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 .
Election/Restrictions
Applicant’s election of Group I, claim 34-48 in the reply filed on 11/17/2025 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)).
Claim 49-52 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/17/2025.
Claim Objections
Claim 40 is objected to because of the following informalities: “the nutraceutical” should be “the exogenous nutraceutical” to be consistent claim language set forth in claim 34. Appropriate correction is required.
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) 34-48 are rejected under 35 U.S.C. 103 as being unpatentable over Crowley et al. (US 2012/0071567 A1) as evidenced by veganbaking.net (Ref. V).
Regarding claim 34, 41, 42, 44 and 45, Crowley et al. (Crowley) discloses a melt-away fruit-flavored confection (composition) (‘567, [0010]) comprising freeze-dried fruit purees (‘567, [0035]-[0036]) in an amount of not exceeding about 35% by weight of the confection (composition) (‘567, [0042]), which overlaps the cited range of claim 34 and 41. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). With respect to the recitation of “…wherein the nutraceutical composition is freeze dried to obtain a ready to be consumed product form which melts in the mouth…”, is considered a functional limitations of the claimed product when it’s in the mouth; hence it has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or substantially identical process, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitation that stem from the claimed structure (product). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spade, 15 USPQ2d 655,1658 (Fed. Cir. 1990).
With respect to claim 34, 42, 44 and 45, Crowley discloses the melt-away fruit-flavored confection (composition) (‘567, [0010]) comprising vegetable oil (edible oi) including coconut oil (saturated fatty acids) (‘567, [0016]). Crowely does not explicitly disclose an amount of the vegetable oil (edible oil) as recited in claim 34 and 42. However, it would have been obvious to one of ordinary skill in the art to adjust the amount of the vegetable oil (edible oi) in Crowley’s melt-away fruit-flavored confection (composition) to provide a desired functional profile, absent a clear and convincing argument or evidence to the contrary.
Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in the fact situation of the instant case, and wherein the Court stated on page 234 as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
With respect to claim 34, 36, 37 and 38, Crowley discloses the melt-away fruit-flavored confection (composition) (‘567, [0010]) further comprising components (exogenous nutraceutical) including minerals and herbal extract (‘567, [0019]-[0020]). Crowely does not explicitly disclose an amount of the components (exogenous nutraceutical) as recited in claim 34, 36 and 37. However, it would have been obvious to one of ordinary skill in the art to adjust the amount of the components (exogenous nutraceutical) in Crowley’s melt-away fruit-flavored confection (composition) to provide a desired functional profile such as energy enhancement as taught by Crowley (‘567, [0019]), absent a clear and convincing argument or evidence to the contrary.
Regarding claim 35 and 48, Crowley discloses the melt-away fruit-flavored confection (composition) (‘567, [0010]) comprising the freeze-dried fruit purees (‘567, [0035]-[0036]) with about 98% or more free of water (‘567, [0036]), which corresponds to 0% to 2% w/w of the water; and is in range with the cited range.
Regarding claim 39 and 40, Crowley does not disclose the components (exogenous nutraceutical) including multivitamin as recited in claim 39 nor CBD as recited in claim 40. However, Crowley clearly teaches the components (exogenous nutraceutical) including essential nutrients and medical formulations. It would have been obvious to one of ordinary skill in the art to employ known additives, multivitamin or CBD in Crowley’s melt-away fruit-flavored confection (composition) to provide a desired nutrient and stimulant, absent a clear and convincing argument or evidence to the contrary.
Regarding claim 43, Crowley discloses the melt-away fruit-flavored confection (composition) (‘567, [0010]) comprising the vegetable oil (edible oi) including the coconut oil (‘567, [0016]) with a melting point of 25°C as evidenced by veganbaking.net (Ref. V), which is in range with the cited range.
Regarding claim 46 and 47, Crowley discloses the melt-away fruit-flavored confection (composition) (‘567, [0010]) comprising sweeteners (‘567, [0043]) in an amount of no greater than about 55% by weight, which overlaps the cited range of claim 47. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/ Primary Examiner, Art Unit 1792