DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 06/29/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-3 and 6-20
Withdrawn claims: None
Previously canceled claims: 4 and 5
Newly canceled claims: None
Amended claims: 12
New claims: None
Claims currently under consideration: 1-3 and 6-20
Currently rejected claims: 1-3 and 6-20
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3 and 6-11 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ferruzzi (U.S. 2004/0096547 A1) in view of Nair et al. (U.S. 2007/0254068 A1).
Regarding claim 1, Ferruzzi discloses a method of preparing a shelf-stable ([0072]) composition ([0018], [0021], [0071], [0072]), the method comprising (i) adding a stabilizer to a proteinaceous component ([0029], [0055]), (ii) subsequently adding an edible acid ([0044]-[0045]) and polyphenols including catechin and epicatechin ([0042]) to the stabilizer/protein component to form a mixture ([0072], where adjusting the pH is performed before the addition of pH-sensitive ingredients), and (iii) subjecting the mixture to aseptic thermal processing ([0072]). Ferruzzi discloses the polyphenols include catechin and epicatechin ([0042]), which renders obvious (-)-epicatechin and (-)-catechin in particular. Ferruzzi also discloses that they may be used together ([0041]). As such, any relative concentration of the two components is considered obvious, including the claimed range of ratios of (-)-epicatechin to (-)-catechin of 8:11 to 11:1 before the thermal processing step. Ferruzzi further discloses the edible composition comprises about 0.05-0.45 mg/g of epicatechin (specifically, from about 0.001-5%, or 0.01-50 mg/g) ([0043]).
Ferruzzi does not explicitly disclose a cocoa extract that constitutes the flavanol components, the specific sterilization protocol, the ratio between (-)-epicatechin and (-)-catechin after thermal processing, or the claimed limit on (-)-catechin increase of less than 15% due to epimerization of (-)-epicatechin after thermal processing.
However, Nair et al. discloses a cocoa extract comprising cocoa polyphenols ([0012]) that is useful for producing a beverage ([0013]).
It would have been obvious to one having ordinary skill in the art to incorporate cocoa extract comprising cocoa polyphenols according to Nair et al. into the beverage of Ferruzzi. Nair et al. discloses catechin and epicatechin are among the most abundant flavonoids in cocoa and are useful for addition to a beverage intended to counteract heart disease ([0013], [0009]). Ferruzzi indicates the addition of flavanols to a beverage is particularly preferred for the health benefits of the flavanol ([0041]). Such flavanols include catechin and epicatechin, which may be extracted from vegetables ([0042]). Ferruzzi further discloses the extraction of caffeine from cocoa ([0033]). Since Ferruzzi does not explicitly disclose natural vegetable sources from which flavanols may be extracted, a skilled practitioner would consult Nair et al. to determine an appropriate source. Since cocoa is used in Ferruzzi to extract caffeine, the additional extraction of polyphenols from cocoa would be a desirable source material, as suggested by Nair et al. The use of polyphenols extracted from cocoa that include flavanols is thus considered obvious to a skilled practitioner.
As for the sterilization protocol, Ferruzzi discloses the pH is limited to the maximum acidity for microbial inhibition ([0044]) and indicates that the beverage may be sterilized, pasteurized, or ultrapasteurized “at appropriate process conditions” in order to impart shelf stability ([0072]). Nair et al. discloses that tunnel pasteurization may occur at 175°F (79.4°C) for about 15 minutes and that ultra high temperature sterilization may occur at about 120°C -150°C (248°F -302°F) for “one second to several tens of seconds” ([0024]). Since Ferruzzi indicates a preference for sterilization at appropriate process conditions, a skilled practitioner would be motivated to consult and incorporate sterilization temperatures as taught in Nair et al. Since Nair et al. disclose various sterilization protocols that may be performed for as short as 3 seconds and as long as 15 minutes and at temperatures ranging from 175°F-302°F, any sterilization protocol that fell within those ranges would be obvious to a skilled practitioner, who would readily recognize that specific temperatures/treatment times may be adjusted as necessary to adequately sterilize the product. MPEP 2144.05 II. As such, heat treatment at a temperature of from 195°F-225°F for about 3 seconds to about 10 seconds would be obvious to a skilled practitioner.
As for the stability, Ferruzzi discloses that sterilization results in a shelf stable composition ([0072]), which suggests that the compositional material is not altered upon such sterilization. The claimed increase in catechin of less than 15% due to epimerization of (-)-epicatechin and maintained ratio between (-)-epicatechin and (-)-catechin that remains in the range of 8:1 to 11:1 upon subjecting the composition to aseptic thermal processing is thus considered obvious to a skilled practitioner.
As for claim 2, Ferruzzi discloses that sterilization results in a shelf stable composition ([0072]), which suggests that the compositional material does not degrade upon such sterilization ([0072]). The claimed retention of at least 80% of the cocoa polyphenols after subjecting the mixture to aseptic thermal processing is thus considered obvious to a skilled practitioner.
As for claim 3, Nair et al. discloses the cocoa polyphenols as being cocoa flavanols ([0013]).
As for claim 6, Ferruzzi discloses adding edible acid in an amount to achieve a pH of 2-8 ([0044]), which is considered to encompass both the isoelectric point of the protein (as detailed in paragraph (0032) of the present specification) and a pH of from 0.2 to 0.4 lower, thus rendering the claimed range obvious.
As for claim 7, Ferruzzi discloses adding edible acid in an amount to achieve a pH of about 3.5-4.0 ([0044]).
As for claim 8, Ferruzzi and Nair et al. render the method of claim 1 obvious.
The cited prior art does not explicitly disclose the beverage as retaining at least 75% of the total post-processing amount of the cocoa polyphenols after nine months of storage at room temperature.
However, the present specification discloses “the low pH increases retention of polyphenols over the shelf life of the composition,” resulting in a beverage having the claimed shelf-life properties ([0036]). Ferruzzi discloses the pH of the beverages may preferably range “from about 2.7 to about 4.2” ([0044]). Nair et al. discloses the beverages containing cocoa-polyphenols as being stable for at least six months at room temperature ([0004], [0010]).
A skilled practitioner would find the production of a beverage having the claimed stability properties to be obvious in light of the teachings of Ferruzzi and Nair et al. Ferruzzi discloses the preferred pH of the beverage ([0044]) is comparable to that indicated by the present specification as providing the necessary shelf life of the product ([0032], [0036]). Nair et al. discloses multiple techniques for increasing the shelf-life of a beverage, including aseptic processing ([0010]), filtering, irradiating and heating ([0004]). Since a beverage having the claimed components is considered obvious and the pH is comparable to that indicated as providing the requisite stability, any resulting stability is considered obvious as well. A skilled practitioner would thus find the claimed stability properties to be obvious.
As for claim 9, Ferruzzi discloses the stabilizer is pectin ([0055]).
As for claim 10, Ferruzzi discloses the edible acid as being citric acid ([0045]).
As for claim 11, Ferruzzi discloses the composition as being a ready-to-drink beverage ([0001]).
Claims 12-20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Ferruzzi (U.S. 2004/0096547 A1) in view of Nair et al. (U.S. 2007/0254068 A1), Anderson et al. (U.S. 2008/0317891 Al), Nijhuis et al. (U.S. 7,201,934 B2) and Ares et al. (Ares, G., Barreiro, C., Deliza, R., Gambaro, A., "Alternatives to reduce the bitterness, astringency and characteristic flavour of antioxidant extracts," Food Research International, 42:871-878 (2009))
Regarding claim 12, Ferruzzi discloses an edible composition ([0018], [0021]) comprising a proteinaceous component ([0029]), a stabilizer ([0055]), and polyphenols including catechin, epicatechin, and their derivatives ([0042]), wherein a pH of the composition is from 2 to 8 ([0044]). Ferruzzi further discloses the edible composition comprises about 0.05-0.45 mg/g of epicatechin (specifically, from about 0.001-5%, or 0.01-50 mg/g) ([0043]).
Ferruzzi does not explicitly disclose a cocoa extract that constitutes the polyphenol components, the components as specifically being (-)-epicatechin and (-)-catechin in a ratio of 8:1 to 11:1 both before and after subjecting to aseptic thermal processing, the presence of one or more cocoa flavanol oligomers (procyanidins) ranging from 2 to 10 monomeric units, the cocoa extract as being a milled cocoa extract having a particle size of about 75 microns of less, the claimed limit on (-)-catechin increase of less than 15% after thermal processing, the specific sterilization protocol, or the pH as being from 0.2 to 0.4 lower than an isoelectric point of the proteinaceous component.
As for the polyphenol components, Nair et al. discloses a cocoa extract comprising cocoa polyphenols ([0012]) that is useful for producing a beverage ([0013]). Nair et al. also discloses that abundant flavanols include oligomeric forms, or procyanidins ([0013]).
It would have been obvious to one having ordinary skill in the art to incorporate cocoa extract comprising cocoa polyphenols according to Nair et al. into the beverage of Ferruzzi. Nair et al. discloses catechin and epicatechin are among the most abundant flavonoids in cocoa and are useful for addition to a beverage intended to counteract heart disease ([0013], [0009]). Ferruzzi indicates the addition of flavanols to a beverage is particularly preferred for the health benefits of the flavanol ([0041]). Such flavanols include catechin and epicatechin, which may be extracted from vegetables ([0042]). Ferruzzi further discloses the extraction of caffeine from cocoa ([0033]). Since Ferruzzi does not explicitly disclose natural vegetable sources from which flavanols may be extracted, a skilled practitioner would consult Nair et al. to determine an appropriate source. Since cocoa is used in Ferruzzi to extract caffeine, the additional extraction of polyphenols from cocoa would be a desirable source material, as suggested by Nair et al. The use of polyphenols extracted from cocoa that include flavanols, including procyanidins ranging from 2-10 monomeric units, is thus considered obvious to a skilled practitioner.
As for the form and ratio of the flavanols, Ferruzzi discloses that the flavanols include catechin and epicatechin ([0042]), which renders obvious (-)-epicatechin and (-)-catechin in particular. Ferruzzi also discloses that they may be used together ([0041]). As such, any relative concentration of the two components is considered obvious, including the claimed range of ratios of (-)-epicatechin to (-)-catechin of 8:11 to 11:1.
As for the cocoa extract being milled, Anderson et al. discloses milling a cocoa extract to a particle size of about 75 microns or less ([0014]). Nijhuis et al. discloses generally that particle size can be controlled to minimize large particles to avoid a gritty mouthfeel in a cocoa powder (C3, L29-L31). Ares et al. discloses that milk was “very effective” in reducing the bitterness and astringency of certain polyphenolic compounds (p. 872, § 2.2 Antioxidant extracts preparation; pp. 876-877, bridging paragraph) and suggests generally that “[t]he effectiveness of milk and sucrose in reducing the bitterness and astringency of the extracts suggest that sweetened dairy products could be interesting carriers for the development of functional foods containing polyphenolic-rich antioxidant extracts” (p. 877, § 5. Conclusions, ¶4).
It would have been obvious to one having ordinary skill in the art to mill the cocoa polyphenols according to Anderson et al. to a particle size of 75 microns or less to minimize any undesirable organoleptic properties as described in Nijhuis et al. Anderson et al. discloses milling cocoa polyphenol extracts to reduce the particle size to improve the flavor of a wide range of edible products (Abstract). Such milled cocoa extracts are thus known in the art. However, regarding milling of the cocoa extract, Anderson et al. does state: “One skilled in the art would expect that by milling bitter or astringent compounds, the compound’s increased surface area would cause increased levels of bitterness or astringency, as is observed with caffeine. Surprisingly, when the milled high CP extracts are milled to smaller particle sizes, one sees a reduction in bitterness and astringency. The same flavor improvement does not result when the milled high CP cocoa extracts are added to water or an aqueous-based system such as milk or cream.” Conversely, the present specification states: “The cocoa extract used in the compositions of the present subject matter can be milled to reduce the particle size of the extract. ... This reduced particle size provides for a further reduction in the astringency, which in turn provides for a more palatable composition.” ([0041]). Neither reference provides any additional teaching on the subject. In order to reconcile these contradicting assertions that are unsupported by evidence, the statement in Anderson et al. is first determined to not necessarily teach away from the use of milled high CP cocoa extracts in aqueous-based systems for the following reasons: (1) the “same flavor improvement” is not necessarily equivalent to “no flavor improvement”, but instead may be a measure of degree—the reduction in bitterness and astringency observed in chocolate products is greater than the reduction of bitterness and astringency in aqueous-based products, or (2) the flavor improvement in chocolate products is observed for both bitterness and astringency, while an improvement in only one of these aspects for an aqueous-based product may be fairly characterized as being not the “same flavor improvement”. This second reason is actually consistent with the statement from the present specification that indicates the reduced particle size improves astringency only, but not bitterness ([0041]). Turning to the additional prior art references, Nijhuis et al. discloses generally that particle size can be controlled to minimize large particles to avoid a gritty mouthfeel in a cocoa powder (C3, L29-L31). Nijhuis et al. thus provides an independent motivation for using a milled cocoa extract regardless of any improvement observed in the bitterness or astringency of the beverage composition, namely, improved mouthfeel due to reduced grittiness. Further, Ares et al. discloses that milk was “very effective” in reducing the bitterness and astringency of certain polyphenolic compounds (p. 872, § 2.2 Antioxidant extracts preparation; pp. 876-877, bridging paragraph) and suggests generally that “[t]he effectiveness of milk and sucrose in reducing the bitterness and astringency of the extracts suggest that sweetened dairy products could be interesting carriers for the development of functional foods containing polyphenolic-rich antioxidant extracts" (p. 877, § 5. Conclusions, ¶4). Thus, even if the milled cocoa extracts did not exhibit the “same flavor improvement” in aqueous-based systems such as milk as compared to chocolate products, the additional characteristic of milk in general for reducing bitterness and astringency of polyphenolic extracts recommends additional benefits of using milk in particular as an aqueous-based system for delivering polyphenolic extracts. In sum, the prior art as a whole is considered to render the use of a milled cocoa extract in the product of Ferruzzi obvious to a skilled practitioner, since the disclosure of Anderson et al. is inconclusive regarding any “teaching away” from the use of milled cocoa extracts in aqueous-based systems and additional motivation is shown for using cocoa extracts that have been milled. Thus, the claimed incorporation of a milled cocoa extract having a particle size of 75 microns or less in a beverage is considered obvious to one having ordinary skill in the art.
As for the stability, Ferruzzi discloses that sterilization results in a shelf stable composition ([0072]), which suggests that the compositional material is not altered upon such sterilization. The claimed increase in catechin of less than 15% and maintained ratio between (-)-epicatechin and (-)-catechin that remains in the range of 8:1 to 11:1 upon subjecting the composition to aseptic thermal processing is thus considered obvious to a skilled practitioner.
As for the sterilization protocol, Ferruzzi discloses the pH is limited to the maximum acidity for microbial inhibition ([0044]) and indicates that the beverage may be sterilized, pasteurized, or ultrapasteurized “at appropriate process conditions” in order to impart shelf stability ([0072]). Nair et al. discloses that tunnel pasteurization may occur at 175°F (79.4°C) for about 15 minutes and that ultra high temperature sterilization may occur at about 120°C -150°C (248°F -302°F) for “one second to several tens of seconds” ([0024]). Since Ferruzzi indicates a preference for sterilization at appropriate process conditions, a skilled practitioner would be motivated to consult and incorporate sterilization temperatures as taught in Nair et al. Since Nair et al. disclose various sterilization protocols that may be performed for as short as 3 seconds and as long as 15 minutes and at temperatures ranging from 175°F-302°F, any sterilization protocol that fell within those ranges would be obvious to a skilled practitioner, who would readily recognize that specific temperatures/treatment times may be adjusted as necessary to adequately sterilize the product. MPEP 2144.05 II. As such, heat treatment at a temperature of from 195°F-225°F for about 3 seconds to about 10 seconds would be obvious to a skilled practitioner.
As for the pH, Ferruzzi discloses adding edible acid in an amount to achieve a pH of 2-8 ([0044]), which is considered to encompass both the isoelectric point of the protein (as detailed in paragraph (0032) of the present specification) and a pH of from 0.2 to 0.4 lower, thus rendering the claimed range obvious.
As for claim 13, Ferruzzi discloses that the flavanol comprises from about 0.001% to about 5% of the beverage ((0043]), which corresponds to a concentration of 0.01-50 mg/ml. The present specification discloses a serving may be between 50 to 250 ml (0039). The claimed limitation of (-)-epicatechin, (-)-catechin, and a procyanidin of at least 100 mg/serving is considered to claim a range of concentrations from 100mg/250m1 to 100mg/50ml, or 0.4-2 mg/ml. The range disclosed in Ferruzzi of 0.01-50 mg/ml therefore renders the claimed range of 0.4-2 mg/ml (i.e., 100 mg/serving) obvious to a skilled practitioner.
As for claim 14, Ferruzzi and Nair et al. render the composition of claim 12 obvious.
The cited prior art does not explicitly disclose the composition as retaining at least 75% of the total post-processing amount of the cocoa polyphenols after nine months of storage at room temperature.
However, the present specification discloses “the low pH increases retention of polyphenols over the shelf life of the composition,” resulting in a beverage having the claimed shelf-life properties ([0036]). Ferruzzi discloses the pH of the beverages may preferably range “from about 2.7 to about 4.2” ([0044]). Nair et al. discloses the beverages containing cocoa-polyphenols as being stable for at least six months at room temperature ([0004], [0010]).
A skilled practitioner would find the production of a beverage having the claimed stability properties to be obvious in light of the teachings of Ferruzzi and Nair et al. Ferruzzi discloses the preferred pH of the beverage ([0044]) is comparable to that indicated by the present specification as providing the necessary shelf life of the product ([0032], [0036]). Nair et al. discloses multiple techniques for increasing the shelf-life of a beverage, including aseptic processing ([0010]), filtering, irradiating and heating ([0004]). Since a beverage having the claimed components is considered obvious and the pH is comparable to that indicated as providing the requisite stability, any resulting stability is considered obvious as well. A skilled practitioner would thus find the claimed stability properties to be obvious.
As for claim 15, Ferruzzi discloses the composition as being a ready-to-drink beverage ([0001]).
As for claim 16, Ferruzzi discloses the ready-to-drink beverage as being a non-chocolate flavored beverage ([0015], where “unflavored milks” indicates the beverage is non-chocolate; [0091], where the inclusion of syrups or chocolate pieces is considered optional).
As for claim 17, Ferruzzi discloses the ready-to-drink beverage as being a dairy-based beverage ([0001], [0015]).
As for claim 18, Ferruzzi discloses the product may be a beverage comprising at least 60% water, a beverage concentrate comprising from 20-60% water, and an essentially dry composition comprising less than about 20% water ([0020]). As such, Ferruzzi effectively discloses a range of water content for the product, which would include a water content at which the product would be considered a gel—i.e., a water content at some point between a product considered essentially dry and the fully diluted beverage.
As for claim 19, Ferruzzi discloses the proteinaceous component as being animal milk ([0029]).
As for claim 20, Ferruzzi discloses the stabilizer is pectin ([0055]).
Response to Arguments
Claim Rejections - 35 U.S.C. § 103 of claims 1-3 and 6-11 over Ferruzzi and Nair et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that “sterilization/pasteurization procedures are well-established and vary depending on the type of product and the desired shelf stability” in asserting that the disclosure of Nair et al. should not be considered sufficient to deem the claimed aseptic thermal processing step obvious (Applicant’s Remarks, p. 7, ¶3 – p. 8, ¶1). Applicant argued that despite the plain language in Ferruzzi at paragraph [0072] that pasteurization may be used to produce a shelf-stable product, a skilled practitioner would not consider pasteurization to actually result in a shelf-stable product (i.e., one that can be stored at room temperature) but would instead consult an additional reference for instruction regarding adequate treatment of milk-based products (Applicant’s Remarks, p. 8, ¶2-¶3). Applicant noted that Nair et al. is directed to a composition that does not comprise milk products, which would allegedly undermine applying the conditions to a milk-based drink, such as that of Ferruzzi (Applicant’s Remarks, p. 8, ¶4 – p. 9, ¶1). Applicant asserted that only “conventional sterilization conditions for milk-based drinks” would be used in sterilization of the product of Ferruzzi (Applicant’s Remarks, p. 9, ¶2). Applicant asserted that Nair discloses separate pasteurization and sterilization protocols that should not be considered instructive for intermediate conditions (Applicant’s Remarks, p. 9, ¶3). Applicant then asserted that the claimed aseptic thermal processing conditions must simultaneously sterilize the composition, while also limiting epimerization of cocoa flavanols (Applicant’s Remarks, p. 9, ¶4 – p. 10, ¶1).
However, Applicant’s arguments are unpersuasive for the following reasons: (i) they are narrower in scope than the claims, (ii) they rely on an improperly narrow interpretation of the disclosure of Ferruzzi, and (iii) Exhibit A is limited to commercial processes.
Regarding the disparity in scope between claim 1 and Applicant’s arguments, the claimed method merely requires that the claimed steps are performed. The method does not require (i) that shelf-stability is achieved by the claimed aseptic thermal processing step, (ii) that the starting material is a milk-based beverage or otherwise susceptible to spoilage, (iii) that any of the components have not already been sterilized prior to use in the claimed method, (iv) that no additional sterilization may be performed following completion of the claimed steps, or (v) concentrations or types of numerous components: “stabilizer”, “proteinaceous component”, liquid (if any), edible acid, cocoa extract, or cocoa polyphenols. Applicant’s arguments rely on a much narrower process than what is actually claimed, such that the considerations asserted by Applicant would not necessarily occur for numerous embodiments of the claimed process.
Regarding the aseptic thermal processing step, the claimed method merely requires the material to be subjected to a temperature within the claimed range for about 3-10 seconds. The method does not preclude additional heat treatment or additional processing. The breadth of the claim in this regard weighs in favor of finding the combination of Ferruzzi and Nair et al. adequate in deeming the claimed treatment obvious. Ferruzzi discloses treatment in a general sense, providing essentially no instructive limitations regarding actually performing the process. Such generality contributes to the obviousness determination in that a skilled practitioner would recognize that heat treatment steps will impart shelf stability and that determination of such “appropriate process conditions” is well within the ordinary skill in the art. Heating to a temperature and for a time within the general confines of conventional heat treatment protocols would be obvious, and consequently, no time/temperature protocol within those known in the art would rise to being nonobvious. To the extent a time/temperature protocol was insufficient for achieving the desired stability, a skilled practitioner would simply increase the intensity of the treatment, whether in terms of the temperature, treatment time, or both. If such conditions detrimentally affected other ingredients, then the heat treatment would be lessened as necessary. All such modifications are within the ordinary skill in the art, and no such combination of conditions would be considered nonobvious.
Exhibit A is titled “Heat Process Values F (2nd Ed.) for several Commercial Pastuerization and Sterilization Processes: Overview, Uses, and Restrictions”. Commercial applications would potentially be subject to considerations that do not weigh into the patentability analysis, including economic considerations. MPEP 2145 VII (“The fact that a ‘combination would not be made by businessmen for economic reasons’ does not mean that a person of ordinary skill in the art would not make the combination because of some technological incompatibility.”). At the least, the processes taught in Exhibit A are not considered limiting in terms of whether a particular heat treatment process should be deemed non-obvious.
Further, Ferruzzi and Nair et al. are combined on the basis of the utility of catechin and epicatechin in food products. That Nair et al. is not directed to a milk product does not preclude reliance on its disclosure regarding heat treatment parameters suited for pasteurization/sterilization.
The rejections of claims 1-3 and 6-11 have been maintained herein.
Claims 12-20 over Ferruzzi, Nair et al., Anderson et al., and Ares et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant asserted that the newly claimed aseptic thermal processing step addressed Examiner’s statement in paragraph 32 of the previous Office Action that the absence of such a step rendered the catechin/epicatechin concentration limitations obvious (Applicant’s Remarks, p. 10, ¶5 – p. 11, ¶1).
However, paragraph 32 of the previous Office Action noted the absence of the aseptic thermal processing step as merely a secondary issue. Examiner maintains that the disclosure in Ferruzzi suggests that the compositional material is not altered upon sterilization.
Applicant then reasserted arguments presented previously in relation to claim 1 and asserted that the additional secondary references fail to cure the alleged deficiencies of Ferruzzi and Nair et al. (Applicant’s Remarks, p. 11, ¶2-¶4).
Examiner maintains that such arguments are unpersuasive for the reasons detailed previously herein. Examiner further maintains the additional prior art references are adequate for all that is relied on in the present claim rejections, as well as that no deficiency exists in the combination of Ferruzzi and Nair et al.
The rejections of claims 12-20 have been maintained herein.
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.
Claims 1-3 and 6-20 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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