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 the Application
Receipt is acknowledged of the amendment and response filed 4/14/2026. Claims 1-21 are pending in the application. Claims 1-8 and 16-21 were amended.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-21 are rejected under 35 U.S.C. 103 as being unpatentable over Muller (US2018289030A1) cited in an IDS in view of Faria et al. (Journal of Food and Drug Analysis 2020;28:337-355) and further in view of Heegar et al.( Food Chemistry 221 (2017) 969-975) cited in an IDS.
Regarding claim 1,2, 4-7 and 21, Muller discloses a method of making a cascara powder derived from coffee cherry fruit, (which typically has a soluble solids content of 15%-25%, as generally known for fruits such as grapes and cherries, meeting the requirement of at least 12%), by pulping and deseeding which is considered wet pulping to separate the coffee fruit from coffee beans ([0089]-[0091]) and drying to a water activity of 0.3-0.65 at 25 deg. C that is corresponding to a moisture content of about 5%-20%w/w (10%-15%w/w [0017]) and extracting the produced cascara (entire de-beaned fruit) and extraction with hot water at an exemplary 180 deg F(83 deg C) for 8-16 hours, close to the lower limit of solvent extraction temperature of 85 deg temperature as claimed, and for at least 120 minutes as in claim 21. The extract is concentrated to a Brix value(soluble solids content) of about 20 to 30 [0063] to form a concentrated extract. Regarding a pre-soaking step, presoaking is a conventional hydration technique used to improve water penetration in dry materials prior to extraction. Absent any demonstrated unexpected effect or criticality, its use by one of ordinary skill in the art in the instant case, would have been an obvious modification.
Muller discloses spray drying the concentrated extract [0078], but does not specifically detail an encapsulation step. Faria (page 338 paragraph 1-2) however discloses microencapsulation of concentrated green coffee extract with maltodextrin or gum Arabic, as in claim 6, to protect bioactive compounds from the external environment, to prevent the interaction between core and food matrix nutrients, and/or to provide a controlled release of compounds. As the intended use of the claimed cascara product is in foods and beverages, it would have been obvious to one of ordinary skill in the art to have modified the method in Muller with encapsulating phenolics rich liquid extract in a protective carrier such as maltodextrin or gum Arabic in a spray drying step, with a reasonable expectation of retained antioxidant activity of cascara extract.
The powder extract in Muller comprises total phenolic acids in the amount of 5%-25% w/w [0085] corresponding to 50mg-250mg GAE/g and an exemplary 0.7-1.1% caffeine. The powder inherently contains fiber present in coffee fruit and sugars, which is modifiable by one of ordinary skill in the art. No unexpected effects of dietary fiber content and total sugars at the claimed level in a single extract powder or the blended product are described.
Modified Muller therefore discloses a cascara powder as claimed. Regarding “soluble” the claim does not recite a method of determining solubility. Muller discloses a partially soluble powder [0114] which one of ordinary skill in the art would have filtered to obtain a desired level of solubility, prior to spray drying. Motivation is available from the aqueous extracts prepared from cascara in Heeger et al. (page 970, 2.3) that are filtered to remove insoluble matter to produce water soluble extracts.
Muller does not disclose blending first and second cascara powder products. However, one of ordinary skill in the art would typically produce standardized cascara product by blending batches to obtain a desired level of phenolics and other nutrients, as routinely done in the art. This is driven by inherent variability in coffee fruit composition and the need to achieve consistent target compositional profiles normalizing batch-batch variability, and is considered an obvious modification of the method in modified Muller.
Accordingly, one would experimentally optimize the extraction process to achieve a desired phenolic acids content, solids content, in claims 2,4 and 5 and microbiological quality in claim 7 with a reasonable expectation of success.
Regarding claim 3, selecting coffee beans from different geographic origins to obtain extracts with desired properties constitutes routine optimization of a known result-effective variable to obtain cascara and an extract thereof with defined properties. Absent evidence of criticality other than a desired aroma profile or polyphenols composition, this is an obvious modification of the art, driven by inherent variability in coffee fruit composition, across geographical regions, and the need to achieve consistent target compositional profiles normalizing batch-batch variability.
Regarding claim 7, Muller discloses a microbiological load in cascara powder of less than 540 CFU/g for yeast and zero aerobic count [0114], which falls within the claimed level.
Regarding claim 8 and 12 as discussed above with reference to claims 1 and 7, a product in modified Muller meets the claimed requirements [0114]. The powder extract in Muller comprises total phenolic acids in the amount of 5%-25% w/w [0085] corresponding to 50mg-250mg GAE/g and an exemplary 0.7-1.1% caffeine. The powder inherently contains fiber present in coffee fruit and sugars, which is modifiable by one of ordinary skill in the art. No unexpected effects of dietary fiber content and total sugars at the claimed level in a single extract powder or the blended product are described.
Regarding claims 9-11, modified Muller has a step of filtration as described above which would provide a desired level of clarity to an aqueous extract of cascara, motivating one of ordinary skill in the art to apply a filtration , centrifugation or other separation methods to produce a product with a desired turbidity/clarity.
Regarding claim 12, Muller discloses a microbiological load in cascara powder of less than 540 CFU/g for yeast and zero aerobic count [0114], which falls within the claimed level.
Regarding claims 13-15, Heeger discloses ORAC assay, ABTS assay and prooxidant potential as antioxidant activity correlating with phenolics content (Fig. 2 for example). It would have been obvious to one of ordinary skill in the art to standardize antioxidant activity of the cascara product in correlation with phenolics content, with a reasonable expectation of success.
Regarding claim 16, as discussed above, Muller discloses a method of making a cascara powder derived from coffee cherry fruit, (which typically has a soluble solids content of 15%-25%, as generally known for fruits such as grapes and cherries, meeting the requirement of at least 12%), by pulping and deseeding which is considered wet pulping to separate the coffee fruit from coffee beans ([0089]-[0091]) and drying to a water activity of 0.3-0.65 at 25 deg. C that is corresponding to a moisture content of about 5%-20%w/w (10%-15%w/w [0017]) and extracting the produced cascara (entire de-beaned fruit) and extraction with hot water at an exemplary 180 deg F(83 deg C) for 8-16 hours, close to the lower limit of solvent extraction temperature of 85 deg temperature for a claimed time of at least 120 minutes. The extract is concentrated to a Brix value (soluble solids content) of about 20 to 30 [0063] to form a concentrated extract.
Muller discloses spray drying the concentrated extract [0078], but does not specifically detail an encapsulation step. Faria (page 338 paragraph 1-2) however discloses microencapsulation of concentrated green coffee extract with maltodextrin or gum Arabic to protect bioactive compounds from the external environment, to prevent the interaction between core and food matrix nutrients, and/or to provide a controlled release of compounds. As the intended use of the claimed cascara product is in foods and beverages, it would have been obvious to one of ordinary skill in the art to have modified the method in Muller with encapsulating phenolics rich liquid extract in a protective carrier such as maltodextrin or gum Arabic in a spray drying step, with a reasonable expectation of retained antioxidant activity of cascara extract.
Modified Muller does not specifically disclose a sonication step of sonication in a solvent. However, sonication is routinely applied in extracting bioactive compounds from plant materials with the advantage that ultrasonic waves disrupt plant cell walls, increase solvent penetration to plant tissues and accelerate diffusion of intracellular compounds onto the solvent. One of ordinary skill in the art would have included a sonication step to facilitate higher extraction of phenolic compounds, caffeine and other soluble compounds from cascara, with a reasonable expectation of success. No unexpected effects of a sonication step are provided in the disclosure.
Regarding claim 17 and 18 water removal after sonication, Muller discloses removing excess water from deseeded (pulped) cherries [0093]. .
Regarding claim 19, Muller suggests beverage application of the antioxidant-rich cascara extract [0181].
Regarding claim 20, Muller does not disclose blending first and second cascara powder products. However, one of ordinary skill in the art would typically produce standardized cascara product by blending batches to obtain a desired level of phenolics and other nutrients, by obtaining extracts from different sources or by different processing conditions, as is routinely done in the art. This is driven by inherent variability in coffee fruit composition and the need to achieve consistent target compositional profiles normalizing batch-batch variability, and is considered an obvious modification of the method in modified Muller.
Claims 1-21 are therefore prima facie obvious in view of the art.
Response to Arguments
Applicant’s arguments have been considered and are partially persuasive. In view of claim amendments the previous rejection of claims under 35 USC 112(b) is withdrawn.
Regarding the rejections under 35 USC 103, applicant’s arguments regarding the combination of references are not persuasive. Arguments in view of the amended claims are addressed in the current Office action.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the primary reference discloses the subject matter of the instant claims and supporting references and motivation to combine based on knowledge that was available to one of ordinary skill in the art, are detailed in the office action.
Applicant particularly points out “[T]he present inventors also found that "the use of a combination of soluble cascara powder derived from coffee cherries grown and harvested in Laos, Indonesia, Zambia, Tanzania and/or Peru are used in various proportions to provide desired aroma compounds to create a refreshing coffee fruit cascara beverage." Id., I [0047],” The cited references fail to teach or suggest such effects. In contrast, a skilled artisan likely would have expected that the characteristics of a blend of two different cascara powder preparation would be the "average" of the individual cascara powder-it could not have been an enhancement”.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., characteristics of a blend ) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Furthermore, the Supreme Court has made clear that an obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). That is because “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 421. It is also well established that a reference is good for all it fairly teaches a person having ordinary skill in the art, even when the teaching is a cursory mention. E.g., In re Mills, 470 F.2d 649, 651 (CCPA 1972).
For these reasons, applicant’s arguments are not completely persuasive.
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 Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
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