DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed May 19, 2026 has been entered. Claims 1-8, 10, 14, 17, 18, 21-24, 27-30 and 32-38 are pending.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-8, 10, 14, 17, 18, 21-24, 27-30 and 32-38 are rejected under 35 U.S.C. 103 as being unpatentable over Popplewell et al. (CN 104837353 – English Transition provided in IDS filed July 11, 2025) in view of Anandharamakrishnan et al. (“1. Introduction to spray drying”, Spray Drying Techniques for Food Ingredient Encapsulation, John Wiley & Sons, 2015, pp. 1-33).
Regarding claims 1-8, 10, 14, 17, 18, 21-24 and 32-36, Popplewell et al. disclose spray-dried flavor compounds encapsulated in a carrier wherein the flavor is a citrus oil and the carrier modified starch (i.e., spray-dried encapsulated flavors – Abstract, p. 2/Summary of the invention, p.3/Detailed description of the invention). Popplewell et la. disclose the spray-dried flavor compounds are made by a process comprising the steps of: (a) preparing an emulsion of flavor and carrier material in a solvent; and (b) spray drying the emulsion in a commercial spray dryer (i.e., single-step spray drying apparatus) at an inlet temperature of less than 100°C to produce a spray-dried flavor with an average particle size ranging from 10 µm to 200 µm (p. 3/Detailed description of the invention).
While Popplewell et al. disclose a spray dried flavor (i.e., spray-dried encapsulated flavor powder) comprising a flavor ingredient and carrier material produced using a single stage spray dryer at an inlet temperature of less than 100°C and having an average particle size ranging from 10 µm to 200 µm, the reference is silent with respect to the dispersing medium dissolution time, dispersing medium dispersion time, particle size distribution, average particle size, surface area, large-scale voids, spherical form, elongate form, eccentricity, flavor component retention level and an angle of repose.
Anandharamakrishnan et al. teaches spray drying is a 140 year old method of liquid drying which has the ability to handle feedstock of varying nature, producing flowing powders of specific particle size, high productivity and versatile applications (p. 1/1.1 Introduction).
Anandharamakrishnan teaches the liquid feed entering the spray dryer undergoes four stages: (a) atomization of the feed solution; (b) contact of spray with the hot gas; (c) evaporation of moisture; and (d) particle separation and each exerts influence on the final product quality (p. 1/1.1 Introduction).
Anandharamakrishnan et al. teaches particle morphology affect particle size distribution, flowability, friability, moisture content and bulk and particle density (p. 17-18/1.6 Morphology of Spray Dried Particles). In turn, Anandharamakrishnan et al. teaches feed flow rate effects the size of the particles in the final product (p. 12/Box 1.1).
Anandharamakrishnan et al. teaches lower inlet temperature reduces the wet-bulb temperature of the surrounding hot air, and prevent the degradative losses of the active compounds during the initial stages of spray drying (p. 24-25/1.8.2 Inlet Temperature).
Anandharamakrishnan et al. clearly establishes that parameters of the spray drying process can be optimized to obtain spray-dried particles with desired properties. One of ordinary skill in the art prior to the effective filing date of the present invention would have adjusted, in routine processing, the spray-drying parameters in the process of Popplewell et al. to obtain a spray- dried flavor with desired characteristics including dispersing medium dissolution time, dispersing medium dispersion time, particle size distribution, average particle size, surface area, particle void volume, large-scale voids, spherical form, elongate form, eccentricity, flavor component retention level, surface oil percentage and an angle of repose.
Regarding claims 37 and 38, modified Popplewell disclose all of the claim limitations as set forth above.
Popplewell et al. disclose spray-dried flavor compounds encapsulated in a carrier wherein the flavor is a citrus oil and the carrier modified starch (i.e., spray-dried encapsulated flavors – Abstract, p. 2/Summary of the invention, p.3/Detailed description of the invention). Popplewell et la. disclose the spray-dried flavor compounds are made by a process comprising the steps of: (a) preparing an emulsion of flavor and carrier material in a solvent; and (b) spray drying the emulsion in a commercial spray dryer (i.e., single-step spray drying apparatus) at an inlet temperature of less than 100°C to produce a spray-dried flavor with an average particle size ranging from 10 µm to 200 µm (p. 3/Detailed description of the invention).
While Popplewell et al. does not disclose the precisely claimed steps of obtaining the spray-dried flavor compounds, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. If the product in the product-by-process claims is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process (MPEP §2133 I).
Response to Amendment
The Declaration under 37 CFR 1.132 filed May is insufficient to overcome the rejection of claims 1-8, 10, 14, 17, 18, 21-24, 27-30 and 32-38 under 35 U.S.C. 103 as being unpatentable over Popplewell et al. (CN 104837353 – English Transition provided in IDS filed July 11, 2025) in view of Anandharamakrishnan et al. (“1. Introduction to spray drying”, Spray Drying Techniques for Food Ingredient Encapsulation, John Wiley & Sons, 2015, pp. 1-33) as set forth in the last Office action.
Declarant provides experimental results to show the spray-dried powders of Popplewell et al. fail to produce the spray-dried encapsulated flavor powder of the present invention.
The experimental results show spray-dried powders made at 40% and 60% solids using starch/carbohydrate (carrier), water (solvent) and lemon flavor (flavor). The experimental spray-dried flavors were processed an inlet temperature of less than 100⁰C in a spray drier having an interior volume of 175.7 cubic feet. Declarant suggests the spray-dried flavor of Popplewell et al. does not exhibit characteristics (A)-(H) as required by claim 1.
The results are unpersuasive.
First, it is not clear the results fairly represent the breadth of the invention disclosed by Popplewell et al. Popplewell disclose an array of different carriers, solvents and flavors. Does using all types of carriers and/or solvents disclosed by Popplewell et al. result in a spray dried flavor comprising parameters A-F as provided in Table 4 of the Declaration?
Second, the exact experimental parameters are unclear. What is the composition of the starch/carbohydrate carrier? Is the starch modified? What is the ratio of starch to carbohydrate in the carrier? What inlet temperature was chosen? Was the temperature 99⁰C or 85⁰C? What were the additional conditions of the spray drying process (e.g., humidity, pressure, ? Was a spray nozzle or a rotary atomizer employed?
The presented results are outweighed by the narrow scope of the results and lack of clarity surrounding the experimental parameters. Moreover, given the Popplewell et al. disclose a process of spray drying a flavor with substantially the same parameters as disclosed in the present invention, it is not clear what processing parameters make the spray-dried powders of the present invention. Does the present invention use a different solids content than Popplewell?
Declarant recognizes the disclosure in Popplewell et al. which states the viscosity of the feed slurry should be less than 500cps when suing spray nozzles and less than 70,000cps when using a rotary atomizer (Paragraph 8 of Declaration). Declarant notes a viscosity of 70,000 cps appears to be an impracticable emulsion property for carrying out spray drying. Declarant also explains how it is not possible to make a slurry having a viscosity of 70,000 cps (paragraph 8 of Declaration).
It is not clear how a viscosity as taught by Popplewell et al. is relevant to the present rejection. Popplewell et al. is not applied to teach the use of a rotary atomizer but rather a spray nozzle. In other words, the Examiner is not applying this disclosure to teach the product by process parameters of claim 37. Popplewell et al. teaches using a spray nozzle having a viscosity of less than 500 cps.
Note claim 37 allows for a feed slurry have a viscosity in a range of from 300 mPa-2 to 28,000 mPa-s (wherein 1 mPa-s = 1 cps).
Response to Arguments
Applicant's arguments filed May 19, 2026 have been fully considered but they are not persuasive.
See Response to Amendment set forth above.
Applicant questions how Anandharamakrishnan et al. “specifically and rigorously teach optimizing a spray drying process so that a correspondingly optimized spray-dried encapsulate flavor powder would be produced by such optimized spray drying process wherein the optimized spray-dried encapsulated flavor powder work [sic] exhibit the characteristics of . . .” (A)-(F) in claim 1.
Certainly, the teaching of Anandharamakrishnan et al. does not specifically teach how to optimize or affect each of the characteristics required by claim 1. However, Anandharamakrishnan et al. teaches there are many variables to be considered in a spray-drying process and altering one or more of the variables can alter the properties of the spray-dried product.
Applicant argues Anandharamakrishnan et al. teaches against low inlet temperatures.
Here, at Section 1.8,2, Anandharamakrishnan et al. teach higher inlet temperature is favorable in terms of achieving higher throughput of spray dryers. However, a lower value of the inlet temperature reduces the we-bulb temperature of the surrounding hot air, and prevents the degradative losses of the active compounds during the initial stages of spray drying (p. 24-25). Anandharamakrishnan et al. also states the trade-off between the aforementioned circumstances is important in deciding an optimal inlet temperature for the spray drying process (p. 25). Figure 1.20 (p. 24) shows how spray dry inlet temperature influences the wet-bulb temperature of the gas. Figure 1.20 is not intended to restrict the range of operative inlet temperatures for spray-drying.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Finney et al. (“Effects of Type of Atomization and Processing Temperatures on the Physical Properties and Stability of Spray-Dried Flavors”, Journal of Food Science, Vol 67, Nr. 3, (2002), p. 1108-1114) teaches how the type of atomization and inlet temperature influences physical properties and oxidative stability of encapsulated flavor in a modified starch matrix.
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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