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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 11, 2026 has been entered.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 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, 4-6, 8-14, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kowalski et al. US 6,093,348 in view of Beck et al. US 2008/0299209, Hitzfeld et al. US 2011/0081330, Posada et al. US 2016/0007641 as further evidenced by Gerard et al. US 2016/0032080 in further view of Mazer et al. US 2015/0305394 as further evidenced by “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) in further view of Lerchenfeld et al. US 5,807,603, Bernal et al. US 2013/0323379, and Albrecht et al. US 2011/0129573 or alternatively Claims 1-14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kowalski et al. US 6,093,348 in view of Beck et al. US 2008/0299209, Hitzfeld et al. US 2011/0081330, Posada et al. US 2016/0007641 as further evidenced by Gerard et al. US 2016/0032080 in further view of Mazer et al. US 2015/0305394 as further evidenced by “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) in further view of Lerchenfeld et al. US 5,807,603, Bernal et al. US 2013/0323379, Albrecht et al. US 2011/0129573, and Badolato Bonisch et al. US 2015/0064318.
Regarding Claim 1, Kowalski et al. discloses a beverage comprising granules (powdered carotenoid composition) (‘348, Column 2, lines 5-12). The granules consists of a carotenoid of lutein and zeaxanthin (‘348, Column 3, lines 32-40) wherein the carotenoid containing suspension is milled wherein the carotenoid containing suspension has 90% of carotenoid particles having a size of less than 3 microns (‘348, Column 6, lines 25-34), which overlaps the claimed D[v, 0.5] range of from 1.1 to 3.5 µm. Where the claimed milled carotenoid D[v,0.5] ranges overlaps milled carotenoid D[v,0.5] ranges discloses by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the milled carotenoid D[v,0.5] size range of Kowalski et al. to fall within the claimed milled carotenoid D[v,0.5] size range since differences in the milled carotenoid D[v,0.5] size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such milled carotenoid D[v,0.5] is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Kowalski et al. discloses beta carotene BC particles sized less than 3 microns minimizes the exposure time of beta carotene BC to the potential effects of high temperatures (‘348, Column 5, lines 51-61). Kowalski et al. also discloses a matrix material encapsulates the milled carotenoid (‘348, Column 3, lines 23-31) A particular embodiment of the matrix material comprises at least one modified food starch (‘348, Example 7 on Columns 10-11) and also generically teaches adding sucrose (‘348, Column 4, lines 54-65). The granules also contain an antioxidant of sodium ascorbate (‘348, Column 4, lines 38-53). Applicant discloses sodium ascorbate to be a type of water soluble antioxidant (Specification, Page 8, lines 16-19). Therefore, the sodium ascorbate antioxidant disclosed by Kowalski et al. reads on the claimed water soluble antioxidant. Kowalski et al. also discloses the granules not including an oil (carotenoid powders do not have the need for carotenoid solubilizing oils or organic solvents) (‘348, Column 2, lines 64-67) (‘348, Column 3, lines 1-3). The granules containing the mixture of two or more carotenoids contains any conventional protective colloid as is known to those skilled in the art such as gum acacia, gelatin, milk and vegetable proteins, starch and starch derivatives, etc. (‘348, Column 4, lines 16-25). Therefore, Kowalski et al. envisages an embodiment wherein the suspension containing the two or more carotenoids uses milk and vegetable proteins and/or starch and starch derivatives as the colloid without the use of gum acacia or gelatin.
Kowalski et al. is silent regarding the granules of the milled carotenoid having a particle size distribution D[3,2] in the range of from 0.6 to 1.5 µm.
Beck et al. discloses a composition comprising fat soluble active ingredients of lutein or zeaxanthine and a colloid mixture of a modified food starch and sugar (‘209, Paragraph [0037]) wherein the mean particle size of the particles of the inner phase of the prepared nano-emulsion has a Sauter diameter D[3,2]) varying from 10 to 1000 nm (‘209, Paragraph [0043]) used in a beverage (‘209, Paragraph [0074]). The Sauter diameter D[3,2] of from 10 to 1000 nm (‘209, Paragraph [0043]) converts to a Sauter diameter D[3,2] of from 0.01 to 1 µm, which overlaps the claimed milled carotenoid D[3,2] size in the range of from 0.6 to 1.5 µm. Additionally, Hitzfeld et al. discloses a composition containing plant gums one or more fat soluble active ingredients used for enrichment, fortification, and/or coloration of beverages (‘330, Paragraph [0001]) comprising 0 weight% oil (‘330, Paragraph [0012]) and carotenoids of lutein and zeaxanthin (‘330, Paragraph [0026]) used for soft drinks (‘330, Paragraph [0067]) wherein the final concentration of the one or more fat soluble active ingredients of carotenoids added to the food products is from 0.1 to 50 ppm depending on the particular food product to be colored or fortified and the intended grade of coloration or fortification (‘330, Paragraph [0071]) and a modified food starch (‘330, Paragraph [0031]) wherein color change of some carotenoid formulations is a function of the D[3,2] value (‘330, Paragraph [0084]) wherein the carotene emulsions have a size ranging from 0.05 µm to 1 µm (‘330, Paragraph [0084]).
Kowalski et al., Beck et al., and Hitzfeld et al. are all directed towards the same field of endeavor of powdered carotenoid compositions. All of the powdered carotenoid compositions of Kowalski et al., Beck et al., and Hitzfeld et al. all contain lutein and zeaxanthin. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the milled carotenoid D[3,2] of Kowalski et al. and incorporate milled carotenoid D[3,2] having the claimed D[3,2] range as taught by Beck et al. since where the claimed milled carotenoid D[3,2] ranges overlaps milled carotenoid D[3,2] ranges discloses by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the milled carotenoid D[3,2] size range of Kowalski et al. to fall within the claimed milled carotenoid D[3,2] size range since differences in the milled carotenoid D[3,2] size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such milled carotenoid D[3,2] is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Hitzfeld et al. teaches that the D[3,2] value influences the color change of carotenoid formulations (‘330, Paragraph [0084]). One of ordinary skill in the art would adjust the milled carotenoid D[3,2] size of Kowalski et al. based upon the desired color of the beverage powder containing the carotenoid as taught by Hitzfeld et al.
Kowalski et al. is silent regarding the powdered carotenoid composition being used as an ingredient in a beverage comprising a beverage liquid wherein the powdered carotenoid composition is mixed with the beverage liquid. Kowalski et al. also discloses the carotenoids used being zeaxanthin and lutein (‘348, Column 3, lines 32-48). However, Kowalski et al. is silent regarding the granules of the milled carotenoid consisting of only lutein and zeaxanthin, i.e. the Kowalski et al. is silent regarding the granules of the milled carotenoid having only lutein and zeaxanthin present. Kowalski et al. is also silent regarding the granules having the particle size distribution D[3,2] in the range of from 200 to 300 µm and D[v,0.5] in the range of from 220 to 320 µm wherein all D values are measured by laser diffraction according to the Fraunhofer scattering model.
Posada et al. discloses a powdered solid composition (‘641, Paragraph [0036]) comprising a carotenoid (‘641, Paragraph [0032]) containing a carotenoid pigment of a combination of lutein and zeaxanthin (‘641, Paragraph [0016]) having an average particle size d50 of less than 5 µm obtained by subjecting larger crystals to wet milling (‘641, Paragraphs [0016]-[0017]). Gerard et al. provides evidence that the mean volume diameter D50 is also expressed as D(v;0.5) which corresponds to the particle size for which 50% of the sample has a size less than this size and 50% of the sample has a size greater than this size, i.e. the equivalent volume diameter at 50% cumulative volume (‘080, Paragraph [0083]). The disclosure of Posada et al. that the d50 is less than 5 µm can also be expressed as the equivalent D[v,0.5] being less than 5 µm as evidenced by Gerard et al., which encompasses the claimed milled carotenoid D[v,0.5] size range of 1.1 to 3.5 µm. Posada et al. also discloses the powdered composition being easily reconstituted into an aqueous suspension (‘641, Paragraph [0036]) in the form of a beverage (‘641, Paragraph [0030]) wherein the composition comprises an antioxidant (‘641,Paragraph [0024]).
Both Kowalski et al. and Posada et al. are directed towards the same field of endeavor of powdered carotenoid compositions. Both powdered carotenoid compositions of Kowalski et al. and Posada et al. contain lutein and zeaxanthin. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the granule composition containing carotenoids of Kowalski et al. and incorporate only a combination of lutein and zeaxanthin as the only carotenoids as taught by Posada et al. depending upon the color desired (‘641, Paragraph [0016]). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the powdered carotenoid composition of modified Kowalski et al. and make the milled carotenoid with the claimed D[v,0.5] size range as taught by Posada et al. since where the claimed milled carotenoid D[v,0.5] ranges overlaps milled carotenoid D[v,0.5] ranges discloses by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the milled carotenoid D[v,0.5] size range of modified Kowalski et al. to fall within the claimed milled carotenoid D[v,0.5] size range since differences in the milled carotenoid D[v,0.5] size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such milled carotenoid D[v,0.5] is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Furthermore, it would have been obvious to one of ordinary skill in the art to use the powdered carotenoid composition of Kowalski et al. (‘348, Column 3, lines 13-22) and reconstitute the powdered carotenoid composition into an aqueous suspension in the form of a beverage as taught by Posada et al. (‘641, Paragraphs [0030] and[0036]) based upon the final form factor of the carotenoid composition.
Further regarding Claim 1, Kowalski et al. modified with Beck et al., Hitzfeld et al., and Posada et al. is silent regarding the granules having the particle size distribution D[3,2] in the range of from 200 to 300 µm and D[v,0.5] in the range of from 220 to 320 µm wherein all D values are measured by laser diffraction according to the Fraunhofer scattering model.
Mazer et al. discloses a beverage comprising a beverage liquid (water) and granules (extruded powder) mixed with the beverage liquid (water) (‘394, Paragraph [0012]). The granules (extruded powder) comprises a milled carotenoid comprising lutein and zeaxanthin (‘394, Paragraphs [0057]-[0058] and [0060]). The granules comprise a matrix material which encapsulates the milled carotenoid comprising at least one modified food starch (cooked rice starch), glucose (‘394, Paragraphs [0042]-[0043]), and sucrose (‘394, Paragraphs [0042]-[0043]), and a water soluble antioxidant (‘394, Paragraph [0058]). Mazer et al. further discloses the granules having a desired particle size range of 100-300 microns (‘394, Paragraph [0086]), which encompasses the granule D[3,2] particle size range of from 200 to 300 µm and overlaps the claimed granule D[v,0.5] particle size range of from 220 to 320 µm. Although Mazer et al. does not explicitly teach that the generic particle size range of from 100 to 300 µm is in reference to either the Sauter D[3,2] particle size or the D[v,0.5] particle size, differences in Sauter D[3,2] particle size and D[v,0.5] particle size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such Sauter D[3,2] particle size and D[v,0.5] is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Mazer et al. teaches granules having a generic particle size range that overlaps or encompasses the claimed Sauter D[3,2] particle size and D[v,0.5] particle size ranges. The Sauter D[3,2] particle size and D[v,0.5] are measurements of the distribution of particle size ranges. Applicant has not provided data showing the criticality of the specific distributions of particle size ranges of the claimed D[3,2] and D[v,0.5] particle size ranges.
Further regarding Claim 1, Mazer et al. discloses the nutritional powder comprising any suitable carbohydrate or carbohydrate source including sucrose, corn syrup, and starches (‘394, Paragraph [0043]). “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) discloses “corn syrup” may also be called “glucose syrup” in an ingredient list (Sugar: Sweet By Nature, Page 2). Therefore, Mazer et al. discloses the nutritional powder comprising sucrose, corn syrup/glucose syrup, and starches as evidenced by Sugar: Sweet By Nature. Kowalski et al. teaches a particular embodiment wherein modified starch is used (‘348, Example 7 on Columns 10-11) in the matrix (‘348, Column 3, lines 23-31). Therefore, modified Kowalski et al. teaches the matrix material comprising known carbohydrates including at least one modified food starch, a glucose syrup, and sucrose. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). The combination of modified Kowalski et al. teaches that the matrix material is capable of comprising known carbohydrates such as the at least one modified starch, a glucose syrup, and sucrose as claimed.
Further regarding Claim 1, Kowalski et al. modified with Beck et al., Hitzfeld et al., and Posada et al. as further evidenced by Gerard et al. further modified with Mazer et al. is silent regarding the beverage having a turbidity of ≤ 150 NTU after a storage time of up to 60 days.
Lerchenfeld et al. discloses a fruit juice containing product and a method and stabilizer system for preventing the separation of insoluble solids in such products wherein the stabilized fruit punch product has an initial turbidity of 136 NTU wherein greater turbidity measurements reflect more desirable, uniform dispersion of cloudy products (‘603, Column 6, lines 64-67) (‘603, Column 7, lines 1-9). Bernal et al. discloses a natural clouding system for beverage applications (‘379, Paragraph [0001]) comprising fruit juice (‘379, Paragraph [0030]) wherein certain juices have an opaque appearance and are cloudy having optical turbidity (‘379, Paragraph [0032]) wherein a cloudy composition has a measured turbidity of about 100 NTU or greater (‘379, Paragraph [0033]). Since Kowalski et al. discloses the product having homogenous/color stability (‘348, Column 1, lines 17-23) (‘348, Column 3, lines 23-31), one of ordinary skill in the art would expect the beverage turbidity of Lerchenfeld et al. of 136 NTU and the beverage turbidity of Bernal et al. of about 100 NTU or greater to not deviate too much from the initial NTU values, which both falls within the claimed beverage turbidity of ≤ 150 NTU after a storage time of up to 60 days.
Modified Kowalski et al., Lerchenfeld et al., and Bernal et al. are all directed towards the same field of endeavor of carotenoid compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the composition of Kowalski et al. and make the composition with the claimed turbidity range of ≤ 150 NTU after a storage time of up to 60 days as taught by Lerchenfeld et al. and Bernal et al. since where the claimed beverage turbidity after a storage time of up to 60 days overlaps beverage turbidity ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the beverage turbidity expressed via NTU will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such beverage turbidity is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the beverage turbidity of modified Kowalski et al. based upon the desired degree of cloudiness of the fruit juice beverage.
Further regarding Claim 1, Kowalski et al. discloses the product having homogenous/color stability (‘348, Column 1, lines 17-23) (‘348, Column 3, lines 23-31). The limitations “after a storage time of up to 60 days…the milled carotenoid content in the beverage not decreasing below 80% of an initial value of the milled carotenoid content” express the milled carotenoid content having a high color stability when stored for a long time period. Where the claimed prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). The claim does not specify the conditions under which the granules comprising the carotenoid is stored. The claim does not specify any particular temperature, humidity, and/or lighting conditions under which the granules comprising the carotenoid is stored. One of ordinary skill in the art would expect the prior art combination of modified Kowalski et al. to behave in the same manner as claimed, i.e. after a storage time of up to 60 days…the milled carotenoid content in the beverage not decreasing below 80% of an initial value of the milled carotenoid content.
Alternatively, although modified Kowalski et al. does not explicitly state the property of the milled carotenoid content in the beverage not decreasing below 80% of an initial value of the milled carotenoid content, Albrecht et al. discloses a powdered nutritional formula having improved stability of a carotenoid (lutein) over a shelf life of at least about 3 months wherein at least about 85% of lutein in the formula remains in the formula after a shelf life of about 3 months (‘573, Paragraph [0033]), which reads on the claimed milled carotenoid content in the beverage not decreasing below 80% of an initial value of the milled carotenoid content after a storage time of up to 60 days. Both modified Kowalski et al. and Albrecht et al. are directed towards the same field of endeavor of powdered beverage compositions comprising carotenoid. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage granules comprising a carotenoid that is color stabilized of modified Kowalski et al. and have the milled carotenoid content in the beverage not decreasing below 80% of an initial value of the milled carotenoid content after a storage time of up to 60 days as taught by Albrecht et al. based upon the desired degree of color stabilization of the beverage.
Alternatively regarding Claim 1, Kowalski et al. discloses the granules containing the mixture of two or more carotenoids contains any conventional protective colloid as is known to those skilled in the art such as gum acacia, gelatin, milk and vegetable proteins, starch and starch derivatives, etc. (‘348, Column 4, lines 16-25). Therefore, Kowalski et al. envisages an embodiment wherein the suspension containing the two or more carotenoids uses milk and vegetable proteins and/or starch and starch derivatives as the colloid without the use of gum acacia or gelatin. However, in the event that it can be argued that Kowalski et al. does not necessarily teach the granules not including gelatin, gum acacia, or gum Arabic, Badolato Bonisch et al. discloses a beverage comprising a beverage liquid and granules (powder) mixed with the beverage liquid (‘318, Paragraph [0116]). The granules (powder) comprise a carotenoid containing lutein and/or zeaxanthin (‘318, Paragraphs [0042]-[0043]). The granules further comprise a matrix material which encapsulates the milled carotenoid and comprises at least one modified food starch, glucose syrup, and sucrose (saccharose) (‘318, Paragraphs [0053]-[0056] and [0058]-[0061), and a water soluble antioxidant (‘318, Paragraphs [0102]-[0106]). The granules do not include a gelatin, gum acacia, or gum arabic (‘318, Paragraphs [0031]-[0034] and [0077]-[0079]). The granules are preferred not to have an added oil except MCT in one embodiment (‘318, Paragraph [0108]) and the granules optionally contain MCT or another oil in another embodiment (‘318, Paragraph [0110]) and contains MCT in an amount of 0 weight% (‘318, Paragraph [0096]), which indicates an embodiment wherein no oil is present in the granules.
Both modified Kowalski et al. and Bodolato Bonisch et al. are directed towards the same field of endeavor of powdered carotenoid compositions. Both powdered carotenoid compositions of modified Kowalski et al. and Bodolato Bonisch et al. contain lutein and zeaxanthin. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the powdered carotenoid composition of modified Kowalski et al. and explicitly not incorporate a gelatin, gum acacia, or gum Arabic in the granules since Bodolato Bonisch et al. teaches that there was known utility in the food and beverage art to make powdered carotenoid compositions without gelatin, gum acacia, or gum Arabic.
Regarding Claim 2, Bernal et al. discloses the beverage comprising a natural edible acidulant in an amount sufficient to provide the desired pH of the natural clouding system or beverage (‘379, Paragraph [0019]) wherein the beverage is a soft drink (‘379, Paragraph [0061]) wherein the beverage has a pH of about 4 to about 6 (‘379, Paragraph [0066]), which overlaps the claimed pH of the soft drink beverage of from 2 to 5. Both modified Kowalski et al. and Bernal et al. are directed towards the same field of endeavor of beverages comprising a beverage liquid and granules mixed with the beverage liquid wherein the granules comprise a milled carotenoid made of lutein and the beverage is a soft drink. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the soft drink of modified Kowalski et al. and make the soft drink to have the claimed pH range as taught by Bernal et al. since where the claimed pH ranges overlaps pH ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, differences in pH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pH is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the pH of the soft drink of modified Kowalski et al. to fall within the claimed soft drink pH range as taught by Bernal et al. based upon the desired acidic level of the soft drink.
Regarding Claim 3, Badolato Bonisch et al. discloses the beverage being color stable, i.e. the color difference between the initial color and the color after a storage time of 3 months should have a color difference that cannot be seen by naked eyes without the use of an apparatus such as a colorimeter (‘318, Paragraphs [0120] and [0170]). Although Badolato Bonisch et al. does not explicitly teach the claimed color stability DE* ≤ 1 for 60 days, Badolato Bonisch et al. discloses the beverage being color stable, i.e. the color difference between the initial color and the color after a storage time of 3 months to have a color difference that cannot be seen by the naked eyes without the use of an apparatus such as a colorimeter (‘318, Paragraphs [0120] and [0170]). Applicant also discloses color stable being a color difference that cannot be seen by naked eyes without the use of an apparatus such as a colorimeter (Specification, Page 14, lines 9-13). It would have been obvious to one of ordinary skill in the art to adjust the color stability of modified Kowalski et al. to the claimed color stability level since differences in the color stability ranges will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such color stability range is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Badolato Bonisch et al. teaches the beverage being color stable in that there should be a color difference that cannot be seen by naked eyes without the use of an apparatus such as a colorimeter (‘318, Paragraphs [0120] and [0170]).
Regarding Claim 4, Lerchenfeld et al. discloses a fruit juice containing product and a method and stabilizer system for preventing the separation of insoluble solids in such products wherein the stabilized fruit punch product has an initial turbidity of 136 NTU wherein greater turbidity measurements reflect more desirable, uniform dispersion of cloudy products (‘603, Column 6, lines 64-67) (‘603, Column 7, lines 1-9). Bernal et al. discloses a natural clouding system for beverage applications (‘379, Paragraph [0001]) comprising fruit juice (‘379, Paragraph [0030]) wherein certain juices have an opaque appearance and are cloudy having optical turbidity (‘379, Paragraph [0032]) wherein a cloudy composition has a measured turbidity of about 100 NTU or greater (‘379, Paragraph [0033]). Since Kowalski et al. discloses the product having homogenous/color stability (‘348, Column 1, lines 17-23) (‘348, Column 3, lines 23-31), one of ordinary skill in the art would expect the beverage turbidity of Lerchenfeld et al. of 136 NTU and the beverage turbidity of Bernal et al. of about 100 NTU or greater to not deviate too much from the initial NTU values, which both falls within the claimed beverage turbidity of from 100 to 150 NTU after a storage time of up to 60 days.
Modified Kowalski et al., Lerchenfeld et al., and Bernal et al. are all directed towards the same field of endeavor of carotenoid compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the composition of Kowalski et al. and make the composition with the claimed turbidity range of 100 to 150 NTU after a storage time of up to 60 days as taught by Lerchenfeld et al. and Bernal et al. since where the claimed beverage turbidity after a storage time of up to 60 days overlaps beverage turbidity ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the beverage turbidity expressed via NTU will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such beverage turbidity is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the beverage turbidity of modified Kowalski et al. based upon the desired degree of cloudiness of the beverage.
Regarding Claims 5-6, Kowalski et al. discloses the amount of the milled carotenoid being 10% to 25% by weight of the final composition (‘348, Column 4, lines 1-4) and the amount of colloid in the form of starch derivatives being 5% to 75% by weight of the carotenoid composition (‘348, Column 4, lines 16-25) wherein a specific example discloses the starch derivative to be modified starch (‘348, Example 7 on Columns 10-11). Using 20% milled carotenoid and the upper end point of 75% modified starches, Kowalski et al. envisages an embodiment wherein the amount of milled carotenoid and modified starch is at least 95%, which falls within the claimed amount of milled carotenoid, amount of modified food starch, amount of glucose syrup, amount of sucrose, and amount of water soluble antioxidant together being at least 90 wt% or at least 95 wt% of the total weight of the granules. Where the claimed combined amount of milled carotenoid, modified food starch, glucose syrup and/or sucrose, and water soluble antioxidant based on the total weight of the granules encompasses the combined amount of milled carotenoid, modified food starch, glucose syrup and/or sucrose, and water soluble antioxidant based on the total weight of the granules ranges discloses by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the combined amount of the milled carotenoid, modified food starch, glucose syrup and/or sucrose, and water soluble antioxidant range of the carotenoid powder of modified Kowalski et al. to fall within the claimed combined amount of milled carotenoid, modified food starch, glucose syrup and/or sucrose, and water soluble antioxidant will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such combined amount of milled carotenoid, modified food starch, glucose syrup and/or sucrose, and water soluble antioxidant with respect to the total weight of the granules is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 7, Bodalato Bonisch et al. discloses the formulation containing 20 to 60 weight% of at least one modified food starch and 0.5 to 60 weight% of at least one saccharide (‘318, Paragraphs [0020]-[0021]), which envisages embodiments wherein the amount of modified food starch in kilograms is the same as the total amount of saccharides in kilograms, e.g. glucose syrup and sucrose. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the powdered carotenoid composition of modified Kowalski et al. and incorporate the same amount of modified food starch and saccharides as taught by Bodalato Bonisch et al. since differences in the amount of modified food starch relative to the amount of glucose syrup and sucrose will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of modified food starch relative to the amount of glucose syrup and sucrose is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 8, Mazer et al. discloses a beverage comprising a beverage liquid (water) and granules (extruded powder) mixed with the beverage liquid (water) (‘394, Paragraph [0012]). The granules (extruded powder) comprises a milled carotenoid comprising lutein and zeaxanthin (‘394, Paragraphs [0057]-[0058] and [0060]). The granules comprise a matrix material which encapsulates the milled carotenoid comprising at least one modified food starch (cooked rice starch), glucose (‘394, Paragraphs [0042]-[0043]), and sucrose (‘394, Paragraphs [0042]-[0043]), and a water soluble antioxidant (‘394, Paragraph [0058]). Mazer et al. further discloses the granules having a desired particle size range of 100-300 microns (‘394, Paragraph [0086]), which encompasses the granule D[3,2] particle size range of from 230 to 270 µm and overlaps the claimed granule D[v,0.5] particle size range of from 240 to 290 µm. Although modified Kowalski et al./Mazer et al. does not explicitly teach that the generic particle size range of from 100 to 300 µm is in reference to either the Sauter D[3,2] particle size or the D[v,0.5] particle size, differences in Sauter D[3,2] particle size and D[v,0.5] particle size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such Sauter D[3,2] particle size and D[v,0.5] is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Mazer et al. teaches granules having a generic particle size range that overlaps or encompasses the claimed Sauter D[3,2] particle size and D[v,0.5] particle size ranges. The Sauter D[3,2] particle size and D[v,0.5] are measurements of the distribution of particle size ranges. Applicant has not provided data showing the criticality of the specific distributions of particle size ranges of the claimed D[3,2] and D[v,0.5] particle size ranges.
Regarding Claim 9, Beck et al. discloses a composition comprising fat soluble active ingredients of lutein or zeaxanthine and a colloid mixture of a modified food starch and sugar (‘209, Paragraph [0037]) wherein the mean particle size of the particles of the inner phase of the prepared nano-emulsion has a Sauter diameter D[3,2]) varying from 10 to 1000 nm (‘209, Paragraph [0043]) used in a beverage (‘209, Paragraph [0074]). The Sauter diameter D[3,2] of from 10 to 1000 nm (‘209, Paragraph [0043]) converts to a Sauter diameter D[3,2] of from 0.01 to 1 µm, which overlaps the claimed milled carotenoid D[3,2] size in the range of from 0.8 to 1.2 µm. Additionally, Posada et al. discloses a carotenoid in crystalline form comprising lutein and/or zeaxanthin having an average particle size d50 of less than 5 µm obtained by subjecting larger crystals to wet milling (‘641, Paragraphs [0016]-[0017]) wherein the carotenoid composition is in powder form (‘641, Paragraph [0036]). Gerard et al. provides evidence that the mean volume diameter D50 is also expressed as D(v;0.5) which corresponds to the particle size for which 50% of the sample has a size less than this size and 50% of the sample has a size greater than this size, i.e. the equivalent volume diameter at 50% cumulative volume (‘080, Paragraph [0083]). The disclosure of Posada et al. that the d50 is less than 5 µm can also be expressed as the equivalent D[v,0.5] being less than 5 µm as evidenced by Gerard et al., which encompasses the claimed milled carotenoid D[v,0.5] size range of 1.1 to 2.6 µm.
Modified Kowalski et al., Beck et al., and Posada et al. are all directed towards the same field of endeavor of powdered carotenoid compositions made of lutein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the powdered carotenoid composition of modified Kowalski et al. and make the milled carotenoid with the claimed D[3,2] size range as taught by Beck et al. and the claimed D[v,0.5] size range as taught by Posada et al. since where the claimed milled carotenoid D[3,2] and D[v,0.5] ranges overlaps milled carotenoid D[3,2] and D[v,0.5] ranges discloses by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the milled carotenoid D[3,2] and D[v,0.5] size range of modified Kowalski et al. to fall within the claimed milled carotenoid D[3,2] and D[v,0.5] size range since differences in the milled carotenoid D[3,2] and D[v,0.5] size will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such milled carotenoid D[v,0.5] is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 10, Kowalski et al. discloses the amount o the milled carotenoid in the granules (‘348, Column 6, lines 26-34) being in a range of from 10% to 25% by weight based on the total weight of the granules (‘348, Column 4, lines 1-4), which overlaps the claimed amount of milled carotenoid in the granules in a range of from 1-30 wt%. Where the claimed amount of carotenoid in the granular composition ranges overlaps amount of carotenoid in the granular composition ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of carotenoid in the granular composition will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of carotenoid in the granular composition is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 11, Hitzfeld et al. discloses the amount of modified food starch being in the range of 0 to 20 weight% based on the total weight of the granules (‘330, Table 1) (‘330, Paragraph [0064]), which overlaps the claimed amount of modified food starch in a range of from 10 to 50 weight% based on the total weight of the granules. Both modified Kowalski et al. and Hitzfeld et al. are directed towards the same field of endeavor of powdered carotenoid compositions. Both powdered carotenoid compositions of Kowalski et al. and Hitzfeld et al. comprise lutein and zeaxanthin. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the starch concentration of the granules of modified Kowalski et al. to contain the claimed amount of starch as taught by Hitzfeld et al. since where the claimed amount of modified food starch ranges overlaps amount of modified food starch ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of modified food starch of modified Kowalski et al. to fall within the claimed amount of food starch since differences in the amount of modified food starch will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of modified food starch is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claims 12-13, Kowalski et al. disclose the matrix comprising a sugar/sucrose plasticizer (‘348, Column 3, lines 5-12) (‘348, Column 4, lines 62-63). Although modified Kowalski et al. does not explicitly state that the amount of glucose syrup is in a range of from 5 to 40 wt% based on the total weight of the granules or the amount of sucrose is in a range of from 5 to 40 wt% based on the total weight of the granules, differences in the amount of glucose syrup and/or sucrose in the granules ranges will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such amount of glucose syrup and/or sucrose in the granules range is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the amount of glucose syrup and/or sucrose within the granules of Kowalski et al. based upon the desired sweetness of the final carotenoid powder.
Regarding Claim 14, Kowalski et al. discloses the amount of the water soluble anti-oxidant (sodium ascorbate) being 1-8% by weight of the carotenoid composition (‘348, Column 4, lines 38-53), which falls within the claimed water soluble antioxidant range of from 0.1 to 10 wt% based on the total weight of the granules. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the powdered carotenoid composition of modified Hitzfelo et al. to have the claimed amount of water soluble antioxidant since where the claimed amount of water soluble antioxidant ranges overlaps water soluble antioxidant ranges discloses by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of water soluble antioxidant range of modified Kowalski et al. to fall within the claimed amount of water soluble antioxidant range since differences in the water soluble antioxidant ranges will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such water soluble antioxidant range is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 16, Badolato Bonisch et al. discloses the granules not comprising gum Arabic or gelatin (‘318, Paragraphs [0031]-[0034]). The formulation contains 0 weight% fat soluble antioxidant (‘318, Paragraph [0095]), which indicates the granules do not comprise fat soluble antioxidants. Modified Kowalski et al. never discloses using hydrolyzed lecithin products, isomalt, µ-zeacarotene, or µ-zeacarotene, which suggests that the granules do not comprise hydrolyzed lecithin products, isomalt, µ-zeacarotene, or µ-zeacarotene.
Regarding Claim 17, Badolato Bonisch et al. discloses the glucose syrup being a mixture of glycose syrup having a dextrose equivalent (DE) 95 and 47 in a weight ratio of 1:1 (‘318, Paragraph [0063]), which falls with the glucose syrup having a dextrose equivalent (DE) in range of from 20 to 95. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the powdered carotenoid composition of Kowalski et al. and incorporate glucose syrup in the claimed dextrose equivalent levels as taught by Badolato Bonisch et al. since where the claimed dextrose equivalent ranges overlaps dextrose equivalent ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Additionally, differences in dextrose equivalent will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such dextrose equivalent is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Kowalski et al. US 6,093,348 in view of Beck et al. US 2008/0299209, Hitzfeld et al. US 2011/0081330, Posada et al. US 2016/0007641 as further evidenced by Gerard et al. US 2016/0032080 in further view of Mazer et al. US 2015/0305394 as further evidenced by “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) in further view of Lerchenfeld et al. US 5,807,603, Bernal et al. US 2013/0323379, and Albrecht et al. US 2011/0129573 as applied to claim 1 above in further view of Somavat et al. US 2014/0044844 or alternatively Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Kowalski et al. US 6,093,348 in view of Beck et al. US 2008/0299209, Hitzfeld et al. US 2011/0081330, Posada et al. US 2016/0007641 as further evidenced by Gerard et al. US 2016/0032080 in further view of Mazer et al. US 2015/0305394 as further evidenced by “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) in further view of Lerchenfeld et al. US 5,807,603, Bernal et al. US 2013/0323379, Albrecht et al. US 2011/0129573, and Badolato Bonisch et al. US 2015/0064318 as applied to claim 1 above in further view of Somavat et al. US 2014/0044844.
Regarding Claim 15, modified Kowalski et al. is silent regarding the granules having a flowability of at least 100 g/min through an orifice with a diameter of 5 mm.
Somavat et al. discloses a nutritional powder composition that can be reconstituted with an aqueous liquid (‘844, Paragraph [0028]) wherein the nutritional composition comprises carotenoids of lutein and zeaxanthin (‘844, Paragraph [0062]) and a flowing agent or anti-caking agent to retard clumping or caking of the powder over time and to make a powder flow easily from its container wherein the concentration of the flowing agent or anti-caking agent varies depending on the desired flow properties (‘844, Paragraph [0059]).
Both modified Kowalski et al. and Somavat et al. are directed towards the same field of endeavor of nutritional powders comprising carotenoids of lutein and an anti-caking agent. Although Somavat et al. does not explicitly teach the desired flowability being at least 100 g/min through an orifice with a diameter of 5 mm, Somavat et al. teaches the concentration of the anti-caking agent varying depending on the desired flow properties. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of anti-caking agent used in the powder of modified Kowalski et al. to make the granules having the claimed flowability range since differences in the flowability of the granules will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such flowability of the granules is critical. Where 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 view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of anti-caking agent used in the powder of the beverage of modified Kowalski et al. based upon the desired flowability of the powder as taught by Somavat et al.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Kowalski et al. US 6,093,348 in view of Beck et al. US 2008/0299209, Hitzfeld et al. US 2011/0081330, Posada et al. US 2016/0007641 as further evidenced by Gerard et al. US 2016/0032080 in further view of Mazer et al. US 2015/0305394 as further evidenced by “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) in further view of Lerchenfeld et al. US 5,807,603, Bernal et al. US 2013/0323379, and Albrecht et al. US 2011/0129573 as applied to claim 1 above in further view of Zanghi et al. US 2011/0052753 or alternatively Claim 18 rejected under 35 U.S.C. 103 as being unpatentable over Kowalski et al. US 6,093,348 in view of Beck et al. US 2008/0299209, Hitzfeld et al. US 2011/0081330, Posada et al. US 2016/0007641 as further evidenced by Gerard et al. US 2016/0032080 in further view of Mazer et al. US 2015/0305394 as further evidenced by “Sugar: Sweet By Nature” <https://web.archive.org/web/20060923020810/https://www.sugar.org/consumers/sweet_by_nature.asp?id=277> (archived on September 23, 2006) in further view of Lerchenfeld et al. US 5,807,603, Bernal et al. US 2013/0323379, Albrecht et al. US 2011/0129573, and Badolato Bonisch et al. US 2015/0064318 as applied to claim 1 above in further view of Zanghi et al. US 2011/0052753.
Regarding Claim 18, Badolato Bonisch et al. discloses the glucose syrup comprising a mixture of a low dextrose equivalent (DE) glucose syrup and a high DE glucose syrup having a DE of 95 (‘318, Paragraphs [0057] and [0063]), which falls within the claimed high DE glucose syrup range of from 90 to 100. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the high DE glucose syrup range of modified Kowalski et al. to fall within the claimed high DE glucose syrup range as taught by Badolato Bonisch et al. since where the claimed high DE glucose syrup ranges overlaps high DE glucose syrup ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Further regarding Claim 18, Badolato Bonisch et al. discloses the glucose syrup comprising a mixture of a low dextrose equivalent (DE) glucose syrup and a high DE glucose syrup having a DE of 95 (‘318, Paragraphs [0057] and [0063]). However, modified Kowalski et al. is silent regarding the mixture of the glucose syrup having a low dextrose equivalent glucose syrup having a DE in a range of from 20 to 25.
Zanghi et al. discloses a beverage powder composition (‘753, Paragraphs [0026] and [0055]) comprising one or more carotenoids (‘753, Paragraph [0058]) of lutein (‘753, Paragraph [0059]) and a first carbohydrate component having a dextrose equivalent of about 85 to 100 and a second carbohydrate component having a dextrose equivalent of about 5 to 20 (‘753, Paragraph [0067]), which falls within the claimed mixture of high dextrose equivalent DE having a DE in a range of from 90 to 100 and low dextrose equivalent DE having a DE in a range of from 20 to 25, respectively.
Both modified Kowalski et al. and Zanghi et al. are directed towards the same field of endeavor of beverage compositions comprising one or more carotenoids containing lutein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of modified Kowalski et al. and incorporate a mixture having a low dextrose equivalent DE in the claimed low DE range as taught by Zanghi et al. since where the claimed low DE carbohydrate ranges overlaps low DE carbohydrate ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Zanghi et al. teaches that there was known utility to utilize a carbohydrate sweetening mixture having the claimed range of low DE as well as high DE in a beverage comprising carotenoid of lutein.
Response to Arguments
Examiner notes that the previous indefiniteness rejection under 35 USC 112(b) has been withdrawn in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of Claims 1-18 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nieto et al. US 2010/0028521 discloses a gum Arabic replacement for the food industry (‘521, Paragraph [0014]) wherein gum Arabic replacements use locally available materials that reduces reliance on imported gum Arabic (‘521, Paragraph [0015]) wherein the replacements have whiter color, faster drying when used in panning, and better film barrier and protection against oxidation (‘521, Paragraph [0017]).
Johnson et al. US 2004/0018279 discloses a solution of carotenoids for use in supplementing foods and beverages and to color foods and beverages (‘279, Paragraph [0002]) wherein the carotenoids are lutein and/or zeaxanthin and the carotenoids are used singly or in combination (‘279, Paragraph [0011]) and an antioxidant is added to the concentrated product and/or to the carotenoid prior to its addition to an oil wherein the antioxidant increases the stability of the active ingredient to oxidative breakdown (‘279, Paragraph [0024]).
Schlipalius WO 93/04598 discloses a carotenoid composition comprising a carotenoid in an oil solvent, a dispersion of a water dispersible matrix and a stabilizer, and a non-oil solvent and an emulsifier wherein the carotenoid, non-oil solvent, water dispersible matrix, stabilizer, and emulsifier are derived from natural sources.
Vilstrup et al. US 5,811,609 discloses a powdered water dispersible carotenoid preparation in the form of discrete carotenoid microparticles prepared by milling a carotenoid in an aqueous medium in the presence of a hydrocolloid so as to form a suspension, heating the suspension, and cooling and finely dividing and drying the suspension to form a powder.
Leuenberger et al. US 2010/0136177 discloses a food composition comprising a beverage powder to which upon its use water or another liquid beverage composition such as milk or juice can or has to be added wherein the base composition is prepared as a dry powder product (instant beverage) which before its consumption is to be mixed with water or another liquid beverage composition (‘177, Paragraph [0042]) wherein the powder contains one or more carotenoids (‘177, Paragraph [0001]) wherein carotenoids including zeaxanthin and lutein can provide color pigments ranging from yellow to red (‘177, Paragraph [0002]) wherein the powder containing one or more carotenoids is made by providing an aqueous solution of a polysaccharide, forming a suspension of carotenoid(s) in the solution, milling the suspension until the mean particle size of the carotenoid particles is in the range of from about 0.6 µm to about 1.4 µm, and drying the suspension (‘177, Paragraphs [0005]-[0009]) wherein the desired mean particle size of the carotenoid particles is achieved by adjusting the rotor speed (peripheral speed), mean residence time in the mill, material and size of the milling beads and load of the mill (‘177, Paragraph [0030]). The solution contains further adjuvants including glucose (‘177, Paragraphs [0020]-[0024]) in the form of glucose syrup (corn syrup) (‘177, Paragraph [0016]).
Schaefer et al. US 2010/0069510 discloses a process for the manufacture of an powdered emulsion or dispersion containing one or more carotenoids (‘510, Paragraph [0001]) wherein carotenoids including zeaxanthin and lutein are a useful source of coloring agents for a variety of foods and beverages (‘510, Paragraph [0002]) wherein the powder containing one or more carotenoids is suitable in beverages (‘510, Paragraph [0004]).
Antoshkiw et al. US 3,998,753 discloses a carotenoid powder composition which is dispersible in aqueous solutions to form optically clear aqueous composition and which color these aqueous solutions to a desired uniform color and spray dried to form a water dispersible powder prepared by spraying droplets of the emulsion into collecting powders, e.g. starch (‘753, Column 1, lines 50-68) wherein the carotenoids used are coloring agents including lutein which carotenoids is used in admixtures depending on the color desired (‘753, Column 2, lines 3-15) wherein the carotenoid powder composition comprises from about 6% to about 7% by weight of an edible pharmaceutically acceptable antioxidant comprising ascorbic acid (’753, Column 3, lines 5-16) wherein the aqueous phase emulsion precursor has a pH range of 10-11 having improved stability and form when dispersed in aqueous food preparations or solutions having the optical clarity of the original colored products (‘753, Column 3, lines 17-32).
Eller et al. US 2005/0169999 discloses a health granulate containing carotenoids obtained by utilizing various kinds of nutritional starches and formulated in granules having excellent handling properties, compressibility, color release, and appearance and useful in coloring beverages (‘999, Paragraph [0002]) wherein the composition is spray coated in an aqueous contained sugar solution (‘999, Paragraph [0018]) wherein the dried powder comprises OSA-starches (‘999, Paragraph [0025]) and other modified food starches to permit easy emulsification of the organic phase in water (‘999, Paragraph [0027]) wherein antioxidants are dissolved in the solvent containing carotene to enhance stability against deterioration wherein any antioxidant approved for food may be used wherein the level of antioxidant used is sufficient for β-carotene protection (‘999, Paragraph [0030]).
Blank US 2005/0186320 discloses corn syrup solids contain some glucose (‘320, Paragraph [0044]).
Barbut et al. US 2015/0201652 discloses lutein is a yellow/orange pigment found in dark green leafy vegetables that is a food grade lipophilic phytochemical (‘652, Paragraph [0093]).
Eidenberger US 2011/0144200 discloses the trans isomeric form of lutein has a yellow color and is a nutraceutical and food additive (‘200, Paragraph [0007]).
Schaefer et al. US 2010/0069510 discloses carotenoids are a useful coloring agent for a variety of foods and beverages wherein zeaxanthin and lutein can provide color pigments ranging from yellow to red wherein carotenoids are often included in foods and beverages as a colorant (‘510, Paragraph [0002]).
Xu et al. US 2008/0081932 discloses lutein and zeaxanthin are carotenoids used as a pigment in foods and used as a functional food colorant wherein zeaxanthin shows stronger golden yellow color and more lasting color than lutein (‘932, Paragraph [0007]).
Nguyen et al. US 2003/0118703 discloses the xanthophyll lutein is a naturally derived pigment that provides color ranging from golden yellow to red/yellow and is used in food formulations (‘703, Paragraph [0008]) wherein lutein brightens the appearance of nutritionals by masking the typical brown and gray hues of thermally processed nutritionals without the addition of a strong yellow color (‘703, Paragraph [0021]).
Majeed US 2003/0018222 discloses lutein is a carotenoid found in fruits and vegetables used as a nutraceutical having antioxidant and immunomdulating/immunostinulating actions having a yellow to red coloration that naturally occurs in human foods and is used as a food colorant (‘222, Paragraph [0002]).
Philip US 4,048,203 discloses a lutein fatty acid used in aqueous foods as dispersions wherein the color of foods containing lutein fatty acid esters vary from yellow to orange depending on the concentration.
Wingerd et al. US 3,125,451 discloses carotenoids of xanthophyll (lutein) imparts a rich yellow color to foods.
Todd et al. US 2006/0185034 discloses zeaxanthin products can be added to various foods and beverages for human consumption as a nutritional food coloring agent to provide a bright natural yellow appearance with high light stability (‘034, Paragraph [0167]).
Hoshino et al. US 2005/0260700 discloses zeaxanthin is a yellow colored carotenoid (‘700, Paragraph [0003]).
Orndorff et al. US 5,360,730 discloses zeaxanthin imparts a yellow or reddish yellow color to a food product composition to which zeaxanthin is added.
Surmatis et al. US 3,974,181 discloses zeaxanthin and xanthophylls serve as valuable yellow food and beverage colorants for human consumption that is widely used in coloring foodstuffs including beverages.
Posada et al. US 2016/0007641 discloses a powdered solid composition that can be easily reconstituted into an aqueous suspension (‘641, Paragraph [0036]) wherein the powder composition comprises a carotenoid pigment of lutein combined with zeaxanthin depending on the color desired (‘641, Paragraph [0016]) wherein the carotenoid is milled to an average particle size D50 of less than 5 µm (‘641, Paragraphs [0017] and [0027]) wherein the suspension comprises an antioxidant (‘641, Paragraph [0024]).
Conclusion
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/ERICSON M LACHICA/Examiner, Art Unit 1792