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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on January 23, 2026 was filed after the mailing date of the Office Action mailed on January 23, 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 42 and 44 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 42 recites the limitation “wherein the extractable ground coffee is non-soluble” in lines 1-2. There was not adequate written description support at the time of filing for the extractable ground coffee to be non-soluble. The disclosure at the time of filing discloses ground coffee powder, but never associates the ground coffee powder to be non-soluble and also does not specify any particular solubility properties of the ground coffee. Therefore, this limitations constitutes new matter.
Claim 44 recites the limitation “wherein the extractable ground coffee is non-soluble” in lines 1-2. There was not adequate written description support at the time of filing for the extractable ground coffee to be non-soluble. The disclosure at the time of filing discloses ground coffee powder, but never associates the ground coffee powder to be non-soluble and also does not specify any particular solubility properties of the ground coffee. Therefore, this limitations constitutes new matter.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16, 18, 20, 22, and 39-45 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 16 recites the limitation “wherein the core material comprises extractable ground coffee powder” in line 4. Given that applicant asserts on Page 8 of the Remarks filed June 11, 2025 that ground coffee powder belongs to the group of non-soluble coffee preparations and that applicant also discloses that a coffee extract can be derived from an instant coffee (Specification, Page 10, lines 5-12) and also asserts that “instant coffee” is a type of product dissolvable in water, it is unclear how the term “extractable ground coffee powder” is being used in the context of the claims. It is unclear if “extractable ground coffee powder” is a soluble product or if “extractable ground coffee powder” is an insoluble product. Given that applicant argues on Page 8 of the Remarks filed June 11, 2025 that instant coffee or soluble coffee can be dissolved in water whereas coffee powder is the product of grinding roasted coffee beans and is a solid and/or swellable material that is not soluble in water but extractable, it is unclear what solubility levels reads on the claimed “extractable ground coffee powder.” Furthermore, Fisk et al. US 2013/0156898 discloses a beverage cartridge comprising ingredients such as powdered roast and ground coffee wherein the ingredients are partially or wholly insoluble or partially or wholly soluble (‘898, Paragraph [0038]). Again, it is unclear what solubility levels are required of the claimed “extractable ground coffee powder” in view of the disclosure by Fisk et al. that roast and ground coffee can be partially or wholly insoluble or partially or wholly soluble.
Claim 39 recites the limitation “wherein the core material is selected from a group consisting of extractable ground coffee powder” in lines 4-5. Given that applicant asserts on Page 8 of the Remarks filed June 11, 2025 that ground coffee powder belongs to the group of non-soluble coffee preparations and that applicant also discloses that a coffee extract can be derived from an instant coffee (Specification, Page 10, lines 5-12) and also asserts that “instant coffee” is a type of product dissolvable in water, it is unclear how the term “extractable ground coffee powder” is being used in the context of the claims. It is unclear if “extractable ground coffee powder” is a soluble product or if “extractable ground coffee powder” is an insoluble product. Given that applicant argues on Page 8 of the Remarks filed June 11, 2025 that instant coffee or soluble coffee can be dissolved in water whereas coffee powder is the product of grinding roasted coffee beans and is a solid and/or swellable material that is not soluble in water but extractable, it is unclear what solubility levels reads on the claimed “extractable ground coffee powder.” Furthermore, Fisk et al. US 2013/0156898 discloses a beverage cartridge comprising ingredients such as powdered roast and ground coffee wherein the ingredients are partially or wholly insoluble or partially or wholly soluble (‘898, Paragraph [0038]). Again, it is unclear what solubility levels are required of the claimed “extractable ground coffee powder” in view of the disclosure by Fisk et al. that roast and ground coffee can be partially or wholly insoluble or partially or wholly soluble.
Claim 39 recites the limitation “wherein the cladding material is non-dissolvable” in line 10. The term “non-dissolvable” is a relative term which renders the claim indefinite. The term “non-dissolvable” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what solubility properties reads on a “non-dissolvable” material. For purposes of examination Examiner interprets any cladding material containing any of the materials claimed, e.g. CMC, MFC, sodium alginate, pullulan, and/or chitosan to read on the claimed non-dissolvable cladding material.
Claim 39 recites the limitation “wherein the cladding material retains a stable shape during extraction with water at up to 100°C and an extraction time of up to 3 min” in lines 10-12. The term “stable shape” is a relative term which renders the claim indefinite. The term “stable shape” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unknown what differentiates a “stable” shape from an instable shape.
Claim 39 recites the limitation “such that the capsule can be ejected or removed from a beverage preparation machine without difficulty after beverage preparation” in lines 12-14. The term “without difficulty” is a relative term which renders the claim indefinite. The term “without difficulty” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unknown what constitutes a “not difficult” removable of the capsule form the beverage preparation machine.
Claim 42 recites the limitation “wherein the extractable ground coffee is non-soluble” in lines 1-2. Ryder et al. US 4,076,855 discloses that coffee extracts obtained from extraction processes contain considerable amounts of material which are relatively insoluble except in high temperature mediums and some of these insoluble are soluble to a degree in heated mediums (‘855, Column 1, lines 16-25). The solubility of a substance depends on the temperature at which the substance is placed into an aqueous medium as evidenced by Ryder et al. It is unclear at what temperature(s) the extractable ground coffee is non-soluble. It is also unclear what solubility properties reads on the claimed “non-soluble” term.
Claim 44 recites the limitation “wherein the extractable ground coffee is non-soluble” in lines 1-2. Ryder et al. US 4,076,855 discloses that coffee extracts obtained from extraction processes contain considerable amounts of material which are relatively insoluble except in high temperature mediums and some of these insoluble are soluble to a degree in heated mediums (‘855, Column 1, lines 16-25). The solubility of a substance depends on the temperature at which the substance is placed into an aqueous medium as evidenced by Ryder et al. It is unclear at what temperature(s) the extractable ground coffee is non-soluble. It is also unclear what solubility properties reads on the claimed “non-soluble” term.
Claim 45 recites the limitation “wherein the cladding material is non-dissolvable” in lines 1-2. The term “non-dissolvable” is a relative term which renders the claim indefinite. The term “non-dissolvable” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what solubility properties reads on a “non-dissolvable” material. For purposes of examination Examiner interprets any cladding material containing any of the materials claimed, e.g. CMC, MFC, sodium alginate, pullulan, and/or chitosan to read on the claimed non-dissolvable cladding material.
Claim 45 recites the limitation “wherein the cladding material retains a stable shape during extraction with water at up to 100°C and an extraction time of up to 3 min” in lines 2-4. The term “stable shape” is a relative term which renders the claim indefinite. The term “stable shape” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unknown what differentiates a “stable” shape from an instable shape.
Claim 45 recites the limitation “such that the capsule can be ejected or removed from a beverage preparation machine without difficulty after beverage preparation” in lines 4-5. The term “without difficulty” is a relative term which renders the claim indefinite. The term “without difficulty” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unknown what constitutes a “not difficult” removable of the capsule form the beverage preparation machine.
Clarification is required.
Claims 18, 20, 22, 40-41, and 43 are rejected as being dependent on a rejected base claim.
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 16, 18, 20, 33, 35-36, 39-41, 43, and 45 are rejected under 35 U.S.C. 103 as being unpatentable over Belville et al. EP 0 229 920 in view of Andreae et al. US 2017/0008694, Siegel et al. US 2011/0081451, Cabrera et al. US 2005/0020744, Best et al. US 2005/0118311, and Ventouras US 4,784,858.
Regarding Claim 16, Belville et al. discloses a capsule (tablet) capable of preparing a beverage (‘920, Page 9, lines 8-13). The capsule (tablet) comprises a core material (roast and ground coffee) compressed under pressure (‘920, Page 12, lines 12-18) to form a compact (tablet) (‘920, Page 11, lines 2-13). Belville et al. further discloses the core material comprises extractable ground coffee powder (‘920, Page 1, lines 2-6). It is noted that applicant discloses an embodiment wherein the compacted ground coffee powder has a moisture content of 3.5% (Specification, Page 14, lines 30-32). Since Belville et al. teaches an embodiment of the ground coffee bulk material having a moisture content of 4% (‘920, Page 11, lines 2-6) and also broadly teaches the mass of roast and ground coffee being between about 3 to about 6% by weight (‘920, Page 5, lines 4-9) and since applicant also argues on Page 7 of the Remarks filed on June 11, 2025 that roasted coffee stored at a moisture content below 5% is shelf stable, the compacted ground coffee powder having a moisture content of between about 3 to about 6% broadly reads on the claimed extractable ground coffee powder. It is noted that the claim does not specify any particular moisture content of the ground coffee powder. Belville et al. also discloses the tablet being extractable (‘920, Page 4, lines 3-10). A cladding material (coating material) continuously encases the compact wherein the cladding material (coating material) is a polysaccharide (modified starches) (‘920, Page 7, lines 34-39) (‘920, Page 8, lines 1-6).
Belville et al. is silent regarding the capsule being compostable and the cladding material of modified starches that encases the compact to be a compostable non-crosslinked polysaccharide.
Andreae et al. discloses a compostable capsule (capsule 1) (‘694, Paragraphs [0026] and [0055]-[0056]) capable of preparing a beverage (coffee) (‘694, Paragraph [0058]). The compostable capsule (capsule 1) comprises a core material of a bulk material (ground coffee) (‘694, Paragraph [0039]). Andreae et al. further discloses a cladding material (barrier layer against oxygen) encasing the core material (ground coffee) wherein the cladding material (barrier layer against oxygen) is a compostable polysaccharide (starch or chitosan or cellulose) (‘694, Paragraphs [0012], [0027], and [0029]) and that manufacturing all components of the capsule from completely compostable materials results in a significant environmental advantage by keeping the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]).
Both Belville et al. and Andreae et al. are directed towards the same field of endeavor of beverage capsules for making a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of Belville et al. and construct the capsule entirely out of compostable materials including a compostable cladding material in the form of a barrier layer against oxygen made from a compostable polysaccharide as taught by Andreae et al. in order to keep the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]). Furthermore, 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). Andreae et al. teaches that there was known utility in the coffee capsule art to construct coffee capsules entirely out of biodegradable materials for environmentally friendly purposes.
Further regarding Claim 16, Belville et al. discloses the capsule having a continuous layer of coating (‘920, Page 3, lines 13-18). However, Belville et al. modified with Andreae et al. is silent regarding the continuous coating layer to seamlessly encase the compact. Belville et al. modified with Andreae et al. is also silent regarding the polysaccharide of the cladding material being non-crosslinked.
Siegel et al. discloses a capsule having a seamless shell (‘451, Paragraph [0007]) wherein the capsule is used in making coffee beverages (‘451, Paragraphs [0149]-[0152]). Cabrera et al. discloses a food coating composition (‘744, Paragraph [0099]) comprising a first and second coat wherein the second coat is applied without a visible seam after drying (‘744, Paragraph [0003]).
Modified Belville et al., Siegel et al., and Cabrera et al. are all directed towards the same field of endeavor of food shells comprising a core. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Belville et al. and construct the cladding material encasing the core with no seam as taught by Siegel et al. and as taught by the disclosure of Cabrera et al. that applying a second coat results in no visible seam after drying since matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art in view of In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (MPEP § 2144.04.I.). Siegel et al. and Cabrera et al. both teach capsules made with a cladding material encasing the core wherein the cladding material has no seam.
Further regarding Claim 16, Belville et al. modified with Andreae et al., Siegel et al., and Cabrera et al. is silent regarding the polysaccharide of the cladding material being non-crosslinked.
Best et al. discloses a flavored coating used in fat mimicry using a hydrocolloid component used in any food product where fat mimicry is desired (‘311, Paragraph [0020]) wherein the coating includes a matrix of sugar crystals and sugar glass dispersed through the flavoring agent in an amount effective to provide the coating with sufficient structural integrity to prevent flowability of the coating at temperatures less than 40°C (‘311, Paragraph [0022]) wherein the flavored coating is applied to any suitable type of food that might need a coating (‘311, Paragraph [0032]) wherein a dry hydrocolloid component is dispersed through the flavoring agent and sugar matrix to provide a slippery mouthfeel that mimics fat and disperses when in contact with saliva to mimic the melting of cocoa butter during consumption (‘311, Paragraph [0007]) wherein the hydrocolloid component includes at least one of an isolated proteinaceous material, a galactomannan, or a granular starch wherein the hydrocolloid component includes whey protein isolate, gum acacia, guar gum, and at least one starch and the hydrocolloid component includes one or more non-crosslinkable hydrocolloid (‘311, Paragraph [0008]) to readily dissolve in typical mouth temperatures and provides a cream texture, silky feeling (‘311, Paragraph [0026]).
Both modified Belville et al. and Best et al. are directed towards the same field of endeavor of coated foodstuffs comprising a coating made of a polysaccharide. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cladding coating material made of polysaccharide of modified Belville et al. and construct the polysaccharide cladding coating material out of one or more non-crosslinkable hydrocollids as taught by Best et al. since 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). Best et al. teaches that there was known utility in the food coating art to construct coatings out of non-crosslinked starch polysaccharides to provide a desired cream texture and silky feeling (‘311, Paragraph [0026]).
Further regarding Claim 16, Belville et al. discloses the cladding material comprising carbohydrates including maltodextrin and/or modified starch which disperse upon contact with hot water (‘920, Page 7, line 34-39) (‘920, Page 8, lines 1-6). However, Belville et al. modified with Andreae et al., Siegel et al., Cabrera et al., and Best et al. is silent regarding the polysaccharide of the cladding material/coating material to be carboxymethylcellulose (CMC), microfibrillated cellulose (MFC), sodium alginate, pullulan, and/or chitosan.
Ventouras discloses a controlled release tablet useful for the oral administration of water soluble pharmaceutically active substances (‘858, Column 1, lines 4-7) wherein the coating consists essential of an elastic water insoluble and semipermeable diffusion film of a polymer (‘858, column 1, lines 26-36) wherein the water insoluble swellable polymeric substance is a cellulose polymer of carboxymethylcellulose (‘858, Column 1, lines 48-57) and the coating also contains a filler to control the permeability of the active ingredient, e.g. a water soluble filler such as sodium chloride or a sugar or a swellable filler or a swellable filler (‘858, Column 2, lines 15-29).
Both modified Belville et al. and Ventouras are directed towards the same field of endeavor of orally ingestible tablets. Both orally ingestible tablets of modified Belville et al. and Ventouras contain a cladding material/coating layer wherein the cladding material/coating layer is made of carbohydrates of sugars. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cladding material/coating layer of the edible tablet of modified Belville et al. and construct the cladding material/coating layer out of carboxymethylcellulose as taught by Ventouras since 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). Ventouras teaches that it was known in the food and beverage art to make a cladding material of a coating layer of an edible tablet out of carboxymethylcellulose as the carbohydrate source of the cladding material/coating layer.
Further regarding Claim 16, the limitations regarding the core material being a compacted core that is compressed under pressure are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious form a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, applicant discloses the term “compact” to refer to a core material which has been compressed under pressure (Specification, Page 3, lines 17-19). Belville et al. discloses the core material of roast and ground coffee being compacted under pressure (‘920, Page 5, lines 4-9) to make a compressed tablet (‘920, Page 6, lines 8-15).
Regarding Claim 33, Belville et al. discloses a capsule (tablet) capable of preparing a beverage (‘920, Page 9, lines 8-13). The capsule (tablet) comprises a core material (roast and ground coffee) compressed under pressure (‘920, Page 12, lines 12-18) to form a compact (tablet) (‘920, Page 11, lines 2-13). A cladding material (coating material) continuously encases the compact wherein the cladding material (coating material) is a polysaccharide (modified starches) (‘920, Page 7, lines 34-39) (‘920, Page 8, lines 1-6).
Belville et al. discloses the core beverage ingredient being ground coffee (‘920, Page 12, lines 12-18). However, Belville et al. is silent regarding the core beverage material being milk powder.
Nickel discloses a capsule comprising a core material (compacted pellet made from a powder of coffee or milk powder) wherein the core material (compacted pellet) is obtained by pressing the powder under pressure and the core material (compacted pellet) is sheathed with a cladding material (coating layers) (‘515, Paragraph [0021]) wherein the compacted pellet contains at least one polysaccharide (‘515, Paragraph [0024]).
Both Belville et al. and Nickel are directed towards the same field of endeavor of capsules for preparing a beverage wherein the capsule comprises a core made from beverage ingredients and a cladding material in the form of coating layers applied on the surface of the beverage ingredients. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of Belville et al. and use milk powder as the beverage ingredients as taught by Nickel instead of the ground coffee disclosed by Belville et al. based upon the particular beverage ingredients and beverage desired to be made.
Further regarding Claim 33, Belville et al. modified with Nickel is silent regarding the capsule being a compostable capsule, the cladding material seamlessly encasing the compact core, and the polysaccharide of the cladding material being compostable and non-crosslinked.
Andreae et al. discloses a compostable capsule (capsule 1) (‘694, Paragraphs [0026] and [0055]-[0056]) capable of preparing a beverage (coffee) (‘694, Paragraph [0058]). The compostable capsule (capsule 1) comprises a core material of a bulk material (ground coffee) (‘694, Paragraph [0039]). Andreae et al. further discloses a cladding material (barrier layer against oxygen) encasing the core material (ground coffee) wherein the cladding material (barrier layer against oxygen) is a compostable polysaccharide (starch or chitosan or cellulose) (‘694, Paragraphs [0012], [0027], and [0029]) and that manufacturing all components of the capsule from completely compostable materials results in a significant environmental advantage by keeping the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]).
Both modified Belville et al. and Andreae et al. are directed towards the same field of endeavor of beverage capsules for making a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Belville et al. and construct the capsule entirely out of compostable materials including a compostable cladding material in the form of a barrier layer against oxygen made from a compostable polysaccharide as taught by Andreae et al. in order to keep the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]). Furthermore, 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). Andreae et al. teaches that there was known utility in the coffee capsule art to construct coffee capsules entirely out of biodegradable materials for environmentally friendly purposes.
Further regarding Claim 33, Belville et al. discloses the cladding material being a continuous coating (‘920, Page 8, lines 13-20). However, Belville modified with Nickel and Andreae et al. is silent regarding the cladding material seamlessly encasing the core and the polysaccharide of the cladding material being non-crosslinked.
Siegel et al. discloses a capsule having a seamless shell (‘451, Paragraph [0007]) wherein the capsule is used in making coffee beverages (‘451, Paragraphs [0149]-[0152]). Cabrera et al. discloses a food coating composition (‘744, Paragraph [0099]) comprising a first and second coat wherein the second coat is applied without a visible seam after drying (‘744, Paragraph [0003]).
Modified Belville et al., Siegel et al., and Cabrera et al. are all directed towards the same field of endeavor of food shells comprising a core. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Belville et al. and construct the cladding material encasing the core with no seam as taught by Siegel et al. and as taught by the disclosure of Cabrera et al. that applying a second coat results in no visible seam after drying since matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art in view of In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (MPEP § 2144.04.I.). Siegel et al. and Cabrera et al. both teach capsules made with a cladding material encasing the core wherein the cladding material has no seam.
Further regarding Claim 33, Belville et al. modified with Nickel, Andreae et al., Siegel et al., and Cabrera et al. is silent regarding the polysaccharide of the cladding material being non-crosslinked.
Best et al. discloses a flavored coating used in fat mimicry using a hydrocolloid component used in any food product where fat mimicry is desired (‘311, Paragraph [0020]) wherein the coating includes a matrix of sugar crystals and sugar glass dispersed through the flavoring agent in an amount effective to provide the coating with sufficient structural integrity to prevent flowability of the coating at temperatures less than 40°C (‘311, Paragraph [0022]) wherein the flavored coating is applied to any suitable type of food that might need a coating (‘311, Paragraph [0032]) wherein a dry hydrocolloid component is dispersed through the flavoring agent and sugar matrix to provide a slippery mouthfeel that mimics fat and disperses when in contact with saliva to mimic the melting of cocoa butter during consumption (‘311, Paragraph [0007]) wherein the hydrocolloid component includes at least one of an isolated proteinaceous material, a galactomannan, or a granular starch wherein the hydrocolloid component includes whey protein isolate, gum acacia, guar gum, and at least one starch and the hydrocolloid component includes one or more non-crosslinkable hydrocolloid (‘311, Paragraph [0008]) to readily dissolve in typical mouth temperatures and provides a cream texture, silky feeling (‘311, Paragraph [0026]).
Both modified Belville et al. and Best et al. are directed towards the same field of endeavor of coated foodstuffs comprising a coating made of a polysaccharide. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cladding coating material made of polysaccharide of modified Belville et al. and construct the polysaccharide cladding coating material out of one or more non-crosslinkable hydrocollids as taught by Best et al. since 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). Best et al. teaches that there was known utility in the food coating art to construct coatings out of non-crosslinked starch polysaccharides to provide a desired cream texture and silky feeling (‘311, Paragraph [0026]).
Further regarding Claim 33, Belville et al. discloses the cladding material comprising carbohydrates including maltodextrin and/or modified starch which disperse upon contact with hot water (‘920, Page 7, line 34-39) (‘920, Page 8, lines 1-6). However, Belville et al. modified with Andreae et al., Siegel et al., Cabrera et al., and Best et al. is silent regarding the polysaccharide of the cladding material/coating material to be carboxymethylcellulose (CMC), microfibrillated cellulose (MFC), sodium alginate, pullulan, and/or chitosan.
Ventouras discloses a controlled release tablet useful for the oral administration of water soluble pharmaceutically active substances (‘858, Column 1, lines 4-7) wherein the coating consists essential of an elastic water insoluble and semipermeable diffusion film of a polymer (‘858, column 1, lines 26-36) wherein the water insoluble swellable polymeric substance is a cellulose polymer of carboxymethylcellulose (‘858, Column 1, lines 48-57) and the coating also contains a filler to control the permeability of the active ingredient, e.g. a water soluble filler such as sodium chloride or a sugar or a swellable filler or a swellable filler (‘858, Column 2, lines 15-29).
Both modified Belville et al. and Ventouras are directed towards the same field of endeavor of orally ingestible tablets. Both orally ingestible tablets of modified Belville et al. and Ventouras contain a cladding material/coating layer wherein the cladding material/coating layer is made of carbohydrates of sugars. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cladding material/coating layer of the edible tablet of modified Belville et al. and construct the cladding material/coating layer out of carboxymethylcellulose as taught by Ventouras since 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). Ventouras teaches that it was known in the food and beverage art to make a cladding material of a coating layer of an edible tablet out of carboxymethylcellulose as the carbohydrate source of the cladding material/coating layer.
Further regarding Claim 33, the limitations regarding the core of bulk material being a compacted core that is compressed under pressure are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious form a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, applicant discloses the term “compact” to refer to a core material which has been compressed under pressure (Specification, Page 3, lines 17-19). Belville et al. discloses the core material of roast and ground coffee being compacted under pressure (‘920, Page 5, lines 4-9) to make a compressed tablet (‘920, Page 6, lines 8-15).
Regarding Claim 39, Belville et al. discloses a capsule (tablet) capable of preparing a beverage (‘920, Page 9, lines 8-13). The capsule (tablet) comprises a core material (roast and ground coffee) compressed under pressure (‘920, Page 12, lines 12-18) to form a compact (tablet) (‘920, Page 11, lines 2-13). Belville et al. further discloses the core material comprises extractable ground coffee powder (‘920, Page 1, lines 2-6). It is noted that applicant discloses an embodiment wherein the compacted ground coffee powder has a moisture content of 3.5% (Specification, Page 14, lines 30-32). Since Belville et al. teaches an embodiment of the ground coffee bulk material having a moisture content of 4% (‘920, Page 11, lines 2-6) and also broadly teaches the mass of roast and ground coffee being between about 3 to about 6% by weight (‘920, Page 5, lines 4-9) and since applicant also argues on Page 7 of the Remarks filed on June 11, 2025 that roasted coffee stored at a moisture content below 5% is shelf stable, the compacted ground coffee powder having a moisture content of between about 3 to about 6% broadly reads on the claimed extractable ground coffee powder. It is noted that the claim does not specify any particular moisture content of the ground coffee powder. Belville et al. also discloses the tablet being extractable (‘920, Page 4, lines 3-10). A cladding material (coating material) continuously encases the compact wherein the cladding material (coating material) is a polysaccharide (modified starches) (‘920, Page 7, lines 34-39) (‘920, Page 8, lines 1-6).
Belville et al. is silent regarding the capsule being compostable and the cladding material of modified starches that encases the compact to be a compostable non-crosslinked polysaccharide.
Andreae et al. discloses a compostable capsule (capsule 1) (‘694, Paragraphs [0026] and [0055]-[0056]) capable of preparing a beverage (coffee) (‘694, Paragraph [0058]). The compostable capsule (capsule 1) comprises a core material of a bulk material (ground coffee) (‘694, Paragraph [0039]). Andreae et al. further discloses a cladding material (barrier layer against oxygen) encasing the core material (ground coffee) wherein the cladding material (barrier layer against oxygen) is a compostable polysaccharide (starch or chitosan or cellulose) (‘694, Paragraphs [0012], [0027], and [0029]) and that manufacturing all components of the capsule from completely compostable materials results in a significant environmental advantage by keeping the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]).
Both Belville et al. and Andreae et al. are directed towards the same field of endeavor of beverage capsules for making a beverage. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of Belville et al. and construct the capsule entirely out of compostable materials including a compostable cladding material in the form of a barrier layer against oxygen made from a compostable polysaccharide as taught by Andreae et al. in order to keep the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]). Furthermore, 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). Andreae et al. teaches that there was known utility in the coffee capsule art to construct coffee capsules entirely out of biodegradable materials for environmentally friendly purposes.
Further regarding Claim 39, Belville et al. discloses the capsule having a continuous layer of coating (‘920, Page 3, lines 13-18). However, Belville et al. modified with Andreae et al. is silent regarding the continuous coating layer to seamlessly encase the compact. Belville et al. modified with Andreae et al. is also silent regarding the polysaccharide of the cladding material being non-crosslinked.
Siegel et al. discloses a capsule having a seamless shell (‘451, Paragraph [0007]) wherein the capsule is used in making coffee beverages (‘451, Paragraphs [0149]-[0152]). Cabrera et al. discloses a food coating composition (‘744, Paragraph [0099]) comprising a first and second coat wherein the second coat is applied without a visible seam after drying (‘744, Paragraph [0003]).
Modified Belville et al., Siegel et al., and Cabrera et al. are all directed towards the same field of endeavor of food shells comprising a core. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Belville et al. and construct the cladding material encasing the core with no seam as taught by Siegel et al. and as taught by the disclosure of Cabrera et al. that applying a second coat results in no visible seam after drying since matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art in view of In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (MPEP § 2144.04.I.). Siegel et al. and Cabrera et al. both teach capsules made with a cladding material encasing the core wherein the cladding material has no seam.
Further regarding Claim 39, Belville et al. modified with Andreae et al., Siegel et al., and Cabrera et al. is silent regarding the polysaccharide of the cladding material being non-crosslinked.
Best et al. discloses a flavored coating used in fat mimicry using a hydrocolloid component used in any food product where fat mimicry is desired (‘311, Paragraph [0020]) wherein the coating includes a matrix of sugar crystals and sugar glass dispersed through the flavoring agent in an amount effective to provide the coating with sufficient structural integrity to prevent flowability of the coating at temperatures less than 40°C (‘311, Paragraph [0022]) wherein the flavored coating is applied to any suitable type of food that might need a coating (‘311, Paragraph [0032]) wherein a dry hydrocolloid component is dispersed through the flavoring agent and sugar matrix to provide a slippery mouthfeel that mimics fat and disperses when in contact with saliva to mimic the melting of cocoa butter during consumption (‘311, Paragraph [0007]) wherein the hydrocolloid component includes at least one of an isolated proteinaceous material, a galactomannan, or a granular starch wherein the hydrocolloid component includes whey protein isolate, gum acacia, guar gum, and at least one starch and the hydrocolloid component includes one or more non-crosslinkable hydrocolloid (‘311, Paragraph [0008]) to readily dissolve in typical mouth temperatures and provides a cream texture, silky feeling (‘311, Paragraph [0026]).
Both modified Belville et al. and Best et al. are directed towards the same field of endeavor of coated foodstuffs comprising a coating made of a polysaccharide. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cladding coating material made of polysaccharide of modified Belville et al. and construct the polysaccharide cladding coating material out of one or more non-crosslinkable hydrocollids as taught by Best et al. since 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). Best et al. teaches that there was known utility in the food coating art to construct coatings out of non-crosslinked starch polysaccharides to provide a desired cream texture and silky feeling (‘311, Paragraph [0026]).
Further regarding Claim 39, Belville et al. discloses the cladding material comprising carbohydrates including maltodextrin and/or modified starch which disperse upon contact with hot water (‘920, Page 7, line 34-39) (‘920, Page 8, lines 1-6). However, Belville et al. modified with Andreae et al., Siegel et al., Cabrera et al., and Best et al. is silent regarding the cladding material being non-dissolvable wherein the cladding material retains a stable shape during extraction with water at up to 100°C and an extraction time of up to 3 min such that the capsule can be ejected or removed from a beverage preparation machine without difficulty after beverage preparation.
Ventouras discloses a controlled release tablet useful for the oral administration of water soluble pharmaceutically active substances (‘858, Column 1, lines 4-7) wherein the coating consists essential of an elastic water insoluble and semipermeable diffusion film of a polymer (‘858, column 1, lines 26-36) wherein the water insoluble swellable polymeric substance is a cellulose polymer of carboxymethylcellulose (‘858, Column 1, lines 48-57) and the coating also contains a filler to control the permeability of the active ingredient, e.g. a water soluble filler such as sodium chloride or a sugar or a swellable filler or a swellable filler (‘858, Column 2, lines 15-29). Where the claimed and 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.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 112.01.II.). Therefore, the cladding material/coating disclosed by Ventouras that is insoluble and made of carboxymethylcellulose necessarily has the same properties as claimed of being a cladding material that is non-dissolvable wherein the cladding material retains a stable shape during extraction with water at up to 100°C and an extraction time of up to 3 min such that the capsule can be ejected or removed from a beverage preparation machine without difficulty after beverage preparation.
Both modified Belville et al. and Ventouras are directed towards the same field of endeavor of orally ingestible tablets. Both orally ingestible tablets of modified Belville et al. and Ventouras contain a cladding material/coating layer wherein the cladding material/coating layer is made of carbohydrates of sugars. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the cladding material/coating layer of the edible tablet of modified Belville et al. and construct the cladding material/coating layer out of carboxymethylcellulose as taught by Ventouras since 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). Ventouras teaches that it was known in the food and beverage art to make a cladding material of a coating layer of an edible tablet out of carboxymethylcellulose as the carbohydrate source of the cladding material/coating layer.
Further regarding Claim 39, the limitations regarding the core material being a compacted core that is compressed under pressure are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious form a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Nevertheless, applicant discloses the term “compact” to refer to a core material which has been compressed under pressure (Specification, Page 3, lines 17-19). Belville et al. discloses the core material of roast and ground coffee being compacted under pressure (‘920, Page 5, lines 4-9) to make a compressed tablet (‘920, Page 6, lines 8-15).
Regarding Claims 18, 35, and 40, Belville et al. discloses the cladding material (coating material) being composed of 1 layer (‘920, Page 8, lines 13-20). Best et al. discloses the coating material to be a non-crosslinkable hydrocolloid (‘311, Paragraph [0008]).
Further regarding Claims 18, 35, and 40 the limitations “composed of the same or different compostable non-crosslinked polysaccharides” necessarily encompasses all compostable non-crosslinked polysaccharides. Since the prior art combination teaches the cladding material being composed of compostable non-crosslinked polysaccharides, the prior art combination necessarily has all the layers being composed of either the same or different compostable non-crosslinked polysaccharides.
Regarding Claims 20, 36, and 41, Belville et al. discloses the capsule being spherical in shape (‘920, Page 4, lines 34-39). Andreae et al. discloses the capsule being a compostable capsule (capsule 1) (‘694, Paragraphs [0026] and [0055]-[0056]) which results in a significant environmental advantage by keeping the waste stream under control and to deal responsibly with residual waste and to lower environmental load associated with the capsule (‘694, Paragraph [0004]).
Regarding Claim 43, Ventouras discloses the cladding material/coating to be made of carboxymethylcellulose (‘858, Column 1, lines 48-57).
Regarding Claim 45, Ventouras discloses the cladding material (coating) being non-dissolvable (insoluble) (‘858, Column 1, lines 26-36 and 48-57) wherein the cladding material (coating) is made of carboxymethylcellulose (‘858, Column 1, lines 48-57). Ventouras discloses the cladding material/coating be made of the same carboxymethylcellulose material as claimed and also discloses the cladding material/coating to be insoluble. Where the claimed and 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.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 112.01.II.). Therefore, the cladding material/coating disclosed by Ventouras that is insoluble and made of carboxymethylcellulose necessarily has the same properties as claimed of being a cladding material that is non-dissolvable.
Further regarding Claim 45, the limitations “wherein the cladding material retains a stable shape during extraction with water at up to 100°C and an extraction time of up to 3 min such that the capsule can be ejected or removed from a beverage preparation machine without difficulty after beverage preparation” are also limitations regarding the properties of the claimed cladding material. Again, Ventouras discloses the cladding material/coating be made of the same carboxymethylcellulose material as claimed and also discloses the cladding material/coating to be insoluble. Where the claimed and 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.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 112.01.II.). Therefore, the cladding material/coating disclosed by Ventouras that is insoluble and made of carboxymethylcellulose necessarily has the same properties as claimed of retaining a stable shape during extraction with water at up to 100°C and an extraction time of up to 3 min such that the capsule can be ejected or removed from a beverage preparation machine without difficulty after beverage preparation.
Claims 22 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Belville et al. EP 0 229 920 in view of Andreae et al. US 2017/0008694, Siegel et al. US 2011/0081451, Cabrera et al. US 2005/0020744, Best et al. US 2005/0118311, and Ventouras US 4,784,858 as applied to claim 16 or claim 33 above in further view of Empl US 2015/0314954.
Regarding Claims 22 and 37, Belville et al. modified with Andreae et al., Siegel et al., Cabrera et al., Best et al., and Ventouras is silent regarding the cladding material encasing the core material having a line of weakness which facilitates opening of the compostable capsule.
Empl discloses a capsule comprising a capsule base having a plurality of lines of weakness arranged on the capsule base that allows for easier perforation of the capsule (‘954, Paragraph [0023]).
Both modified Belville et al. and Empl are directed towards the same field of endeavor of coffee capsules. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Belville et al. and incorporate a line of weakness onto the cladding material that surrounds the core material as taught by Empl in order to allow for easier opening and perforation of the capsule (‘954, Paragraph [0023]).
Claims 42 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Belville et al. EP 0 229 920 in view of Andreae et al. US 2017/0008694, Siegel et al. US 2011/0081451, Cabrera et al. US 2005/0020744, Best et al. US 2005/0118311, and Ventouras US 4,784,858 as applied to claim 16 or claim 39 as further evidenced by Ryder et al. US 4,076,855 and Fisk et al. US 2013/0337123.
Regarding Claims 42 and 44, Belville et al. discloses the capsule comprising extractable ground coffee (‘920, Page 4, lines 22-33). Where the claimed and 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.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 112.01.II.). Therefore, the extractable ground coffee disclosed by Belville et al. necessarily has the same properties as claimed of being non-soluble extractable ground coffee. Furthermore, Ryder et al. provides evidence that it was known in the food and beverage art that coffee extracts obtained from extraction processes generally contain considerable amounts of material which is relatively insoluble and that ground coffee fines are insoluble complexes (‘855, Column 1, lines 16-23). Fisk et al. provides evidence that it was known in the food and beverage art that roast and ground coffee particles are known in the beverage art to be insoluble components (‘123, Paragraph [0012]). Therefore, the extractable ground coffee disclosed by Belville et al. is necessarily non-soluble.
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) relating to the term “bulk material” have been withdrawn in view of the amendments.
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) relating to the phrase “extractable ground coffee powder” and its solubility has been maintained herein.
Examiner notes that new new matter rejections under 35 USC 112(a) have been made in view of the amendments.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant’s arguments with respect to the previous obviousness rejections 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. The current rejection relies upon the secondary reference of Ventouras to teach the newly presented limitations regarding the new list of cladding materials. Claim 17, now canceled, allowed for the presence of starches and/or modified starches. The amendment deletes the terms “starches and/or modified starches” with respect to the cladding material. Therefore, the new combination of references was necessitated by amendment.
Regarding applicant’s argument on Page 9 of the Remarks that Belville teaches a water dispersible coating material which contrasts the claimed non-dissolvable cladding material, Examiner notes that the secondary reference of Ventouras teaches a cladding material/coating made of insoluble material of carboxymethylcellulose (‘858, Column 26-57) for retarding the release of an active substance within the coating (‘858, Column 3, lines 1-8). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Regarding applicant’s argument on Page 9 of the Remarks that Andreae et al. relates to a compostable capsule comprising a coated housing closed with a sealing element filled with bulked ground coffee and that there is no incentive to substitute a disintegrating coating material with a compostable material, Andreae et al. is being relied upon to teach the limitations regarding constructing the entirety of the capsule out of biodegradable materials. Andreae et al. is not being relied upon to teach the claimed material of the cladding material, which limitations are taught by Ventouras. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Applicant argues on Page 10 of the Remarks that Siegel et al. teaches coated particles and a liquid core wherein a hardened seamless shell surrounds the core, which disclosure cannot be applied to the seamless shell and seamless does not apply to the coating. Applicant continues that Cabrera et al. lacks disclosure of a non-crosslinked polysaccharide.
Examiner argues Siegel et al. discloses a capsule having a seamless shell (‘451, Paragraph [0007]) wherein the capsule is used in making coffee beverages (‘451, Paragraphs [0149]-[0152]). Cabrera et al. discloses a food coating composition (‘744, Paragraph [0099]) comprising a first and second coat wherein the second coat is applied without a visible seam after drying (‘744, Paragraph [0003]).
Modified Belville et al., Siegel et al., and Cabrera et al. are all directed towards the same field of endeavor of food shells comprising a core. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Belville et al. and construct the cladding material encasing the core with no seam as taught by Siegel et al. and as taught by the disclosure of Cabrera et al. that applying a second coat results in no visible seam after drying since matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art in view of In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) (MPEP § 2144.04.I.). Siegel et al. and Cabrera et al. both teach capsules made with a cladding material encasing the core wherein the cladding material has no seam. Cabrera et al. is not being relied to teach the limitations regarding a non-crosslinked polysaccharide. Best et al. is being relied upon to teach the limitations regarding using non-crosslinked materials. Therefore, these arguments are not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Johnson et al. US 4,931,286 discloses a pharmaceutical tablet coated with a sodium carboxymethylcellulose/plasticizer providing high gloss for such tablets (‘286, Column 1, lines 6-8) wherein other ingredients which can be incorporated in the tablet coating include colorants, opacifying materials, surfactants, stabilizers, silicas, silicones, preservative, surface treatment agents, flavorants, and other polymers deemed necessary and useful in promoting the utility, value, and ease of preparation of the tablet or of coating the tablet (‘286, Column 2, lines 25-38).
Larsson et al. WO 2013/009253 discloses an MFC containing film used as a barrier for the controlled release of active agents, drugs, taste masking agents, flavorings, food additives, food products, nutrients, vitamins or other active agents wherein the barriers are in the form of films surrounding tablets or dry capsules to be used as controlled release layers wherein the barrier material is applied on tablets with ordinary coating technologies (‘253, Page 12, lines 21-30) wherein the film comprises microfibrillated cellulose (MFC) and a water soluble agent (‘253, Page 12, lines 31-33) or without a water soluble agent wherein the water soluble agent is a hydrophilic polymer of a water soluble cellulose derivative (‘253, Page 13, lines 1-2) wherein the hydrophilic polymer is sodium alginate, chitosan, starch, polysaccharides, sodium carboxymethylcellulose, or modified starch (‘253, Page 13, lines 3-8) wherein the water soluble agent contains sugars or sugar alcohols (‘253, Page 13, lines 9-11) wherein the film contains hydrophilic polymers such as modified starch, chitosan, alginate, or other water soluble polysaccharides which may be crosslinked (‘253, Page 12, lines 12-22).
Levi et al. US 2007/0231387 discloses an orally dissolvable film coating for solid dosage forms having a core wherein the coating contains pullulan, one or more sensory cue agents, and a plasticizer (‘387, Paragraph [0001]) wherein solid dosage forms have been coated to mask objectionable flavors or odors, protect unstable core compositions, provide protection of the core through the stomach with enteric coatings, improve the appearance of the core, or separating ingredients into a core segment and a coating segment (‘387, Paragraph [0003]) wherein pullulan retains volatile sensory cue agents wherein it would be expected that high temperatures employed during manufacturing would cause the volatile sensory cue agents to volatilize during the application process, e.g. spraying or pan coating (‘387, Paragraph [0023]) wherein the orally dissolvable film coating includes other fillers or carriers such as sucrose sweeteners (‘387, Paragraphs [0032] and [0035]).
Izutsu et al. US 4,650,666 discloses a sugar coated pharmaceutical tablet composition containing pullulan in the sugar layer for the purpose of preventing brownish color change in the composition with lapse of time.
Sugimoto et al. US 2004/0197410 discloses a pullulan containing powder which uniformly contains pullulan and a non-reducing saccharide(s) composed of glucose units having an improved rate of water dissolution and retains a satisfactory resistance to humidity (‘410, Paragraph [0001]) wherein the pullulan containing powder is used as an excipient/filler for shaped products such as pullulan films/capsules and coating agents for use in food products and pharmaceuticals (‘410, Paragraph [0035]).
Seminoff et al. US 5,126,146 discloses a microporous cellulosic coating useful in combination with drug delivery systems.
Fyhr et al. EP 1 095 651 discloses a pharmaceutical tablet comprising a drug containing tablet core surrounded by a first coating or membrane consisting essentially of a water insoluble polymer having fine water soluble particles and a second hydrophilic film coating to allow the drug to be released at an essentially zero order release rate in the presence of food (‘651, Paragraph [0005]) wherein the second hydrophilic film coating consists essentially of a pharmaceutically acceptable water insoluble polymer such as methylcellulose.
Oshlack et al. US 6,024,982 discloses a sustained release tablet for oral administration comprising an intermediate release tablet core coated with a sufficient amount of a hydrophobic polymer such that the core ingredients are released from the coated tablet over an extended period of time wherein the coating comprises an aqueous dispersion of a plasticized hydrophobic polymer of ethylcellulose or the coating includes a water insoluble material of water insoluble celluloses and other nontoxic inert coating additives wherein the film coat is applied to the tablet core to achieve the desired release rate and the solvent for the hydrophobic coating material is organic or aqueous
Volpert et al. US 2007/0082049 discloses a tablet comprising a core coated with a coating featuring a mixture of a water insoluble and a water soluble cellulosic polymer having an extended release profile (‘049, Paragraph [0028]) wherein the coating comprises ethylcellulose and HPMC (hydroxypropyl methylcellulose) (‘049, Paragraph [0053]) wherein the water insoluble cellulosic polymer in the coating is present in an amount of up to about 15% weight per weight of the total formulation (‘049, Paragraph [0054]) wherein the coating is layered (‘049, Paragraph [0046]).
Barcomb US 5,547,948 discloses a compressed sugar coated pharmaceutical tablet comprising excipients to provide rapid or slow release of agents.
Qui et al. US 6,033,685 discloses a layered tablet comprising a hydrophobic barrier layer comprising polymeric materials exhibiting a high degree of swelling and gelling in an aqueous medium wherein the polymer is a cross linked sodium carboxymethylcellulose or alginate wherein the gellable polymers suitable for use in the hydrophilic barrier layer are carboxymethylcellulose wherein the barrier layer includes pharmaceutically acceptable excipients or carriers and/or fillers or extenders such as starches and sucrose.
Conte et al. US 6,294,200 discloses a tablet coated by a polymeric film soluble in water or in aqueous fluids or three layers core covered by an impermeable coating (‘200, FIG. 4) wherein the polymer of the barrier layer is carboxymethylcellulose and/or methylcellulose
Domb WO 98/03161 discloses a controlled release tablet for the oral administration of a pharmaceutically active ingredient that releases the entrapped drug in the proper releasing medium at a controlled manner without being disintegrated (‘161, Page 3) comprising a controlled release core composition comprising a pharmaceutically active ingredient incorporated into a polymeric carrier being insoluble in the medium and a release rate controlling coating surrounding the core wherein the coating comprises a water insoluble and water impermeable polymeric material having at least one channel agent dispersed in the coating wherein the channel agent is soluble in the medium and leachable from the coating upon contact with the medium to form molecular channels in the coating for passive diffusion of the pharmaceutically active ingredient via the channels at a controlled rate predetermined by the channels wherein the channeling agent of the coating includes sucrose sugars (‘161, Page 7).
Barry et al. US 5,055,306 discloses a granular sustained release pharmaceutical formulation in the form of effervescent or water dispersible tablets (‘306, Column 1, lines 6-10) comprising a coating containing sucrose (‘306, Column 9, lines 43-55) wherein the coating comprises a water insoluble but water swellable acrylic polymer and a water soluble hydroxylated cellulose derivative wherein the coating composition depends on the time over which the sustained release formulation is desired to act (‘306, Column 6, lines 33-48).
Barani EP 0 813 816 discloses a tablet for preparation of a coffee drink (‘816, Column 1, lines 3-4) comprising a pressed mixture of ground coffee having some parts which are soluble in water and other which are not and at least one hydrophile substance able to absorb water and increase in water (‘816, Column 2, lines 34-38) wherein once the tablet comes into contact with water or another liquid it expands and releases aromatic and soluble parts of the ground coffee wherein the hydrophile agent determines a modification in the tablet structure on contact with liquid (‘816, Column 2, lines 46-51) wherein the hydrophile substance is cellulose, cellulose derivatives, carboxymethylcellulose, starches, pre-gelatinized starch, starch derivatives, and/or alginate derivatives (‘816, Column 3, lines 16-24).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/ERICSON M LACHICA/Examiner, Art Unit 1792