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
This office action is in response to the remarks filed on 11/25/2025.
The amendment filed 11/25/2025 has been entered. Claims 1-2, 4-9, 12, and 15 remain pending in the application, claims 3, 10-11, and 13-14 have been canceled, and claim 16 has been newly added.
The drawings objections have been withdrawn in light of drawings filed on 11/25/2025.
The specification objections have been withdrawn in light of the amendments to the specification filed on 11/25/2025.
The double patenting rejections have been withdrawn in light of claim amendments.
Claim Objections
Claims 1, 4, 6 and 12 are objected to because of the following informalities:
Claim 1, 4, 6 and 12 should be amended to remove British spelling of words, as noted below:
“flavouring” recited throughout claims should recite --flavoring--
“odour” and “odourless” recited throughout claim should recite --odor— or –odorless’--.
Appropriate correction is required.
Claim Interpretation
Claim 1 recites the following limitation “wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well- being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning.” which in an interpretation it may be construed as a conditional limitation where the conditional limitations may not be given a full weight as for considering the other case “wherein if the number of adjacent activated voxels thus determined is not equal to or greater than a threshold value…” which the claim would not require this limitation to be a positive recitation.
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.
Claim 1 is 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 1 recites the claim elements “A method of identifying a fragrance or a flavouring which elicits a well-being effect” in lines 1-2 and “a) submitting a group of subjects to a first protocol comprising:- having each subject of said group smell a control odour; capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject smelling the control odour so as to detect the brain activity of each subject” in lines 5-7. It is unclear in the case of “identifying a flavouring”, how odor can be used as a control as odor and taste operate under separate/differing stimuli. The specification does not disclose how smelling a control odor can be used to identify a flavoring.
Claims 1-2, and 4-9, 12, and 15-16 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The enablement requirement is described within Section 2164 and the test of enablement is described thereafter in Section 2164.01. The question regarding enablement is as follows: is the experimentation needed to practice the invention undue or unreasonable? In other words, the test of enablement is whether one reasonably skilled in the art could make or use the invention from the disclosures in the patent coupled with information known in the art without undue experimentation.
The following is found in Section 2164.01(a) of the MPEP:
There are many factors to be considered when determining whether there is sufficient evidence to support a determination that a disclosure does not satisfy the enablement requirement and whether any necessary experimentation is “undue.” These factors include, but are not limited to:
(A) The breadth of the claims;
(B) The nature of the invention;
(C) The state of the prior art;
(D) The level of one of ordinary skill;
(E) The level of predictability in the art;
(F) The amount of direction provided by the inventor;
(G) The existence of working examples; and
(H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
Regarding claim 1:
(A) Claim 1 recites the following:
“A method of identifying a fragrance or a flavouring which elicits a well-being effect, wherein the method comprises determining whether the Angular Gyrus is activated in subjects smelling said fragrance or said flavouring, wherein the determination comprises the steps of: a) submitting a group of subjects to a first protocol comprising: - having each subject of said group smell a control odour; - capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject smelling the control odour so as to detect the brain activity of each subject: b) submitting the same group of subjects to a second protocol comprising: - having each subject of said group smell a fragrance or a flavouring to be tested - capturing fMRI brain scans of each subject smelling the fragrance or the flavouring to be tested so as to detect the brain activity of each subject c) averaging the brain activity of all subjects as obtained in the first protocol and in the second protocol: and d) contrasting the resulting averaged brain activity obtained in the second protocol with the resulting averaged brain activity obtained in the first protocol and determining from the contrast a number of adjacent activated voxels in the Angular Gyrus: wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well- being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning”.
(B) The nature of the claim of the claimed invention is that a fragrance or flavor can be identified that activates the Angular Gyrus activated in subjects smelling the fragrance or flavoring that elicits a “well-being effect”.
(C) No prior art has established that a fragrance or flavoring can be identified that activates the Angular Gyrus activated in subjects smelling the fragrance or flavoring that elicits a “well-being effect”. The Angular gyrus is associated with semantic processing, word reading and comprehension, number processing, default mode network, memory retrieval, attention and spatial cognition, reasoning, and social cognition1, rather than emotions or well-being.
(D) As stated above, no prior art has been provided by the Applicant that shows common knowledge had by one with ordinary skill in the art at the time of the invention. It has proven difficult to find prior art that teaches identification of a that a fragrance or flavoring can be identified that activates the Angular Gyrus activated in subjects smelling the fragrance or flavoring that elicits a “well-being effect”.
(E) The art of detecting/measuring brain activity in the Angular gyrus to determine if a the Angular Gyrus is activated in subjects smelling a fragrance or flavouring lacks predictability in the art. There is no scientific evidence to prove that capturing functional Magnetic Resonance Imaging (fMRI) brain scans to determine if the Angular Gyrus is activated can be used to determine if a fragrance or a flavoring elicits a well-being effect. The current state of the art, as best understood by the examiner, teaches the use of fMRI scans to determine if a certain fragrance/flavoring elicits brain activity overall, rather than associated with a particular emotion.
(F) The specification generally discloses that there is there is no consensus around a single definition of well-being, but there is general agreement that at minimum, well-being includes the presence of positive emotions and moods (e.g., contentment, happiness), the absence of negative emotions (e.g., depression, anxiety), satisfaction with life, fulfilment and positive functioning. In simple terms, well-being can be described as judging life positively and feeling good ([0007]), but fails to elaborate how an fMRI brain scan/brain activity in the Angular Gyrus is linked to each emotion listed that are recited in the claim.
(G) There are no working examples provided within the specification as discovered by the inventors to illustrate to one with ordinary skill in the art how to make or use this invention. Furthermore, the applicant has not provided citations within the specification to prior art that teaches working examples of using fMRI scans/brain activity of the Angular Gyrus to identify what fragrances or flavorings elicit a particular “well-being” effect. Upon searching, the Examiner has been unable to discover such working examples.
(H) While it would be easy to create and utilize a fMRI scanner to detect brain activity. It is not possible to use it to determine if the Angular Gyrus is activated and to associate it with a presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning. Given this, one with ordinary skill in the art would not be able to implement a fMRI brain scan to identify a fragrance or flavoring is associated with various well-being attributes, including of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning. Therefore, it would require undue experimentation to make use of this invention.
With specificity on “How to Use the Claimed Invention” (see 2164.01(c)), the Examiner repeats, that the specification fails to elaborate the method in which the fMRI brain scan be used to identify a fragrance or flavoring is associated with various well-being attributes, including of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning. In light of the above factors, it is asserted that a person of ordinary skill in the art would not be able to make or use the invention of claim 1 without undue experimentation and therefore fails the enablement requirement as set forth in 35 U.S.C 112(a).
Claims that are not discussed above but are cited to be rejected under 35 USC §
112(a) are also rejected because the inherit the deficiencies of the claims they
respectively depend upon.
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, and 4-9, 12, and 15-16 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.
Claim 1 is indefinite for the following reasons:
Line 10 recites the limitation “a fragrance”. This claim element is indefinite as it is unclear to one with ordinary skill in the art if the “fragrance” is the same as the “fragrance” established in line 1 or is if this claim element is a separate and distinct feature. Clarification is needed.
Line 10 recites the limitation “a flavouring”. This claim element is indefinite as it is unclear to one with ordinary skill in the art if the “flavouring” is the same as the “flavoring” established in line 1 or is if this claim element is a separate and distinct feature. Clarification is needed.
Lines 13-4 recite an averaging step (step c). This claim element is unclear to one with ordinary skill if the average occurs with both protocols together, or if the averaging step occurs by averaging of all the subjects in each respective protocol. Step D recites that the averaging takes place within each protocol, however, step C appears to recite averaging takes place with both protocols together. Clarification is needed.
Line 19 recites the claim element “well-being effect”. This claim element is indefinite as it is unclear to one with ordinary skill in the art if the “well-being effect” is the same as the “well-being effect” recited in claims 1-2. Clarification is needed.
Lines 22 recites the term “ positive emotions and moods” , which is a relative term which renders the claim indefinite. The term “ positive emotions and moods,” 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 how “adjacent activated voxels thus determined is equal to or greater than a threshold value” can be associated with “positive emotions and moods”. Clarification is needed.
Line 22 recites the term “negative emotions” , which is a relative term which renders the claim indefinite. The term “negative emotions” 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 how “adjacent activated voxels thus determined is equal to or greater than a threshold value” can be associated with “absence of negative emotions”. Clarification is needed.
Lines 22-23 recites the term “satisfaction with life” , which is a relative term which renders the claim indefinite. The term “satisfaction with life” 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 how “adjacent activated voxels thus determined is equal to or greater than a threshold value” can be associated with “satisfaction with life”. Clarification is needed.
Line 23 recites the term “fulfilment and positive functioning”, which is a relative term which renders the claim indefinite. The term “fulfilment and positive functioning” 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 how “adjacent activated voxels thus determined is equal to or greater than a threshold value” can be associated with “fulfilment and positive functioning”. Clarification is needed.
Claims 2, 4-9, 12, and 15-16 are rejected due to dependency on claim 1.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-2, 4-9, 12, and 15-16 rejected under 35 U.S.C. 101.
Regarding claim 1,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation “determining whether the Angular Gyrus is activated in subjects smelling said fragrance or said flavouring,….c) averaging the brain activity of all subjects as obtained in the first protocol and in the second protocol: and d) contrasting the resulting averaged brain activity obtained in the second protocol with the resulting averaged brain activity obtained in the first protocol and determining from the contrast a number of adjacent activated voxels in the Angular Gyrus: wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well-being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning”.
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data, and calculate the average to determine which voxels belong to the Angular gyrus, and then use those values to determine if a threshold was reached, which is then associated with a well-being effect.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- the claim recites the following additional elements of “a) submitting a group of subjects to a first protocol comprising: - having each subject of said group smell a control odour; - capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject smelling the control odour so as to detect the brain activity of each subject: b) submitting the same group of subjects to a second protocol comprising: - having each subject of said group smell a fragrance or a flavouring to be tested - capturing fMRI brain scans of each subject smelling the fragrance or the flavouring to be tested so as to detect the brain activity of each subject”
Obtaining brain scan data is a form of data gathering that is a form of a pre-solution insignificant activity.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim. The claim additionally recites “fMRI brain scans”,
however, functional Magnetic Resonance Imaging (fMRI) is well-known generic components that are used to capture brain activity.
Accordingly, claim 1 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 2,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation “determining whether the Frontal Inferior Cortex and/or the Frontal Medial Cortex is/are activated in subjects smelling said fragrance or said flavouring”.
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data/voxel data to determine/distinguish whether the Frontal Inferior Cortex and/or the Frontal Medial Cortex are activated.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 2 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 4,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation “wherein step d) further comprises determining from the contrast a number of adjacent activated voxels in the Frontal Inferior Cortex and/or the Frontal Medial Cortex, wherein additional confirmation that the tested fragrance or the tested flavouring elicits a well-being effect is obtained if the number of adjacent activated voxels thus determined is equal to or greater than said threshold value”.
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data/voxel data to
determine/distinguish whether the Frontal Inferior Cortex and/or the Frontal Medial Cortex are activated by comparing the number of adjacent activated voxels the value to a threshold to see if a well-being effect is shown.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 4 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 5,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation “wherein steps c) and d) are respectively replaced by steps c1) and dl):
c1) contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined; dl) averaging the resulting contrasted brain activity of all subjects”
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data/voxel data to calculate the activated adjacent voxels and determine contrast, and average the resulted contrasted brain activity of all subjects.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 5 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 6,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim contains a judicial exception as noted above for claim 1.
Step 2A, Prong 2, Integrated into Practical Application: No- the claim recites the following additional elements of “wherein the control odour is air or an odourless perfumery solvent diluted in air”.
Obtaining data from odor in air a form of data gathering that is a form of a pre-solution insignificant activity.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 6 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 7,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim contains a judicial exception as noted above for claim 1.
Step 2A, Prong 2, Integrated into Practical Application: No- the claim recites the following additional elements of “wherein the group of subjects comprises at least 5 subjects”.
Obtaining data from at least 5 subjects is a form of data gathering that is a form of a pre-solution insignificant activity.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 7 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 8,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation “wherein the threshold number of adjacent activated voxels is ten”
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use set the threshold number of adjacent activated voxels is ten mentally or using a pen and paper.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 8 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 9,
Step 1: Statutory category: Yes- A method for preparing an accord or a fully formulated fragrance, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation
“a) identifying at least one flavouring which elicits a well-being effect by the method of claim 1;b) formulating said at least one flavouring thus identified into a flavouring preparation, a food product, an oral care product or a beverage”.
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data/voxel data identify which flavor elicits a well-being effect to then formulate the flavor into a different product.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 12 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 15,
Step 1: Statutory category: Yes- A method for preparing an accord or a fully formulated fragrance, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation
“a) identifying at least one flavouring which elicits a well-being effect by the method of claim 1;b) formulating said at least one flavouring thus identified into a flavouring preparation, a food product, an oral care product or a beverage”.
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data/voxel data to calculate the activated adjacent voxels and determine contrast, and average the resulted contrasted brain activity of all subjects.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 12 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 15,
Step 1: Statutory category: Yes- A method for preparing an accord or a fully formulated fragrance, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim recites the limitation
“wherein steps c) and d) are respectively replaced by steps c1) and d1): c1) contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined; dl) averaging the resulting contrasted brain activity of all subjects
This limitation, as drafted, according to its broadest reasonable interpretation, recites a mental-process type abstract idea, which can practically be performed in the mind and/or with the with the aid of pen and paper or with a generic computer, in a computer environment, or merely using the generic computer as a tool to perform the steps. One of ordinary skill in the art could use brain activity data/voxel data identify which flavor elicits a well-being effect to then formulate the flavor into a different product.
That is, nothing in the claim element precludes the step from practically being performed in the mind and/or be reasonably performed with an aid of pen and paper or on a generic computer. Accordingly, the claim recites a mental process-type abstract idea.
Step 2A, Prong 2, Integrated into Practical Application: No- The claim does not contain additional elements. that integrates the judicial exception into a practical application.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 15 is directed to non-eligible patent subject matter and is therefore rejected.
Regarding claim 16,
Step 1: Statutory category: Yes- A method of identifying a fragrance or a flavouring which elicits a well-being effect, is recited, and is therefore a method.
Step 2: Step 2A, Prong 1, Judicial Exception: Yes- This claim contains a judicial exception as noted above for claim 1.
Step 2A, Prong 2, Integrated into Practical Application: No- the claim recites the following additional elements of “wherein the group of subjects comprises at least 10 subjects”.
Obtaining data from at least 10 subjects is a form of data gathering that is a form of a pre-solution insignificant activity.
These additional elements, taken individually or in combination, merely amount to insignificant pre/post-solution activities and do not integrate the judicial exception into a practical application. This claim is therefore directed to an abstract idea.
Step 2B, Inventive Concept: No - Similarly to Step 2A Prong 2, the additional claim elements merely recite insignificant extra-solution activities, which do not amount to significantly more than the judicial exception. For these reasons, there is no inventive concept in the claim.
Accordingly, claim 16 is directed to non-eligible patent subject matter and is therefore rejected.
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 (i.e., changing from AIA to pre-AIA ) 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, 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 1-2, 4-7, 9 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Hugdahl et al. (Hugdahl, Kenneth, et al. "Brain activation measured with fMRI during a mental arithmetic task in schizophrenia and major depression." American Journal of Psychiatry 161.2 (2004): 286-293., hereinafter “Hugdahl”) in view of Warr (US 20120220857 A1, of record, hereinafter "Warr").
Regarding claim 1, Hugdahl teaches a method of identifying … a well-being effect, wherein the method comprises determining whether the Angular Gyrus is activated in subjects (Online monitoring of continuously presented stimulus materials would seem especially critical in a mental calculation task, where the participant has to actively keep the last digit in memory and at the same time dispose of the previously presented digit. In our study, the comparison group and the schizophrenia group also activated areas in the supramarginal gyrus and angular gyrus, respectively. These areas have been found to be activated in simple calculations and number processing (9–11). The depressed patients showed greater prefrontal activation, relative to both the patients with schizophrenia and the comparison subjects-Page 292, paragraph 2) …, wherein the determination comprises the steps of:
a) submitting a group of subjects to a first protocol comprising:
- having each subject of said group [perform the same task with a control group] ( In the vigilance task, the participants had to press a response button whenever a specific number was seen on a screen inside the MR scanner. In the mental arithmetic task, the participants had to add two consecutive numbers and press the response button whenever the sum was 10. fMRI was performed with a 1.5-T MR scanner. Twelve patients with recurrent nonpsychotic unipolar major depression, 12 patients with schizophrenia, and 12 healthy comparison subjects were included in the study, ,page 286 Abstract)
- capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject [of the control group] so as to detect the brain activity of each subjects (We used fMRI to investigate activation in brain areas related to a continuous mental arithmetic task involving simple addition of single digits in patients with schizophrenia, patients with major depression, and healthy comparison subjects, page 286, col. 2 Para.2).
Hugdahl, however, is silent regarding identifying a fragrance or a flavouring [which elicits a well-being effect], [wherein the method comprises determining whether the Angular Gyrus is activated] in subjects smelling said fragrance or said flavouring, wherein the determination includes: - having each subject of said group smell a control odour; [capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject] smelling the control odour [so as to detect the brain activity of each subject]:b) submitting the same group of subjects to a second protocol comprising: - having each subject of said group smell a fragrance or a flavouring to be tested - capturing fMRI brain scans of each subject smelling the fragrance or the flavouring to be tested so as to detect the brain activity of each subject c) averaging the brain activity of all subjects as obtained in the first protocol and in the second protocol: and d) contrasting the resulting averaged brain activity obtained in the second protocol with the resulting averaged brain activity obtained in the first protocol and determining from the contrast a number of adjacent activated voxels in the Angular Gyrus: wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well- being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning.
Warr is considered analogous to the instant application as “Method for measuring the emotional response to olfactive stimuli” is disclosed (title). Warr teaches:
of identifying a fragrance or a flavouring which elicits a well-being effect (he present invention provides a method of identifying a fragrance sample which elicits a reward through the dopaminergic pathway [0024]; Sniffing any odour elicits brain activity due to odour processing, which is detected by fMRI [0060])
a) submitting a group of subjects to a first protocol comprising (submitting a group of subjects to a first protocol comprising [0029]):
- having each subject of said group smell a control odour (having each subject of said group smell a control odour [0029]);
- capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject smelling the control odour so as to detect the brain activity of each subject (capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject smelling the control odour so as to detect a brain activity of each subject [0029]):
b) submitting the same group of subjects to a second protocol comprising (submitting the same group of subjects to a second protocol comprising [0029])
- having each subject of said group smell a fragrance or a flavouring to be tested (having each subject of said group smell a fragrance sample to be tested [0029])
- capturing fMRI brain scans of each subject smelling the fragrance or the flavouring to be tested so as to detect the brain activity of each subject (capturing fMRI brain scans of each subject smelling the fragrance sample to be tested so as to detect a brain activity of each subject [0029]);
c) averaging the brain activity of all subjects as obtained in the first protocol and in the second protocol (averaging the brain activity of all subjects as obtained in the first protocol and in the second protocol [0029]): and
d) contrasting the resulting averaged brain activity obtained in the second protocol with the resulting averaged brain activity obtained in the first protocol and determining from the contrast a number of adjacent activated voxels ((d) contrasting the resulting averaged brain activity obtained in the second protocol with the resulting averaged brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined [0029]) in the Angular Gyrus (Scans were taken which covered the whole brain allowing the continuous monitoring of the whole brain throughout each assessment; the angular gyrus is a part of the whole brain):
wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well- being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning (wherein if a cluster of adjacent activated voxels has a volume equal to or greater than a threshold value, or if a cluster has a number of adjacent activated voxels equal to or greater than a threshold value … then the tested fragrance sample elicits a reward through the dopaminergic pathway [0029]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the invention of Hugdahl to include identifying a fragrance or a flavouring which elicits a well-being effect, and a) submitting a group of subjects to a first protocol comprising: - having each subject of said group smell a control odour; - capturing functional Magnetic Resonance Imaging (fMRI) brain scans of each subject smelling the control odour so as to detect the brain activity of each subject: b) submitting the same group of subjects to a second protocol comprising: - having each subject of said group smell a fragrance or a flavouring to be tested - capturing fMRI brain scans of each subject smelling the fragrance or the flavouring to be tested so as to detect the brain activity of each subject c) averaging the brain activity of all subjects as obtained in the first protocol and in the second protocol: and d) contrasting the resulting averaged brain activity obtained in the second protocol with the resulting averaged brain activity obtained in the first protocol and determining from the contrast a number of adjacent activated voxels in the Angular Gyrus: wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well- being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Examiner notes that the claim element “wherein if the number of adjacent activated voxels thus determined is equal to or greater than a threshold value, then the tested fragrance or the tested flavouring elicits a well-being effect wherein activation of the Angular Gyrus is associated with one or more of the following well- being attributes when the subjects of the group of subjects smell the fragrance or the flavouring to be tested: presence of positive emotions and moods, absence of negative emotions, satisfaction with life, fulfilment and positive functioning”, recites a as a conditional limitation where the conditional limitations may not be given a full weight.
Regarding claim 2, modified Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however, does not teach determining whether the Frontal Inferior Cortex and/or the Frontal Medial Cortex is/are activated in subjects smelling said fragrance or said flavouring .
Warr, however, teaches determining whether the Frontal Inferior Cortex and/or the Frontal Medial Cortex is/are activated in subjects smelling said fragrance or said flavouring (The present invention is based on the surprising finding that simultaneous activation of at least three of the following specific brain areas: the dopaminergic Midbrain (Ventral Tegmental Area), Prefrontal Cortex, Striatum and Amygdala-Hippocampus complex in response to smelling a fragrance sample is evidence that the dopaminergic pathway has been activated [0060]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the invention of Hugdahl to include determining whether the Frontal Inferior Cortex and/or the Frontal Medial Cortex is/are activated in subjects smelling said fragrance or said flavouring, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 4, combined Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however does not teach wherein step d) further comprises determining from the contrast a number of adjacent activated voxels in the Frontal Inferior Cortex and/or the Frontal Medial Cortex, wherein additional confirmation that the tested fragrance or the tested flavouring elicits a well-being effect is obtained if the number of adjacent activated voxels thus determined is equal to or greater than said threshold value.
Warr, however, teaches wherein step d) further comprises determining from the contrast a number of adjacent activated voxels in the Frontal Inferior Cortex and/or the Frontal Medial Cortex, wherein additional confirmation that the tested fragrance or the tested flavouring elicits a well-being effect is obtained if the number of adjacent activated voxels thus determined is equal to or greater than said threshold value ( if a cluster of adjacent activated voxels has a volume equal to or greater than a threshold value, or if a cluster has a number of adjacent activated voxels equal to or greater than a threshold value …then the tested fragrance sample elicits a reward through the dopaminergic pathway [0033]; Scans were taken which covered the whole brain allowing the continuous monitoring of the whole brain throughout each assessment; the Frontal Inferior Cortex and the Frontal Medial Cortex, are a part of the whole brain).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include wherein step d) further comprises determining from the contrast a number of adjacent activated voxels in the Frontal Inferior Cortex and/or the Frontal Medial Cortex, wherein additional confirmation that the tested fragrance or the tested flavouring elicits a well-being effect is obtained if the number of adjacent activated voxels thus determined is equal to or greater than said threshold value, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 5, modified Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however, does not teach wherein steps c) and d) are respectively replaced by steps ci) and d1) :ci) contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined; d1) averaging the resulting contrasted brain activity of all subjects.
Warr, however, teaches wherein steps c) and d) are respectively replaced by steps ci) and dl): ci) contrasting, for each subject, ([0067] discloses alternative steps) the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined (Alternatively … contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol [0067]) ; d1) averaging the resulting contrasted brain activity of all subjects (and then averaging the resulting contrasted brain activity of all subjects [0067]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include wherein steps c) and d) are respectively replaced by steps ci) and dl):ci) contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined; d1) averaging the resulting contrasted brain activity of all subjects, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 6, modified Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however, does not teach wherein the control odour is air or an odourless perfumery solvent diluted in air.
Hugdahl, however, teaches wherein the control odour is air or an odourless perfumery solvent diluted in air (The method according to (1), wherein the control odour is air or an odourless perfumery solvent diluted in air [0034])
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include wherein the control odour is air or an odourless perfumery solvent diluted in air as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 7, modified Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however, does not teach wherein the group of subjects comprises at least 5 subjects.
Warr, however, teaches wherein the group of subjects comprises at least 5, preferably at least 10 subjects (wherein the group of subjects comprises at least 5 subjects [0035]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include wherein the group of subjects comprises at least 5 subjects, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 9, Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however, does not teach preparing an accord or a fully formulated fragrance which comprises: a) identifying at least one fragrance which elicits [a well-being effect by the method of claim 1]; b) formulating said at least one fragrance thus identified into an accord or a fully formulated fragrance.
Warr, however, teaches a method for preparing an accord or a fully formulated fragrance which comprises: (a method of preparing a fragrance, for example a fully formulated fragrance [0026])
a) identifying at least one fragrance which elicits a well-being effect (identifying a fragrance sample which elicits a reward through the dopaminergic pathway [0026]);
b) formulating said at least one fragrance thus identified into an accord or a fully formulated fragrance. (formulating said sample into a fragrance [0026]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include a) identifying at least one fragrance which elicits and formulating said at least one fragrance thus identified into an accord or a fully formulated fragrance, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 15, modified Hugdahl teaches the method of claim 4, as discussed above. Hugdahl, however, does not teach wherein steps c) and d) are respectively replaced by steps ci) and dl):ci) contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined; d1) averaging the resulting contrasted brain activity of all subjects.
Warr, however, teaches wherein steps c) and d) are respectively replaced by steps ci) and dl):ci) contrasting, for each subject, ([0067] discloses alternative steps) the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined (Alternatively … contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol [0067]) ; d1) averaging the resulting contrasted brain activity of all subjects (and then averaging the resulting contrasted brain activity of all subjects [0067]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include wherein steps c) and d) are respectively replaced by steps ci) and dl):ci) contrasting, for each subject, the brain activity obtained in the second protocol with the brain activity obtained in the first protocol whereby a number of adjacent activated voxels is determined; d1) averaging the resulting contrasted brain activity of all subjects, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Regarding claim 16, modified Hugdahl teaches the method of claim 7, as discussed above. Hugdahl, however, does not teach wherein the group of subjects comprises at least 10 subjects.
Warr, however, teaches wherein the group of subjects comprises at least 10 subjects (wherein the group of subjects comprises at least 10 subjects. [0036]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include wherein the group of subjects comprises at least 5 subjects, as taught by Warr. Doing so would allow to directly to evaluate any olfactive stimulus for its ability to stimulate the reward pathway, as suggested by Warr ([0023]).
Claims 12 is rejected under 35 U.S.C. 103 as being unpatentable over Hugdahl et al. (Hugdahl, Kenneth, et al. "Brain activation measured with fMRI during a mental arithmetic task in schizophrenia and major depression." American Journal of Psychiatry 161.2 (2004): 286-293., hereinafter “Hugdahl”) in view of Warr (US 20120220857 A1, of record, hereinafter "Warr"), and Burger et al. (Burger, Kyle S., and Eric Stice. "Neural responsivity during soft drink intake, anticipation, and advertisement exposure in habitually consuming youth." Obesity 22.2 (2014): 441-450, hereinafter “Burger”, of record).
Regarding claim 12, Hugdahl teaches the method of claim 1, as discussed above. Hugdahl, however does not teach a method for preparing a flavouring preparation, a food product, an oral care product or a beverage which comprises: a) identifying at least one flavouring which elicits a well-being effect by [the method of claim 1]; formulating said at least one flavouring thus identified into a flavouring preparation, a food product, an oral care product or a beverage.
Burger is considered analogous to the instant application as “Neural responsivity during soft drink intake, anticipation, and advertisement exposure in habitually consuming youth” is disclosed (title).
Burger teaches: a) identifying at least one flavouring which elicits a well-being effect (Page 441-“TABLE 2 BOLD responsivity to Coke intake and anticipated intake” shows the brain’s activity in response to coke vs a tasteless solution)
b) formulating said at least one flavouring thus identified into a flavouring preparation, a food product, an oral care product or a beverage (Page 449, Col. 2 para.2 “In conclusion, the present study found that intake and anticipated intake of Coke activated regions implicated in gustatory and reward processing, yet high-fat/sugar milkshake intake elicited greater activity relative to Coke. Advertisements highlighting the Coke product activated gustatory and visual processing regions, whereas the Coke logo did not. However, habitual Coke consumers vs. nonconsumers showed greater posterior cingulate responsivity to Coke logos while also exhibiting less vlPFC responsivity during anticipated Coke intake. Results indicate that soft drinks activate reward and gustatory regions, but are less potent in activating these regions than high-fat/ sugar beverages; drinks/flavors are formulated are associated with brain activity, i.e. well-being effect).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the combined invention of Hugdahl to include a) identifying at least one flavouring which elicits a well-being effect by and formulating said at least one flavouring thus identified into a flavouring preparation, a food product, an oral care product or a beverage, as suggested by Burger. Doing so would allow to allow to examine the effect of carbonated soft drink intake, anticipated intake, and advertisements on neural response in youth, particularly in brain regions implicated in attention, gustatory, and reward processing, as suggested by Burger Page 442, col. 2. Para.2 –“ Herein we sought to: 1) examine the effect of carbonated soft drink intake, anticipated intake, and advertisements on neural response in youth, particularly in brain regions implicated in attention, gustatory, and reward processing”).
Response to Arguments
Applicant's arguments filed 11/25/2025 have been fully considered but they are not persuasive.
Regarding the 35 USC 112(b) rejections of claim 1, see pages 10-11, the arguments are not persuasive as the newly added limitations to claim 1 further recite unclear limitations as noted above. Accordingly, the argument is not persuasive.
Regarding the 35 USC 102 rejection of claim 1, the arguments are moot in view of new grounds of rejection which relies upon Hugdahl et al. Hugdahl et al. (Hugdahl, Kenneth, et al. "Brain activation measured with fMRI during a mental arithmetic task in schizophrenia and major depression." American Journal of Psychiatry 161.2 (2004): 286-293., hereinafter “Hugdahl”) in view of Warr (US 20120220857 A1). Accordingly, this argument is moot. Applicant further argues on pages 11, regarding claim 3, which has been incorporated into claim 1, that Warr does disclose or suggest “Nowhere does Warr disclose or suggest that the Angular Gyrus is a brain area that responds to well-being or to further apply its response to measure whether a scent is positively influencing well-being”, however, the examiner notes that the claim contains relative language as noted in the 112(b) rejection above.
Regarding the 35 USC 102 and the 35 USC 103 rejections of the remaining dependent claims, applicants argument’s on page 14 are premised upon the assertion that the claims are allowable due to dependency on an allowable claim. The examiner respectfully disagrees for the reasons discussed above.
Regarding the 35 USC 103 rejection of claim 12, on pages 13-14 applicant argues that “Activation of the Angular Gyrus is observed only during the expectation of Coke intake as a flavorsome drink, not in response to olfactory stimulation…Burger does not disclose or suggest that the Angular Gyrus is a brain area that responds to well-being…Examiner's assertion that Burger's conclusion that beverages are formulated because of their association with brain activity is simply hindsight bias”. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Accordingly, the argument is not persuasive.
Conclusion
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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/N.B./Examiner, Art Unit 3798
/PASCAL M BUI PHO/Supervisory Patent Examiner, Art Unit 3798
1 https://pubmed.ncbi.nlm.nih.gov/22547530/