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 .
Claim Objections
Claim 5 is objected to because of the following informalities: The term “a” in the phrase “granulating the dark-green vegetable by a fluidized-bed granulation” should be removed. The phrase should read “granulating the dark-green vegetable by fluidized-bed granulation.” 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 1-5 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, the recitation “wherein a particle size distribution of particle diameter less than 500 um is 10% or more” renders the claim indefinite. It is not clear what particle distribution is being claimed. Does the granulated product have a particle size distribution wherein the amount of particles having a diameter of less than 500 um is 10% or more?
Regarding claim 2, the recitation “wherein the dark green vegetable is a dry powder” renders the claim indefinite. It is not clear if the dark green vegetable can be any dry powder of the dark green vegetable is in the form a of dry powder. Note, the claims are directed to a granulated powder. The claimed dark green vegetable dry powder is used to make the granulated product. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. In this case, using dark green vegetable dry powder to make the granulated product (see MPEP §2113).
With respect to the prior art, the limitation will be considered part of a product-by-process limitation wherein a dark green vegetable in dry powder form is used to make the granulated product of claim 1.
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 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Paulíčková et al. (“Evaluation of barley grass as a potential source of some nutritional substances”, Czech Journal of Food sciences, Vol. 25, No. 2, (April 2007), pp. 65-72) in view of Dhanalakshmi et al. (“Agglomeration of Food Powder and Applications”, Critical Reviews in Food Science and Nutrition, 51, (2011), pp. 432-441).
Regarding claims 1-3, Paulíčková et al. discloses young barley grass dry powder (“three possible ways of processing-freezing, freeze drying and fluid drying” -p. 66/Column 1 of Introduction, p. 70/Table 1). Paulíčková et al. disclose the dry powder was made by extracting juice from barley green mater and processing in a freeze dryer or a fluid dryer (p. 66/Column 2 of Material and Methods/Material).
Paulíčková et al. disclose young barley grass is known to be a source of antioxidants, vitamin E, vitamin C and carotenoids and is used as a food supplement (p. 66/Introduction).
Paulíčková et al. is silent with respect to a granulated young barley grass product.
Dhanalakshmi et al. teach agglomeration of food powders (entire document). Dhanalakshmi et al. teach agglomeration is a process during which primary particles are joined together so that bigger porous secondary particles are formed (p. 432/Agglomeration). Dhanalakshmi et al. teach a major application of the agglomeration process is in the production of instant products in which primary particles are agglomerated to give a granule shaped product with improved wettability, dispersability and dissolution characteristics compared to the original primary particles (p. 433/Applications).
Paulíčková et al. and Dhanalakshmi et al. are combinable because they are concerned with the same field of endeavor, dried food particles. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have agglomerated the young barley grass dry powder of Paulíčková et al., as taught by Dhanalakshmi et al., to give a granulated product with improved wettability, dispersibility and dissolution characteristics.
Dhanalakshmi et al. is silent with respect to a particular particle size. Given the combination of Paulíčková et al. and Dhanalakshmi et al. teach a granulated young barley grass product made by granulating young barley grass dry powder using a fluid-bed drier, inherently the granulated product would have a particle size distribution wherein 10% or more of the particles would have a particle diameter of less than 500 µm. In the alternative, given Dhanalakshmi et al. teach the bulk density, compressibility and flowability of a powder is highly dependent on particle size and its distribution, it would have been obvious to one of ordinary skill in the art to have adjusted, in routine processing, the particle size distribution of the granulated product to obtain a product with desired bulk density, compressibility and flowability.
Regarding claim 4, modified Paulíčková et al. disclose all of the claim limitations as set forth above. Dhanalakshmi et al. teach using food powders for beverage powders (p. 433/Table 1). Dhanalakshmi et al. teach one of the major applications of agglomeration in food includes beverage powders (p. 433/Applications).
Regarding claim 5, modified Paulíčková et al. disclose all of the claim limitations as set forth above. Dhanalakshmi et al. teach agglomerating powders (i.e., granulating) using a fluidized-bed drier (p. 435/Table 2, p. 436-437/Spray-bed Dryer Agglomeration).
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (JP 2017/099318 A- citations are to the WIPO Machine Translation).
Regarding claims 1-3, Takahashi et al. disclose a granulated product comprising barley leaf (i.e., dark-green vegetable; young barley grass) powder and collagen powder ([0013]-[0025]).
While Takahashi et al. disclose a granulated product made granulating a mixture containing barley leaf in a fluidized bed granulator, the reference is silent with respect to the amount of particles having diameter less than 500 µm. However, one of ordinary skill in the art would have been motivated to adjust, in routine processing, the granulation parameters to obtain a granulated product with a particle size distribution with a desired dispersibility, including one where 10% or more of the particles have a diameter less than 500 µm.
Regarding claim 4, Takahashi et al. disclose all of the claim limitations as set forth above. Takahashi et al. disclose the granulated product is used as a powdered drink composition ([0043]). Takahashi et al. disclose the granulated product may be mixed with a solvent such as water to form a liquid beverage ([0043]).
Regarding claim 5, Takahashi et al. disclose a method of making a granulated product comprising barley leaf (i.e., dark-green vegetable; young barley grass) powder and collagen powder where the method comprises a step of granulating a mixture of barley leaf powder and collagen powder in a fluidized bed granulator ([0036]).
Conclusion
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759