated to employ any sugar ingredient having any particle size from the list of sugars as cited above in order to obtain a cubed tea product having desired flavor, sweetness, solubility and form retention.
In regard to the composition of the tea cube, Ikeda et al also discloses
[0010] In other words, the present invention provides a method for producing a solid beverage, comprising the following steps (i) to (iii):
(i) a step of kneading and homogenizing a raw material composition consisting of the following components (A) to (C);
(A) a powder composition containing dried powder of plants and/or plant extracts and sugars of disaccharide or less;
(B) a high-saccharification reduced starch syrup in which the sugar alcohol composition contains maltitol and maltotriitol in a content of 30 to 60% by mass;
(C) water, wherein
when the mass of (A) is 100% by mass, the solid content mass of (B) is 0.5 to 3.0% by mass, and the solid content mass of (B) / (total mass of (B) and (C)) is 1/7.0 to 1/1.5; (ii) a step of compressing and molding the raw material composition and then releasing it; (iii) a step of drying the raw material composition, in the order of (i) to (iii).
[0011] In step (ii) above, the raw material composition may be compression molded using a mold that is not coated with a release agent, and the raw material composition may be released from the mold without being extruded. Furthermore, component (A) is preferably a powder composition containing 2.5 to 40.0% by mass of dried powder of plants and/or plant extracts, and 60.0 to 97.5% by mass of saccharides or less. Furthermore, sucrose and/or glucose can be suitably used as the disaccharide or less sugar in component (A).
Therefore, Ikeda et al also discloses 100% of the mixture of sucrose (“saccharides or less”) and “dried powder of plants and/or plant extracts” designated as component (A). This mixture contains up to 97.5% by mass of sucrose (“saccharides or less”) which meets the limitation of “sugar having at least 75% by weight”. This mixture alco contains from 2.5 to 40.0% by mass of dried powder of plants and/or plant extracts. Ikeda et al also discloses an exemplary embodiment where 20.0 g of the matcha-flavored premix was combined with 80g of sugar [(0025)]. 20.0 g of the matcha-flavored premix contained 9.6 g of matcha (Matcha ST-G, manufactured by Marukabu Sato Seicha Co., Ltd.) and 5.6 g of Green tea extract powder (Sencha DG-SP100, manufactured by Nikken Food Co., Ltd.). These values are within claimed ranges. It is further noted that water added during the manufacture of tea cube is evaporated during the drying step performed after the cube has been molded (“(iii) a step of drying the raw material composition, in the order of (i) to (iii)”) ([0010]).
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235(CCPA 1955) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to claims 1, 2 and 8, Ikeda et al does not disclose that micronized tea is prepared by jet mill.
Zhang discloses a method for producing micronized tea using a jet mill (7) and then a cyclone collector (8) is placed to collect the micronized particles ([0026]). Zhang discloses ultra-micro tea powder processing device, wherein the device comprises a compressed air power source and an oil-water separator (1), air storage tank (2), a primary filter (3), an air drier (4), a precise filter and a sterilizing filter (5); the material storehouse (6), a fluidized bed jet mill (7), a cyclone collector (8), bag type collector (9) and a high pressure draught fan (10), a compressed air power source and an oil-water separator (1) through the air path connected to the air storage tank (2); storage tank (2) through gas circuit is connected with the primary filter (3), a primary filter (3) connected to the gas dryer (4) through the gas path, a gas drier (4) through gas circuit is connected with the precise filter and the sterilizing filter (5); precise filter and the sterilizing filter (5) through gas circuit connected to the jet mill of fluid bed (7), the storehouse (6) is set in the fluidized bed jet mill (7), a fluidized bed jet mill (7) through material pipe is connected to the cyclone collector (8); the cyclone collector (8) upper end of the material pipe is connected to the bag-type collector (9), bag type collector (9) is connected to said high pressure draught fan (10) through the gas path (Claims).
One of ordinary skill in the art would have been motivated to modify Ikeda et al in view of Zhang and to employ a jet mill for micronizing tea as a well-known apparatus for micronizing tea.
Claim 1 further includes the recitation of the “cube forming machine”. Ikeda et al does not disclose “cube forming machine”. Ikeda et al does disclose forming a cube from the powder tea material and sugar where sugar content is up to 97.5 mass% ([0011]). Finken discloses an apparatus for manufacturing cubed sugar. One of ordinary skill in the art would have been motivated to employ any conventional apparatus for forming cubes. One of ordinary skill in the art would have been motivated to employ cube forming apparatus as disclosed by Finken in order to form sugar-containing cubes.
Claim(s) 4 is rejected under 35 U.S.C. 103 as being unpatentable over Ikeda et al (JP 2015211659 A) in view of Zhang (CN 107912545 A) and Finken (US RE01799 E) as applied to claim 1 above and further in view of tabletcapsules.com (The Evolution of Coating Technology).
In regard to claim 4, Ikeda et al does not disclose processing sugar/tea mixture in the coating pan tabletcapsules.com discloses:
Pan coating is one of the oldest pharmaceutical solid oral dosage manufacturing processes. The process was created for adding a sugar coating to compressed tablets primarily to mask the tablets’ unpleasant taste.
One of ordinary skill in the art would have been motivated to modify Ikeda et al in view of tabletcapsules.com and to employ coating pan as a suitable apparatus for forming sugar coating shapes as suggested by tabletcapsules.com.
Response to Arguments
Applicant's arguments filed 12/09/2025, have been fully considered but they are not persuasive.
In response to Applicant arguments on pages 5-6 of the Reply, in regard to the composition of the tea cube, Ikeda et al discloses
[0010] In other words, the present invention provides a method for producing a solid beverage, comprising the following steps (i) to (iii):
(i) a step of kneading and homogenizing a raw material composition consisting of the following components (A) to (C);
(A) a powder composition containing dried powder of plants and/or plant extracts and sugars of disaccharide or less;
(B) a high-saccharification reduced starch syrup in which the sugar alcohol composition contains maltitol and maltotriitol in a content of 30 to 60% by mass;
(C) water, wherein
when the mass of (A) is 100% by mass, the solid content mass of (B) is 0.5 to 3.0% by mass, and the solid content mass of (B) / (total mass of (B) and (C)) is 1/7.0 to 1/1.5; (ii) a step of compressing and molding the raw material composition and then releasing it; (iii) a step of drying the raw material composition, in the order of (i) to (iii).
[0011] In step (ii) above, the raw material composition may be compression molded using a mold that is not coated with a release agent, and the raw material composition may be released from the mold without being extruded. Furthermore, component (A) is preferably a powder composition containing 2.5 to 40.0% by mass of dried powder of plants and/or plant extracts, and 60.0 to 97.5% by mass of saccharides or less. Furthermore, sucrose and/or glucose can be suitably used as the disaccharide or less sugar in component (A).
Therefore, Ikeda et al also discloses 100% of the mixture of sucrose (“saccharides or less”) and “dried powder of plants and/or plant extracts” designated as component (A). This mixture contains up to 97.5% by mass of sucrose (“saccharides or less”) which meets the limitation of “sugar having at least 75% by weight”. This mixture alco contains from 2.5 to 40.0% by mass of dried powder of plants and/or plant extracts. Ikeda et al also discloses an exemplary embodiment where 20.0 g of the matcha-flavored premix was combined with 80g of sugar [(0025)]. 20.0 g of the matcha-flavored premix contained 9.6 g of matcha (Matcha ST-G, manufactured by Marukabu Sato Seicha Co., Ltd.) and 5.6 g of Green tea extract powder (Sencha DG-SP100, manufactured by Nikken Food Co., Ltd.). These values are within claimed ranges. It is further noted that water added during the manufacture of tea cube is evaporated during the drying step performed after the cube has been molded (“(iii) a step of drying the raw material composition, in the order of (i) to (iii)”) ([0010]). Component (B) is only 0.5% of component (a) and reads on flavor.
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235(CCPA 1955) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/VERA STULII/Primary Examiner, Art Unit 1791
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