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 . Claims included in prosecution are claims 1-3, 5-8, 11, and 19-21.
Previous Rejections
Applicants' arguments in the Request for Continued Examination, filed 6/15/26, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 112(b)
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.
1. Claims 1-3, 5-8, 11, and 19-21 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.
Claims 1 and 21 recite “wherein the at least one viscosity modifying component comprises monosaccharides, disaccharides, trisaccharides, dextrins, maltodextrins, and mixtures thereof”. As recited, the claim language appears to indicate that all the recited components are included together, but the claim previously recites “at least one”, which renders the claim indefinite. It is recommended that the claim be amended to recite “or” instead of “and” immediately prior to “mixtures thereof”. For the sake of compact prosecution, the instant claim will be interpreted as the “or” option.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
1. Claim(s) 1-3, 5-8, 11, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jelavich (US 2015/0305382, Oct. 29, 2015) (hereinafter Jelavich) in view of Boškovic et al. (US 5,124,162, Jun. 23, 1992) (hereinafter Boškovic). Jelavich discloses an opacity modifying agent in particulate form comprising a starch, a dextrin, an optional film former, and an optional binder (Abstract). The opacity modifying agents comprise starch in an amount from about 25% to about 99.99% by weight of the agent, dextrin in an amount from about 0.1 % to about 25% by weight of the agent, the binder in an amount of less than about 25% by weight of the agent, and a processing aid in an amount of less than about 25% by weight of the agent (¶ [0007]). Suitable starches include unmodified potato starch, modified potato starch, unmodified rice starch, and modified rice starch (satisfies starch of claim 1-3 & 21) (¶ [0008]). Suitable dextrins include branched dextrin, unbranched dextrin, and maltodextrin (satisfies viscosity modifying component of claim 1 & 21) (¶ [0008]). Suitable binders include sucrose, lecithin, polysorbate 80, and polysorbate (satisfies emulsifier of claim 1, 7, & 21) (¶ [0009]). Suitable processing aids include sorbitol (satisfies sugar alcohol of claim 5) (¶ [0009]). The opacity modifying agents are in particulate form such as granules (¶ [0011]). The agent may contain less than about 0.1% of one or more of the dyes, lakes or pigments such as titanium dioxide (satisfies colorant of claim 1, 8, & 21) (¶ [0027]). The opacity modifying agent may have an average particle size ranging from about 0.10 mm to about 10.0 mm (satisfies claim 11) (¶ [0039]). The opacity modifying agent may be included in a suspension with water which includes 50% of the agent and 50% water (satisfies water of claim 1 & 21) (¶ [0041-0042]). Spray drying is used to formulate the opacity modifying agent (¶ [0045]). The opacity modifying agent may be used in pharmaceutical products or in food products (¶ [0047]).
Jelavich differs from the instantly recited claims insofar as not disclosing wherein the composition is an extrudate.
However, Boškovic discloses that spray-drying technology results in a more porous product that is thus more sensitive to loss of volatiles, ingress of oxygen, and mechanical damage. On the other hand, the product of extrusion technology is extremely stable against both oxygen ingress and loss of volatiles; it is also quite resilient mechanically (col 2, line 5-15).
Accordingly, it would have been obvious for one of ordinary skill in the art, prior to the filing of the instant claims, to have modified the agent of Jelavich to be the product of an extrusion (i.e., an extrudate) motivated by the desire to achieve a product that is extremely stable against both oxygen ingress and loss of volatiles; it is also quite resilient mechanically as taught by Boškovic.
Regarding the amount of starch and viscosity modifying agent recited in instant claim 1 (i.e., 80-98%), in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). As discussed above, Jelavich in view of Boškovic discloses that the amount of starch used is up to 99.99% and the amount of dextrin is about 0.1 % to about 25%. Accordingly, because the range recited in the instant claims overlaps with the range disclosed by Jelavich in view of Boškovic, the range disclosed by Jelavich in view of Boškovic meets the instantly recited limitations.
Regarding the amylopectin contents recited in instant claims 1-2 and 6 (i.e., at least 80% and/or at least 90%), as noted by par. [0172] of the instant specification, potato starch and rice starch have “an amylopectin content of at least 80%” and “an amylopectin content of at least 90%”. Therefore, the rice and potato starch Jelavich in view of Boškovic meet the limitation of at least 80% and/or at least 90% of the instant claims.
Regarding the ratio of starch to viscosity modifying agent recited in instant claim 6, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I). As discussed above, Jelavich in view of Boškovic discloses that the amount of starch used is up to 99.99% and the amount of dextrin is about 0.1 % to about 25%. Accordingly, the claimed weight ratio would have been obvious from one of ordinary skill in the art selecting an amount of starch and an amount of sorbitol or mannitol from the above ranges and the ratio thereof overlapping with the claimed ratio.
Regarding the consisting of language used in instant claim 21, Jelavich’s composition merely requires a starch and a dextrin (See Abstract and Independent Claim 1). As such, Jelavich’s meets in the instantly recited claim language.
Therefore, the teachings of Jelavich in view of Boškovic render obvious claim 1-3, 5-8, 11, and 21.
2. Claim(s) 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jelavich (US 2015/0305382, Oct. 29, 2015) (hereinafter Jelavich) in view of Boškovic et al. (US 5,124,162, Jun. 23, 1992) (hereinafter Boškovic) and further in view of Wang et al. (Starch/Stärke 2015, 67, 225–236) (hereinafter Wang).
The teachings of Jelavich in view of Boškovic are discussed above.
Jelavich in view of Boškovic differ from the instant claim insofar as not disclosing wherein the opacity modifying agent comprises a flavoring agent or an aroma agent.
However, Wang discloses that flavors are of great importance in consumer satisfaction and affect further consumptions of food products. The preservation of aromatic additives is often a top concern of food manufacturers because aromatics are usually expensive, volatile, delicate and hard to handle. Encapsulation provides an effective approach to protect flavors against evaporation and undesirable reactions during storage by coating them with protective carrier materials. Starch has been considered as an excellent wall material for flavor encapsulation over the years. There has been an increasing demand for starches in flavor encapsulation attributed to their significant benefits, as they are fully biodegradable, widely available, inexpensive, and can be easily modified into derivatives with various properties (Abstract).
As discussed above, Jelavich in view of Boškovic discloses wherein the opacity modifying agent is comprised of starch and used in food products. Accordingly, it would have been obvious for one of ordinary skill in the art, prior to the filing of the instant claims, to have modified the opacity modifying agent of Jelavich in view of Boškovic to comprise flavoring agents and aromatic additives since it is comprised of starch and used in food products motivated by the desire to improve consumer satisfaction and affect further consumptions of food products and protect said flavoring agents and aromatic additives as taught by Wang.
Therefore, the combined teachings of Jelavich, Boškovic, and Wang render obvious claims 19-20.
Response to Arguments
Applicant’s arguments with respect to claims 1-3, 5-8, 11 & 19-21 have been considered but are moot because new rejections necessitated by Applicant’s amendment have been made. Jelavich’s teaching in reference to the an opacity modifying agent comprising starch and dextrin is applied to meet the requirements of the new limitations of “80 to 98% by weight of a carbohydrate matrix” and “wherein the at least one viscosity modifying component comprises monosaccharides, disaccharides, trisaccharides, dextrins, maltodextrins, and mixtures thereof”.
Conclusion
Claims 1-3, 5-8, 11 & 19-21 are rejected.
Claims 12-14 & 16-17 are withdrawn.
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Abdulrahman Abbas whose telephone number is (571)270-0878. The examiner can normally be reached M-F: 8:30 - 5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sahana S. Kaup can be reached at 571-272-6897. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.A./Examiner, Art Unit 1612
/LEZAH ROBERTS/Primary Examiner, Art Unit 1612
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