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 § 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.
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(s) 1-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Warendorf (EP 0931463 A1).
In regard to claims 1 and 9, Warendorf discloses a refrigerated water jelly comprising a jelly ground mass and a fruit phase made of fruit pieces, said pieces being uniformly distributed in the gelling system, the water gelling system consisting of 50 to 90 % and the fruit phase of 10 to 50 % of the water jelly, wherein the jelly ground mass comprises in weight 0.4 to 0.7 % of xanthan, a gelling compound taken in the group consisting of 0.5 to 1.5 % of carrageenan, 0.4 to 1.0 % of carrageenan together with 0.1 to 0.5 % of locust bean gum and 0.1 to 0.5 % of gellan gum and 15 to 30 % sugar and wherein the fruit phase has a sugar content near to the sugar content of the jelly ground mass and contains between 0.4 and 0.7 % of xanthan (claim 1). Therefore, Warendorf discloses composition for gelled foods having plurality of layers (water jelly comprising a jelly ground mass and a fruit phase made of fruit pieces) comprising a gelling agents that includes carrageenan and locust bean gum.
In regard to the recitation of “wherein in the case in which the gelling agent includes carrageenan, the carrageenan and the locust bean gum are included at a weight ratio of 1.5 to 4:1”, it is noted that Warendorf discloses 0.4 to 1.0 % of carrageenan together with 0.1 to 0.5 % of locust bean gum (claim 1).
It appears that such layers meet the limitation of a “gel form” as recited in claim 1.
In regard to claims 2-5, Warendorf discloses 0.4 to 1.0 % of carrageenan together with 0.1 to 0.5 % of locust bean gum (claim 1).
In regard to claim 6, Warendorf discloses xanthan gum ([0004], claim 1).
In regard to claim 7, Warendorf discloses wherein the jelly ground mass comprises in weight 0.4 to 0.7 % of xanthan (claim 1).
In regard to claim 8, Warendorf discloses an acidulant ([0015], [0016]).
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to claims 10, it is noted that Warendorf discloses composition for gelled foods having plurality of layers (water jelly comprising a jelly ground mass and a fruit phase made of fruit pieces). These two layers (phases) do have a different sugar content due to the difference in nature of the ingredients. The specific difference in sugar content would depend on the specific materials employed in the gelled food composition.
In regard to the recitation of claims 11-12, it is noted that the strength and the hardness of the gelled food layers would depend on the specific method steps and conditions employed in the process for producing of such product.
In regard to the recitation of claim 13, Warendorf discloses that “the shelf life of the product is over 6 weeks under chilled conditions of 12 °C. There was no growth of micro-organisms” ([0031]).
Response to Arguments
Applicant's arguments filed 09/17/2025 have been fully considered but they are not persuasive.
In response to Applicant’s arguments regarding the food layers having a “gel shape”, it is noted that gel can be formed in any desired shape. Hence, It appears that such layers meet the limitation of a “gel form” as recited in claim 1.
The rejection of claims under 35 USC § 102 has been withdrawn in light of claim amendments.
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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/VERA STULII/Primary Examiner, Art Unit 1791