DETAILED ACTION
Amendments made May 28, 2026 have been entered.
Claims 1, 3-4, 6-7, 9-16, 22-24, and 44-46 are pending;
Claims 10-16 and 22-24 have been withdrawn.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-4, 6-7, 9 and 44-46 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.
Claim 1 recites “adding a polysaccharide to the aqueous phase thereby forming a gelled mixture”. As the claimed and disclosed polysaccharides include polysaccharides, such as agar and ghatti, that do not gel, but rather thicken when added to water, unless additional steps are taken to promote gelling, it is unclear as to if the claimed term simply means “thicken” or is limited to a “gel” wherein additional, unnamed steps would be required in the scope of the claims. For the purpose of prior art comparison, the addition of one of the claimed and/or disclosed polysaccharides to an aqueous solution is considered to encompass the limitations as claimed. Claim 44 is rejected for substantially the same reasons. Additionally, it is noted that claim 44 supports the position of the office in that a first polysaccharide as disclosed can be added to the aqueous solution and not form a gel mixture, but rather a continuous phase. In other words, it is unclear as to if “forming a gelled mixture” means forming a mixture which is capable of gelling, or forming a mixture which is in fact a gel, therefore require any steps (besides simple addition) that would be needed for the polysaccharide to gel.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In the instant case, claim 7 fails to include all the limitations of the claim upon which it depends. Claim 7 recites that the hydrolyzed gel mixture has a viscosity of between about 40-150cp, which encompasses values of 150cp and higher since the term “about” means near or close to, however claim 1, from which claim 7 depends limits the viscosity to values less than 150cP. Thus, claim 7 is not limited to the viscosity values required by claim 1 from which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-4, 6-7, 9 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Tristram et al (WO 2018/045419) in view of Tristram et al (WO 2019/165506).
Tristram et al (Tristram) teaches a method of providing a food grade thickener (abstract). Tristram exemplifies the method of making the thickener as comprising: dissolving a first polysaccharide in water, i.e. providing an aqueous phase to which a polysaccharide is added, followed by the addition of citric acid and potassium sorbate; then adding xanthan gum, i.e. a second polysaccharide; then heating to 80C; and adding gellan gum (a thickener) (page 36, Example 1 page 36 and page 4 line 10 through page 5 line 3).
Regarding adding the polysaccharide to the aqueous phase thereby forming a gelled mixture as recited in claim 1(ii), and adding a first polysaccharide to establish an aqueous continuous phase and adding a second polysaccharide to form the gelled mixture as recited in claim 44, as discussed above, the limitations are unclear. Additionally, it is noted that the claimed limitation only recites the addition of the polysaccharide to form a “gelled mixture” and/or continuous phase. As Tristram teaches the addition of the same polysaccharides as claimed and disclosed, including the addition of a first polysaccharide, followed by the addition of a second polysaccharide, xanthan gum, which was known to gel or thicken in water, the teachings of Tristram at least make obvious adding a first polysaccharide, i.e. Larix polysaccharide extract to the aqueous phase to form an aqueous continuous phase, and adding a second polysaccharide, i.e. xanthan, to form a gelled mixture as claimed.
Regarding hydrolyzing the gelled mixture for a duration of about 2-72 hours to reduce the viscosity as recited in claim 1 (iii), wherein the gel is hydrolyzed at a temperature of about 50-95C as recited in claim 4, or with acid hydrolysis as recited in claim 6, as discussed above, Tristram teaches or at least makes obvious a thickening product made by forming a “gelled mixture” with a polysaccharide and then heating said mixture to 80C. Tristram is not specific to the heating as hydrolyzing the gelled mix or to other means of hydrolysis. Tristram et al WO2019/165506 (Tristram ‘506) teaches a stable thickening composition which is formed by hydrolyzing a polysaccharide containing solution (abstract, page 1 lines 4-6, page 5 line 16 through page 6 line 7, page 11 line 24 through page 12 line 3). Tristram ‘506 teaches that hydrolysis is preferably with heat or acid treatment (page 4 lines 9-14) for about 15 minutes to 48 hours (page 5 lines 10-12 and page 18 lines 7-10) and/or at a temperature of about 55-90C (page 5 lines 1-4). It would have been obvious to one of ordinary skill in the art for the heating of the polysaccharide thickening composition of Tristram to be hydrolyzation through known means, including for about 15 minutes to 48 hours with acid, or at a temperature of about 55-90C in order to produce a stable product as taught by Tristram ‘506.
Regarding the hydrolyzed gel mixture as having a viscosity of less than 150cP measured at 20C using a Brookfield viscometer #3 spindle at 5rpm as recited in claim 1(iii), preferably between 40-150cp as recited in claim 7, Tristram is silent to the limitation as claimed. However, as the prior art teaches and makes obvious forming the hydrolyzed gel mixture with the same steps as claimed and disclosed, including the addition of the same polysaccharides, in the same amounts, and hydrolysis with overlapping conditions, the method of the prior art is expected to produce an intermediate product overlapping the viscosity as claimed. Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. 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). The position is further supported as Tristram teaches that the final thickener, which is the hydrolyzed gel mixture, plus an additional gum (thickener), has a viscosity of less than 2000cp (page 4 lines 10-13, page 28 lines 7-14, and page 28 line 19 through page 29 line 2) and that the thickener preferably increases the viscosity of the food greater than 95cp (page 29 lines 3-5). Therefore, as a prima facie case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different. Alternatively, Tristram ‘506 teaches that thickening compositions can have “suitable” flows (page 22 lines 17-19). It would have been obvious for the intermediate product of Tristram to have a viscosity that provided a suitable flow for the final product and/or further processing in view of Tristram ‘506.
Regarding adding a gum to the hydrolyzed gum mixture under conditions such that the gum only partially expresses its viscosity as recited in claim 1 (iv), as discussed above, Tristram in view of Tristram ‘506 at least makes obvious adding a gellan gum to the hydrolyzed gum mixture. Tristram further teaches that the water binding ability of the thickeners can be modulated and controlled to produce specific degrees of inhibition when used with polysaccharides, such as that their viscosity may be released upon dilution, and use (page 13 lines 9-15, page 29 lines 5-8 and 19-21, and page 32 lines 18-24). Thus, the teachings of Tristram encompass or at least make obvious the limitations as claimed, wherein the addition with a polysaccharide as taught would be expected to provide inhibition/partial expression, and/or alternatively, it would have been obvious to use known methods of control to modulate and control the degree of binding in view of Tristram.
Regarding the polysaccharide as added to the aqueous phase from about 0.5-30% as recited in claim 3, Tristram teaches that the polysaccharide is added from about 3-30% (page 30 line 22 through page 31 line 2).
Regarding the gum as added in a concentration of about 2-30% as recited in claim 9, as discussed above, Tristram teaches of adding a xanthan gum, i.e. a thickening agent, to the composition after heat treatment. Tristram teaches that the thickening agent is present from about 3-30% (page 30 lines 6-19).
Regarding the polysaccharide as comprising sodium carboxymethylcellulose as recited in claim 45, Tristram teaches that the polysaccharide, which is the component added before heating in the example, is selected from a group including Larix occidentalis polysaccharide extract, and/or carboxymethylcellulose, i.e. sodium carboxymethylcellulose (Example 1, page 36, and page 4 line 20 through page 5 line 3). Thus, the teachings of Tristram encompass or at least make obvious the use of the claimed polysaccharide in place of the Larix occidentalis polysaccharide extract in the exemplary method disclosed by Tristram.
Regarding the gum as comprising xanthan as recited in claim 46, Tristram teaches that the thickener, which is a component added after heating in the example, is selected from a group including gellan and/or xanthan gum (Example 1, page 36, and page 4 lines 14-20). Thus, the teachings of Tristram encompass or at least make obvious the use of the claimed gum in place of gellan in the exemplary method disclosed by Tristram.
Response to Arguments
Applicant's arguments filed in the remarks on May 28, 2026 and in the Declaration filed May 18, 2026 have been fully considered but they are not persuasive.
Applicant argues that the term “gelled mixture” would be readily understood by a person of skill in the art as polysaccharides such as agar do indeed act as gelling agents when combined with water. This argument is not convincing. Not all gelling agents are cold water soluble. As stated previously, some gelling agents require additional method steps, such as a heating and/or cooling and/or pH adjustment in order to achieve gelling. Further reference is made to Igoe et al, Dictionary of Food Ingredients 4th Edition, page 5 which shows that agar for example, is insoluble in cold water, and forms a gel after solubilizing in hot water and then cooling; page 84 which shows that locust bean gum, another named polysaccharide requires heating to form gels; and page 90 shows methylcellulose requires heating at 50-55C to achieve gelling. Thus, as the step of adding a polysaccharide alone would not necessarily form a gelled mixture as claimed, it is unclear as to “adding a polysaccharide to the aqueous phase thereby forming a gelled mixture” means actually forming a gel, thus requiring in the claimed scope any necessary steps for gelling based on the polysaccharide selected, or simply means forming a mixture which is capable of gelling with further treatment.
Applicant argues that Tristram ‘419 does not teach first hydrolyzing the polysaccharide mixture to reduce its viscosity less than 150cp before adding a gum. This argument is not convincing. As discussed above, and as noted in the arguments, Tristram does teach of adding a polysaccharide to an aqueous solution, followed by heating, and then addition of a gum. Although Tristram is not specific to the heating as hydrolyzing, Tristram ‘506 makes this obvious for the reasons of stability discussed above. Further, as stated above, and previously, as the prior art teaches of a method which has the same active method steps as claimed, the same result of the reduced viscosity would be expected. Alternatively, as Tristram ‘506 teaches that thickening compositions can have “suitable” flows (page 22 lines 17-19), it would have been obvious for the intermediate product of Tristram to have a viscosity that provided a suitable flow for the final product and/or further processing in view of Tristram ‘506.
Applicant argues that the claimed method produces surprising results as seen in the Declaration. This argument is not convincing. First it is noted that although the declaration states that there is a correlation between treatment and viscosity, the declarant does not state that such a result is surprising or unexpected. Furthermore, even if the results were stated to be unexpected, the example in the declaration only shows a specific composition and processing parameters which do not represent the breadth of the claims. Applicant further notes that the viscosity allows for pumpability. This is not seen to be unexpected or non-obvious as Tristram ‘506 specifically teaches that thickening compositions can have “suitable” flows (page 22 lines 17-19), and thus to arrive at a pumpable viscosity appears to be within the skill of one of ordinary skill in the art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Igoe et al, Dictionary of Food Ingredients 4th Edition Aspen Publications 2001, show that carboxymethylcellulose is formed as sodium carboxymethylcellulose (page 30) and known gelling parameters for some of the claimed polysaccharides (pages 5, 84, and 90).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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