DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed July 20, 2206 has been entered. Claims 6 and 17 have been cancelled. Claims 1-5, 7-16 and 18-22 are pending examination.
The previous rejection of claims 1-22 under 35 U.S.C. 103 as being unpatentable over Cook (US 5,482,722) is withdrawn in light of Applicant’s amendment and remarks filed July 2-, 2026.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 7-15 and 18-22 are rejected under 35 U.S.C. 102 (a)(1) or 35 U.S.C. 102(a)(2) as being anticipated by Phillips et al. (WO 2021/021626 – IDS filed June 17, 2025).
The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding claims 1-3 and 7-11, Phillips et al. disclose a chewing gum base wherein the mineral filler has been replaced with a non-mineral filler including a polyol, zein, oat fiber, gluten, casein, cellulose fiber and combinations thereof (Abstract, [0019]). Here, cellulose fiber is considered an insoluble polysaccharide. Phillips et al. disclose the chewing gum base comprises a non-mineral filler in an amount of from about 0.5% to about 25% by weight of the gum base ([0020]). Phillips et al. also disclose, in addition to the non-mineral filler, the chewing gum bases of the present disclosure may contain any combination of elastomers, elastomer plasticizers, resins, emulsifiers, waxes and other optional ingredients such as antioxidants (including a chewing gum non-filler base component-[0021]). The non-filler base component is in an amount of 75% to 99.5% by weight of the chewing gum base.
Regarding claim 4, Phillips et al. disclose all of the claim limitations as set forth above. Phillips et al. disclose the term the term “mineral filler” includes, but is not limited to, carbonate or precipitated carbonate types, such as magnesium and calcium carbonate, ground limestone, silicate types such as magnesium and aluminum silicate, clay alumina, talc, titanium dioxide, mono-, di- and tricalcium phosphate, calcium sulfate, kaolin clay, and combinations thereof. In one embodiment, the mineral filler is selected from the group consisting of talc, calcium carbonate, and combinations thereof ([0017]).
Regarding claims 12-14 and 18-22, Phillips et al. disclose a chewing gum comprising a chewing gum base wherein the chewing gum base comprises a non-mineral filler and a non-filler base component (Abstract, [0019]-[0021]).
Phillips et al. disclose wherein the non-mineral filler includes a polyol, zein, oat fiber, gluten, casein, cellulose fiber and combinations thereof (Abstract, [0019]). Here, cellulose fiber is considered an insoluble polysaccharide. Phillips et al. disclose the chewing gum base comprises a non-mineral filler in an amount of from about 0.5% to about 25% by weight of the gum base ([0020]). Phillips et al. also disclose, in addition to the non-mineral filler, the chewing gum bases of the present disclosure may contain any combination of elastomers, elastomer plasticizers, resins, emulsifiers, waxes and other optional ingredients such as antioxidants (including a chewing gum non-filler base component-[0021]). The non-filler base component is in an amount of 75% to 99.5% by weight of the chewing gum base.
Regarding claim 15, Phillips et al. disclose all of the claim limitations as set forth above. Phillips et al. disclose the term the term “mineral filler” includes, but is not limited to, carbonate or precipitated carbonate types, such as magnesium and calcium carbonate, ground limestone, silicate types such as magnesium and aluminum silicate, clay alumina, talc, titanium dioxide, mono-, di- and tricalcium phosphate, calcium sulfate, kaolin clay, and combinations thereof. In one embodiment, the mineral filler is selected from the group consisting of talc, calcium carbonate, and combinations thereof ([0017]).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 5 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Phillips et al. (WO 2021/021626 – IDS filed June 17, 2025) in view of Teng et al.(US 3,883,666).
Regarding claims 5 and 16, Phillips et al. disclose all of the claim limitations as set forth above. While Phillips disclose an insoluble polysaccharide, i.e., cellulose fibers, to use as a non-miller filler, the reference is silent with respect to hydroxypropyl starch. Phillips et al. disclose that although it is possible to produce chewing gum bases without the use of mineral fillers, the resulting gum bases may be lower in viscosity, have a lower density and have increased tack ([0002]).
Teng et al. teach a chewing gum base made with hydroxyl propyl starch (i.e., insoluble polysaccharide – Abstract). Teng et al. teach a chewing gum made for the hydroxyl propyl starch containing gum base is smooth, more cohesive, completely free from tackiness and resilient upon mastication (C5/L35-46).
Phillips and Teng et al. are combinable because they are concerned with the same field of endeavor, namely chewing gum bases comprising non-mineral filler ingredients. It would have been obvious to one of ordinary skill in the art to have used hydroxy propyl starch as a non-mineral filler in the chewing gum base of Phillips et al. to make a smooth, cohesive and tackiness-free chewing gum.
Response to Arguments
Applicant’s arguments with respect to claims 1-22 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
