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 01/30/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment: (1) the objection to claim 12 has been withdrawn; and (2) the 35 U.S.C. §112(b) rejections of claims 1-12 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-13
Withdrawn claims: None
Previously cancelled claims: None
Newly cancelled claims: None
Amended claims: 1-12
New claims: 13
Claims currently under consideration: 1-13
Currently rejected claims: 1-13
Allowed claims: None
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 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Mo (US 2014/0308394: IDS citation) in view of Made (“How Chewing Gum is Made?”, July 2017, Chewing Gum Facts, https://www.chewinggumfacts.com/making-chewing-gum/how-chewing-gum-is-made/), Gonzaga de Freitas Araújo (Gonzaga de Freitas Araújo et al., “Microbial Quality of Medicinal Plant Materials”, 2012, Latest Research in Quality Control, pages 67-82), hereinafter referred to as “Gonzaga”, and Kirkin (Kirkin et al., “Combined effects of gamma-irradiation and modified atmosphere packaging on quality of some spices” 2014, Food Chemistry, vol. 154, pages 255-261; previously cited).
Regarding claims 1, 2, 3, 4, 5, 6, and 13, Mo teaches a method of preparing a chewing gum or confectionery product (corresponding to chewing gum compositions) comprising pieces of plant material (corresponding to dried fruit powder) [0002]. Mo teaches that the method comprises: a drying step including preparing plant material pieces of a desired size (corresponding to reducing the size of the dried fruit by methods such as milling into powder particles small enough to go through a US #12 mesh screen) and drying the plant material through radiation (corresponding to radiative drying) [0028], [00031]-[0032]. Mo teaches that the method then comprises: preparing a mass of a chewing gum or confectionary product (corresponding to gum base); and incorporating the plant material into the mass by directly mixing the plant material into the mass ([0042]-[0043], claim 15).
Mo does not teach that the plant material pieces are dried by infrared radiation; or that the plant material pieces are subjected to gamma radiation after the drying step in order to render the plant material pieces microbiologically stable while substantially preserving color and flavor of the plant material as recited in present claims 1 and 13. Mo also does not teach that the energy absorbed from gamma radiation by the dried plant material is: at least 10 kGy, at least 12 kGy, at least 15 kGy, less than 20 kGy, less than 30 kGy, or less than 50 kGy as recited in present claims 1, 2, 3, 4, 5, and 6, respectively.
However, Made teaches that the base of the chewing gum base or confectionery product is sterilized prior to mixing the gum base with other ingredients (page 3, 1st-3rd steps under “Step by step”).
It would have been obvious for a person of ordinary skill in the art to have modified the method of Mo to include a stabilizing step that comprises rendering the dried plant material microbiologically stable prior to mixing the dried plant material with the mass of chewing gum or confectionery product as taught by Made. Since Mo discloses that dried plant material is combined with the base ([0042]-[0043], claim 15), but does not disclose a method of preparing the gum base, a skilled practitioner would have been motivated to consult an additional reference such as Made in order to determine a suitable method of preparing a gum base. In consulting Made, the practitioner would find that the gum base is sterilized prior to combining the base with other ingredients of the gum (page 3, 1st-3rd steps under “Step by step”). In order to preserve the sterile condition of the gum base, and of the subsequent chewing gum or confectionery product made from the gum base, the practitioner would readily recognize that the ingredients added to the gum base should be sterilized as well, thereby rendering the requirement that the dried plant material pieces be rendered microbiologically stable during a stabilizing step occurring after drying of the plant material pieces as recited in present claims 1 and 13 obvious.
The combination of Mo and Made does not teach that the plant material pieces are dried by infrared radiation; or that the plant material pieces are subjected to gamma radiation during the stabilizing step in order to render the plant material pieces microbiologically stable while substantially preserving color and flavor of the plant material as recited in present claims 1 and 13. Mo also does not teach that the energy absorbed from gamma radiation by the dried plant material is: at least 10 kGy, at least 12 kGy, at least 15 kGy, less than 20 kGy, less than 30 kGy, or less than 50 kGy as recited in present claims 1, 2, 3, 4, 5, and 6, respectively.
However, drying plant material by infrared radiation is known in the art and such a method is disclosed by Gonzaga (page 70, 3rd paragraph under section 3.1- page 71, 1st paragraph). Gonzaga also teaches that gamma irradiation is a known method of effective microbial decontamination of plant material (page 74, 3rd paragraph under section 4). The ability of gamma radiation to substantially preserve color and flavor of the irradiated material is also known in the art.
It would have been obvious for a person of ordinary skill in the art to have modified the method of Mo by drying the plant material using infrared radiation and by rendering the plant material microbiologically stable by subjecting the plant material to gamma radiation as taught by Gonzaga. Since (1) Mo teaches that the plant material may be dried by radiative drying [0028]; and (2) the use of infrared drying to dry plant material is known in the art (Gonzaga, page 70, 3rd paragraph under section 3.1- page 71, 1st paragraph), a skilled practitioner would have readily recognized that infrared radiation may be used as the radiative drying in Mo. Therefore, the claimed drying of the plant material using infrared radiation recited in present claim 1 is rendered obvious.
Also, a skilled practitioner would readily recognize that chewing gum ingredients may be sterilized in order to preserve the sterile condition of the gum base to which the ingredients are added (Made, page 3, 1st-3rd steps under “Step by step”); and since sanitizing plant material by gamma radiation is a method known and practiced in the art, it would have been obvious for a person of ordinary skill in the art to have used gamma radiation to sanitize the dried plant material of Mo prior to adding the plant material to the gum base. Therefore, the claimed stabilizing step of rendering the dried plant material pieces microbiologically stable while substantially preserving color and flavor of the dried plant material as recited in present claims 1 and 13 are rendered obvious by the combination of Mo, Made, and Gonzaga.
The combination of Mo, Made, and Gonzaga does not disclose that the energy absorbed from gamma radiation by the dried plant material is at least 10 kGy.
However, Kirkin discloses that gamma irradiation is known in the art and discloses that the maximum absorbed dose of gamma irradiation that is approved for food such as plant material (i.e., spices) may be 30 kGy, such as 17 kGy (page 1, 1st column, 1st paragraph; page 256, 1st column, paragraph under section 2.2). The value of 17 kGy falls within the absorbed dose ranges of at least 10 kGy, at least 12 kGy, at least 15 kGy, less than 20 kGy, less than 30 kGy, and less than 50 kGy as recited in present claims 1, 2, 3, 4, 5, and 6, respectively. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
It would have been obvious for a person of ordinary skill in the art to have modified the gamma radiation step of modified Mo, Made, and Gonzaga to include providing plant material with an absorbed energy of up to 30 kGy, such as 17 kGy, as taught by Kirkin. Since Gonzaga teaches that plant material may be subjected to gamma radiation in order to microbially decontaminate the plant material while substantially retaining the flavor and color of the plant material, but does not disclose a suitable amount of absorbed energy for the plant material from the gamma irradiation, a skilled practitioner would have been motivated to consult an additional reference such as Kirkin in order to determine a suitable amount of absorbed energy, thereby rendering the absorbed energy levels recited in present claims 1, 2, 3, 4, 5, and 6 obvious.
Regarding claims 7, 8, 9, 10, and 11, modified Mo teaches the invention as described above in claim 1, including the gamma average dose rate of the gamma radiation was 2.0 kGy/h to achieve an absorbed dose of the gamma radiation by the plant material of 17 kGy (Kirkin, page 256, 1st column, paragraph under section 2.2). In order to achieve such an absorbed energy dose at such an energy dose rate, the time of gamma irradiation would necessarily be 8.5 hours, which equates to 510 minutes. This time of 510 minutes falls within the time ranges recited in present claims 7, 8, 9, 10, and 11.
Regarding claim 12, modified Mo teaches the invention as described above in claim 1, including a product of the method of claim 1 (corresponding to chewing gum or confectionary) [0008].
Response to Arguments
Claim Objections: Applicant amended claim 12 to fully address the objection. Therefore, the objection is withdrawn.
Claim Rejections – 35 U.S.C. §112(b) of claims 1-12: Applicant amended claims 1-11 to fully address the rejections. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-12 over Gao, Gonzaga, and Kirkin: Applicant’s amendments and arguments have been fully considered and are considered to overcome the rejections over Gao, Gonzaga, and Kirkin written in the Non-Final filed 12/18/2025. However, upon further consideration, new grounds of rejection are made in view of Mo, Made, Gonzaga, and Kirkin.
Applicant amended claim 1 to recite that the plant material is incorporated into the mass by directly mixing the plant material within the mass. Applicant then argued that Gao teaches applying the plant material only to the surface of the mass (Applicant’s Remarks, pages 6-7, section V).
However, in the new grounds of rejection, Mo serves as the primary reference while Gao is no longer cited. As described in the rejection of amended claim 1 above, Mo teaches incorporating the dried plant material into the mass by directly mixing the dried plant material into the mass ([0042]-[0043], claim 15).
Since the prior art is shown to render the present claims obvious as described in the claim rejections above, the rejections of the claims stand as written herein.
New Claim: Applicant argued that new claim 13 is patentable by reason of dependency from claim 1 (Applicant’s Remarks, page 7, section VI).
However, claims 1 and 13 are shown to be rendered obvious as described in the rejections above.
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