DETAILED ACTION
Background
The amendment dated June 22, 2026 (amendment) amending claims 1 and 9 and cancelling claims 2, 5, 10, 13 and 19-20 has been entered. Claims 1, 4, 7-9, 12 and 15-18 as filed with amendment have been examined. Claims 2-3, 5-6, 10-11, 13-14 and 19-20 have been canceled. In view of the cancellation of claims 2, 5, 10, 13 and 19-20, all outstanding rejections of those claims have been withdrawn.
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 .
Claim Rejections - 35 USC § 103
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 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 1, 4, 7-8 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over JP2002000230 A to Saito et al. (Saito) in view of WO 2024110538 A1 to Ringgenberg et al. (Ringgenberg), both of record.
All references to Saito refer to the Clarivate machine translation, a copy of which was included in a prior Office action.
The Office interprets the claimed second substance as comprising acidic particles, wherein “each of the acidic particles coated with a coating layer containing a water-soluble polymer”; however, the claims recite a second substance of acidic particles and a coating layer containing a water-soluble polymer which includes the product of a mixture of the particles and the dissolved polymer in water. In addition, the Office interprets the claimed color change in the beverage as including any discernable or measurable color change or change in tint or hue.
The Office considers the claimed beverage when the first substance is dissolved to include water having a pH of 7.4 to which a composition for a beverage is added.
Regarding instant claims 1, 4 and 17, Saito at Abstract on page 1 discloses a powder (claim 17) composition for a beverage exhibiting a color on dissolving in water comprising an anthocyanin (anthocyanin-containing extract) first substance and an organic acid second substance (acidic particles) organic acid which (at page 3, last paragraph) is encapsulated with cyclodextrin or the like (“each of the acidic particles coated with a coating layer containing a water-soluble polymer”) to form granules. Further, Saito in the last paragraph of page 3 discloses citric acid, tartaric acid, malic acid as the organic acid (claims 4) in the form of a crystal or powder and encapsulated in cyclodextrin to form the second substance as acidic particles and a coating layer containing a water-soluble polymer. And further, Table 5 of Saito shows that the starting pH of the beverage to which the composition was added is 5 or more. Further, the Office considers the claimed dissolved acidic particles and the dissolved acidic particles of Saito at page 3, last paragraph to be substantially the same thing. Accordingly, absent a clear showing as to how the pH of the Saito beverage made from its powder composition differs from the beverage as claimed, the Office considers the citric acidic particles of Saito at page 3, last paragraph and Experimental Example 5 to have a pH 4.2 or less when dissolved. See MPEP 2112.01.I.
The Office interprets the cyclodextrin or the like disclosed in Saito as referring generally to polysaccharides or carbohydrates (“water-soluble polymers”). Further, the Office considers the Saito beverage composition for comprising acidic particles encapsulated in cyclodextrin (a “water soluble polymer”) or the like and the claimed composition for a beverage to be substantially the same thing. Accordingly, absent a clear showing as to how the dissolution properties of the Saito beverage powder differs from the beverage powder as claimed, the Office considers the water-soluble polymer coated acidic particles of Saito at page 3, last paragraph to be a composition wherein when it is dissolved in a solvent to produce the beverage, dissolution of the acidic particles coated with the coating layer begins at a time difference of 1 second or more after the start of the dissolution of the first substance, thereby causing a color change in the beverage as in claim 1. See MPEP 2112.01.I.
Still further, the Office interprets the recited particle size without reference to any fraction, average size or distribution or particles in claim 1 to include the size of any one or more particles. Thus, the claims read on acidic particles having a particle size wherein even one particle in the recited acidic particles is smaller than 5000 µm or 5 millimeters. Further, the Office considers the claimed acidic particles having a size of 100 to 5000 µm to include the organic acid powder disclosed in Saito in the last paragraph of page 3 and, for that matter, any disclosed powder. The ordinary skilled artisan would have found it obvious to have provided the acidic particles as the powder in Saito with a particle size as claimed in order to facilitate their dissolution.
Saito does not give an example containing acidic particles wherein each of the acidic particles is coated with a coating layer consisting of a water-soluble polymer selected from the group consisting of hydroxypropyl methyl cellulose, methyl cellulose, hydroxypropyl cellulose, guar gum, gum arabic, locust bean gum, gellan gum, xanthan gum, carrageenan, gum tragacanth, gum karaya, gum ghatti, dhamma gum, psyllium seed gum, tamarind gum, tara gum, polyvinylpyrrolidone, and a combination thereof as in claim 1. Further, Saito does not disclose an amount of its water-soluble polymer of 0.5 to 10 wt%, based on the weight of the acidic particles and the water-soluble polymer as in claim 1. Still further, Saito does not disclose a dissolution time for its first substance, or state that its composition when dissolved in a solvent to produce a beverage begins dissolution of the acidic particles or first substance at a time difference of 1 second or more after the start of the dissolution of the first substance, thereby causing a color change in the beverage as in claim 1.
Ringgenberg at Abstract on page 1 discloses a composition for a beverage comprising coated core particles that effect a color change when made into a beverage. Further, at page 7, lines 1-14 Ringgenberg discloses citric acid core particles (“acidic particles”) that are inert under fluidized bed coating conditions. The encapsulant or coating layer in Ringgenberg (at page 13, lines 20-25) delays release of a coated material in food and comprises (at page 14, lines 26-31) a carbohydrate that is water soluble (“water-soluble polymer”); and, further, Ringgenberg discloses at page 14, line 32 to page 15, line 18) methyl cellulose, hydroxypropyl methyl cellulose and other carbohydrates, including (at page 16, lines 21-24) gums that are water-soluble in cold water as well as thermoreversible gels.. The Office considers the claimed coated acidic particles wherein each of the particles is coated with a coating layer containing a water-soluble polymer to include the encapsulated acidic particles of Ringgenberg. Still further, Ringgenberg discloses at page 10, lines 13-15 a composition containing non-encapsulated colorants, wherein (at page 12, lines 30-35) colorants include anthocyanin-containing extracts that change color based on pH. In addition, Ringgenberg at page 15, lines 13-17 discloses an amount of the coating layer of 5 to 10 wt%, based on the weight of the water-soluble polymer and the acidic or basic particles. Finally, at page 17, lines 5-13 Ringgenberg discloses encapsulating by any suitable process including spray drying and a fluid bed method, which encompasses granulation.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ringgenberg for Saito to coat its organic acids with a coating layer consisting of a water-soluble polymer selected from the group consisting of hydroxypropyl methyl cellulose, methyl cellulose, hydroxypropyl cellulose, guar gum, gum arabic, locust bean gum, gellan gum, xanthan gum, carrageenan, gum tragacanth, gum karaya, gum ghatti, dhamma gum, psyllium seed gum, tamarind gum, tara gum, polyvinylpyrrolidone, and a combination thereof. Both references disclose water-soluble polymer coated acidic particles wherein the water-soluble polymer is a carbohydrate and the coated particles are formed as granules. The ordinary skilled artisan in Saito would have desired to form its coated acidic particle granules with a coating layer consisting of water-soluble polymers like the cyclodextrin of Saito by the fluid bed granulation process of Ringgenberg using any of the claimed carbohydrate or gum water-soluble polymers of Ringgenberg to create the same granules as in Saito that dissolve in water, including cold water.
In addition, before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ringgenberg for Saito to use from 0.5 to 10 wt% of the coating layer and coated particles of a water-soluble polymer coating layer of carbohydrates as its encapsulating or coating layer. Both references disclose powdered compositions for a beverage comprising anthocyanin-containing extract and encapsulated acidic particles wherein the compositions effect a color change triggered by a pH change. The ordinary skilled artisan in Saito would have desired to use the claimed amount cyclodextrin or a like water-soluble polymer as a particle coating layer as in Ringgenberg that dissolves in water and is sensitive to moisture to make the beverage of Saito.
Regarding instant claim 7, Saito at page 7, 2nd, 3rd and 4th full paragraphs discloses Experimental Example 5 wherein the composition for a beverage further comprises dolomite, a basic substance (claim 7) that is added to water.
Regarding instant claim 8, Saito does not disclose an example wherein its basic substance is at least one selected from the group consisting of trisodium citrate, potassium citrate, sodium hydroxide, potassium hydroxide, calcium hydroxide, sodium carbonate, magnesium carbonate, sodium hydrogen carbonate, potassium hydrogen carbonate, potassium carbonate, calcium carbonate, sodium pyrophosphate, potassium pyrophosphate, sodium phosphate dibasic, sodium phosphate tribasic, potassium phosphate dibasic, potassium phosphate tribasic, arginine, histidine, lysine, sodium tartrate, and sodium malate, and a combination thereof as in claim 8. However, Saito at page 4, 3rd to last full paragraph discloses calcium carbonate and magnesium carbonate as a basic substance suitable for making a composition for a beverage having a desired mineral content. The ordinary skilled artisan would have found it obvious in Saito to use the Saito calcium and magnesium carbonates as Saito discloses them as desirable for making a composition for a beverage.
Claims 1, 4, 7-9, 12 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2024002708 A1 to Chouket et al. (Chouket) in view of WO 2024110538 A1 to Ringgenberg et al. (Ringgenberg), both of record.
The Office interprets the claimed second substance as comprising acidic particles, wherein “each of the acidic particles coated with a coating layer containing a water-soluble polymer”; however, the claims recite a second substance of acidic particles and a coating layer containing a water-soluble polymer which includes the product of a mixture of the particles and the dissolved polymer in water. In addition, the Office interprets the claimed color change in the beverage as including any discernable or measurable color change or change in tint or hue.
The Office considers the claimed beverage when the first substance is dissolved to include water having a pH of 7.4 to which a composition for a beverage is added.
The Office interprets the recited particle size without reference to any fraction, average size or distribution of acidic particles in claim 1 or of basic particles in claim 9 to include the size of particle compositions wherein even one particle has the claimed particle size.
Regarding instant claims 1, 4, 9, 12 and 17-18, Chouket at page 3, lines 1-7 discloses a colorant (“first substance”) in a composition for a beverage (“composition for a beverage”) comprising a pigment and an encapsulated acid material (“acidic particles” wherein “each of the acidic particles is coated with a coating layer”) or an alkali material (“basic particles”, wherein each of the basic particles is coated with a coating layer”) as a second substance. Further, at page 15, lines 4-9 Chouket discloses granulation to make coated particles, including fluid bed coating methods. Still further, Chouket at page 23, line 11 to page 24, line 3 discloses beverages as solutions that have a pH of above 5 as sports drinks and fruit flavored drinks and beverages as solutions that have a pH of less than 5 including coffee and milk drinks. At Example 9c on page 44, Chouket discloses an additive powder composition (claim 17) of a pigment with an encapsulated ascorbic acid (vitamin C - claim 4). At Example 5 on pages 38-39, Chouket discloses an additive powder composition (claim 18) of an encapsulated alkali (sodium bicarbonate or sodium hydrogen carbonate - claim 12) with anthocyanin pigment (“anthocyanin-containing extract”).
Still further, Chouket does not disclose an acidic particle or basic particle having a size of from 100 to 5000 μm as claimed. However, the Office considers acidic particle or basic particle having a size of from 100 to 5000 μm to include granules. The ordinary skilled artisan would have found it obvious to have provided the acidic and basic particles in the Chouket with a particle size as claimed in order to facilitate dissolution because Chouket discloses granular particles.
Yet still further, Chouket does not disclose particles in a coating layer containing a water-soluble polymer, wherein each of the particles is coated with a coating layer containing a water-soluble polymer as in claims 1 and 9; Chouket does not provide an example of acidic particles with an anthocyanin-containing extract pigment as in claim 1, and, further does not disclose a coating layer of a water-soluble polymer selected from the group consisting of hydroxypropyl methyl cellulose, methyl cellulose, hydroxypropyl cellulose, guar gum, gum arabic, locust bean gum, gellan gum, xanthan gum, carrageenan, gum tragacanth, gum karaya, gum ghatti, dhamma gum, psyllium seed gum, tamarind gum, tara gum, polyvinylpyrrolidone and a combination thereof as in claims 1 and 9. Further, Chouket does not disclose that its composition when dissolved in a solvent to produce a beverage begins dissolution of the acidic particles or first substance at a time difference of 1 second or more after the start of the dissolution of the first substance, thereby causing a color change in the beverage as in claims 1 and 9. Even further, Chouket does not disclose an example of coated acidic particles having a water-soluble polymer coating layer and containing an amount of 0.5 to 10 wt% water-soluble polymer, based on the total weight of the acidic particles and water-soluble polymer as in claims 1 and 9. However, at page 4, lines 11-13 Chouket discloses use of anthocyanin-containing extract generally, at page 4, lines 23-26 discloses compositions wherein pH operates as a color change trigger, and at page 10, line 27 discloses that anthocyanin is pH sensitive. Further, Chouket at page 14, lines 3-5 discloses that its encapsulating medium can be any that responds to a stimulus in use, including in response to moisture.
Ringgenberg at Abstract on page 1 discloses a composition for a beverage comprising coated pigments and other core particles that effect a color change when made into a beverage. Further, Ringgenberg at page 7, lines 1-14 discloses core particles comprising citric acid (“acidic particles”) or a salt thereof (“basic particles”). The encapsulant or coating layer disclosed in Ringgenberg (at page 13, lines 20-25) causes exhibit a delay in the release of a coated material in food and comprises (at page 14, lines 26-31) a carbohydrate that is water soluble (“water-soluble polymer”) and can also be a fat or a wax; and, further, Ringgenberg discloses at page 14, line 32 to page 15, line 18) methyl cellulose, hydroxypropyl methyl cellulose and other carbohydrates that are water-soluble in cold water as well as thermoreversible gels. Ringgenberg at page 16, lines 21-24 also discloses gums as suitable carbohydrates. The Office considers the claimed coated acidic particles and basic particles wherein each of the particles is coated with a coating layer containing a water-soluble polymer to include the encapsulated acidic particles and encapsulated basic particles of Ringgenberg. Still further, Ringgenberg discloses at page 10, lines 13-15 the composition containing non-encapsulated colorants including (at page 12, lines 30-35) anthocyanin-containing extracts that change color based on pH. In addition, Ringgenberg at page 15, lines 13-17 discloses an amount of the coating layer of 5 to 10 wt%, based on the weight of the water-soluble polymer and the acidic or basic particles. Finally, at page 17, lines 5-13, Ringgenberg discloses encapsulating by any suitable process including spray drying and a fluid bed method, which encompasses granulation.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ringgenberg for Chouket to use an anthocyanin-containing extract in its acidic particle containing composition and to use from 0.5 to 10 wt% of the coating layer and coated particles of a water-soluble polymer coating layer of methyl cellulose or hydroxypropyl methyl cellulose or a gum as its encapsulating or coating layer. Both references disclose powdered compositions for a beverage comprising anthocyanin-containing extract and encapsulated acidic or basic particles wherein the compositions effect a color change triggered by a pH change and the coated particles are formed in a fluid bed. The ordinary skilled artisan in Chouket would have desired to use anthocyanin as a pH sensitive colorant as in Ringgenberg to use the claimed amount of methyl cellulose or hydroxypropyl methyl cellulose, gum or another water-soluble polymer as a fluid bed or spray dry applied coating layer as in Ringgenberg that dissolves in water and is sensitive to moisture as in Chouket at page 14, lines 3-5.
In addition, the Office considers the claimed dissolved acidic particles and the dissolved acidic particles of Chouket as modified by Ringgenberg dissolved acidic particles to be substantially the same thing. Accordingly, absent a clear showing as to how the pH of the Chouket as modified by Ringgenberg beverage made from its powder composition differs from the beverage as claimed, the Office considers the citric acidic particles of Chouket at page 13, lines 16-20 as modified by Ringgenberg at page 14, line 32 to page 15, line 18 to have a pH 4.2 or less when the acidic particles are dissolved. See MPEP 2112.01.IIn addition, the Office considers the claimed acidic particles and the organic acid particles in Example 9c of Chouket to be substantially the same thing as one another, and further considers the claimed acidic particles in Chouket at page 13, lines 16-20 and the basic particles in Chouket at page 19, lines 21-24 as modified by Ringgenberg at page 14, line 32 to page 15, line 18 composition for a beverage and the claimed composition for a beverage to be substantially the same thing. Accordingly, absent a clear showing as to how the dissolution properties of the Chouket as modified by Ringgenberg beverage powder differs from the beverage powder as claimed, the Office considers the water-soluble polymer coated acidic particles in Chouket at page 13, lines 16-20 and water-soluble polymer coated basic particles in Chouket at page 19, lines 21-24 as modified by Ringgenberg at page 14, line 32 to page 15, line 18 composition for a beverage to be a composition wherein when it is dissolved in a solvent to produce the beverage, dissolution of the acidic particles (claim 1) or basic particles (claim 9) coated with the coating layer begins at a time difference of 1 second or more after the start of the dissolution of the first substance, thereby causing a color change in the beverage as in claims 1 and 9. See MPEP 2112.01.I.
Regarding instant claims 7 and 15 Chouket at page 3, line 16 discloses compositions comprising a mixture of acidic particles and a basic substance (claim 7) and that comprises basic particles and an acidic substance (claim 15), 2nd, 3rd and 4th full paragraphs discloses Experimental Example 5 wherein the composition for a beverage further comprises dolomite, a basic substance (claim 7) and is added to water.
Regarding instant claim 8, Chouket at page 12, line 32 to page 13, line 5 discloses basic substances including magnesium carbonate, potassium hydroxide and sodium phosphate tribasic.
Regarding instant claim 16, Chouket at page 12, lines 17-18 discloses acidic substances comprising citric acid, malic acid and tartaric acid.
Response to Arguments
Regarding the positions taken in the remarks accompanying the amendment dated June 22, 2026 (Reply), the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
Regarding the positions taken in the Reply at pages 8-10 and the comparison at pages 11-13, the position taken alleges that the claims provide a time-delayed color transition of anthocyanin during beverage consumption through controlled dissolution timing and sequential pH changes and that the invention utilizes the pH-responsive color characteristics of anthocyanin to sequentially create different pH conditions over time and thereby achieve a visually recognizable color transition. Further, the offered Comparative Example 1 demonstrates an immediate color change in a composition that lack any coating for acidic particles or basic particles.
Respectfully, the Office does not dispute that the claims recite what Applicants say they recite; however, it is not clear how the claimed compositions are distinguished over the art. The coated acidic particles in Saito and coated acidic and basic particles in Chouket are substantially the same thing as the claimed coated particles; and the same dissolve in a beverage the same way in the art as they do in the claimed composition. Further, a composition comprising those coated acidic or basic particles and an anthocyanin-containing extract is still substantially the same thing as the claimed composition comprising the same thing. Accordingly, the claims appear to include the composition of Saito and Chouket as modified by Ringgenberg because Saito and Chouket each disclose a coated acidic particle in claim 1, while Chouket discloses a coated basic particle in claim 9. And, absent a clear showing as to the effect of combining coated acidic and basic particles of Saito at the Abstract and the last paragraph on page 3 and Chouket at Abstract, page 4, lines 23-26 and page 29, lines 17-20 with an anthocyanin-containing extract, the Office still considers a composition wherein dissolution of the acidic particles (claim 1) or basic particles (claim 9) coated with the coating layer begins at a time difference of 1 second or more after the start of the dissolution of an anthocyanin-containing extract, thereby causing a delayed color change in the beverage as in claims 1 and 9 only at or after the coating dissolves to include the composition of Saito and Chouket as modified by Ringgenberg. See MPEP 2112.01.I.
Be advised that Ringgenberg at page 13, lines 20-25 disclosed that an encapsulant or coating layer comprising (at page 14, lines 26-31) a water soluble carbohydrate polymer that causes a delay in the release of a coated material including acidic or basic particles.
In addition, no comparison or showing demonstrates the behavior of cyclodextrin coated acidic particles (Saito) and either carbohydrate or fat or wax coating acidic or basic particles as in Chouket along with anthocyanin-containing extract has been made; and a composition containing no coated acidic or basic particles does not address the closest art or either of Saito or Chouket.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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