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 .
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.
Claim 10 is 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 10 recites, “wherein the granulated material comprises granules having 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.
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.
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 which container comprises at least one air inlet opening (not illustrated) and at least one air outlet opening (channel 22) (paragraph [0056] and fig. 1). A substrate material is arranged in the receiving space (gelatine or agarose), which substrate material is loaded with an aromatic (aroma) (paragraph [0040]) and capable of releasing 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 (page 1, left col. ln 1 – 7).
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, 5 – 7, 22, and 23 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, 22, and 23, 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).
Claims 8 and 24 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 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.
Claims 8 and 24 differ 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.
Claim 21 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 Menzi et al. US 6,056,949 as applied to claim 4 above, and in further view of Wei et al. (Polymer carriers for controlled fragrance release).
Claim 21 differs from Jäger as evidenced by Reichel in view of Menzi in the polymer comprises cork.
Wei discloses with respect to consumer products that the use of fragrance not only helps to build pleasant sensory experience for consumers but proper control on the release of the fragrance is particularly important regarding the perceived quality of food which would include beverages, i.e., drink systems. Wei further discloses that the loading of fragrance on a substrate is an effective approach to regulate the release of aromatics (fragrance) and that an ideal aromatic carrier system should enable sustained release for the desired duration of a release period, the aromatic release from the carrier should be controllable, the carrier material should not affect the flavor of the fragrance, the carrier material should be chemically inert against the material component in the application, the carrier material should be bio-compatible, the cost of the carrier should be as low as possible, and that polymers would be an ideal carrier (good compatibility with typical fragrance) (page 1, introduction). Wei also discloses that natural polymers have high affinity with many aromatics (fragrances) benefiting the stabilization of the aromatics within the polymer (page 2, section 2. Fragrance carrier based on natural polymers). Further Wei discloses that cork is a natural abundant material and is an ideal and superior substrate material for an aroma, that is, fragrance carrier (page 2, 2.1, ln 15 – 17). Therefore, based on the teachings of Wei that cork is an ideal and superior substrate material for storing and releasing aromatics and it would have been an obvious matter of choice and/or design to modify Jäger as evidenced by Reichel in view of Menzi and use cork as the polymer.
Claim 25 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 as applied to claim 24 above, and in further view of Goodman US 5,061,397.
As set forth above in the rejection of claims 8 and 24 Jäger as further evidenced by Reichel in view of Hölscher as further evidenced by Holzner, Kindel, Hölscher, and Brocke disclose the use of porous or micro-porous granules in the form of porous clay would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Claim 25 differs from Jäger as further evidenced by Reichel in view of Hölscher as further evidenced by Holzner, Kindel, Hölscher, and Brocke in the porous clay bodies comprising smectite clay.
Goodman discloses that it was old, conventional and well known in the art that smectite clay bodies (granules) have a very open internal structure and a great tendency to absorb aromatic components, that is to act as a reservoir for storing aromatics until such time as it would be desired to release the stored aromatics as an aromatic agent (perfume) (col. 1, ln 7 – 30).
Once it was known to use porous clay bodies as a storage material 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 generic clay bodies of Jäger as further evidenced by Reichel in view of Hölscher as further evidenced by Holzner, Kindel, Hölscher, and Brocke with smectite clay bodies as disclose by Goodman to obtain predictable results would have been an obvious matter of choice and/or design to the ordinarily skilled artisan (MPEP § 2143 I.(B)).
In the event that applicant would deign to urge that Goodman is nonanalogous art, both Goodman and the applicant are concerned with providing reservoirs for the storage of aromatics to be released when desired for consumer enhancement. Therefore Goodman is reasonably pertinent to the particular problem with which the applicant is concerned and can be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992).
Claim 26 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 Menzi et al. US 6,056,949 as applied to claim 9 above, and in further view of Yoshimura JP 60-035029.
Claim 26 differs from Jäger as further evidenced by Reichel in view of Menzi in the granules having a particle size of 4 mm to 6 mm.
Menzi discloses a granulated storage material with a particle size of about 3.0 mm which would allow for a particle size of slightly larger such that prima facie one skilled in the art would have expected them to have the same properties. Nevertheless Yoshimura discloses porous granular material (EVA copolymer) capable storing aromatics (lemon oil) (page 2, constitution) capable of being released to a drink system. Yoshimura further disclose that the ideal size of the granular material for easy blending so that no special conditions would be required would be a particle size of 5 mm. To therefore modify Jäger as further evidenced by Reichel in view of Menzi if necessary and provide the granules with a particle size of 5 mm easy blending of the granules so that no special conditions would be required would have been an obvious matter of choice and/or design to the ordinarily skilled artisan.
Response to Arguments
Applicant's arguments filed 26 May 2026 have been fully and carefully considered but they are not found persuasive.
Applicant urges that Jäger’s encapsulated material would not be inherently granulated or that the shell of Jäger is porous. These urgings are not deemed persuasive.
Jäger in disclosing the aroma to be encapsulated microscopically or macroscopically is seen to be strongly suggesting the aroma reservoir would be of a granular composition. Further, when activated the aromatics would be released which is to say that at least at that point, if not before activation, the storage material, i.e., the granulated material would be porous. It is also seen that Reichel teaches that granulated materials such as gelatin have usually been provide in granulated form (page 1, left col, ln 15 – 18) and therefore it would have been an obvious matter of choice to have done so. It is further noted that the comprising language of the claim does not preclude an “activation” of the substrate material.
Applicant urges that Reichel is incompatible with the shell of Jäger because Reichel is disclosing gelatinous material in the form of a dry porous friable mass that would not be porous if said mass was to be dissolved in a liquid. These urgings are not found persuasive.
Reichel was brought to teach that gelatine is a porous material and not to teach the state of the material, i.e., dry or otherwise. Further the claims do not recite the granulated, i.e., substrate material to be wet or dry only that the said material would be capable of releasing the aromatic to air that flows through an air inlet opening so here applicant is urging limitations not found in the claims.
Applicant urges that it would not be obvious to modify Jäger because the use of a porous storage material would change the principal operation of Jäger since introducing porosity to the “shell” of Jäger would protect the aroma substances from oxidative processes. This urging is not deemed persuasive.
The claims are directed to a flavouring reservoir, that is, an apparatus and not the method of use of said flavouring reservoir. Further, the comprising language of the claims does not preclude activation of the shell/reservoir or the protection of the aromatics that would be stored therein.
Conclusion
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 CHAIM A SMITH whose telephone number is (571)270-7369. The examiner can normally be reached Monday-Thursday 09:00-18:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/C.S./
Chaim SmithExaminer, Art Unit 1791 11 August 2026
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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