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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Amendment
The amendments filed on December 29, 2025 have been entered. Claims 1-4 and 6-8 are pending in the application.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claims 1-4 and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Kusuura (US 2013/0216657 A1) in view of Gaserod et al (US 2005/0137272 A1), Cao et al (Soy Protein Isolate/Sodium Alginate Microparticles under Different pH Conditions: Formation Mechanism and Physicochemical Properties, March 2022, Foods, vol. 11, 790), and Olszak (The Benefits of Deionized Water, Complete Water Solutions, May 18, 2020).
Regarding Claims 1 and 3-4: Kusuura teaches a porous wet foaming gel material (para. 0003-0004, gelled foam including voids) comprising 0.5-6 wt% of a foaming agent (para. 0059), 1 wt% of a polyol, such as glycerin/glycerol (para. 0051), a calcium ion releasing agent which is an insoluble salt such as calcium carbonate (para. 0045), a pH adjuster such as gluconolactone (para. 0060), which is a weak acid corresponding with the gelling agent of the instant claims, and, in some embodiments, at least 95% water (para. 0046). Although Kusuura does not explicitly state the amounts of the calcium carbonate and gluconolactone, in an embodiment where the amount of water is at least 95%, each may be present at 0-3.5%.
The amounts of foaming agent, calcium carbonate, and gluconolactone overlap the claimed range. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. MPEP 2144.05 (I). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use overlapping amounts of these ingredients and would have been motivated to do so since Kusuura teaches these amounts are appropriate to maintain the foam (para. 0059), form a gel (para. 0058), and prevent propagation of fungus (para. 0060).
Kusuura is silent to the bacteriostatic agent.
Gaserod teaches a gelled foam (abstract) comprising bacteriostatic agents such as silver salts (para. 0090) at 0.02-0.08 wt% (p.21, Table 15), which effectively inhibited microbial growth (para. 0239). Gaserod and Kusuura are analogous art because they are directed toward the same field of endeavor, namely wet gel foaming materials.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add 0.02-0.08 wt% of a bacteriostatic agent to the composition taught by Kusuura in order to inhibit microbial growth.
Kusuura is silent to the foaming agent being a soy protein isolate-sodium alginate compound.
Cao teaches a soy protein isolate-sodium alginate compound that creates a dense and stable foam (p. 12, section 3.11). Cao and Kusuura are analogous art because they are directed toward the same field of endeavor, namely foaming materials for food applications.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the foaming agent taught by Kusuura with the soy protein isolate-sodium alginate compound taught by Cao because it is food-safe, naturally derived, and produces a very stable foam.
Kusuura is silent to the water being deionized water.
Olszak teaches that deionized/DI water is chemically pure and does not contain impurities that could alter the chemistry of a system (The Importance of DI Water). Olszak and Kusuura are analogous art because they are directed toward the same field of endeavor, namely chemical compositions comprising water.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use deionized water as the water taught by Kusuura in order to ensure that the chemical composition of the system is not altered.
Regarding Claim 2: The preparation method of the soy protein isolate-sodium alginate compound in lines 2-11 of the claim is a product-by-process limitation. MPEP § 2113 states that “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”. Therefore, the structure implied by the preparation method will be considered when assessing patentability of Claim 2. However, the Applicant should note that “the Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). See MPEP § 2113(II).
Regarding Claim 6: Kusuura does not teach that the gelled foam is used in the transportation of fresh food. However, claim 6 recites an intended usage of the material, which does not limit the structure or composition of the foam. The selection of a known material based on its suitability for its intended use supports a prima facie case of obviousness. MPEP 2144.07. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the composition of Kusuura in the transportation of food items because of its suitability for that purpose.
Regarding Claims 7-8: Kusuura teaches the use of the gelled foam in food packaging applications (para. 0003).
Response to Arguments
Applicant's arguments filed December 29, 2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that Kusuura does not include examples of a composition containing all of the claimed ingredients, disclosed examples and preferred embodiments do not teach away from the broader disclosure. Patents are relevant as prior art for all they contain. See MPEP 2123.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAITLIN N ILLING whose telephone number is (571)270-1940. The examiner can normally be reached Monday-Friday 8AM-4PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Eashoo can be reached at (571)272-1197. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/C.N.I./Examiner, Art Unit 1767
/MARK EASHOO/Supervisory Patent Examiner, Art Unit 1767
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