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 .
Response to Amendment
Those rejections not repeated in this Office Action have been withdrawn.
Claims 1 and 9-10 are currently pending and rejected.
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.
Claims 1, 6, 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable and in further view of Takagaki (JP 2006-070261) in view of Kamiya (Evaluation of the Estrogenic Activity of Pueraria (Kudzu) Flower Extract and Its Major Isoflavones Using ER-Binding and Uterotrophic Bioassays) and Higuchi (US 20210153531), and in further view of Chen (CN 106215094) and in further view of Rousseau (US 20160255854), Sudo (WO 2015129648) and Lee (KR 101508929 B1).
Regarding claim 1, Takagaki teaches dried kudzu flower powder (paragraph 7 and 11-13) having a moisture content of less than 10wt% (paragraph 13), therefore overlapping with the claimed range. Takagaki teaches that the dried kudzu flower powder can be used to make a consumable beverage by extracting the dried kudzu flower powder and then filtering (see paragraph 46, 57, 63 and 77). Takagaki further teaches a way to use the dried kudzu flowers is via tea bags (see paragraph 51). In view of these teachings, it would have been obvious to one having ordinary skill in the art that Takagaki is teaching and suggesting a tea bag that only consists of a dried kudzu flower powder. That is, because at paragraph 46, 57, 63 and 77, Takagaki is immersing dried kudzu flower powder in boiling water and then filtering to obtain an extract, and since Takagaki also teaches tea bags as expedients for performing this same function, it would have been obvious to one having ordinary skill in the art to have used Takagaki’s kudzu flower powder as the only contents of a tea bag so as to forego the need for subsequent filtering.,
If it could have been construed that Takagaki was not clear in this regard, then it is also noted that Kamiya further evidence that it has been conventional to make a tea product solely from kudzu and kudzu flower (Kamiya: see the abstract: “Tea made from dried Kudzu flower is widely used in China). Therefore it would have been obvious to one having ordinary skill in the art to have packaged Takagaki’s kudzu flower powder as the sole ingredient in Takagaki’s tea bag because tea made solely from Kudzu flower has been known and using a tea bag would have made it easier to filter Kudzu flower powder after having produced the extract by contacting with boiling water as already desired by Takagaki.
Claim 1 differs from Takagaki in specifically reciting that “a median diameter of the dried Kudzu flower powder is 0.18 to 1.65mm.”
Regarding the median diameter, Higuchi teaches dried powders of an edible plant, which can be kudzu (see paragraph 26, 46 and 49, “kudzu”) and where the median particle size can be for example, 0.8mm (see paragraph 72, “d50” “800 microns or less” “700 microns or less”). Higuchi further teaches that such dried powders tend to get damp easily and the quality can deteriorate (see paragraph 2) and solves this issue by ultrasonicating the dried powder to the above median particle size range together with the bulk density associated therewith (see paragraph 11 and 12). Higuchi also teaches a moisture content of 10% or less (see paragraph 59). On page 10, Table 3 of Higuchi also teaches that the moisture content of the powder reaches 10% after a given period of time (see 3rd column from right), which further teaches and suggests that Higuchi’s teachings of a moisture content of 10% or less would suggest moisture contents lower than 8%.
To therefore modify Takagaki, and to provide a median particle size of the powder to be 0.8mm by ultrasonicating the powder would have been obvious to one having ordinary skill in the art for also preventing the powder from getting moist or damp, and for minimizing deterioration of the quality of the product.
Further regarding the moisture content, Chen teaches powder compositions that can comprise kudzu flower powder at a moisture content of 5-10% (see paragraph 17 and 18) contained within tea bags (paragraph 19). The reference is suggesting that it has been conventional to dry kudzu flower powder to a moisture content that is 8% by weight or less, as claimed.
To therefore modify the Takagaki such that the kudzu flower powder has a moisture content of less than 8% as suggested by Takagaki and Higuchi would have been obvious to one having ordinary skill in the art based on conventional moisture contents for similar types of powders and because Higuchi teaches that elevated amounts of moisture can deteriorate the quality of the powdered food (see Higuchi paragraph 2).
Claim 1 differs from Takagaki in specifically reciting an aerated bulk density of 0.2 g/mL or more; a compression degree of the dried Kudzu flower powder is 11% or more; and a specific surface area of the dried Kudzu flower powder of 0.4 m^2/g or more.
It is initially noted that the claims only require a minimum aerated bulk density, compression degree and specific surface area without an upper limit.
Regarding the aerated bulk density and the compression degree, Higuchi teaches a ratio of loose (aerated) bulk density to tight (packed) bulk density is 0.85 or less, such as 0.75 (see paragraph 65 and 66) for the purpose of having favorable drying properties which is less likely to be damped (see paragraph 12 and 61). On table 3, Higuchi is also teaching and suggesting a loose (i.e. aerated) bulk density. For example, Higuchi teaches an aerated bulk density of 0.27 (see Table 3, Test Example 1). Therefore, Higuchi is teaching and suggesting that the dried powder usable to make beverages can desirably have a loose bulk density of 0.27g/mL or greater. Higuchi is teaching the compression ratio equals the loose density divided by the tight bulk density. Therefore, based on the ratio of 0.75 and a loose bulk density of 0.27 g/mL, Higuchi is teaching a tight bulk density of 0.36 g/mL (0.27/0.75), which is therefore suggesting a compression degree that can be 25%, for example ((0.36-0.27)/0.36) x 100. This has been construed to fall within the claimed range of a compression degree of 11% or more.
To therefore modify Takagaki to have an aerated bulk density that is greater than 0.2 g/mL and such that the compression degree is 11% or more, such as 25%, would have been obvious to one having ordinary skill in the art, for the purpose of providing better drying properties that are less likely to be damped, as suggested by Higuchi.
Regarding the specific surface area being 0.4m^2/g or more, Rousseau teaches that it would have been obvious to one having ordinary skill in the art that the size reduction of tea leaves can increase the surface area and allow for greater amounts of plant extract to infuse into the liquid but that if the size is too small, can create unwanted residue on infusion with water (see paragraphs 4-7).
Sudo also teaches infusible/extractable products such as ground coffee, where a surface area can be 0.5m^2/g (see page 7 of the machine translation: “The specific surface area of the insoluble coffee powder obtained in this way is approximately 0.05 to 0.5m2/g”). Sudo also teaches a median particle size of for example, 200 or 250 microns (i.e. 0.2 to 0.25mm) (see page 6 of the machine translation, paragraph beginning with (Roasted coffee beans are finely ground to a median diameter of 50-300 microns).
Lee also teaches that the surface area of an infusible/extractable powder is a known result effective variable because at paragraph 104, the reference teaches that as particle size decreases, the surface area available to react with water increases leading to a higher leaching rate. This is also taught at paragraph 27, where increasing of the surface area can increase the amount of useful components released. The reference also shows in figure 14 that there can be variation in the degree of extraction based on the mesh size and therefore also the surface area. At paragraph 101, the reference teaches having a particle size between 14-30 mesh, which would have been between 0.595-1.41mm (see paragraph 101, group 2).
Together, Rousseau, Sudo and Lee teach and suggest controlling the surface area to values such as 0.5m2/g for the purpose of achieving the desired solid to liquid contact for achieving the requisite extraction of the components of Takagaki’s kudzu flower powder.
Takagaki already teaches that the dried Kudzu flower powder can be sun dried (see paragraph 13) and then further pulverized using various known techniques such as ball, hammer or roller mill, mass colloider or the like (see paragraph 14-15). Since Rousseau, Sudo and Lee are also directed to insoluble powdered products used to make beverages; and since Higuchi also teaches properties for controlling damping and flowability, it would have been obvious to one having ordinary skill in the art to have modified Takagaki to provide a specific BET surface area of 0.5 m2/g for the purpose of controlling the degree of solid to liquid contact to achieve the requisite extraction of the kudzu flower powder components.
Regarding claim 9, the claim differs from Takagaki in specifically reciting a repose angle of 44° to 55°.
Higuchi also teaches that the angle of repose can also be linked to the ratio of the aerated to packed bulk density for achieving better drying properties that are less likely to be damped (see paragraph 61) and suggests an angle of repose such as 0.8 or more or 0.9 rad or more (see paragraph 64), which equates to 45° or more or 51° or more.
To therefore modify Takagaki to have an angle of repose that 45° to 51° would have been obvious to one having ordinary skill in the art, for the purpose of providing better drying properties that are less likely to be damped.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, which relies on Takagaki as the primary reference, and in further view of Kamiya (JP 2015-156854, referred to as Kamiya I) and Kamiya (The Crude Extract from Puerariae Flower Exerts Antiobesity and Antifatty Liver Effects in High-Fat Diet-Induced Obese Mice, referred to as Kamiya II).
Regarding Kaimya (JP 2015-156854) the reference and machine translation are already of record.
Claim 10 differs in specifically reciting a tectorigenins content of 5-15% by weight of the dried Kudzu flower powder.
Kamiya I teaches kudzu flowers contain various useful ingredients including tectorigenins (paragraph 5, 15, 118) which are advantageous for their health benefits (see paragraph 15)
Kamiya II teaches that Kudzu flower are known to contain tectorigenin tectorigenin 7-O-xylosylglucoside at 8.37% and tectorigenin at 0.83% (see page 2, section 2.1) thus teaching and suggesting that Takagaki’s kudzu flower powder would have been reasonably expected to comprise similar amounts of tectorigenins. Alternatively, in view of Kamiya I and Kamiya II, it would have been obvious to one having ordinary skill in the art to have experimented with Takagaki’s kudzu flower powder to arrive at amounts of tectorigenins as taught by Kamiya I and II, because such amounts of tectorigenins have been taught to be desirable for their health benefits.
Response to Arguments
On pages 3-4 of the response, Applicant urges that Takagaki is directed to an invention of mixing food material to Kudzu flower to improve the flavor of food containing Kudzu flower and aiming to ingest the ingredients contained in Kudzu flower and therefore the use of additional food materials is essential to Takagaki’s invention and therefore the reference cannot teach the content consists of a dried Kudzu flower powder. Applicant also urges that Takagaki requires mixing other food materials with the Kudzu flower and therefore is teaching away from solely using kudzu flower.
This argument has been considered but is not sufficient to overcome the rejection because while Takagaki might teach adding Kudzu flower to other foods, the reference is also clearly directed to a food product that can be solely a Kudzu flower powder. For example, at paragraph 7 and 8, Takagaki teaches that a food composition can contain dried kudzu flowers and/or kudzu flower extract. At paragraph 25, Takagaki teaches that the food composition contains the flavoring agent described above (i.e. the dried kudzu flower powder and/or kudzu flower extract) and preferably further contains a food ingredient and that additives may be added if necessary. This teaches and suggests that Takagaki encompasses the food composition to be only dried kudzu flower powder. This is further supported by paragraph 35-37, where the food composition, which Takagaki suggests can be the dried kudzu flower powder on its own, can be used as a raw material for obtaining a beverage and paragraph 38 suggests the food composition can be placed into tea bags. Paragraphs 46, 57 and 77 further evidence that Takagaki teaches using the dried kudzu flower powder on its own to produce a beverage. While Takagaki might suggest that adding additional products such as various tea leaves results in a preferable beverage (paragraph 72) this does not teach away from Takagaki suggestions of solely using dried kudzu flower powder, especially as Kamiya evidences that it has been known to make tea solely from dried Kudzu flower.
Further on page 4 of the response, that Higuchi only mentions kudzu as one example of a large list of plants and is also not discussed as a preferred plant. Applicant further urges that Higuchi does not clearly describe Kudzu flowers and no example using Kudzu flowers is shown. Applicant urges that even if Higuchi discloses using the entirety of the Kudzu plant including the flower, one cannot arrive at a content consisting of Kudzu flower form Higuchi.
These arguments are not persuasive because Takagaki is already suggesting a content consisting of Kudzu flower powder. Higuchi is suggesting that the particle size, aerated bulk density and packed bulk density of a powder used to make a beverage all have a beneficial effect, such as for minimizing deterioration of quality and preventing the powder from getting moist or damp prior to use; and that the aerated bulk density and packed bulk density together are useful for providing favorable drying properties to the powder. Since Higuchi is also directed to beverage producing powders that can be insoluble, it would have been obvious to one having ordinary skill in the art that Higuchi’s teachings for desirable median particle size, the difference between packed bulk density and aerated bulk density (i.e. the compression degree) would have been equally applicable to Takagaki’s dried Kudzu flower powder - especially since Takagaki teaches a variety of milling techniques for arriving at the dried Kudzu flower powder and as Higuchi also teaches milling the plant products into a powder (see paragraph 76) and because Higuchi teaches that the above properties can be beneficial for preventing deterioration due to moisture and drying properties of the powder.
On pages 4-5 of the response, regarding Gallardo, Applicant urges that Gallardo does not discuss Kudzu flower and is describing surface area for a nutritional beverage that is used by mixing water to dissolve the powder and is fundamentally different from the powder of a tea bag. Thus, Applicant urges that there is no motivation to combine Gallardo’s teachings to a tea bag consisting of only dried Kudzu flower powder.
This argument has been considered and is persuasive in view of Gallardo being directed to soluble beverage powders. In view of this, the reference has been withdrawn; however a new grounds of rejection has been presented in this Office Action.
On page 5 of the response, Applicant urges that when consumed as a tea bag beverage, the median diameter of the kudzu flower powder can easily elute and the moisture content of 8% or less also improves elution and achieves high cell activation, neither of which has been described by the applied references.
These arguments are not sufficient to overcome the rejection, because the prior art provides a reason to modify the powder of Takagaki in view of Higuchi's teachings. Regarding the moisture content, since Higuchi teaches a moisture content of 0-10% by mass for preventing deterioration of the powder, one having ordinary skill in the art would have been motivated to modify the prior art powder to have a moisture content within the range of 0-10% for the purpose of preventing deterioration of the powder.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Lunder (US 5683736) discloses increasing the surface area of infusible plant materials for extraction (column 3, lines 60-64).
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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