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
Claims 1-19 are pending and under examination.
Priority
This application is a continuation of PCT/CN2022/140188 filed on 12/20/2022, which claims priority from CN202211589691.4 filed on 12/12/2022.
Information Disclosure Statement
The Information Disclosure Statement filed on 11/6/2023 has been considered by the examiner.
Election/Restrictions
Applicant’s election without traverse of species A) citrus fragrance and a berry fragrance, B) a rosemary extract and vitamin E, C) mixture of polydextrose, alpha-cyclodextrin and starch acetate, D) sucrose fatty acid ester, E) mixture of maltitol and isomaltitol and F) fish oil in the reply filed on 11/23/2025 is acknowledged. No claims are withdrawn due to these elections.
Claim Rejections - 35 USC § 112(b)
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 1-19 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 1 is indefinite for the recitation of “sticky syrup” as the specification does not define what constitutes “sticky”. There is no indication of what sticky would allow the syrup to stick/adhere to (e.g. skin, plastic, metal, wood, etc.) or how viscous the syrup would be in order to be considered sticky. Sticky may also be subjective as being based on the sense of feel, and thus, based on personal perceptions. There is nothing in the specification that outlines how sticky was determined for the syrup. For the purpose of compact prosecution, the examiner will consider the “sticky syrup” for the ingredients that the specification teaches for it (for example, maltitol and isomaltitol or other similar sugars in liquid form). Applicant may replace sticky syrup in the claim with instead providing syrup along with ingredient(s) that constitute the syrup.
Claims 2-19 are rejected as being dependent on an indefinite claim.
Claim 5 is indefinite for the recitations of “when the mixing in step (6) is conducted at 50 C to 75 C, the mixing is conducted for less than 30 min” and “when the mixing in step (6) is conducted at 76 C to 100 C, the mixing is conducted for less than 20 min” as it is unclear if these are optional or required conditions for the claim. That is, would one always have to choose either temperature ranges of 50 C to 75 C or 76 C to 100 C as the only options, or may one venture outside these ranges (e.g. less than 50 C or greater than 100 C) and then not be bound by the conditions of time for the mixing (e.g. mixing can be for any amount of time). For the purpose of compact prosecution, if the temperature in the prior art is within one of these ranges, then the examiner will address the time of mixing limitation, but if the prior art allows for temperatures less than 50 C or greater than 100 C, there does not have to be a time limitation. If applicant wants the temperature always to be within the range of 50 C to 75 C and 76 C to 100 C, then applicant might consider reciting “, wherein the mixing step (6) is conducted at a temperature of 50 C to 75 C or a temperature of 76 C to 100 C; wherein when the mixing step (6) is conducted at 50 C to 75C……..”. This type of suggested recitation means the temperature would have to be within one of those ranges and the conditions would always apply to either choice.
Claims 11 and 17 are rejected for being dependent on an indefinite claim.
Claim 6 is indefinite for the recitations of “when the sugar-containing slurry in step (7) has a temperature of 50 C to 75 C, the pouring for shaping is conducted for less than 2 h” and “when the sugar-containing slurry in step (7) has a temperature of 76 C to 100 C, the pouring for shaping is conducted for less than 1 h” as it is unclear if these are optional or required conditions for the claim. That is, would one always have to choose either temperature ranges of 50 C to 75 C or 76 C to 100 C as the only options, or may one venture outside these ranges (e.g. less than 50 C or greater than 100 C) and then not be bound by the conditions of time for the pouring (e.g. pouring can be for any amount of time). For the purpose of compact prosecution, if the temperature in the prior art is within one of these ranges, then the examiner will address the time of pouring limitation, but if the prior art allows for temperatures less than 50 C or greater than 100 C, there does not have to be a time limitation. If applicant wants the temperature always to be within the range of 50 C to 75 C and 76 C to 100 C, then applicant might consider reciting “, wherein the mixing step (6) is conducted at a temperature of 50 C to 75 C or a temperature of 76 C to 100 C; wherein when the sugar-containing slurry in step (7) has a temperature of 50 C to 75C……..”. This type of suggested recitation means the temperature would have to be within one of those ranges and the conditions would always apply to either choice.
Claims 12 and 18 are rejected for being dependent on an indefinite claim.
Claims 13-18 are indefinite for the recitation of citric and fatty acid esters of glycerol (CITREM) as CITREM is “Citric Acid Esters of Mono- and Diglycerides”, which are more particular types of esters as there can also be triglycerides which are fatty acid esters of glycerol or citric acid and fatty acid esters of glycerol could refer to mixtures of citric acid esters of glycerol along with fatty acid esters of glycerol. Thus, it is unclear if applicant wants the broader recitation that is outside the parentheses or the narrower recitation which would be CITREM (Citric acid esters of mono- and diglycerides). For the purpose of compact prosecution, the examiner will consider the limitations with the broader recitation. Applicant may delete (CITREM) if they would like to stay with the broader interpretation.
Claims 13-18 are indefinite for the recitation of lactic and fatty acid esters of glycerol (LACTEM) as LACTEM is “Lactic Acid Esters of Mono- and Diglycerides”, which are more particular types of esters as there can also be triglycerides which are fatty acid esters of glycerol or lactic acid and fatty acid esters of glycerol could refer to mixtures of lactic acid esters of glycerol along with fatty acid esters of glycerol. Thus, it is unclear if applicant wants the broader recitation that is outside the parentheses or the narrower recitation which would be LACTEM (Lactic acid esters of mono- and diglycerides). For the purpose of compact prosecution, the examiner will consider the limitations with the broader recitation. Applicant may delete (LACTEM) if they would like to stay with the broader interpretation.
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 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over CN102422960A (published 2012, In applicant’s IDS), CN103416759A (published 2013, In applicant’s IDS) and Sato US 20180344633.
In applicant’s claim 1, note that step 1) of applicant’s claims describes making an oil phase, step 2) describes an aqueous phase, step 3) describes combining the oil phase and aqueous phase and mixing/dispersing to make an emulsion that is in equilibrium and stable, steps 4) and 5) provide for preparation of the ingredients of pigment solution, acid solution and sticky syrup, step 6) provides for combining the ingredients of steps 4) and 5) to the emulsion made in step 3) and step 7) involves the pouring into molds to make the soft candy.
In claims 5 and 6 of applicant, which use “when the” (conditional language), the conditions only apply for those listed temperature ranges. If a temperature in the prior art is outside that range (under 50 degrees C or over 100 degrees C), then it may be mixed or shaped for different time frames.
“Oxygen-isolation preprepared solution” will be read as a solution formed by mixing a polymeric sugar, an emulsifying agent and water.
CN ‘960 teaches a candy (nutritional soft sweet) with DHA rich materials and no fishy smell (abstract). CN ‘960 teaches fish oil and/or algal oil (claim 2 of CN’960). CN’960 teaches adding an antioxidant which includes options of vitamin E and Rosmarinus officinalis extract (claim 3 of CN’960). CN’960 teaches sweetener including maltitol and isomalt (claim 8 of CN’960). CN’960 teaches gels which include starch, converted starch, dextrin and cyclodextrin in its claim 6. Embodiment 11 of CN’960 teaches pre-treatment with dextrin, cyclodextrin and water with 100 degrees C of heating, provides for malt syrup and isomalt, and then adding DHA (fish oil), vitamin C (antioxidant), natrium citricum, edible pawpaw essence, Chinese flowering quince juice powder, carrot juice powder, natural Beta-carotene, edible temptation haematochrome is edible, stir feed liquid. Lastly, embodiment 11 provides for casting the feed liquid in a casting machine for moulding with baking temperature of 20-30 degrees C and 24 hours drying time. Embodiment 15 provides for a similar procedure but pretreatment includes starch and water and adding DHA includes vitamin C palmitate. CN’960 teaches fruit syrups including lemon juice (citrus), strawberry juice (berry), blueberry juice (berry), or cranberry juice (berry) (English translation of CN’960). The amount of the juice powder is 0-500 g/kg (English translation of ‘960). ‘960 teaches flavor essences including strawberry essence and lemon extract (English translation). CN ‘960 teaches pigments in fishing product of 0 to 30 g/kg including colouring matter such as natural or synthetic dyestuffs like beta-carotene (English translation of ‘960). CN ‘960 teaches tart flavoring including citric acid, malic acid, lactic acid and other acids (English translation of ‘960). CN ‘960 teaches “step 1), the condition of said gel and water Hybrid Heating is: place glue pot to carry out, the temperature range of heating is 90～200 ℃” (claim 7 of CN ‘960). It is noted that the embodiments of CN’960 have oil (fish oil) and water components combined together (e.g. see embodiments 1 and 4).
CN’960 does not teach an emulsifying agent and the steps as ordered.
CN ‘759 teaches a DHA emulsion, and particularly to a DHA emulsion with good thermal stability. Every 100 g of raw material for preparing the DHA emulsion comprises 10 to 20 g of algae oil or fish oil, 2 to 12 g of emulsifiers (5% to 10% by mass of the fish oil with using 2 g of emulsifier and 10 to 20 g fish oil), 0.1 to 1 g of stabilizers, and 0.2 to 1.0 g of antioxidants (2% to 5% of antioxidant), with the balance being water (abstract and claims 1-7 of CN ‘759). CN ‘759 teaches the emulsifiers comprise one type or a combination of several types of emulsifiers selected from starch sodium octenyl succinate, soy lecithin, mono- and diglycerides, sorbitan esters, polyoxyethylene sorbitan esters, sucrose fatty acid ester, whey protein, and sodium caseinate (abstract). CN ‘759 teaches “wherein said stabilizing agent is selected from one or more the combination in guar gum (polysaccharide), xanthans, carragheen, agar, hydroxypropyl PASELLI EASYGEL, CMC and its esters, sodium alginate, locust bean gum” (claims 3 and 4 of CN ‘759). The stabilizers are polysaccharides. CN ‘759 teaches “emulsifying agent, described water soluble antioxidant and described stabilizing agent are mixed with described water, and hydration is 2 to 24 hours at not higher than the temperature of 10 ℃, makes water” (claim 7 of ‘759). CN’759 teaches adding fish oil and antioxidant and high speed shearing to make the emulsion (claim 7 of ‘759). CN ‘759 teaches homogenizing with the temperature 4 to 10 degrees C (claim 7 of ‘759). CN ‘759 teaches high speed shear for mixing and blending is 3000 to 5000 rev/mins and duration of 20 to 30 minutes (claim 8 of CN ‘759). CN ‘759 teaches in the “first embodiment” that “emulsifying agent, water soluble antioxidant and stabilizing agent are mixed with water, at the temperature of 10 ℃, hydration is 2 hours”.
Sato teaches oral compositions with thickening polysaccharides (abstract). Sato teaches starch acetate as a starch and polydextrose as a dextrin (paragraph 63 with thickening polysaccharides). Sato teaches foods and beverages including gummi candy and soft candies (paragraph 88). Sato teaches edible components including organic acids, coloring agents, plant extracts, fruit juices like orange and strawberry, sweeteners (sugars) and antioxidants (paragraph 68). Sato teaches an emulsion (paragraphs 66 and 91). Table 4 teaches using a sucrose fatty acid ester.
One of ordinary skill in the art before the time of filing would have formed aqueous and oil phases with the ingredients compatible to each phase (oily/hydrophobic ingredients for oil phase (e.g. vitamin E, DHA/fish oil, essences/extracts) and aqueous compatible ingredients for aqueous phase (polysaccharides such as dextrins or others, sucrose fatty acid esters and water), emulsified/dispersed them with shear mixing until homogenous and stable, added and mixed in other ingredients for sweetness, thickness, color, tartness and then poured the emulsified mixture into molds to form candies by the combined teachings of the references, which recognizes such steps and ingredients for making emulsified food products such as soft gelled candies/gummies. In regards to ranges of emulsifying agent and antioxidant, CN ‘759 provides for amounts of such ingredients and fish oils that would provide for overlapping concentration ranges (MPEP 2144.05). In regards to polymeric sugars (polysaccharides) and fragrances, the prior art teaches using polysaccharides as thickeners/gelling agents, and thus, would routinely optimize amounts for desired thickness while it teaches flavor agents (also affect scent) where one would routinely optimize amounts for desired flavoring and scent. The prior art teaches temperatures, times and mixing speeds that overlap or are within applicant’s ranges for making such emulsified products. One of ordinary skill in the art would modify and optimize a process of making an emulsified product or chewable candy to further improve the properties of the product as provided by the prior art (e.g. stability in CN ‘759 and obtaining no fishy smell in CN ‘960). Therefore, there was a reasonable expectation of success of combining the teachings of the references to obtain a process of making a soft candy without fishy taste or odor and to provide a more stable formulation with ingredients, conditions and steps of applicant’s claims.
Conclusion
No claims are allowed.
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/MARK V STEVENS/Primary Examiner, Art Unit 1613