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 § 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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-26 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1 and 26, it is unclear what is encompassed by the term “massively producing”. It appears this may mean “mass producing”. However, appropriate correction is requested.
Claims 1 and 26 recite “heating up the second spherical beads under 70 to 90C”. It is unclear what is the lower limit of this range.
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.
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.
Claim(s) 1-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hollenkamp(US 2015/0118365).
Regarding claim 1,2,6,11,12, Hollenkamp teaches a method for massively producing an alcohol-containing food product with an edible gelled outer shell and a flavored liquid interior, comprising:
(a) preparing a first aqueous solution including a first alcohol solution(para 17), a solvent(water, para 20), a syrup(corn syrup, para 34), a food additive(para 37), a food flavor(para 37), a preservative(para 19) and a thickening agent(para 32,54, abstract),
Hollenkamp is silent on the pH of the solution. However, ethanol and water(the main components of the first solution) are known to have a pH of around 7. Hollenkamp also teaches that the solution comprises a pH buffer(para 33). Therefore, it would have been obvious to adjust the pH to 5 to 7 to make the solution stable and in the typical range of alcohol and water.
(b) mixing the first aqueous solution(para 36).
Hollenkamp does not specifically teach that the first aqueous solution is mixed at constant speed and that the temperature of the first aqueous solution is maintained at 8-25°C, wherein the constant speed is no more than 100 RPM. However, Hollenkamp does not disclose heating the solution while mixing. Therefore, one of ordinary skill in the art would expect the solution would be at room temperature, i.e. 25C.
Furthermore, it would have been obvious to adjust the speed of mixing in order to form a homogenous solution.
(c) Hollenkamp does not disclose sterilizing the first aqueous solution with water bath. However, Hollenkamp teaches that the beads are sterile and are to be stored for a long period of time(para 11). Therefore, it would have been obvious to sterilize the first aqueous solution in a known way such as a water bath in order to ensure that the beads are sterile and can be stored for a long period of time.
(d) preparing a second aqueous solution including an alginate(para 55),
Hollenkamp does not specifically teach wherein a pH value of the second aqueous solution is 5 to 7. However, water and ethanol(the main components of the first solution) are known to have a pH of around 7. Hollenkamp also teaches that the solution comprises a pH buffer(para 33). Therefore, it would have been obvious to adjust the pH of the second aqueous solution to 5 to 7 to make the composition stable and compatible with the first aqueous solution.
(e) forming first spherical beads of a non-gelled liquid alcohol encapsulated in the edible gelled outer shell by quantitatively dripping the first aqueous solution into the second aqueous solution(para 42);
(f) Hollenkamp teaches that beads are to be 1 to 20mm(para 52) in size but does not specifically teach sorting second spherical beads with a size from the first spherical beads by a screen. However, since Hollekamp desires a specific size range, it would have been obvious to sort the second spherical beads from the first spherical beads with a screen.
(g) setting the second spherical beads by heating(para 42). Hollenkamp does not specifically teach heating the second spherical beads under 70 to 90°C for 5 to 15 minutes. However, it would have been obvious to adjust the temperature and time in order to properly set the beads into a gel. As such, the setting properties of alginate are well known in the art.
(h) storing the set second spherical beads in a third aqueous solution, wherein the third aqueous solution comprising a second alcohol solution(para 21). Hollenkamp teaches that the alcohol content of the first aqueous solution is 2 to 40% by volume alcohol(para 36).
Hollenkamp further teaches that the third aqueous solution is to have similar alcohol content and pH to the first aqueous solution(para 21). wh
Regarding claim 3, Hollenkamp teaches that the syrup is in the form of corn syrup which contains glucose(para 34)
Regarding claim 4, Hollenkamp teaches that the additive comprises potassium sorbate(para 19).
Regarding claim 5, Hollenkamp teaches that the first solution can comprise flavoring extract such as strawberry extract(para 37). It would have been obvious to use strawberry juice concentrate since this is a known and available form of juice extract.
Regarding claims 7,8, Hollenkamp teaches that the first aqueous solution further comprises a multivalent salt such as calcium lactate(para 54).
Regarding claim 9, Hollenkamp teaches that size of the first spherical beads and second spherical beads are 9 to 11 mm(para 52).
Regarding claim 10, as stated above, Hollenkamp renders obvious sorting of beads in order to achieve the desired size(para 52). Hollenkamp also teaches that the beads are intended to be spherical(para 52). Therefore, it would have been obvious to exclude shriveled, unrounded spherical beads from the second spherical beads.
Regarding claim 13, Hollenkamp teaches that the third aqueous solution is to have similar alcohol content and pH to the first aqueous solution(para 21) Therefore, it would have been obvious to have the first alcohol solution(in the first aqueous solution) and second alcohol solution(in the third aqueous solution) be the same.
Regarding claim 14, Hollenkamp does not teach wherein the first alcohol solution and second alcohol solution are different. However, it would have been obvious to adjust the alcohol content of the first alcohol solution(in the first aqueous solution) and the second alcohol solution(in the third aqueous solution) depending on the nature of the product. It would have been obvious to have the alcohol content of the first and third aqueous solutions be similar enough to ensure stability of the bead but still slightly different depending on the nature of the product and storage conditions.
Regarding claim 15, Hollenkamp teaches including about 0.2 to 10wt% multivalent salt in the first aqueous solution(para 18).
Regarding claims 16 and 17, wherein the thickening agent includes a polysaccharide selected from the group consisting of xanthan gum, starch, and combinations thereof(para 19).
Regarding claim 18, Hollenkamp teaches the first aqueous solution contains between about 2 to 40% alcohol by volume resulting from a liquid alcohol additive selected from the group consisting of neutral spirits, ethyl alcohol, wine, sherry, brandy, liqueur, port, vodka, gin, whisky, scotch, cognac, tequila, rum, champagne and combinations thereof(para 20).
Regarding claim 19, wherein the second aqueous solution contains between about 2 to 40% alcohol by volume resulting from a liquid alcohol additive selected from the group consisting of neutral spirits, ethyl alcohol, wine, sherry, brandy, liqueur, port, vodka, gin, whisky, scotch, cognac, tequila, rum, champagne and combinations thereof(para 20).
Regarding claim 20, Hollenkamp teaches that the first aqueous solution contains between about 2 to 40% alcohol by volume resulting from a liquid alcohol additive selected from the group consisting of neutral spirits, ethyl alcohol, wine, sherry, brandy, liqueur, port, vodka, gin, whisky, scotch, cognac, tequila, rum, champagne and combinations thereof(para 20). Hollenkamp further teaches that the third aqueous solution has a similar alcohol content to the first aqueous solution, i.e. 2 to 40% by volume(para 21).
Regarding claim 21, Hollenkamp does not specifically teach “wherein the set second spherical beads can maintain the size for at least 250 days”. However, Hollenkamp teaches the same method of making as recited in claim 1. Therefore, one of ordinary skill in the art would expect that the second spherical beads to have the claimed properties.
Regarding claim 22, Hollenkamp does not specifically teach that the thickness of the edible gelled outer shell is 0.1 to 0.2 mm. However, it would have been obvious to adjust the thickness of the shell in order to preserve the alcohol containing center and ensure a long shelf life.
Regarding claim 23, Hollenkamp does not specifically teach the set second spherical beads can maintain their elasticity under 4 to 10°C. However, Hollenkamp teaches the same method of making as recited in claim 1. Therefore, one of ordinary skill in the art would expect that the second spherical beads to have the claimed properties.
Regarding claims 24 and 25, Hollenkamp teaches that the second set of spherical beads have a diameter of 9 to 11mm. Hollenkamp does not teach using a first mesh to collect a mid-product, and using a second mesh to collect the second spherical beads from the mid-product, wherein the mid product has a diameter of above 8.5mm.
However, since Hollekamp desires a specific size range, it would have been obvious to sort the second spherical beads with a mesh screen. It would have been obvious to perform several mesh screenings to exclude beads outside of the desired product size, thus using a first screen to provide a mid-product over 8.5mm.
Regarding claim 26, Hollenkamp teaches a method for massively producing an alcohol-containing food product with an edible gelled outer shell and a flavored liquid interior, comprising:
(a) preparing a first aqueous solution including a first alcohol solution(para 17), a solvent(water, para 20), a syrup(corn syrup, para 34), a multivalent salt(para 54), a food additive(para 37), a food flavor(para 37), a preservative(para 19) and a thickening agent(para 32,54, abstract),
Hollenkamp is silent on the pH of the first aqueous solution. However, ethanol and water(the main components of the first solution) are known to have a pH of around 7. Hollenkamp also teaches that the solution comprises a pH buffer(para 33). Therefore, it would have been obvious to adjust the pH to around 7 to make the solution stable.
(b) mixing the first aqueous solution(para 36).
Hollenkamp does not specifically teach that the first aqueous solution is mixed at constant speed and that the temperature of the first aqueous solution is maintained at 8-25°C, wherein the constant speed is no more than 100 RPM. However, Hollenkamp does not disclose heating the solution while mixing. Therefore, one of ordinary skill in the art would expect the solution would be at room temperature, i.e. 25C.
It would have been obvious to adjust the speed of mixing in order to form a homogenous solution.
(c) Hollenkamp does not disclose sterilizing the first aqueous solution with hot water circulation. However, Hollenkamp teaches that the beads are sterile and are to be stored for a long period of time(para 11). Therefore, it would have been obvious to sterilize the first aqueous solution in a known way such as hot water circulation in order to ensure that the beads are sterile and can be stored for a long period of time.
(d) preparing a second aqueous solution including an alginate(para 55),
Hollenkamp does not specifically teach wherein a pH value of the second aqueous solution is 5 to 7; water(the main components of the first solution) are known to have a pH of around 7. However, as stated above, the first solution would be expected to have a pH of around 7. Hollenkamp also teaches that the solution comprises a pH buffer(para 33). Therefore, it would have been obvious to adjust the pH of the second aqueous solution to 5 to 7 to make the composition stable.
(e) forming first spherical beads of a non-gelled liquid alcohol encapsulated in the edible gelled outer shell by quantitatively dripping the first aqueous solution into the second aqueous solution(para 42);
(f) Hollenkamp teaches that beads are to be 1 to 20mm in size but does not specifically teach sorting second spherical beads with a size from the first spherical beads by a screen. However, since Hollekamp desires a specific size range, it would have been obvious to sort the beads
(g)Hollenkamp teaches that the beads are intended to be spherical(para 52). Therefore, it would have been obvious to exclude shriveled, unrounded spherical beads from the second spherical beads.
(h) setting the second spherical beads by heating(para 42). Hollenkamp does not specifically teach heating the second spherical beads under 70 to 90°C for 5 to 15 minutes. However, it would have been obvious to adjust the temperature and time in order to properly set the beads into a gel. As such, the setting properties of alginate are well known in the art.
(h) storing the set second spherical beads in a third aqueous solution, wherein the third aqueous solution comprising a second alcohol solution(para 42). Hollenkamp teaches that the alcohol content of the first aqueous solution is 2 to 40% by volume alcohol(para 36).
Hollenkamp further teaches that the third aqueous solutionis to have similar alcohol content and pH to the first aqueous solution(para 21). As stated above, it would have been obvious to have the first aqueous solution be at a pH of around 7, it would also have been obvious to have the third aqueous solution be around 7.
Hollenkamp does not specifically teach the set second spherical beads can maintain their elasticity under 4 to 10°C. However, Hollenkamp teaches the same method of making as recited in claim 26. Therefore, one of ordinary skill in the art would expect that the second spherical beads to have the claimed properties.
Applicant is reminded that where the claimed and prior art products 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). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Conclusion
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791