DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the amendments filed on 5/18/2026 wherein claims 4 and 26 have been amended and claim 34 has been added.
Claims 4, 5, 26 and 34 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s amendments filed 5/18/2026 renders moot the rejection of claim 26 made by the Examiner under 35 USC 112(b). This rejection has been withdrawn.
Applicant’s amendments filed 5/18/2026 overcomes the rejection of claims 4, 5 and 26 made by the Examiner under 35 USC 103 over Wan et al. (WO 2019/241146). This rejection is withdrawn as Wan’s method fails to teach drying the mixture of the fiber and gel-forming compound prior to mixing with the food ingredients.
New Rejections, Necessitated by Amendment
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.
Claims 4, 5 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wan et al. (WO 2019/241146), evidenced by Applicant’s published specification, in view of Paeschke et al. (US 2008/0085354).
Wan describes a low glycemic gummy composition that comprises a gelling agent (e.g. pectin, alginate, etc.; a ‘non-crosslinked acid-reversible gel-forming compound’ per Applicant’s specification) (see instant claim 4(b)) in an amount of 0.5-6% by weight of composition (see pages 4 and 13) and a fiber component (e.g. inulin, psyllium, husks, hydroxypropyl methylcellulose, etc.) in an amount of 0.001-80%, or alternatively 0.001-5%, or alternatively 5-10% by weight of composition (see page 19). It is noted that psyllium husk and hydroxypropyl methylcellulose are ‘viscous soluble fiber sources’ as stated by Applicant’s specification (see instant claim 4(b) and 26(a)). The combination of pectin (and/or alginate) and psyllium (and/or hydroxypropyl methylcellulose) yields the ‘texture-controlled fiber ingredient’ recited by instant claim 4(b), 4(c), 4(d) and 26(a).
From Wan’s suggested ranges the resulting gummy may comprise the ‘viscous soluble fiber source’ (e.g. psyllium) and the ‘non-crosslinked acid-reversible gel-forming compound’ (e.g. pectin) in a ratio 5:0.5 (10:1), or 10:0.5 (20:1). These ranges overlap the claimed ratio of 30:1 to 6:1 of instant claims 4(b) and 26(a). See MPEP 2144.05(I) regarding obviousness of ranges. See also MPEP 2144.05(II)(A) which states that where the general conditions of a claim are disclosed in the prior art (such as here), it is not inventive to discover the optimum or workable ranges by routine experimentation.
Example 15 of Wan provides a method of making a gummy snack wherein a solution of inulin is combined with a dry mix of tagatose (food ingredient), pectin, citric acid and calcium citrate, subsequently additional ingredients such as coconut oil (a food ingredient) and fruit flavor (a food ingredient) are added and the resulting solution heated. The heated solution is then placed into molds and allowed to cool to room temperature to form the finished gummy product (i.e. fruit snack gummy per instant claim 5) (see page 34) (see instant claims 4 and 26(a)). In this example, inulin is used as a fiber source. However, as psyllium and hydroxypropyl methylcellulose are equivalents to and interchangeable with inulin (see above) it would have been obvious to substitute inulin with psyllium and hydroxypropyl methylcellulose with a reasonable expectation for success. See MPEP 2144.06(II). See MPEP 2143(I)(B).
The presence of calcium citrate in Wan’s Example 15 would provide calcium ions (a divalent cation) to the solution during the method of making the gummy product. Those solvated calcium ions would be available to cross-link the pectin (the ‘non-crosslinked acid-reversible gel-forming compound’) as stipulated by instant claim 4(d) as the claimed cross-linking process only requires “contacting” the pectin and psyllium with divalent cations. This process step is taught by Wan. Although Wan does not recognize that the calcium ions (of calcium citrate) would cross-link the pectin, such would necessarily occur as this outcome is identified by the present claims. It is noted that Wan teaches that calcium ions induce the gelation of pectin (see page 12). In the circumstance where alginate was used as a gelling agent, Wan teaches that calcium ions are known to induce cross-linking resulting in a strong gel (see page 13). Calcium ions ability to induce crosslinking is due to chemical reactivity of the two materials when present together, thus the mere presence of the two together in solution would be sufficient, to at least some degree, induce crosslinking.
Wan fails to teach the mixture of gel-forming agent and fiber source as being dried prior to mixing with the food materials.
Paeschke is directed to the use of hydrocolloids in food products for improving their processing and organoleptic properties. Hydrocolloids include psyllium and pectin and mixtures thereof (see [0007, 0048]). It is taught that the hydrocolloids are blended in solution, extruded and then dried (see Example 1). The products that comprise the dried hydrocolloid mixture (e.g. pectin and psyllium) exhibited improved hydration time (see Protocol 2). Example 7 provides a food product whereby the dried hydrocolloid mixture is combined with food materials so as to produce a food snack (crisp cookie). It would have been obvious to modify Wan’s teaching such that the mixture of the gel-forming agent (pectin) and the fiber component (psyllium) were prepared according to the process of Paeschke prior to mixing with the food ingredients so as to improve the resulting products processing and organoleptic properties. See MPEP 2143(I)(C) which states that the use of a known technique to improve similar methods in the same way is supportive of a finding of obviousness.
Regarding the step of adding divalent cations after combining the ‘viscous soluble fiber source’ (e.g. psyllium) and the ‘non-crosslinked acid-reversible gel-forming compound’ (e.g. pectin), Wan teaches that the calcium salt (the source of the divalent cations) is provided simultaneously with the pectin in a dry mix and then combined with an inulin solution. However, it would have been obvious to dry mix the fiber (inulin) and pectin and then add the solution containing the divalent cation to the dry mixture as this would be nothing more than a manipulation of Wan’s method. Changes to the sequence of adding ingredients is an obvious manipulation of the prior art. See MPEP 2144.04(IV)(C) which states that the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. Currently, the Examiner is unaware of any unexpected outcomes regarding the instantly claimed method.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim Rejections - 35 USC § 112
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.
Claim 34 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 34 recites, “…contacting the texture-controlled fiber ingredient with a divalent cation solution in an amount sufficient to cross-link the acid-reversible gel-forming compound partially hydrates the viscous soluble fiber source…”. The underlined section renders the claim unclear because the it’s unclear what “partially hydrates” the viscous fiber. The step of contacting the fiber ingredient with the divalent cation results in the crosslinking. It is unclear, however, if that same step of contacting the fiber ingredient with a divalent cation is responsible for the remaining outcomes, e.g. partially hydrating the viscous fiber source, or if that outcome is related to some other unrecited step? Whatever the case, clarification is requested.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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