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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 05/07/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the objections to claims 3, 5-6, the second claim 6, and 7-8 have been withdrawn; (2) the 35 U.S.C. §112(b) rejections of claims 1-9 have been withdrawn; (3) the 35 U.S.C. §102(a)(1) rejection of claim 7 over Haught has been withdrawn; and (4) the 35 U.S.C. §102(a)(1) rejections of claims 1-2 and 4 over Sato have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3-16
Withdrawn claims: 10-16
Previously cancelled claims: None
Newly cancelled claims: 2
Amended claims: 1, 3-9
New claims: None
Claims currently under consideration: 1, 3-9
Currently rejected claims: 1, 3-9
Allowed claims: None
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, 6, and 8-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haught (US 2010/0086498; previously cited).
Regarding claims 1 and 6, 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 potassium chloride [0093]; and a mineral glycerophosphate in the form of calcium glycerophosphate [0032], [0037] as recited by present claim 1. 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].
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 1, 3-5, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Dempsey (GB 2,332,850A).
Regarding claims 1, 3, 4, 5, and 7, Dempsey teaches a dog food comprising phosphates wherein the phosphates may be sodium glycerophosphate (page 14, line 13; page 15, line 25); and additives wherein the additive may be potassium chloride (page 14, line 9; page 16, line 23). Therefore, Dempsey teaches a consumable composition comprising the mineral glycerophosphate sodium glycerophosphate incorporated into an orally consumable product containing potassium chloride as recited in present claims 1 and 7.
Dempsey does not disclose that the mineral glycerophosphate improves the taste and palatability in the orally consumable product when compared to the taste and palatability of the same orally consumable product without the mineral glycerophosphate as recited in present claims 1, 4, and 5; or that the mineral glycerophosphate is capable of blocking a bitter taste profile of the potassium chloride as recited in present claim 3. However, Dempsey discloses that the composition comprises 0-3 wt.% of the potassium chloride and 0-5 wt.% of the sodium glycerophosphate (page 14, lines 9, 12), such as 0.25 wt.% sodium glycerophosphate and 1.6 wt.% potassium chloride (page 17, lines 17, 26). These concentrations provide a range of weight ratios of potassium chloride to sodium glycerophosphate which encompass the weight ratios of potassium chloride to sodium glycerophosphate in the examples of the present specification (specification [0022]-[0027]). These examples of the present specification resulted in sodium glycerophosphate improving the taste and palatability of the orally consumable product by being capable of blocking a bitter taste profile of the potassium chloride; reducing bitterness; and improving mouthfeel including increased viscosity as recited in present claims 1, 3, 4, and 5.
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 Dempsey discloses the same weight ratios of potassium chloride to sodium glycerophosphate as recited in the present specification, Dempsey is considered to at least render present claims 1, 3, 4, and 5 obvious.
Response to Arguments
Claim Objections: Applicant amended the claims to fully address the objections. Therefore, the objections are withdrawn.
Claim Rejections – 35 U.S.C. §112(b) of claims 1-9: Applicant canceled claim 2 and amended claims 1, 4, 5, and 6 to fully address the rejections. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §102(a)(1) of claims 1 and 6-9 over Haught: Applicant’s amendments and arguments have been fully considered and are considered to overcome the rejection of claim 7. However, the amendments and arguments do not overcome the rejections of claims 1, 6, 8, and 9.
Applicant amended claim 1 to recite that the orally consumable product comprises potassium chloride. Applicant amended claim 7 to remove calcium glycerophosphate as an option of mineral glycerophosphate in the product. Applicant argued that Haught does not disclose that the orally consumable product comprises potassium chloride so that Haught does not anticipate claims 1 and 6-9 (Applicant’s Remarks, page 5, 1st -2nd paragraphs under the heading beginning “Rejection”).
However, Haught does disclose that the orally consumable product may comprise potassium chloride [0093]. Therefore, Haught still anticipates present claims 1, 6, 8, and 9. Haught does not disclose a mineral glycerophosphate other than calcium glycerophosphate, which is no longer recited by amended claim 7. Therefore, the anticipation rejection of claim 7 over Haught is withdrawn. However, upon further consideration, amended claim 7 is now rendered obvious by Dempsey as described above.
Since the prior art is shown to disclose the features of claims 1, 6, 8, and 9, Applicant’s arguments and amendments are unpersuasive. Therefore, the rejections of these claims are maintained as written herein. Due to the amendment of claim 7, claim 7 stands rejected over new prior art as described in its rejection above.
Claim Rejections – 35 U.S.C. §102(a)(1) of claims 1-2 and 4 over Sato; 35 U.S.C. §103 of claims 3 and 5 over Sato: Applicant’s arguments with respect to claim(s) 1-4 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/KELLY P KERSHAW/Examiner, Art Unit 1791
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