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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/11/2025 has been entered.
Claim Rejections - 35 USC § 112
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 1, 2-3, 5, 9-11 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, it is unclear what is meant by “intensity index”. Namely it is unclear what the intensity index is based on and what the numbers of the index signify.
Regarding claim 2, claim 2 recites “wherein the dye is spirulina” it is unclear what “the dye” is referring to. It is unclear if the “spirulina” is the same as the “spirulina dye” in claim 1 or different.
Regarding claim 3, claim 3 recites “wherein the dye is E132”. it is unclear what “the dye” is referring to. It is noted that claim 1 only recites “E132”.
Regarding claim 9, claim 9 recites “wherein the product is in the form of chewing gum, and the fast-dissolving matrix comprises a coating layer consisting of fast-dissolving candies or fondants”. It is unclear if “a coating layer consisting of fast-dissolving candies or fondants” is the same as or different from “a candy coating” in lines 3-4 of claim 1.
Claims 1, 2-3, 5, 9-11 are rejected by virtue of their dependence on a rejected base claim.
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, 3, 5 and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Pearce US 2003/0224090 in view of Mandati et al. US 2017/0135372.
Regarding claim 1, Pearce discloses a confectionery product in the form of a chewing gum ([0003], [0120]-[0121]) comprising a fast-dissolving matrix (soluble edible film) ([0191]) (soluble edible film can be coated on candy of any type, and Pearce suggests candy includes gum, see paragraphs [0004], [0119]-[0121]). Pearce discloses that the fast dissolving matrix is a candy coating applied to the gum (soluble film contains sweetener and therefore is considered a candy is applied as a coating), said candy coating containing dye E132 (FD&C Blue No.2) (soluble film can coat candy, candy can be gum) ([0003], [0134], [0135], [0191], [0110]-[0121]). Pearce suggests the coloring agents can be used in amounts up to about 5wt% or more ([0135]). Additionally, Pearce discloses that the coloring agents can be used in amounts effective to produce the desired color ([0135]). Therefore, suggesting that the amount of dye added to the coating can be routinely adjusted, including to values presently claimed, based on desired color of the coating (MPEP 2144.05.II). Pearce discloses that the matrix (snack of edible film) dissolves in less than 5 minutes upon contact with saliva ([0004], [0191]).
Additionally, Mandati teaches coatings for candy, the coatings comprising colorants, including brilliant blue (i.e., E133), patent blue (i.e., E131) and indigo carmine (i.e., E132) ([0081]; Table 2). Mandati teaches the % of colorant in the coating ranges from 0.002% to 0.050% (Table 4). Mandati et al. do not specifically teach a weight of the colorants in the coating. However, looking to applicant’s spec at Table 1, the 0.3 mg of colorant is equivalent to 0.02% of the coating. Therefore, where the % of colorant in the coating taught by Mandati et al. ranges from 0.002% to 0.050%, this encompasses the amount taught in the instant specification. Therefore, it would have been obvious to have provided the coating with an amount of colorant as claimed, as these amounts are consistent with the amounts of blue colorants taught to be included in candy coatings in the prior art.
Regarding claim 3, Modified Pearce discloses that the dye is E132 (FD&C Blue No.2) (‘090, [0134], [0135]).
Regarding claim 5, Modified Pearce discloses that the candy coating comprises a polyol such as sorbitol (‘090, [0043]-[0045]).
Regarding claim 9, Modified Pearce discloses that the product is in the form of chewing gum, and the fast dissolving matrix comprises a coating layer consisting of fast dissolving candies (edible film with gas releasing candy 1403 has been interpreted as “candies”- it is noted that the edible film is considered a candy) (‘090, [0004], [0119]-[0121], [0191], [0102]).
Regarding claim 10, Modified Pearce discloses that the matrix dissolves in less than 30 seconds upon contact with saliva (‘090, [0191]).
Regarding claim 11, Modified Pearce teaches a coated chewing gum product as detailed above with regard to claim 1. Modified Pearce does not specifically teach a “method of optical tooth whitening” with their coated products. However, the active step to implement this method is “consuming said confectionery product” containing a blue dye. Given that Modified Pearce do teach chewing gums coated with coatings comprising E132, one of the dyes recited in claim 1, and given that it is well known that chewing gums products are meant to be chewed (i.e., consumed), it would have been obvious to have chewed the chewing gum comprising the blue dye in the coating and therefore arrived at the claimed “method of optical tooth whitening.”
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Pearce US 2003/0224090 in view of Mandati et al. US 2017/0135372 in view of Stangl et al US 2014/0272031.
Regarding claim 2, claim 2 differs from Modified Pearce in the recitation that the dye is spirulina.
Stangl et al. teach dyes/pigments for use in coloring confectionery products [0013]. Synthetic colorants include patent blue (i.e., E131) and FD&C blue No. 1 (i.e., brilliant blue or E133), while natural colorants include spirulina [0017].
Therefore, where spirulina is taught to be interchangeable with other blue colorants for the coloring of confectionery products, it would have been obvious to one of ordinary skill to utilize the spirulina of Stangl et al. to provide a blue color in the coating of the confectionery of Modified Pearce. This would have required no more than routine experimentation, as all of spirulina, patent blue (i.e., E131) and FD&C blue No. 1 (i.e., brilliant blue or E133) are taught to be interchangeable for coloring confectionery products, and would have been expected to continue to provide a blue colored confectionery product. Further, one of ordinary skill would have been able to select the appropriate intensity and amount of spirulina dye through no more than routine experimentation to provide the predictable result of a blue colored confectionery product (MPEP 2144.05.II).
Response to Arguments
Applicant's arguments filed 12/11/2025 have been fully considered, and specifically, Applicant’s arguments with respect to the previously presented prior art rejections have been considered but are moot in light of the new grounds of rejection based on Pearce.
On Pg. 6 of the remarks, Applicant argues that regarding the 112(b) rejection of “intensity index” that Applicant provides NPLs, to support the argument that one of ordinary skill would have known what is meant by the claimed “intensity index.”
While the NPLs are appreciated and while it is noted that plain meaning can be relied upon (MPEP 2111.01), it is not clear what is considered the plain meaning of “intensity index”. None of the provided documents explicitly define “intensity index”. For example, it is not clear that a “color intensity” is equivalent to an “intensity index”. As previously recited, there is no description in the instant specification of how the intensity index is measured, nor is there any reference to any document where the measurement standard is described. This is in contrast to the optical whitening index discussed in the instant specification, along with a citation providing details as to how it is measured (e.g., p. 3 lines 19-24). Therefore, the 112b rejection is maintained.
On pg. 8 of the remarks Applicant argues that the claimed whitening effect requires specific dye concentration and dissolution kinetics.
It is noted that Pearce has been newly relied upon for teaching specific dye concentration and dissolution of the coating as claimed. "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." (MPEP 2145.II).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASHLEY AXTELL whose telephone number is (571)270-0316. The examiner can normally be reached M-F 9:00- 5:30.
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/A.A/
Ashley AxtellExaminer, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792