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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 9, 2025 has been entered.
Claims 37 and 38 are new. Claims 1-8, 10, 14, 17, 18, 21-24, 27-30 and 32-38 are pending examination.
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 32-36 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 Arguments
Applicant's arguments filed November 9, 2025 have been fully considered but they are not persuasive.
Applicant explains Popplewell et al. describes spray drying of flavor composition at low temperature so that “volatile compounds are present in the spray-dried flavor composition in an amount that is at least 20% of the volatile compounds originally contain in the flavor” Applicant submits “20% retention of the flavor components in the spray-dried flavor composition is a low retention levels, corresponding to 80% loss of the flavor components, and indicative of low efficiency processing.” Applicants submit, while Popplewell et al. discloses “retention levels above 20% all such levels are relatively low and reflect inferior processing efficiency.”
Here, it is not clear at what level of retention would constitute “inferior processing efficiency.” Regardless, Popplewell et al. discloses retention is amount of at least 20% of the volatile compounds. A range of “at least 20%” includes applicants claimed flavor component retention level of at least 90% - 99/9%. Note, claims 1-31 and 33-38 do not require a spray-dried encapsulated flavor powder comprising a specific flavor component retention level.
Applicant explains, as shown by Fig 5 of Popplewell et al., “the drying system employed by Popplewell includes a spray dryer chamber with which is associate a fluidized be to product “DRY PRODUCT”.” Essentially, Applicants find the product of the spray drying operation of Popplewell et al. is wet and necessitates additional fluidized bed processing.
The present claim set is directed to a spray-dried encapsulated flavor powder. The present claims are not directed to a method of obtaining a spray-dried encapsulated flavor powder. There is no evidence on the record demonstrating that the differences in the process of Popplewell et al. would result in a different product than is claimed. Again, it is noted claim 1 does not require the spray-dried encapsulated flavor powder have a specific flavor component flavor retention level.
Applicants find “Anandharamakrishnan (“Introduction to spray drying”) is a survey article of spray drying technology, but provides no guidance or direction that would yield the spray-dried encapsulated flavor powder of the applicant’s invention.” Applicant submits “Anandharamakrishnan et al. teach spray drying at inlet temperatures that are (1) different to and inconsistent with the spray drying temperature taught by Popplewell and (2) far above the temperature that are employed for producing the spray-dried encapsulated flavor powders of the applicant’s claimed invention.
Note, that while Anandharamakrishnan et al. do not disclose all the features of the present claimed invention, Anandharamakrishnan et al. is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely the parameters of the spray drying process can be optimized to obtain spray-dried particles with desired properties, and in combination with the primary reference, discloses the presently claimed invention.
Conclusion
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759