DETAILED ACTION
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 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 response, filed 29 January 2026, to the restriction requirement, mailed 01 October 2016, has been received. Applicant has elected Group I claims 1 – 10 with traverse. Applicant urges that the present specification describes “the pore structure of the granules must also be open-pored” therefore the ordinarily skilled artisan would not read Jäger as presenting an open-pored granulated material. This urging is not convincing.
Unity of Invention is subject to 37 CFR 1.475(a) which states: “Where a group of inventions is claimed in an application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.” If the shared claimed technical feature is taught in the prior art then the technical feature is not a “special” technical feature and the claims are restrictable under 371 practice.
Jäger discloses the aroma storage means comprises a substrate material (carrier material) in the form or gelatin (paragraph [0040]) arranged in the absorption space which is laden with an aroma and releases the aroma to air flowing in through the air inlet opening, flowing past the substrate material and flowing out through the air outlet opening (paragraph [0063] – [0064]). As evidenced by Reichel US 2,166,074 gelatin is a porous material. Further, when the substrate material, i.e., the aroma storage means of Jäger is activated pores would be created therein to release the aromatics from the flavouring reservoir. Therefore, the technical feature is not a special technical feature and the claims are restrictable under 371 practice.
Therefore, the restriction requirement is made Final. Claims 11 – 20 are withdrawn from further consideration as being drawn to non-elected inventions and an action on the merits of claims 1 – 10 follows below.
Therefore, the restriction requirement is made Final. Claims 11 – 20 are withdrawn from further consideration as being drawn to non-elected inventions and an action on the merits of claims 1 – 10 follows below.
Drawings
Based on a reading of claim 1, the subject matter of this application admits of illustration by a drawing to facilitate understanding of the invention. Applicant is required to furnish a drawing under 37 CFR 1.81(c). No new matter may be introduced in the required drawing. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d).
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1, line 6, recites “a substrate material arranged in the receiving space, which the substrate material being loaded with an aromatic”. It would appear the claim should recite ‘a substrate material arranged in the receiving space, the substrate material being loaded with an aromatic’.
Appropriate correction is required.
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 – 10 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 claim 1, lines 3 and 4, the claim recites “in which at least one air inlet opening and at least one air outlet opening are provided”. It is unclear what the term “in which” is modifying. Would this be the container, the wall, or the receiving space?
Regarding claim 4, the phrase "in particular" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 5, the phrase "in particular" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 7, the phrase "in particular" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 8, there is not antecedent basis for the term “in the form or porous or micro-porous granules”.
Regarding claim 8, the phrase "in particular" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 9, there is no antecedent basis for the term “the granules”.
Regarding claim 9, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 10, there is no antecedent basis for the term “the granules”.
Claim 10 recites, “wherein the granules have a particle size such that 95% fall within a size interval of 30%. It is unknown what the size interval of 30% represents. Applicant’s specification provides no further details to provide any understanding as to what is being attempted to be claimed.
Claims 2, 3, and 6 are rejected by virtue of their dependence on a rejected base claim.
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.
Claims 1 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Jäger et al. US 2022/0087456 as evidenced by Reichel US 2,166,074.
Regarding claim 1, Jäger discloses a flavoring reservoir (aroma container 20) which is capable of storing aromatics and capable of releasing the aromatics to a drink system (device 10) which flavoring reservoir comprises a container which has a wall that encloses a receiving space in which at least one air inlet opening (not illustrated) and at least one air outlet opening (channel 22) are provided (paragraph [0056] and fig. 1). A substrate material is arranged in the receiving space (gelatine or agarose), which substrate material being loaded with an aromatic (aroma) (paragraph [0040]) and releases the aromatic which is releasable to air that flows in through the air inlet opening (not illustrated), flows past the substrate material and flows out through the air outlet opening (paragraph [0057]). Jäger further discloses the substrate material is a storage material in the form of a porous or micro-porous granulated material, i.e., gelatin (encapsulated microscopically or macroscopically) (paragraph [0040]) which, as evidenced by Reichel US 2,166,074, is a porous material. Further, when the substrate material, i.e., the aroma storage means of Jäger is activated pores would be created therein to release the aromatics from the flavouring reservoir.
Regarding claim 10, Jäger as evidenced by Reichel discloses the substrate material is a storage material in the form of a porous or micro-porous granulated material and therefore it is believed that it would have been obvious for the granules to have a particle size such that 95% of the granules would fall within a size interval of 30% of said size.
Claims 2 – 5 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Jäger et al. US 2022/0087456 as evidenced by Reichel US 2,166,074 in view of Menzi et al. US 6,056,949.
Claim 2 differs from Jäger as evidenced by Reichel in the storage material is a porous or micro-porous granulate made of a hydrophobic and lipophilic material.
Claim 9 differs from Jäger as evidenced by Reichel in the granulated material having a particle size of 2 mm to 8 mm.
Menzi discloses a granulated storage material (particle sizes of about 3.0 mm) comprising a substrate material loaded with an aromatic (odorant), which aromatic would be releasable to air. Menzi further discloses that the granulate material is also formed with a protective skin of a hydrophobic and lipophilic material (a fat) in order to improve encapsulation of the active aroma component (active substances), to improve the behaviour, i.e., distribution, and protect (protective action) said aroma component. Menzi further discloses that the common industry standard (industrially permitted) and/or pharmaceutically usable particle sizes for aromatic granules is between 2 mm to 8 mm (about 3.0 mm) (col. 1, ln 27 – 35 and col 2, ln 6 – 46) making it obvious to the ordinarily skilled artisan to choose granules having a particle size of 2 mm to 8 mm. To therefore modify Jäger as evidenced by Reichel and protect the active aroma component with a hydrophobic and lipophilic material to improve encapsulation and distribution as well as to provide protection to the aromatics as well as in pharmaceutically usable/industrially standard sizes as taught by Menzi would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claim 3 differs from Jäger as evidenced by Reichel in the storage material is a porous or micro-porous granulate made of a polymer.
Menzi discloses that it was common and conventional to provide a storage material that is a porous or micro-porous granulate made of various polymers (cellulose, modified cellulose, natural resin ) which polymers form a protective skin in order to improve encapsulation of the active aroma component (active substances) as well as to improve the behaviour and to protect (protective action) said aroma component (col. 2, ln 6 – 48). To therefore modify Jäger as evidenced by Reichel and protect the active aroma component with a polymer material to improve encapsulation and behaviour as well as to provide protection to the aromatics as taught by Menzi would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claim 4, Jäger as evidenced by Reichel in view of Menzi disclose the polymer would be of plant origin (cellulose) (‘949, col. 2, ln 16 – 17).
Regarding claim 5, Jäger as evidenced by Reichel in view of Menzi disclose the polymer would be a synthetic polymer (pharmaceutically usable synthetic material) (‘949, col. 2, ln 45 – 47).
Claims 3 and 5 – 7 are rejected under 35 U.S.C. 103 as being unpatentable over Jäger et al. US 2022/0087456 as evidenced by Reichel US 2,166,074 in view of Campagnoli WO 98/30621.
Claim 3 differs from Jäger as evidenced by Reichel in the storage material is a porous or micro-porous granulate made of a copolymer.
Campagnoli discloses a storage material for storing aromatics comprising a copolymer (EVA) (page 3, ln 6 – 9). Campagnoli further discloses that previously when producing a plastic reservoir for storing and releasing aromatics the practice was to simply apply a coating of the desired aromatic (scenting agent) to the surface of the reservoir and that this practice proved to be unsatisfactory in that the aromatic would quickly be rubbed or washed off the surface resulting in the aromatic being lost. To solve this issue and provide a storage material with a longer lasting aromatic it was found to be advantageous to use a copolymer (EVA) (page 3, ln 6 – 11) as an intermediate carrier and to incorporate the aromatic into the physical structure of the copolymer. This provides the advantage of the aromatic diffusing out of the reservoir at a much slower rate than previously realized (page 2, ln 33 – page 3, ln 11 and page 4, ln 1 – 7). To therefore modify Jäger as evidenced by Reichel and make the granulate from a copolymer for the advantage of the aromatic diffusing out of the reservoir at a much slower rate than previously realized, that is to be longer lasting, as taught by Campagnoli would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Regarding claims 5 – 7, Jäger as evidenced by Reichel in view of Campagnoli disclose the copolymer would be of synthetic origin (EVA) and (PE) (page 3, ln 6 – 11), which is to say of petrochemical origin, and the proportion of EVA in the copolymer would be around 20% by weight (‘621, page 5, ln 14 – 23).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Jäger et al. US 2022/0087456 as evidenced by Reichel US 2,166,074 in view of Hölscher et al. US 2014/0023770 as further evidenced by Holzner et al. US 2004/0022821, Kindel et al. US 2007/0280892, Hölscher US 2008/0015392, and Brocke et al. US 2009/0081140.
Claim 8 differs from Jäger as evidenced by Reichel in the storage material is an inorganic material in the form of a porous or micro-porous granules.
Hölscher discloses that absorbing fragrance and/or flavor compositions onto inorganic storage (carrier) materials ensures both the fine distribution and the controlled release of the fragrance and/or flavor compositions during use. Hölscher further discloses that suitable and preferred storage materials would include zeolite, porous clay, and aerated concrete (gas concrete) (paragraph [0157] and [0181]). Once it was known to use inorganic storage materials to ensure the superior fine distribution and controlled release of fragrance and/or flavor compositions from an inorganic storage material using the inorganic storage materials disclosed by Hölscher, the substitution of one known storage material, i.e., the carrier material of Jäger as further evidenced by Reichel with the inorganic carrier materials of Hölscher to obtain predictable results would have been an obvious matter of choice and/or design to the ordinarily skilled artisan (MPEP § 2143 I.(B)).
Holzner (paragraph [0024]), Kindel (paragraph [0103]), Hölscher ‘392 (paragraph [0129]), and Brocke (paragraph [0042]) all provide further evidence that it was conventional and well established in the art to employ inorganic materials in the form of porous materials to store and distribute aromatics to enhance a user’s enjoyment of a drink system.
Conclusion
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/C.S./
Chaim SmithExaminer, Art Unit 1791 20 February 2026
/VIREN A THAKUR/Primary Examiner, Art Unit 1792