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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 4/1/2026 has been entered.
Status of Claims
Receipt of Remarks/Amendments filed on 4/1/2026 is acknowledged. Claims 10-11 and 16-17 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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.
Claim Interpretation
Applicant’s claims 10 and 16-17 recite a blend consisting of an additive, 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, 16-17 (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/Maintained Claim Objection(s) / Rejection(s)
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 17 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.
Claims 17 recites “a blend of any of glucose, galactose, mannose, gulose, talose, or fructose to form a blend”. The term blend suggests that sugar is combination of different ingredients, however, the use of “or” conjunction suggests that it can be only one of the recited ingredients. This renders the claims indefinite because it is unclear whether blend is meant to include only one of the recited ingredient or a combination of the recited ingredients in the phrase above. Further, it is unclear whether the recitation “to form a blend” in the phrase above is referring to a blend of the different sugars recited in the phrase above or whether it is referring to the blend which includes the additive, pectin, calcium and sugar.
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 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Shepard et al. (US2673157) in view of Norziah et al. (Food Hydrocolloids, 2001, 15(4-6), 491-498) and Mao et al. (Am Fam Physician. 2009;80(2):157-162) as evidenced by Liles et al. (WO2016054222) and Crofters (https://www.ams.usda.gov/sites/default/files/media/Pectin%20%28low-methoxy%29.pdf).
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 teach the blend further includes an additive such as the ones recited in the instant claims. However, Shepard does teach the blend may further be added desired supplement such as minerals (e.g. col. 5, line 23-47). Mao further addresses this deficiency.
Mao teaches magnesium is an essential mineral and magnesium supplementation should be considered for magnesium deficiency and other various other disorders including constipation, headache, arrhythmia, etc. (see e.g., abstract; Section: “Bottom line”; Entire document).
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).
It would have been obvious to one of ordinary skill in the art at the time of the instant filing to have combined the teachings of Shepard and Mao and further include magnesium as the supplement in the blend/mix taught by Shepard. As discussed supra, Shepard teaches the blend may further be added desired supplement such as minerals. Mao teaches magnesium is an essential mineral and magnesium supplementation should be considered for magnesium deficiency and other various other disorders including constipation, headache, arrhythmia, etc. As such, it would have been obvious to one skilled in the art to include magnesium as the mineral/supplement in the blend of Shepard.
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 is 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 that Shepard, Norziah and Crofters are non-analogous art to Liles because Shepard, Crofters and Norziah are directed to foodstuffs whereas Liles is directed to Plant and soil amendments. There is no teaching in Shepard, Crofters and Norziah that the compositions directed to foodstuff are useful for stimulating plant roots. Shepard is directed to addressing a separate and irrelevant problem of providing a palatable drink which is irrelevant to method of increasing plant biomass.
In response, firstly the examiner argues that Liles is utilized only as an evidentiary reference wherein Liles 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. Thus, applicant’s argument that Shepard, Norziah and Crofters are non-analogous art to Liles is not persuasive because Liles is used to show that low-methoxyl pectin of Shepard necessarily contains polysaccharide having a backbone of D-galacturonic acid. Further, regarding applicant’s argument that the prior art Shepard, Crofters and Norziah are not taught to be useful for plant/root growth, the examiner argues that the instant claims are directed to a gel product and nothing in the claims require that the composition is an agricultural and/or plant growth composition. Further, even in the case the claims require the composition is used for stimulating plant growth, the claims are directed to a product and use of the product for stimulating plant growth is an intended use, and the prior art teaching the same product as claimed would necessarily be capable of stimulating plant growth.
Applicant argued that the previously cited references do not teach the additives recited in the amended claims.
In response, applicant’s attention is respectfully drawn to the modified 103 rejection above in view of Mao, which renders obvious inclusion of the claimed additive.
Conclusion
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/ALI S SAEED/Examiner, Art Unit 1616
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