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 .
Status of Claims
Receipt of Remarks/Amendments filed on 12/4/2025 is acknowledged. Claims 10-11, 16-18 and 24 are currently pending and under examination.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Withdrawn Rejection
The double patenting rejection over copending application 19086455 has been withdrawn due to amendments in the copending application that require organic acid, which excluded from the instant claims due to consisting of language.
Claim Interpretation
Applicant’s claims 10, 16-18 and 24 recite a blend consisting of low methoxyl pectin, calcium, and sugar in the claimed amounts. Calcium is not clearly/explicitly defined in the specification, e.g. whether or not it is meant to include salts thereof/ionic forms of calcium. However, based on the specification at [0052] and [0054] the examiner is interpreting the “calcium” as claimed in claims 10, 16-18 and 24 (and their dependent claims) to include any ionic forms of calcium such as salts, etc. including dried milk (which is an equivalent for calcium salts as per Shepard (see Col. 2, ln. 28-Col. 3, ln. 35)). See MPEP 2111.01 (IV) (A) In some cases, the meaning of a particular claim term may be defined by implication, that is, according to the usage of the term in the context in the specification. See Phillips v. AWH Corp., 415 F.3d 1303, 1320-21, 75 USPQ2d 1321, 1332 (Fed. Cir. 2005) (en banc); Vitronics Corp. v. Conceptronic Inc., 90 F.3d 1576, 1583, 39 USPQ2d 1573, 1577 (Fed. Cir. 1996).
New Claim Objection(s) / Rejection(s) necessitated by claim amendments
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 18 and 24 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception, specifically a blend of naturally occurring products/natural products, specifically a blend of low methoxyl pectin which is naturally occurring and isolated as a dry solid, sucrose/sugar which is a naturally occurring solid when isolated from sugar cane, and calcium/specifically calcium salts such as naturally occurring calcium carbonate which is a naturally occurring solid which are blended together to form a solid mixture, without significantly more. The claim(s) recite(s) a naturally occurring phenomenon, specifically a gel forming blend consisting of pectin (a polysaccharide having a backbone of repeating D-galacturonic acid monomer units) in about 18 wt%, calcium which reads on/includes naturally occurring calcium salts (e.g. calcium carbonate (a solid) in about 4 wt%, and sugar (any sugar, e.g. sucrose a naturally occurring solid) in about 78 wt% (claim 24), a kit comprising the gel forming blend and instructions for solubilizing, etc. (Claim 18). The claims are directed to/include solid blends of naturally occurring solids without significantly more, e.g. the pectin is just as solid pectin in the mixture, the calcium carbonate is the same solid as when it is isolated, and sucrose is a naturally occurring solid when isolated thus the blend of these components does not structurally or materially change any of the naturally occurring individual components from how they exist when isolated in/from nature. These judicial exceptions are not integrated into a practical application because applicants have not altered the naturally occurring low-methoxyl pectin, the calcium/calcium salts, or the sugar(s) as they are isolated from nature in their solid state and that is how they exist in applicants claimed blend. Thus, the judicial exception has not been integrated into a practical application because the claim is to a blend of naturally occurring solids as isolated and nothing more and the pectin, sugar, and calcium, e.g. solid calcium salts is merely a mixture of known naturally occurring components which act as they do when isolated and inert solids mixed together until they are mixed with water or another liquid which would promote gelling (pectin) thereby changing the physical state of the calcium and sugar. However, nothing in the claimed blend changes the physical characteristics, or affords markedly different characteristics to the naturally occurring solids as they are isolated from nature. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claimed blend consisting of the claimed naturally occurring solids when isolated does not change the components from how they are isolated from their natural source, e.g. there are no changes in structure, function or other characteristics from how they exist when isolated, and their combination does not amount to significantly more than the exceptions, because their combination is well-understood and would be routine/conventional, e.g. a dry blend of isolated natural products which behave just as they are when isolated as a stable dry solids when mixed to form the blend as claimed.
Response to Arguments
Applicant argued that a material change of the composition is not required to satisfy USPTO’s subject matter eligibility standards. Applicant argued that in example 30, claim 1 is ineligible but claim 4 is eligible, therefore, the instant claims should also be considered eligible because like the eligible example 4, there is no naturally occurring 18% pectin, 78% sugar, and calcium gelling blend. (see page 8-10 of remarks).
In response, the examiner argues that in example 30, claim 4 is eligible because the claim requires texiol, water or fruit juice and sufficient amounts of pectin to provide a solid gel. This is similar to instant claim 10 (which is eligible subject matter) because instant claim 10 requires the blend of pectin, calcium and sugar is added to water to form a gelling solution. Claim 4 of example 30 also requires the combination of the ingredients provide a solid gel. However, instant claims 18 and 24 do not require that the blend of pectin, calcium and sugar are mixed with water or another liquid which would promote gelling (pectin) thereby changing the physical state of the calcium and sugar. Applicant’s claims 18 and 24 are to a blend, and when this blend is solid in form, e.g. low methoxyl pectin, calcium, and sugar each exists as itself in the solid blend and do not have any effect on each other and as such are not markedly different from each component alone when they are combined. Applicants keep pointing to the fact that the blend forms a gel in water. However, the claims 18 and 24 as written do not require water/liquids for forming a gel. If claims 18 and 24 claimed the gel itself consisting of the claimed ingredients as claimed (similar to instant claim 10), then this would be patentable subject matter under 101 as this would be markedly different from the naturally occurring/isolated components. However, the blend of claims 18 and 24 as it exists in dry solid form is not patentable for the reasons of record as discussed supra.
Claim Objections
Claims 16 and 17 are objected to because of the following informalities:
In claim 16, the recitation “added to water for form a gelling solution” should recite “added to water to form a gelling solution”.
In claim 17, the recitation “to water for form a gelling solution” should recite “added to water to form a gelling solution”.
Appropriate corrections are 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 10, 11, 16-18 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.
Claim 10 recites a blend of about 18 wt% of low methoxyl pectin …, calcium, and about 78% sugar added to water to form a gelling solution, wherein the blend comprises 25 mg of calcium for each gram of low methoxyl pectin. Firstly, it is unclear whether the concentrations in this recitation are based only on the blend which include pectin, calcium and sugar, or whether these concentrations are based on the solution of the blend which is solubilized water (e.g., do these concentrations also include the presence of water?). Further, in the case that water is not included when taking these concentrations, 18% of pectin and 78% of sugar suggests there is about 4% of calcium. The ratio of 18% pectin to 4% calcium equates to about 4.5:1 (pectin to calcium). However, 25 mg of calcium for each gram of low methoxyl pectin equates to a ratio of 40,000:1 (pectin to calcium). Thus, the metes and bounds of the claims are indefinite because it is unclear what amounts of pectin and calcium are required in the blend.
Similarly, in claim 11, it is unclear whether the concentrations of pectin, sugar and milk powder/liquid are based on the blend of pectin, sugar and milk powder/liquid or whether the concentrations are based on the gelling solution which also include water in addition to pectin, sugar and milk powder/liquid.
Claim 16 recites a blend of about 18 wt% of low methoxyl pectin …, calcium, and about 78% glucose added to water for form a gelling solution, wherein the blend comprises 25 mg of calcium for each gram of low methoxyl pectin. Firstly, it is unclear whether the concentrations in this recitation are based only on the blend which include pectin, calcium and glucose, or whether these concentrations are based on the solution of the blend which is solubilized water (e.g., do these concentrations also include the presence of water?). Further, in the case that water is not included when taking these concentrations, 18% of pectin and 78% of glucose suggests there is about 4% of calcium. The ratio of 18% pectin to 4% calcium equates to about 4.5:1 (pectin to calcium). However, 25 mg of calcium for each gram of low methoxyl pectin equates to a ratio of 40,000:1 (pectin to calcium). Thus, the metes and bounds of the claims are indefinite because it is unclear what amounts of pectin and calcium are required in the blend.
Claim 17 recites a blend of about 18 wt% of low methoxyl pectin …, calcium, and about 78% is a blend of any of glucose, galactose, mannose, gulose, talose, or fructose, to water for form a gelling solution, wherein the blend comprises 25 mg of calcium for each gram of low methoxyl pectin. Firstly, it is unclear whether the concentrations in this recitation are based only on the blend which include pectin, calcium and glucose, or whether these concentrations are based on the solution of the blend which is solubilized water (e.g., do these concentrations also include the presence of water?). Further, in the case that water is not included when taking these concentrations, 18% of pectin and 78% of glucose suggests there is about 4% of calcium. The ratio of 18% pectin to 4% calcium equates to about 4.5:1 (pectin to calcium). However, 25 mg of calcium for each gram of low methoxyl pectin equates to a ratio of 40,000:1 (pectin to calcium). Thus, the metes and bounds of the claims are indefinite because it is unclear what amounts of pectin and calcium are required in the blend.
Claim 18 recites a blend of about 18 wt% of low methoxyl pectin …, calcium, and about 78% sugar…., wherein the blend comprises 25 mg of calcium for each gram of low methoxyl pectin. 18% of pectin and 78% of sugar suggests there is about 4% of calcium. The ratio of 18% pectin to 4% calcium equates to about 4.5:1 (pectin to calcium). However, 25 mg of calcium for each gram of low methoxyl pectin equates to a ratio of 40,000:1 (pectin to calcium). Thus, the metes and bounds of the claims are indefinite because it is unclear what amounts of pectin and calcium are required in the blend.
Claims 17 recites a blend of any of glucose, galactose, mannose, gulose, talose, or fructose. The term blend suggests that sugar is combination of different ingredients, however, the use of “or” conjunction suggests that it can be only of the recited ingredients. This renders the claims indefinite because it is unclear whether blend is meant to include only of the recited ingredient or a combination of the recited ingredients.
Response to Arguments
Regarding claim 17, applicant argued there is no confusion between the term “consist of” and “or” as defined by blend of any of glucose, galactose, mannose, gulose, talose, or fructose.
In response, applicant’s argument does not appear to address the indefiniteness rejection of claim 17. As discussed supra, the term blend suggests that sugar is combination of different ingredients, however, the use of “or” conjunction suggests that it can be only of the recited ingredients. This renders the claims indefinite because it is unclear whether blend is meant to include only of the recited ingredient or a combination of the recited ingredients. Applicant’s response does not appear to address this indefiniteness issue.
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 10-11, 16-18 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Shepard et al. (US2673157) as evidenced by Liles et al. (WO2016054222) and Crofters (https://www.ams.usda.gov/sites/default/files/media/Pectin%20%28low-methoxy%29.pdf) (previously cited), and Norziah et al. (Food Hydrocolloids, 2001, 15(4-6), 491-498).
Determination of the scope and content of the prior art
(MPEP 2141.01)
Shepard teaches blends which consist of and/or comprise pectin, sugar and calcium in the form of ions which are mixed with liquids such as water (which forms gelling solution) and which gel and wherein these blends, e.g. the pectin and sugar can be in a solid form/dry form (claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). Shepard teaches that it was known to use calcium salts (or its equivalent in the form of dry milk) to form gels with pectin, specifically low methoxyl-pectin and sugar (Col. 2, ln. 28-Col. 3, ln. 35; claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive).
Shepard further teaches wherein the calcium in the blend/formulation is preferably in the form of milk and/or milk powder/dry milk which they teach is an equivalent to calcium salts (Col. 4, ln. 54-58; claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive; Col. 2, ln. 28-Col. 3, ln. 35).
Shepard teaches that their pectin is low methoxyl pectin and as evidenced by Liles which teaches synthetic gels made of/comprising pectin, specifically low ester pectin which include the claimed low methoxyl pectin, which is a polysaccharide having a backbone of D-galacturonic acid, which means that the low methoxyl pectin of Shepard reads on the claimed low-methoxyl pectin (see Liles: abstract; claims 1, 4-5; [0027-0032]; [0049-0050]; [0058]; [0004]; [0048-0054]; [0061-0062]; [0064]; [0071]; See Shepard: claims; Examples I-II, etc.; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). Shepard teaches that their pectin is low methoxyl pectin and as evidenced by Crofters: pectin is a plant cell wall polysaccharide which contains galacturonic acid monomers that are interrupted with L-rhamnose, as well as D-xylose, etc. in side chains monomers, which means that the low methoxyl pectin of Shepard reads on the monomers claimed as it would naturally contain L-rhamnose, etc. (See Crofters: pg. 7/23 pectin definition; See Shepard: claims; Examples I-II, etc.; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive).
Shepard teaches wherein the sugar is preferably sucrose which means that the sugar comprises glucose, and is a blend of glucose and fructose as instantly claimed (Col. 4, ln. 31-34; Examples; Claims).
Ascertainment of the difference between prior art and the claims
(MPEP 2141.02)
Shepard does not teach wherein the blend comprises the claimed percentages of pectin and sugar and/or the claimed amounts of pectin, sugar, and milk. Shepard does teach wherein their dry blend or pectin and sugar comprises about 10% pectin to about 90% sugar which is close to the claimed amounts of about 18% pectin to about 78% sugar and wherein the preferred calcium source is milk/milk powder and is present in amounts of 10 to 40 mg of calcium per gram of low methoxyl pectin which reads on the amounts of calcium claimed in claims, and specifically wherein the dry milk is about 3 to about 20 parts of dried milk per part of low methoxyl pectin and further teaches that the amount of pectin can be varied considerably depending on whether a weak or firm gel is desired (claims; Example I; see also Col. 4, ln. 38-Col. 5, ln. 22, inclusive). However, these deficiencies are also addressed by Norziah.
Norziah teaches that it is known to form gels with pectin, sucrose, and calcium and that it is known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities, etc. (see entire document; abstract; Conclusion section;).
Shepard does not specifically teach a kit comprising the gel forming blend of claim 10 and instructions for solubilizing the blend with water. However, it would have been obvious to one of ordinary skill in the art to form the claimed kit because Shepard teaches forming blends which are very similar to those claimed in instant claims which consist of sucrose/sugar, pectin, and calcium and wherein these blends are solubilized in edible liquids, e.g. water, etc. to form gels and as such it would be obvious to form the claimed kit which comprises instructions for properly solubilizing the blend in water because it was known to form kits comprising compositions and instructions for their use/formulation and this is something that one of ordinary skill in the art would be motivated form when looking to the teachings of Shepard because when commercializing blends of pectin, sugar, and calcium for forming gels in liquids, e.g. water it would be obvious to provide them as a kit with instructions when selling them so that the user has a complete kit with instruction for solubilization and can properly use the claimed pectin gel forming blend.
Finding of prima facie obviousness
Rationale and Motivation (MPEP 2142-2143)
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have formed the claimed pectin, sugar, and calcium blends for forming gels with the claimed percentages of pectin and sugar because it is known to optimize the amounts of pectin, sugar, and calcium in these pectin blends for forming gels in order to control/develop gels having the desired viscosity, etc. as is discussed above with respect to the teachings of Shepard and Norziah. Thus, it would be obvious to optimize the blend as taught by Shepard and Norziah to contain the claimed amounts of pectin, sugar and calcium in order to afford pectin blends which achieve the desired gelling consistency when mixed with liquids/water because it was known to optimize the amounts of pectin, sugar, etc. in pectin blends for forming gels in order to achieve gels having the desired structure/consistency/viscosity and because the courts have previously determine, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. ‘[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.’” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding applicant’s claimed kit limitations wherein the kit comprises instructions for forming a blend of the claimed polysaccharide, calcium, and sugar, and instructions for solubilizing the blend with water, “Where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art.” In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004) (Claim at issue was a kit requiring instructions and a buffer agent. The Federal Circuit held that the claim was anticipated by a prior art reference that taught a kit that included instructions and a buffer agent, even though the content of the instructions differed, explaining “[i]f we were to adopt [applicant’s] position, anyone could continue patenting a product indefinitely provided that they add a new instruction sheet to the product.”). See also In re Gulack, 703 F.2d 1381, 1385-86, 217 USPQ 401, 404 (Fed. Cir. 1983) ( "Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability….[T]he critical question is whether there exists any new and unobvious functional relationship between the printed matter and the substrate." ); In re Miller, 418 F.2d 1392, 1396 (CCPA 1969). Thus, in the instant case the claimed instructions are not functionally related to the product/blend as they are merely instructions for the claimed product/blend. As the product is known and/or rendered obvious by the Shepard and the combined prior art in the instant case, the instructions do not distinguish the claimed product/kit from the claimed composition as is taught by the combined prior art as discussed above.
Regarding the limitation that the blend is characterized by gelling of the polysaccharide upon solubilization of the blend in water to form a solution and adjusting the temperature, pH, sugar content, or catalyst to effect gel formation, this limitation is a result which happens when the claimed blend is solubilized in water and adjusted as necessary and does not further limit the claimed blend because this result effective of the composition when solubilized in water and adjusted as claimed. As Shepard clearly teaches that it was known to form pectin gels with pectin, sugar (specifically sucrose), and milk, specifically dried milk which are solubilized in water and that the concentrations can be adjusted of the components, e.g. calcium, etc. to afford different strengths/viscosities of gelling as is taught by Shepard and Norziah it would have been obvious as taught by the prior art to form the claimed blends for forming gels and to adjust the gelling as necessary to achieve the desired level of viscosity and/or gelling because this is something that one of ordinary skill in the art routinely does in order to form pectin gels comprising the claimed ingredients which have the desired viscosity/gelling.
In light of the forgoing discussion, the Examiner concludes that the subject matter defined by the above claims would have been obvious to one of ordinary skill in the art within the meaning of 35 USC 103(a).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Response to Arguments/Remarks
Applicant argued Shepard teaches aqueous solution should contain at least about 10 parts sugar for each part of low methoxyl pectin and this teaching of Shepard does not support a solution where 17% pectin and 78% sugar (i.e. 4 parts sugar to 1 part pectin) is not supported by the disclosure of Shepard. Applicant also argued that Shepard does not teach a composition comprising 10% pectin and 90% sugar.
In response, firstly, 10 parts sugar for 1 part of pectin equates to about 90% sugar and about 10% pectin. Thus, Shepard does teach a composition comprising 10% pectin and 90% sugar. Regarding the claimed 17% pectin and 78% sugar, while Shepard teaches aqueous solution should contain at least about 10 parts sugar for each part of low methoxyl pectin, Shepard discloses that pectin in the solution acts as film forming material and when the proportion of sugar to pectin is increased substantially over the ratio of 15:1, then the pectin is present in too small proportion to form a self sustaining film. Shepard also states that use of sucrose is not critical. (col 4, line 25-37). As discussesd supra, Norziah teaches that it is known to form gels with pectin, sucrose, and calcium and that it is known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities, etc. Therefore, while Shepard teaches aqueous solution should contain at least about 10 parts sugar for each part of low methoxyl pectin, the art does suggest that the amount of pectin affects the film formation and that it was known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities. As such, absence any evidence of criticality, and based on the teachings of both Shepard and Norziah, it would have been obvious to optimize the amount of pectin and sugar (and ratio of pectin to sugar) based on the desired viscosity of the gel as well as the film formation which depends on the amount of pectin, as suggested by Shepard. Further, applicant make the argument that sugar is not only a sweetener, but must be present with pectin within a certain ratio to achieve the package mix that is core to the invention, however, there is no mention in Shepard that at least 10 parts sugar for each part of low methoxyl pectin is core to the invention and using a different ratio would affect the core of the invention. Shepard states that aqueous solution should contain at least about 10 parts sugar for each part of low methoxyl pectin, however, this does not teach away from using a different ratio, especially since the art teaches that it is known to form gels with pectin, sucrose, and calcium and that it is known to vary the amounts of the pectin, sugar and calcium in order to form gels with desired/different viscosities. Thus, the examiner argues that absence a show of criticality of the claimed amounts/ratio, the concentrations recited in the instant claims would have been prima facie obvious.
Applicants argue that Shepard at no time teaches a composition that consists of only these three ingredients because the examples contain added salt, vanilla, and sodium carbonate. The examiner respectfully points out that the prior art is art for all it teaches and is not limited to only the examples in the prior art. "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting /n re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (ССРА 1968)). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPА 1971). In the instant case, Shepard is directed to low methoxyl pectin gels, and they only require the presence of the low methoxyl pectin, and specifically teaches that the only components required for the blend are sucrose/sugar, pectin, and calcium which are combined in water to form a gel (See col. 2, In. 28-42, e.g. the only specific ingredients required are calcium, pectin and sugar which are then mixed in water with other ingredients if desired, e.g. flavorings; more specifically col. 4, In. 41 that the solid solution of low methoxyl pectin (a solid) and a calcium source are the only required ingredients to be mixed into the water or other edible liquid to form a gel). Thus, contrary to applicant's assertion Shepard clearly teaches blends which only contain/consist of pectin, sugar, and calcium as claimed.
Applicants then argue that Shepard does not teach the claimed amounts of pectin, sugar and calcium as they teach higher amounts of sugar, higher ratios of sugar to pectin than those instantly claimed. The examiner respectfully disagrees, applicants argue that the ratio of 15:1 is critical in Shepard and as such one of ordinary skill in the art would not optimize the amounts of sugar and pectin and calcium to the claimed amounts. The examiner respectfully disagrees again as firstly the rejection is not solely over Shepard but is over Shepard and the secondary references as discussed above. Secondly, Shepard teaches that they don't like higher than 15:1 sugar to pectin ratios because if it is increased substantially over this ratio then the film/gel produced is not self-sustaining. However, Shepard says nothing about lower ratios causing issues with the film being self-sustaining, they only state that they don't typically go lower than about 10:1 sugar to pectin because of the desired sweetness of the product not that the pectin will not gel, and further Shepard is to gelling of low methoxyl pectin it need not always be for consumption by humans and therefore require high ratios of sugar. Thus, the examiner maintains that it still would have been obvious to optimize the amounts of sugar, pectin, and calcium in order to form a blend for forming a gel having the desired characteristics because these are the only components required to be mixed into water in order to form a gel as taught by Shepard, and it is known "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCРА 1955). As applicants have not demonstrated any criticality of their amounts of pectin, sugar, and calcium in their blend and the prior art clearly recognizes this blend of ingredients is all that is necessary when mixed with water for forming pectin gels as is taught by Shepard and the combined references it would be obvious to one of ordinary skill in the art to optimize the amounts of pectin, sugar, and calcium in order to afford a blend which when mixed with water forms a gel having the desired characteristics as this is something that one of ordinary skill in the art routinely does when forming pectin gels in order to form blends for gels having the desired properties for a desired purpose.
Further, the examiner reiterates that people like different flavors of items and many people like to reduce the sugar in their desserts and as such the examiner maintains that it would have been obvious to optimize the amounts of sugar, pectin, and calcium in order to form a blend for forming a gel having the desired characteristics because these are the only components required to be mixed into water in order to form a gel as taught by Shepard, and it is known "Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (ССРА 1955). Applicants then argue that the examiner is wrong in saying that the gels of Shepard need not always be for consumption by humans because Shepard teaches edible gels. The examiner respectfully points out that just because something is edible does not mean it has to be consumed by humans, e.g. grass, chalk, etc. For instance, cows eat grass and grass is edible but it doesn't mean it is consumed by humans. Thus, the examiner disagrees with applicant's unfairly narrow reading of Shepard as nowhere in Shepard are humans mentioned or required to consume the gels of Shepard.
Applicants then argue Norziah and that the ranges are narrower of pectin, sugar and calcium. The examiner again respectfully points out that in the absence of evidence of criticality of the amounts of the components it is well-known in the art to form gels consisting of and/or comprising the claimed components of sugar, pectin and calcium as claimed and the courts have previously determined that, Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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 ALI SAEED whose telephone number is (571)272-2371. The examiner can normally be reached M-F 8-5 EST.
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/A.S/ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616