DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
The claims submitted November 7, 2023 are acknowledged. Claims 1-23 are pending in the application. Claim 21 has been withdrawn from consideration (see below).
Election/Restrictions
Applicant’s election of Group I, claims 1-20 and 22-23, in the reply filed on November 11, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claim 21 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 4 is objected to because of the following informalities:
In claim 4 at line 4, it is suggested to remove “or” and insert a comma “,” after “zeaxanthin” and before “crocetin”.
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 3-18 and 20 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.
It is noted that a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance, claim 3 recites the broad recitation 0.5 to 60 weight %, and the claim also recites preferably 0.5 to 30 weight %, more preferably 0.5 to 20 weight %, and even more preferably 0.5 to 10 weight %, which are narrower statements of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. See MPEP § 2173.05(c). For the purpose of the examination, the recitation of “wherein the saccharide c) is present in an amount in the range of 0.5 to 60 weight-%, preferably in an amount in the range of 0.5 to 30 weight-%, more preferably in an amount in the range of 0.5 to 20 weight-%, even more preferably in an amount in the range of 0.5 to 10 weight- %, based on the total weight of the clear liquid formulation” in claim 3 (emphasis added) is interpreted as “wherein the saccharide c) is present in an amount in the range of 0.5 to 60 weight-%, based on the total weight of the clear liquid formulation.”
In the present instance, claim 4 recites the broad recitation of a group of 11 carotenoids and mixtures thereof, and the claim also recites a group of two carotenoids and mixtures thereof, which is a narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “wherein the carotenoid a) is selected from the group consisting of α-carotene, β-carotene, 8'-apo-β-caroten-8'- al, 8'-apo-β-carotenoic acid esters, canthaxanthin, astaxanthin, astaxanthin (di)esters, lycopene, lutein, zeaxanthin or crocetin, and mixtures thereof, preferably wherein the carotenoid is β-carotene or 8'-apo- β-caroten-8'-al or a mixture thereof” in claim 4 (emphasis added” is interpreted as “wherein the carotenoid a) is selected from the group consisting of α-carotene, β-carotene, 8'-apo-β-caroten-8'- al, 8'-apo-β-carotenoic acid esters, canthaxanthin, astaxanthin, astaxanthin (di)esters, lycopene, lutein, zeaxanthin, crocetin, and mixtures thereof.”
In the present instance, claim 5 recites the broad recitation 0.1 to 10 weight %, and the claim also recites preferably 0.5 to 5 weight %, more preferably 0.5 to 3.0 weight %, and even more preferably 1.0 to 3.0 weight %, which are narrower statements of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “wherein the carotenoid a) is present in an amount in the range of 0.1 to 10 weight-%, preferably in an amount in the range of 0.5 to 5.0 weight-%, more preferably in an amount in the range of 0.5 to 3.0 weight-%, even more preferably in an amount in the range of 1.0 to 3.0 weight-%, based on the total weight of the clear liquid formulation” in claim 5 (emphasis added) is interpreted as “wherein the carotenoid a) is present in an amount in the range of 0.1 to 10 weight-%, based on the total weight of the clear liquid formulation.”
In the present instance, claim 6 recites the broad recitation 20 to 60 weight %, and the claim also recites preferably 30 to 50 weight %, which is the narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “wherein the modified food starch b) is present in an amount in the range of 20 to 60 weight-%, more preferably in an amount in the range of 30 to 50 weight-%, based on the total weight of the clear liquid formulation” in claim 6 (emphasis added) is interpreted as “wherein the modified food starch b) is present in an amount in the range of 20 to 60 weight-%, based on the total weight of the clear liquid formulation.”
In the present instance, claim 7 recites the broad recitation 35 to 75 weight %, and the claim also recites preferably 45 to 65 weight %, which is the narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “wherein the water d) is present in an amount in the range of 35 to 75 weight-%, more preferably in an amount in the range of 45 to 65 weight-%, based on the total weight of the clear liquid formulation” in claim 7 (emphasis added) is interpreted as “wherein the water d) is present in an amount in the range of 35 to 75 weight-%, based on the total weight of the clear liquid formulation.”
In the present instance, claim 8 a) recites the broad recitation 0.1 to 10 weight %, and the claim also recites preferably 0.5 to 5 weight %, more preferably 0.5 to 3.0 weight %, and even more preferably 1.0 to 3.0 weight %, which are narrower statements of the range/limitation. Claim 8 b) also the broad recitation 20 to 60 weight %, and the claim also recites preferably 30 to 50 weight %, which is the narrower statement of the range/limitation. In claim 8 c), the claim recites the broad recitation 0.5 to 60 weight %, and the claim also recites preferably 0.5 to 30 weight %, more preferably 0.5 to 20 weight %, even more preferably 0.5 to 10 weight %, and most preferably 1.0 to 10 weight %, which are narrower statements of the range/limitation. As for claim 8 d), the claim recites the broad recitation 35 to 75 weight %, and the claim also recites preferably 45 to 65 weight %, which is the narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. Further, the parentheses render the claim indefinite because it is unclear whether the recitations within the parentheses are part of the claimed invention. For the purpose of the examination, the recitation of “a) 0.1 to 10 weight-% (preferably 0.5 to 5 weight-%, more preferably 0.5 to 3.0 weight-%, most preferably 1.0 to 3.0 weight-%) of at least one carotenoid, and b) 20 to 60 weight-% (preferably 30 to 50 weight-%) of at least one modified food starch, and c) 0.5 to 60 weight-% (preferably 0.5 to 30 weight-%, more preferably 0.5 to 20 weight-%, even more preferably 0.5 to 10 weight-%, most preferably 1.0 to 10 weight-%) of at least one saccharide, and d) 35 to 75 weight-% (preferably 45 to 65 weight-%) of water” in claim 8 (emphasis added) is interpreted as “a) 0.1 to 10 weight -% of at least one carotenoid, and b) 20 to 60 weight-% of at least one modified food starch, and c) 0.5 to 60 weight-% of at least one saccharide, and d) 35 to 75 weight-% of water”.
In the present instance, claim 9 recites the broad recitation of “water-soluble antioxidants”, and the claim also recites a group of three antioxidants and mixtures thereof, which is a narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “further comprising e) water- soluble antioxidants, preferably selected from the group consisting of ascorbic acid, sodium ascorbate, citric acid and any mixture thereof” in claim 9 (emphasis added) is interpreted as “further comprising e) water- soluble antioxidants”.
In the present instance, claim 10 recites the broad recitation 0.1 to 4.0 weight %, and the claim also recites preferably 0.1 to 2.0 weight %, which is the narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “wherein the total amount of the water-soluble antioxidants e) is in the range of 0.1 to 4.0 weight-%, preferably in the range of 0.1 to 2.0 weight-%, based on the total weight of the liquid formulation” in claim 10 (emphasis added) is interpreted as “wherein the total amount of the water-soluble antioxidants e) is in the range of 0.1 to 4.0 weight-%, based on the total weight of the liquid formulation”.
In the present instance, claim 11 recites the broad recitation of “fat-soluble antioxidants”, and the claim also recites preferably dl-α-tocopherol, which is a narrower statement of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “further comprising f) fat-soluble antioxidants, preferably further comprising dl-α-tocopherol” in claim 11 (emphasis added) is interpreted as “further comprising f) fat-soluble antioxidants”.
In the present instance, claim 12 recites the broad recitation 0 to 1.5 weight %, and the claim also recites preferably 0.01 to 1.0 weight % and more preferably 0.1 to 0.5 weight %, which are narrower statements of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “wherein the total amount of the fat-soluble antioxidants f) is in the range of 0 to 1.5 weight-%, preferably in the 39 range of 0.01 to 1.0 weight-%, more preferably in the range of 0.1 to 0.5 weight-%, based on the total weight of the liquid formulation” in claim 12 (emphasis added) is interpreted as “wherein the total amount of the fat-soluble antioxidants f) is in the range of 0 to 1.5 weight-%, based on the total weight of the liquid formulation
Claim 13 recites “middle chain triglycerides” at line 2. It is unclear what is meant by this recitation and what is encompassed by the phrase. Therefore, the scope of claim 13 is indefinite. For purposes of examination, the recitation of “middle chain triglycerides” in line 2 of claim 13 (emphasis added) is interpreted as “medium chain triglycerides” (emphasis added).
Claim 14 recites “middle chain triglycerides” at lines 1-2. It is unclear what is meant by this recitation and what is encompassed by the phrase. Therefore, the scope of claim 14 is indefinite. For purposes of examination, the recitation of “middle chain triglycerides” in lines 1-2 of claim 14 (emphasis added) is interpreted as “medium chain triglycerides” (emphasis added).
Claim 14 also recites the broad recitation “middle chain triglycerides” and the claim also recites preferably 0 to 5.0 weight %, more preferably 0.01 to 1 weight %, and even more preferably 0.5 to 1.0 weight %, which are narrower statements of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, the recitation of “further comprising g) middle chain triglycerides, preferably in an amount in the range of 0 to 5.0 weight-%, more preferably in an amount in the range of 0.01 to 1.0 weight-%, even more preferably in an amount in the range of 0.5 to 1.0 weight-%, based on the total weight of the liquid formulation” in claim 14 (emphasis added) is interpreted as “further comprising g) middle chain triglycerides”.
Claim 15 recites “consisting only of compounds a) to d)” and this claim depends upon claims 11, 9, and 8. It is unclear what is encompassed by this limitation. More specifically, claim 9 requires compound e) and claim 11 requires compound f). However, e) and f) are excluded from claim 15. Therefore, the scope of claim 15 is indefinite. For the purpose of the examination, the recitation of “formulation according to claim 11, consisting only of compounds a) to d)” in claim 15 (emphasis added) is interpreted as “formulation according to claim 8, consisting only of compounds a) to d)” (emphasis added). Applicant is reminded a claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. See MPEP 608.01(n).
Claims 16 and 17 are not specifically discussed but are rejected due to their dependence on claims 9 and 11, respectively.
Claim 18 recites “consisting only of compounds a) to g)” and this claim depends upon claims 8 and 13. It is unclear what is encompassed by this limitation. More specifically, there is no recitation of compound g) in claim 8 or claim 13. Therefore, the scope of claim 18 indefinite. For the purpose of the examination, the recitation of formulation according to claim 13, consisting only of compounds a) to g)” in claim 18 (emphasis added) is interpreted as “formulation according to claim 14, consisting only of compounds a) to g)” (emphasis added)
Claim 20 recites "the inner phase" in lines 1-2, and this claim depends upon claim 1. It is unclear what is intended by this claim language. More specifically, there is insufficient antecedent basis for this limitation as there is no previous recitation of an inner phase in the claims. Therefore, the scope of claim 20 is indefinite. For the purpose of the examination, the recitation of “the particle size of the inner phase” at lines 1-2 of claim 20 (emphasis added) is interpreted as “the particle size of the carotenoid” (emphasis added).
In the present instance, claim 20 recites the broad recitation of a particle size of 100 to 250 nm, and the claim also recites preferably 110 nm to 210 nm, and more preferably 130 nm to 190 nm, which are narrower statements of the range/limitation. Additionally, the phrase "preferably" renders the claim indefinite because it is unclear whether the recitations following the phrase are part of the claimed invention. For the purpose of the examination, “wherein the particle size of the carotenoid is in the range of 100 to 250 nm, preferably in the range of 110 to 210 nm, more preferably in the range of 130 to 190 nm” in claim 20 (emphasis added) is interpreted as “wherein the particle size of the carotenoid is in the range of 100 to 250 nm”.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 1-4, 7, 19, 22, and 23 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Leuenberger et al. EP 1964479 (hereinafter “Leuenberger”).
With respect to claim 1, Leuenberger relates to a clear liquid formulation (paragraphs [0033], [0035], [0036], and [0039]).
Regarding the recitation of comprising: a) at least one carotenoid, and b) at least one modified food starch, and c) at least one saccharide, and d) water in claim 1, Leuenberger teaches the formulation comprises carotenoid(s), modified food starch, saccharide, and water (paragraphs [0005], [0008]-[0010], [0015]-[0017], [0033], [0035], [0036], and [0039]).
With respect to claim 2, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding the recitation of wherein the carotenoid a) is embedded in a matrix of the modified food starch b) and the saccharide c) in claim 2, Leuenberger teaches the carotenoid is embedded in a matrix of the modified food starch and the saccharide (paragraph [0039]).
With respect to claim 3, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding wherein the saccharide c) is present in an amount in the range of 0.5 to 60 weight-%, based on the total weight of the clear liquid formulation in claim 3, Leuenberger teaches the saccharide is present in the range of from 5 to 20% by weight of the formulation (paragraphs [0016]-[0018]).
With respect to claim 4, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding wherein the carotenoid a) is selected from the group consisting of α-carotene, β-carotene, 8'-apo-β-caroten-8'- al, 8'-apo-β-carotenoic acid esters, canthaxanthin, astaxanthin, astaxanthin (di)esters, lycopene, lutein, zeaxanthin, crocetin, and mixtures thereof in claim 4, Leuenberger teaches the carotenoid(s) is β-carotene, 8'-apo-β-caroten-8'- al, 8'-apo-β-carotenoic acid esters, canthaxanthin, lycopene, lutein, and/or zeaxanthin (paragraphs [0002], [0015], and [0039]).
With respect to claim 7, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding the recitation of wherein the water d) is present in an amount in the range of 35 to 75 weight-%, based on the total weight of the clear liquid formulation in claim 7, Leuenberger teaches the water is present in the amount of from 50 to 70% by weight of the formulation (paragraph [0014]).
With respect to claim 19, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding the recitation of wherein the modified food starch b) has been centrifuged before use in claim 19, it is noted that this recitation relates to product-by-process language, and the step of centrifuging before use as claimed does not appear to impart distinctive structural characteristics to the modified food starch or produce a materially different product from the prior art. “[E]ven 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. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.”, (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product (In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113).
Therefore, since the formulation comprising modified food starch of claims 1 and 19 is the same as the formulation comprising modified food starch of Leuenberger, as set forth above in claim 1, the claim is unpatentable even if the formulation was made by a different process, absent any clear and convincing evidence to the contrary. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983).
With respect to claim 22, Leuenberger relates to a beverage (paragraphs [0033], [0035], and [0036]).
Regarding the recitation of comprising at least a liquid formulation according to claim 1 in claim 22, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above, and Leuenberger also teaches a beverage comprising the formulation (paragraphs [0033], [0035], and [0036]).
With respect to claim 23, Leuenberger is relied upon for the teaching of the beverage of claim 22 as addressed above.
Regarding the recitation of wherein the beverage is clear and/or color stable in claim 23, Leuenberger teaches the beverage is clear (paragraphs [0035] and [0036]).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 5-6, 8-18 and 20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Leuenberger et al. EP 1964479 (hereinafter “Leuenberger”) as applied to claim 1 above.
With respect to claim 5, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding the recitation of wherein the carotenoid a) is present in an amount in the range of 0.1 to 10 weight-%, based on the total weight of the clear liquid formulation in claim 5, Leuenberger teaches the carotenoid is present in an amount of from 2 to 11% by weight of the formulation (paragraph [0015]) and overlaps with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 6, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding the recitation of wherein the modified food starch b) is present in an amount in the range of 20 to 60 weight-%, based on the total weight of the clear liquid formulation in claim 6, Leuenberger teaches the modified food starch is present in the amount of from 10 to 25% by weight of the formulation (paragraph [0014]) and overlaps with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 8, Leuenberger relates to a clear liquid formulation (paragraphs [0033], [0035], [0036], and [0039]).
Regarding comprising: a) 0.1 to 10 weight -% of at least one carotenoid, and b) 20 to 60 weight-% of at least one modified food starch, and c) 0.5 to 60 weight-% of at least one saccharide, and d) 35 to 75 weight-% of water, wherein all amounts are based on the total weight of the liquid formulation, and wherein all amounts add up to 100 weight-% in claim 8, Leuenberger teaches the formulation comprises carotenoid(s), modified food starch, saccharide, and water. The carotenoid is present in an amount of from 2 to 11% by weight, the modified food starch is present in the amount of from 10 to 25% by weight, the saccharide is present in the range of from 5 to 20% by weight, and the water is present in the amount of from 50 to 70% by weight of the formulation (paragraphs [0005], [0008]-[0010], [0014]-[0018], [0033], [0035], [0036], and [0039]). The ranges of Leuenberger overlap with the presently claimed ranges. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 9, Leuenberger is relied upon for the teaching of the formulation of claim 8 as addressed above.
Regarding the recitation of further comprising e) water-soluble antioxidants in claim 9, Leuenberger teaches the formulation further comprises water-soluble antioxidants (paragraphs [0016] and [0019]).
With respect to claim 10, Leuenberger is relied upon for the teaching of the formulation of claim 9 as addressed above.
Regarding the recitation of wherein the total amount of water-soluble antioxidants e) is in the range of 0.1 to 4.0 weight-%, based on the total weight of the liquid formulation in claim 10, Leuenberger teaches the water-soluble antioxidants are present in the amount of 0.1 to 2% by weight of the formulation (paragraphs [0016], [0019], and [0020]).
With respect to claim 11, Leuenberger is relied upon for the teaching of the formulation of claim 9 as addressed above.
Regarding the recitation of further comprising f) fat-soluble antioxidants in claim 11, Leuenberger teaches the formulation further comprises fat-soluble antioxidants (paragraphs [0016] and [0019]).
With respect to claim 12, Leuenberger is relied upon for the teaching of the formulation of claim 11 as addressed above.
Regarding the recitation of wherein the total amount of fat-soluble antioxidants f) is in the range of 0 to 1.5 weight-%, based on the total weight of the liquid formulation in claim 12, Leuenberger teaches the fat-soluble antioxidants are present in the amount of 0.1 to 2% by weight of the formulation (paragraphs [0016], [0019], and [0020]), and the range of Leuenberger overlaps with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 13, Leuenberger is relied upon for the teaching of the formulation of claim 8 as addressed above.
Regarding wherein the liquid formulation does not contain any oil except medium chain triglycerides in claim 13, Leuenberger teaches the formulation comprises medium chain triglycerides (paragraphs [0016] and [0021]).
With respect to claim 14, Leuenberger is relied upon for the teaching of the formulation of claim 11 as addressed above.
Regarding the recitation of further comprising g) medium chain triglycerides in claim 14, Leuenberger teaches the formulation comprises medium chain triglycerides (paragraphs [0016] and [0021]).
With respect to claim 15, Leuenberger is relied upon for the teaching of the formulation of claim 8 as addressed above.
Regarding the recitation of consisting only of compounds a) to d) in claim 15, Leuenberger teaches the formulation comprises carotenoid(s), modified food starch, saccharide, and water (paragraphs [0005], [0008]-[0010], [0015]-[0017], [0033], [0035], [0036], and [0039]).
With respect to claim 16, Leuenberger is relied upon for the teaching of the formulation of claim 9 as addressed above.
Regarding the recitation of consisting only of compounds a) to e) in claim 16, Leuenberger teaches the formulation comprises carotenoid(s), modified food starch, saccharide, water, and water-soluble antioxidants (paragraphs [0005], [0008]-[0010], [0015]-[0017], [0019], [0033], [0035], [0036], and [0039]).
With respect to claim 17, Leuenberger is relied upon for the teaching of the formulation of claim 11 as addressed above.
Regarding the recitation of consisting only of compounds a) to f) in claim 17, Leuenberger teaches the formulation comprises carotenoid(s), modified food starch, saccharide, water, water-soluble antioxidants, and fat-soluble antioxidants (paragraphs [0005], [0008]-[0010], [0015]-[0017], [0019], [0033], [0035], [0036], and [0039]).
With respect to claim 18, Leuenberger is relied upon for the teaching of the formulation of claim 14 as addressed above.
Regarding the recitation of consisting only of compounds a) to g) in claim 18, Leuenberger teaches the formulation comprises carotenoid(s), modified food starch, saccharide, water, water-soluble antioxidants, fat-soluble antioxidants, and medium chain triglycerides (paragraphs [0005], [0008]-[0010], [0015]-[0017], [0019], [0021], [0033], [0035], [0036], and [0039]).
With respect to claim 20, Leuenberger is relied upon for the teaching of the formulation of claim 1 as addressed above.
Regarding wherein the particle size of the carotenoid is in the range of 100 to 250 nm in claim 20, Leuenberger does not expressly disclose this limitation. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the particle size of the carotenoid through routine experimentation with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have bee motivated to do so because Leuenberger teaches the desired particle size of the carotenoid is achieved by adjusting processing parameters such as rotor speed, mean residence time in the mill, and material and size of the milling beads and load of the mill (paragraphs [0023]-[0024]), and said modification would have involved a mere change in the size of a component. There would have been a reasonable expectation of success. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793