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 .
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-7 and 9-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shobu USPGPub 20060075927 with evidenced provided for claims 3, 4 and 6 by Wollgast “Polyphenols in chocolate: is there a contribution to human health” Food. Res. Intl, 33 (2000) 449-459.
Regarding claims 1 and 2, Shobu teaches a coating composition comprising:
Shellac [0149]
Acidic polysaccharide such as xanthan gum, pectin, carrageenan or gum Arabic [0150]
The coating composition of Shobu is disclosed to be used for coating chocolate. [0158] Applicant’s specification states at [0015] that “The functional substance is a substance that can have intraoral functionality, i.e., the property of exerting its function on the living body by being present in the oral cavity.” Chocolate exerts its function on the living body by being present in the oral cavity and is therefore interpreted to be a functional substance. Therefore, Shobu anticipates claims 1 and 2.
Regarding claims 3, 4 and 6, as evidenced by Wollgast, chocolate contains polyphenols such as catechin and procyanidin. (Fig. 1)
Regarding claim 5, this claim does not positively recite that the basic substance is required to be present, it only requires that if the basic substance is present it must satisfy claim 5. As such, the polyphenols in the invention of Shobu satisfy claim 3 and therefore satisfy this claim.
Regarding claim 7, Shobu discloses the composition is a granular. [0158]
Regarding claims 9-11, the invention of Shobu is an oral composition that is a food. [0149]
Regarding claims 12 and 13, Shobu does not explicitly disclose that the invention is a “food for bad breath control”. However, chocolate would at least temporarily mask the smell of bad breath while wearing a mask or at the time of awakening and therefore Shobu is interpreted to anticipate claims 12 and 13.
Regarding claim 14, the taste of the invention of Shobu would persist for at least some period of time in the mouth and is therefore interpreted to be a taste retention food.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Shobu USPGPub 20060075927.
Regarding claim 8, Shobu teaches granules with a diameter of 12-32 mesh (approx.. 1.7-0.5 mm) [0169] While this range is slightly larger than the range claimed, it demonstrates that the invention of Shobu is intended for very small granules that have the same function and mode of effect as the granules claimed. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used the coating of Shobu on items of any grain size. As stated in MPEP 2144.04 IV A “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793