DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 4, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-4, 6-13, 15-22
Withdrawn claims:
None
Previously canceled claims:
5, 14
Newly canceled claims:
None
Amended claims:
1
New claims:
21-22
Claims currently under consideration:
1-4, 6-13, 15-22
Currently rejected claims:
1-4, 6-13, 15-22
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 7-13, 15-18, 21, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Shen (US 2018/0092394 A1) in view of Lombardo (US 2019/0208806 A1).
Regarding claim 1, Shen teaches a flavor particle (Abstract, [0028]; [0056]-[0057]) comprising a flavor ([0062]), allulose ([0062], [0142]), and a carrier ([0067]).
Although Shen does not explicitly teach that the allulose is present in an amount of 1 to 40 wt.% of the flavor particle, Shen teaches that a second edible material is present in an amount greater than 65% ([0048]), and that the second edible material may be a mixture of sweeteners, such as a combination of sucrose and allulose ([0062]). In an embodiment where the composition comprises 65% of a second edible material, and said second edible material is a mixture of sucrose and allulose, the composition would then comprise between, for example, 0.1% to 64.9% allulose, which encompasses the claimed range of “1 to 40 wt.%”.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Shen does not teach that the allulose encapsulates the flavor.
However, in the same field of endeavor, Lombardo teaches encapsulating flavor compositions in a matrix that includes materials such as monosaccharides ([0055]) and that allulose is a monosaccharide ([0063]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Shen to have the allulose encapsulating the flavoring as taught by Lombardo. Lombardo teaches that encapsulation is well known to persons skilled in the art ([0055]). Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious, see MPEP §2143(D).
Regarding claim 2, Shen teaches all elements of claim 1 as described above. Shen also teaches a glass transition temperature of about 10[Symbol font/0xB0]C to about 120[Symbol font/0xB0]C ([0054]), which overlaps with the claimed range of “greater than 25[Symbol font/0xB0]C and less than 120[Symbol font/0xB0]C”.
Regarding claim 3, Shen teaches all elements of claim 1 as described above. Shen also teaches that the average particle size of the material is between about 35µm to about 600µm ([0041]), which falls within the claimed range of “30 to 5000 µm”.
Regarding claim 7, Shen teaches all elements of claim 1 as described above. Shen also teaches wherein the carrier is starch, corn fiber, or polysaccharides ([0067], [0070]).
Regarding claim 8, Shen teaches all elements of claim 1 as described above. Shen also teaches that the first edible material may be a polymer ([0072]), and that the polymer can be a gum ([0073], where gums are known emulsifiers). Shen also teaches wherein the ratio of the first and second edible materials is at least 1:3 ([0049]). Therefore, in an embodiment where the particle comprises only the first and second edible materials, the composition would comprise 25% of an emulsifier, which falls in the claimed range of “0.5 to 30 wt.%”.
Regarding claim 9, Shen teaches the flavor particle of claim 1 as described above. Shen also teaches the particle comprising an emulsifier such as modified starch or gums ([0073]).
Regarding claim 10, Shen teaches all elements of claim 1 as described above. Although Shen teaches the amount of sweetener in the composition as being greater than 65% ([0048]), one of ordinary skill would recognize that the amount of sweetener in the composition has an important impact on the organoleptic qualities of the flavor particles, and would have adjusted the amount of allulose in the composition of Shen during routine optimization to find the percentage of allulose in the composition that results in a flavor particle that has the desired level of sweetness. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed weight percentage would thus be obvious.
Regarding claim 11, Shen teaches all elements of claim 1 as described above. Shen also teaches addition of a natural high potency sweetener ([0124]).
Regarding claim 12, Shen teaches the flavor particle of claim 1 as described above. Shen also teaches using the flavor particles in a foodstuff or beverage (Abstract).
Regarding claim 13, Shen teaches a process for preparing a flavor particle comprising combining a first edible material with second edible materials with concurrent mixing ([0013]-[0014]), where the first edible material is a carrier material ([0067]) and the second edible material can be a flavoring (herbs or spices) and a sweetener (such as allulose) ([0062]).
Regarding claim 15, Shen teaches the flavor particle of claim 1 as described above. Shen also teaches that it is known in the art that particles are stabilized when provided in a carrier ([0005]).
Regarding claim 16, Shen teaches all elements of claim 1 as described above. Shen also teaches that the carrier material is cellulose ([0067]; cellulose is a known biopolymer).
Regarding claim 17, Shen teaches all elements of claim 1 as described above. Shen also teaches a glass transition temperature of about 10[Symbol font/0xB0]C to about 120[Symbol font/0xB0]C ([0054]), which overlaps with the claimed range of “greater than 40 [Symbol font/0xB0]C to less than 90 [Symbol font/0xB0]C”.
Regarding claim 18, Shen teaches all elements of claim 1 as described above. Shen also teaches that the average particle size of the material is between about 50 µm to about 350 µm ([0041]), which falls within the claimed range of “50 to 1000 µm”.
Regarding claim 21, Shen does not teach wherein the flavor is a liquid ingredient.
However, in the same field of endeavor, Lombardo teaches that taste modulating compounds include essential oils such as mint oil (i.e., a liquid; [0048]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Shen with the use of a liquid flavoring ingredient. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Regarding claim 22, Shen teaches that the particles is in an amorphous matrix ([0059]-[0060]). Additionally, MPEP §2144.04(IV)(B) states “The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.” In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). Thus, absent evidence that the amorphous shape is significant to the composition, the claimed flavor particles is obvious.
Claims 4, 6, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Shen (US 2018/0092394 A1) in view of Snyder (US 2019/0289891 A1)(IDS Reference filed 10/28/2022).
Regarding claim 4, Shen teaches all elements of claim 1 as described above.
Shen does not teach wherein the flavor particle comprises a flavor in an amount of 1 to 40 wt.% of the total weight of the flavor particle.
However, in the same field of endeavor, Snyder teaches a flavor particle comprising ≥12% flavor by weight ([0003], [0006]), which overlaps with the claimed range of “1 to 40 wt.%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the flavor particle of Shen with the use of greater than 12% of a flavor by weight of the particle as taught by Snyder. One would be motivated to consult Snyder to determine the lower percentage of a flavor included in the particles in order to provide a flavor particle with a more subtle taste compared to the higher composition of at least 65% by weight taught by Shen ([0048]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 6, Shen teaches all elements of claim 1 as described above.
Shen does not teach wherein the flavor particle comprises a carrier in an amount of 20 to 98 wt.% of the total weight of the flavor particle.
However, in the same field of endeavor, Snyder teaches that the composition comprises a carrier, <20% by weight water, and ≥12% flavor ([0009]-[0014]). Therefore, it logically follows that the carrier is <88% of the composition, which overlaps with the claimed range of “20 to 98 wt.%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the flavor particle of Shen with the use of <88% of a carrier taught by Snyder. One would be motivated to make this modification because, as taught by Snyder, the carrier is important in improving flavor stability against oxidation and evaporation during storage ([0069]). Therefore, one would be motivated to use the value of Snyder to provide higher stability of the flavor composition.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 19, Shen teaches all elements of claim 1 as described above.
Shen also teaches that the first edible material may be a polymer ([0072]), and that the polymer can be a gum ([0073], where gums are known emulsifiers). Shen also teaches wherein the ratio of the first and second edible materials is at least 1:3 ([0049]). Therefore, in an embodiment where the particle comprises only the first and second edible materials, the composition would comprise 25% of an emulsifier, which falls in the claimed range of “0.5 to 30 wt.%”.
Shen does not teach the flavor in an amount of 10 to 30 wt.%, allulose in an amount of 5 to 30 wt.%, the carrier in an amount of 40 to 80 wt.%, or the sweetener in an amount of 1 to 30 wt.%.
However, in the same field of endeavor, Snyder teaches a flavor particle comprising ≥12% flavor by weight ([0003]), which overlaps with the claimed range of “1 to 40 wt.%” and that the particle comprises a carrier, <20% by weight water, and ≥12% flavor ([0009]-[0014]). Therefore, it logically follows that the carrier is <88% of the composition, which overlaps with the claimed range of “20 to 98 wt.%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Shen with the use of ≥12% of a flavor and <88% of a carrier in the composition. One would be motivated to make this modification to arrive at a flavor particle with the desired flavor composition and stability provided by the carrier.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Although Shen teaches the amount of sweetener in the composition as being greater than 65% ([0048]), one of ordinary skill would recognize that the amount of sweetener in the composition has an important impact on the organoleptic qualities of the flavor particles, and would have adjusted the amount of allulose in the composition of Shen during routine optimization to find the percentage of allulose in the composition that results in a flavor particle that has the desired level of sweetness. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed weight percentage would thus be obvious.
Regarding claim 20, Shen teaches all elements of claim 13 as described above.
Shen does not teach wherein the mixture is dried by spray drying.
However, in the same field of endeavor, Snyder teaches an example where the particles are spray dried ([0111]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process taught by Shen with the use of spray drying as taught by Snyder. Because spray drying is known in the art, one of ordinary skill would have been capable of combining the mixing process taught by Shen with the addition of spray drying as taught by Snyder to yield predictable results of a flavor particle that has been dried. MPEP §2143(I)(B) states “The rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR, 550 U.S. at 416, 82 USPQ2d at 1395; B/E Aerospace, Inc. v. C&D Zodiac, Inc., 962 F.3d 1373, 1379, 2020 USPQ2d 10706 (Fed. Cir. 2020)”.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1-3, 7-13, and 15-18 over Shen: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated/obvious in view of Shen. However, upon further consideration, a new ground(s) of rejection is made in view of Shen and Lombard.
Applicant also argued that Shen addresses a different technical objective than the claimed invention (Remarks, p. 7, ¶ 2).
This argument has been considered. However, Shen is considered analogous art because Shen is directed towards a flavor particle composition, which is what the claimed composition is. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., improving storage stability of volatile flavor deliver systems) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Additionally, MPEP §2112.01 states where the claimed and prior art are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP §2112.01(II) states that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties the applicant discloses and/or claims are necessarily present. Because Shen in view of Lombard teaches the same composition as that of the claimed invention, the claimed invention is obvious.
Claim Rejections – 35 U.S.C. §103 of claims 4, 6, 19, and 20 over Shen and Snyder: Applicant's arguments as related to claim 1 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 1-4, 6-13, 15-20 have been maintained herein.
Conclusion
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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