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 .
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4 Sep, 2025, has been entered.
Response to Amendment
All rejections not repeated in this Office Action have been maintained.
Claims 1-3, 5-14, 23-24 are currently pending in this Office Action.
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.
Claim(s) 1-3, 5, 7-14, 23-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Puttin et al. (WO 2018/134390 A1- cited in IDS filed 8/4/22) in view of Kopsel (US 2016/0287491 A1- cited in IDS filed 8/4/22).
Regarding Claim 1, Puttin discloses a coloring composition (natural blue or a green dye prepared from the blue, page 2, third paragraph) comprising glycerol (see abstract), and a spirulina extract comprising phycocyanin (see abstract) for use in an edible product (foodstuff, page 1, second paragraph) and wherein
a. the spirulina extract is present in an amount of 3 to 10 wt%(phycocyanin, see abstract); and
b. the glycerol is present in an amount of at least 50wt% (see abstract).
While Puttin discloses an emulsifier present in an amount of 0.1 to 3wt% (see abstract), Puttin is silent to comprising a modified starch in an amount of at least 0.5% w/w, and wherein the edible product has been exposed to heat treatment.
As to the modified starch, since Puttin further teaches comprising an emulsifier (see abstract), Kopsel is relied to teach a stable emulsion that can be used in coloring food (see paragraph 38), and similarly comprises glycerol (paragraph 20) and a colorant (paragraph 4). Kopsel further employs a modified starch as an emulsifier (paragraph 21 and 22) in an amount of 5 to 40 wt% (see paragraph 21).. Therefore, since both Puttin and Kopsel comprises emulsifiers for food coloring, it would have been obvious to one of ordinary skill in the art to substitute equivalents known for the same purpose (see MPEP 2144.06).
As to the limitation of wherein the edible produce has been exposed to heat treatment, since the claim is directed to a coloring composition, the limitation is construed as an intended use limitation. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, since the coloring composition of Puttin is intended to color foodstuff such as chewing gum (as required by Claim 23, see page 8, second paragraph), the coloring composition of Puttin would be capable of being used with food that has been exposed to heat treatment.
Regarding Claim 2, Puttin further teaches wherein the spirulina extract is derived from Arthrospira platensis (Page 2, fourth and fifth paragraph, “Spirulina platensis” which is Arthrospira platensis).
Regarding Claim 3, while Puttin discloses a “stable” composition (Page 4, ln. 23-25), Puttin does not specifically recite wherein the composition is a heat stable composition. However, since the combination suggest the composition of Claim 1, the composition taught by the prior art is also presumed to be heat stable. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (see MPEP 2112.01).
Regarding Claim 5, Puttin further teaches wherein the glycerol is present in an amount of at least 50wt% (see abstract).
Regarding Claim 7, Kopsel further teaches wherein the modified starch is starch sodium octenyl succinate (paragraph 22).
Regarding Claim 8, Puttin further teaches wherein the water content is between 10 to 35 wt%, which is within the claimed range (page 6, second to last paragraph).
Regarding Claims 9 and 10, the combination is silent to the pH level of the composition. However, since the combination suggest the composition of Claim 1, the composition taught by the prior art is also presumed to have a similar pH level. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (see MPEP 2112.01).
Regarding Claim 11, Puttin further teach comprising curcumin (page 7, second paragraph).
Regarding Claim 12, Puttin does not specifically recite wherein the composition does not form specks when added to a hard candy composition having a temperature above 90°C. However, since the combination suggest the composition of Claim 1, the composition taught by the prior art is also presumed to function similarly. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. (see MPEP 2112.01).
Regarding Claim 13, Puttin further teaches wherein the spirulina extract is trehalose free (suggest other carriers such as maltodextrin, citrate, or lactose as alternatives to trehalose, page 6, sixth paragraph).
Regarding Claim 14, Puttin discloses a method for preparing a composition of Claim 1, comprising the steps of:
a) Mixing heated water, an emulsifier (Page 8, last paragraph);
b) Adding glycerol (Page 8, last paragraph);
c) Adding spirulina extract (Page 9, lines 9-11).
The water is construed to be heated because table 1 discloses measured viscosities at various temperatures (20.6°C to 24°C). As discussed in the rejection of Claim 1, Kopsel is further relied on to modify the emulsifier to a modified starch.
Regarding Claim 23, Puttin further teaches applying the composition to confectionary, wherein the confectionary is chewing gum (page 8, second paragraph).
Regarding Claim 24, Puttin does not specifically recite wherein said composition is applied to an edible product and wherein the edible product is a nutritional supplement and/or a pharmaceutical product and are compressed tablet or pills, gummies, hard capsules, softgel capsules, gelatin capsules, lozenges, effervescent tablets, sachets with powder or granules to be rehydrated. However, Puttin acknowledges that spirulina extracts are known as raw materials for food supplement taken as a powder in gelatin capsules. Also, Spirulina extract are known to be used in gummy bears (see page 2 last paragraph). Therefore, since Puttin seeks to overcome the problems of the prior art, it would have been obvious to one of ordinary skill in the art to apply the composition taught by Puttin and Kopsel in known applications such as nutritional supplements, powders, capsules, and gummies.
Response to Arguments
Applicant’s arguments in the response filed 4 Sep, 2025, has been considered but is found not persuasive.
Applicant argues on the basis that one of ordinary skill in the art would not have reasonably predicted the combination of phycocyanin and modified starches among thousands of combinations suggested by the prior art. That is, Applicant argues that the Berthon reference and the Ding reference further support that one of ordinary skill in the art would not have reasonably predicted the claimed composition based on the amount of combinations being disclosed. However, the argument is not persuasive because Berthon and Ding were not relied on in an obviousness rejection to modify the Puttin reference. Rather, the references were merely relied on as evidence to show that one of ordinary skill in the art would have reasonably predicted the combination of phycocyanin and modified starches since the combination of phycocyanin and modified starches have been used within the prior art. In any case, the argument is found not persuasive because disclosure of a multitude of effective combinations does not render any particular formulation less obvious. Merck & co. v. Biocraft Labs., Inc., 874 F.2d 804, 806-807 (Fed. Cir. 1989) (holding claimed combination of two drugs held to have been obvious in view of reference which disclosed 1200 possible combinations, without highlighting preference of two that were claimed). It is maintained the rejection is solely based on the Puttin and Kopsel reference, where Puttin discloses a composition comprising phycocyanin and an emulsifier, and Kopsel discloses that colorants can use modified starches as an emulsifier. For these reasons, the prior art has been maintained.
Conclusion
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/T.H.N/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792