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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed July 1, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1, 3-4, 7-8, 10-15
Withdrawn claims:
None
Previously canceled claims:
2, 5-6, 9
Newly canceled claims:
None
Amended claims:
None
New claims:
14-15
Claims currently under consideration:
1, 3-4, 7-8, 10-15
Currently rejected claims:
1, 3-4, 7-8, 10-15
Allowed claims:
None
Claim Rejections - 35 USC § 103
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, 7-8, and 10-15 are rejected under 35 U.S.C. 103 as being unpatentable over Bhosle (IN 1750/MUM/2007 A).
Regarding claim 1, Bhosle teaches a tea composition comprising 30 to 95 wt% black tea (which overlaps with the claimed range of “85 to 98.5% by weight”), 0.5 to 40% of a binder, 0.01 to 5 wt% of a micronutrient including zinc (which encompasses the claimed range of “0.5 to 5% by weight), dried to a moisture content of less than 10% by weight (which matches the claimed range of “less than 10% moisture) (Abstract). Bhosle also teaches that the black tea of the invention is black leaf tea (p. 7, ¶ 4). Bhosle also teaches that the binders include maltodextrins and gum acacia (i.e., gum arabic) (p. 8, ¶ 3).
Although Bhosle does not disclose including both maltodextrins and gum arabic as binders, MPEP §2144.06(I) states “’It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.’ In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)”. Thus, it would have been obvious to include both maltodextrin and gum arabic in an amount of 0.5 to 40% total, which overlaps with the claimed range of “0.5 to 5% by weight” for maltodextrin and “0.05 to 6% by weight” for gum arabic.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 3 and 4, Bhosle teaches that preferred sources of zinc include zinc sulphate (p. 10, ¶ 2).
Regarding claims 7 and 8, Bhosle teaches that the tea composition comprises black tea (Abstract).
Regarding claim 10-13, Bhosle teaches that the tea composition has micronutrients such as vitamins, calcium, or iron (p. 4, ¶ 2).
Regarding claim 14, Bhosle teaches that the tea composition is dried to a moisture content of less than 10% by weight (which overlaps with the claimed range of “less than 10% moisture) (Abstract).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 15, Bhosle teaches 0.5 to 40% of a binder and that binders include that the binders include maltodextrins and gum acacia (i.e., gum arabic) (p. 8, ¶ 3). Although Bhosle does not disclose including both maltodextrins and gum arabic as binders, MPEP §2144.06(I) states “’It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.’ In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)”. Thus, it would have been obvious to include both maltodextrin and gum arabic in an amount of 0.5 to 40% total, which overlaps with the claimed range of “2 to 4%% by weight” for maltodextrin and “0.1 to 3% by weight” for gum arabic.
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 1, 3-4, 7-8, and 10-13 over Bhosle: Applicant’s arguments filed July 1, 2026 have been fully considered but they are not persuasive.
Applicant argued that one of ordinary skill would have not have a reasonable expectation of success in arriving at the tea composition because Bhosle merely lists maltodextrin and gum arabic among several binders (Remarks, p. 6, ¶ 2-4).
This argument has been considered but is not persuasive. MPEP §2123(I) states “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). Bhosle discloses that the binder can be sugar, maltodextrin, gum acacia (i.e., gum arabic), jaggery, or a mixture thereof (claim 5). Thus, Bhosle discloses an embodiment where the binder comprises both maltodextrin and gum arabic, which renders the claimed invention obvious.
MPEP §2144.06(I) states “’It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.’ In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980)”. Thus, it would have been obvious to include both maltodextrin and gum arabic in an amount of 0.5 to 40% total, which overlaps with the claimed range of “2 to 4%% by weight” for maltodextrin and “0.1 to 3% by weight” for gum arabic.
Applicant also argued that the claimed composition has unexpected results that the specific combination of maltodextrin and gum arabic results in a fortified tea composition having a natural appearance (Remarks, p. 7, ¶ 1- p. 11, ¶ 4).
This argument has been considered but is not persuasive. The data provided by the instant specification and the Declaration filed 7/1/2026 are not sufficient to demonstrate unexpected results of the claimed invention. MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).”
The data provided in the instant specification and the Declaration only test amounts of gum arabic and maltodextrin that are immediately in the center of the claimed range. The data provided does not test the upper and lower ends of the claimed range. Furthermore, the data provided by the Declaration demonstrates that the drying temperature and time are critical, but this parameter is not recited in the claimed invention. Additionally, the data in the instant specification relied on the chroma value (C*), which is known in the art to depend on the identity of the tea. The data provided only tests a specific black tea composition. The color of the tea composition would also be affected by the identity of the zinc composition used. Because the unexpected results in the specification are only directed to the C*, which is unclaimed, and this property does not inherently flow from the scope of the claims, arguments directed to the C* of the tea product are not germane. Thus, the data is not commensurate in scope with the claimed invention.
The declaration under 37 CFR §1.132 filed July 1, 2026 (hereinafter “Declaration”) is insufficient to overcome the rejection of the claims based upon Bhosle as set forth in the office action.
MPEP §716.01(c)(III) states “In assessing the probative value of an expert opinion, the examiner must consider:
The nature of the matter sought to be established,
The strength of any opposing evidence,
The interest of the expert in the outcome of the case, and
The presence or absence of factual support for the expert’s opinion.”
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 227 USPQ 657 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986)
The Declaration seeks to establish unexpected results of the claimed composition because of the specific combination of maltodextrin and gum arabic.
Regarding the strength of the opposing evidence, the evidence provides experiments to demonstrate higher zinc deliver for a tea leaf composition comprising both maltodextrin and gum arabic in the claimed amounts (Declaration, p. 3, Table D1; ¶ 8-34).
At present, the data provided is insufficient to demonstrate a showing of unexpected results. MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).”
The data provided in the Declaration only test amounts of gum arabic and maltodextrin that are immediately in the center of the claimed range. The data provided does not test the upper and lower ends of the claimed range. Furthermore, the data provided by the Declaration demonstrates that the drying temperature and time are critical, but this parameter is not recited in the claimed invention. Thus, the data is not commensurate in scope with the claimed invention.
Thus, the strength of the opposing evidence is not sufficient to overcome the rejection of the claims over Bhosle.
Regarding the interest of the expert in the outcome of the case, the Declaration is submitted by Jyoti Singh, who is not an interested party in the case.
Regarding the presence or absence of factual support for the expert’s opinion, it has been found that the statement is unsupported by the provided evidence. As described above, the data provided in insufficient to demonstrate a showing of unexpected results. As such, there is no factual support for the expert’s opinion that the claimed invention has unexpected results.
The rejections of claims 1, 3-4, 7-8, 10-15 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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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/Michele L Jacobson/Primary Examiner, Art Unit 1793
/A.S.H./Examiner, Art Unit 1793
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