DETAILED ACTION
Election Acknowledged
Applicant’s election of Group II encompassing claims 4, 5 and 26 in the reply filed on 10/23/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 1-12, 15-18, 20, 25-27 and 33 are pending, claims 1-3, 6-12, 15-18, 20, 25, 27 and 33 are withdrawn as being directed to nonelected invention and claims 4, 5 and 26 are presented for examination on the merits.
The following rejections are claimed.
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 26 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 26 recites, “[A] method of making a fiber supplement…. comprising: a. combining an edible ingredient with a texture-controlled fiber ingredient, …; b. combining the edible ingredient with a dehydrated viscous soluble fiber system to form a second composition…; or c. combining the edible ingredient with the texture-controlled fiber ingredient and a divalent cation source to form a third composition; and forming the third composition into the fiber supplement.” Each of a, b and c are linked in the alternative (a method comprising a, b or c). The claim is indefinite because both alternative method steps b and c reference “the edible ingredient with a dehydrated viscous soluble fiber system” but the recitation of ‘the’ in “the edible ingredient with a dehydrated viscous soluble fiber system” of steps b and c lacks antecedent basis as step a is independent from steps b and c. Amending to remove “the” and replace with “a” (as stated by step a) would overcome this rejection.
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.
Wan describes a low glycemic gummy composition that comprises a gelling agent (e.g. pectin, alginate; 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) 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(c) 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).
Regarding the step of adding divalent cations after combining the “dry” ‘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.
The only difference between Wan and the instant claims is that Wan does not teach the specific method of combining components as claimed in a single embodiment, or with sufficient specificity to be anticipatory. The specific combination of features claimed are described by Wan, but ‘such ‘picking and choosing’ within several variable does not necessarily give rise to anticipation. When a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” See MPEP 2141(I). Consistent with this reasoning, it would have been obvious to utilized the framework of Wan to arrive at a method such as that claimed with a reasonable expectation for success.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in absence of evidence to the contrary.
Potentially Relevant Prior Art
Villagran et al. (US 2017/0360865)
Conclusion
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