DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The status of the claims stands as follows:
Pending claims: 1-16 (*see the objection written below.)
Withdrawn claims: 10-16
Claims currently under consideration: 1-9
Currently rejected claims: 1-9
Allowed claims: None
Election/Restrictions
Applicant’s election without traverse of Group I (claims 1-9) in the reply filed on 01/14/2026 is acknowledged.
Claims 10-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 01/16/2026.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Claim Objections
Claims 3, 5, 6, the second claim 6, and 7-8 are objected to because of the following informalities:
Claim 3 needs a “.” at the end of the sentence.
In claim 5, the “,” at the end of the sentence should be a “.”.
In claims 5 and 6, “the improvements in palatability in the consumable product include improving mouthfeel” should be read as “the improvement in palatability in the consumable produce includes improving mouthfeel”.
The second claim 6 should be renumbered as claim 7 and the subsequent claims should be renumbered accordingly. For the purpose of this examination, the second claim 6 will be referred to as claim 7; claim 7 will be referred to as claim 8; and claim 8 will be referred to as claim 9.
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.
Claims 1-9 are rejected under 35 U.S.C. 112(b) 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 recites that the mineral glycerophosphate(s) are incorporated into an orally consumable product for improving taste and palatability in the orally consumable product. However, the claim does not recite a basis of comparison from which to determine whether the taste and palatability of the orally consumable product is improved (e.g., the taste and palatability of the orally consumable product containing the mineral glycerophosphate(s) is improved when compared to the taste and palatability of the same orally consumable product not containing the mineral glycerophosphate(s)). Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the taste and palatability of the orally consumable product containing the mineral glycerophosphate(s) is improved when compared to the taste and palatability of the same orally consumable product not containing the mineral glycerophosphate(s).
Claim 4 recites that improving the taste in the orally consumable product includes “reducing bitterness, reducing acidity, reducing astringency, reducing brininess, reducing saltiness, reducing metallic taste”. However the claim does not recite “and” or “or” between “reducing saltiness” and “reducing metallic taste” so it is unclear as to whether the claim requires all of the listed features or at least one of the listed features. Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as requiring at least one of the listed features.
Claim 5 recites that the improvement in palatability in the orally consumable product includes improving mouthfeel including increasing viscosity. However, the claim does not recite a basis of comparison from which to determine whether the palatability, mouthfeel, and viscosity of the orally consumable product is improved (e.g., the palatability, mouthfeel, and viscosity of the orally consumable product containing the mineral glycerophosphate(s) is improved/increased when compared to the palatability, mouthfeel, and viscosity of the same orally consumable product not containing the mineral glycerophosphate(s)). Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the palatability, mouthfeel, and viscosity of the orally consumable product containing the mineral glycerophosphate(s) is improved/increased when compared to the palatability, mouthfeel, and viscosity of the same orally consumable product not containing the mineral glycerophosphate(s).
Claim 6 recites that the improvement in palatability in the orally consumable product includes improving mouthfeel including providing a cooling sensation. However, the claim does not recite a basis of comparison from which to determine whether the palatability, mouthfeel, and cooling sensation of the orally consumable product is improved (e.g., the palatability, mouthfeel, and cooling sensation of the orally consumable product containing the mineral glycerophosphate(s) is improved/increased when compared to the palatability, mouthfeel, and cooling sensation of the same orally consumable product not containing the mineral glycerophosphate(s)). Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the palatability, mouthfeel, and cooling sensation of the orally consumable product containing the mineral glycerophosphate(s) is improved/increased when compared to the palatability, mouthfeel, and cooling sensation of the same orally consumable product not containing the mineral glycerophosphate(s).
Claims 2-3 and 7-9 are rejected by reason of dependency from claim 1.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 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 –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 6-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haught (US 2010/0086498).
Regarding claims 1, 6, and 7, Haught teaches an orally consumable composition (corresponding to edible compositions, cough syrup, chewable antacids, digestion-promoting preparations [0025], and animal chews [0112]) that may comprise a mineral glycerophosphate in the form of calcium glycerophosphate [0032], [0037] as recited by present claims 1 and 7. Haught teaches that the addition of the calcium glycerophosphate increases calcium ion flux or mobilization in receptor cells which leads to enhanced activity of coolants in an orally consumable composition, particularly in terms of cooling intensity and duration [0032], [0035]. Therefore, the calcium glycerophosphate improves taste and palatability in the orally consumable product by improving mouthfeel through providing a cooling sensation as recited in present claims 1 and 6.
Regarding claim 8, Haught teaches the invention as described above in claim 1, including the orally consumable products may include foods (corresponding to confectionery, candies, chocolate, and animal chews), beverages, supplements (corresponding to animal chews), pharmaceuticals and nutraceuticals (the last two items corresponding to cough syrups, chewable antacids, oral medicines, and digestion promoting preparations) [0025], [0112].
Regarding claim 9, Haught teaches the invention as described above in claim 8, including the orally consumable products include products for humans and animals [0111].
Claims 1-2 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sato (US 2010/0136196).
Regarding claims 1 and 4, Sato teaches an orally consumable product (corresponding to food or drink) comprising a consumable composition (corresponding to taste improver) [0018]. Sato teaches that the consumable composition may comprise a combination of poly-γ-glutamic acid or a salt thereof and a mineral glycerophosphate in the form of calcium glycerophosphate [0035], [0067]. Sato teaches that the consumable composition is incorporated into the orally consumable product in order to mask the bitter taste, harsh taste, and astringent taste of a potassium salt in the orally consumable product [0047]. Therefore, the consumable composition is for improving taste and palatability in the orally consumable product in terms of at least reducing bitterness and reducing astringency of the orally consumable product when compared to the taste and palatability of an orally consumable product not containing the consumable composition as recited in present claims 1 and 4.
Regarding claim 2, Sato teaches the invention as described above in claim 1, including the orally consumable product contains a potassium salt, wherein the potassium salt may be potassium chloride [0035]-[0036], [0050] as recited in present claim 2.
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 3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Sato (US 2010/0136196) as applied to claims 1 and 2 above.
Regarding claims 3 and 5, Sato teaches the invention as described above in claims 1 and 2, including the orally consumable product may contain the mineral glycerophosphate calcium glycerophosphate in an amount greater than 0.01 wt.% [0067]-[0068] and may contain potassium chloride in an amount of 10-90 wt.% [0057]. Sato does not disclose that the calcium glycerophosphate is capable of blocking a bitter taste profile of the potassium chloride in the orally consumable product as recited in present claim 3; or that orally consumable product has improved mouthfeel including increased viscosity when compared to the same orally consumable product not containing the consumable composition as recited in present claim 5. However, Sato discloses weight ratios of potassium chloride to calcium glycerophosphate which encompass the weight ratios of potassium chloride to calcium glycerophosphate in the examples of the present specification (specification [0034]-[0041]). These examples of the present specification resulted in calcium glycerophosphate being capable of blocking a bitter taste profile of the potassium chloride; and improving mouthfeel including increased viscosity.
Regarding product claims, when the ingredient recited in the reference is substantially identical to that of the claims, claimed properties are presumed to be present in the reference. “The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art' s function, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. IRECO Inc., 190 F .3d 1342, 1347, 51 USPQ2d 1943. 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function, or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). Since Sato discloses the same weight ratios of potassium chloride to calcium glycerophosphate as recited in the present specification, Sato is considered to at least render present claims 3 and 5 obvious.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791