DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the AIA first to file provisions. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Application Status
This office action is in response to the submission filed 10/9/2025.
Claims 21 and 23-45 are currently pending and being examined.
Information Disclosure Statement
The newly submitted IDS has been considered. See the attached PTO-1449.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 21, 23-30, and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694.
Regarding claim 21:
Andreae teaches a Capsule (1) for preparing a beverage (abstract) comprising
a core material in the form of a bulk material, wherein the core material is a beverage substance (e.g., [0055] “coffee (not shown)”),
a shell (2) encasing the core material, the shell comprising a protein ([0027]).
Andreae does not specifically teach the shell has a protein content of at least 10% w/w.
However, Andreae does acknowledge the use of varying concentrations of the materials used in the capsule (e.g., see [0029]).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the capsule of Andreae by experimenting with different concentrations of the protein used in the capsule, including a protein content of at least 10% w/w or more, in order to achieve the strength and biodegradability requirements of the capsule.
Regarding claim 23:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the protein of the shell is selected from the group consisting of animal proteins, plant proteins and proteins from yeasts and combinations of different animal and/or plant proteins ([0027]).
Regarding claim 24:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the shell is compostable ([0028]).
Regarding claim 25:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the shell is composed of 1-20 layers ([0007], “several”), wherein the layers (i.e., the “material layers”) comprise the same protein with equal or different content or different proteins with equal or different content (they inherently must be the same or different).
Regarding claim 26:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the shell is composed of 1-20 layers ([0007], “several”), wherein at least one or more layers is composed without protein (e.g., the oxygen barrier layer).
Regarding claim 27:
Andreae teaches the capsule according to claim 26, as discussed above, but does not explicitly teach wherein a layer comprising a protein is disposed between two layers without protein, however, it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to experiment with the limited number of layer combinations, to arrive at a capsule with the desired strength and biodegradability requirements.
Regarding claim 28:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the capsule has a truncated cone shape (see FIG. 1).
Regarding claim 29:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the shell encasing the core material has no, one or more seams (it must have one of the aforementioned).
Regarding claim 30:
Andreae teaches the capsule according to claim 21, as discussed above, but does not explicitly teach wherein the shell encasing the core material has a line of weakness that facilitates opening of the capsule.
However, Examiner takes official notice that providing beverage capsules with lines of weakness is old and well-known in the art, and it would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to provide the capsule of Andreae with such, in order to facilitate the opening of the capsule.
Regarding claim 39:
Andreae teaches the capsule according to claim 21, as discussed above, wherein the beverage substance is coffee powder ([0004]).
Claims 40-41 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Nickel US 2018/0206515.
Regarding claims 40 and 41:
Andreae teaches the capsule according to claim 26, as discussed above, but does not teach wherein at least one or more layers comprises at least one polysaccharide, wherein the polysaccharide is sodium alginate or calcium alginate.
Nickel discloses a related capsule wherein at least one or more layers comprises at least one polysaccharide ([0025]), wherein the polysaccharide is sodium alginate or calcium alginate ([0017], [0018], [0021]).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to modify the capsule of Andreae by having at least one or more layers comprise at least one polysaccharide, wherein the polysaccharide is sodium alginate or calcium alginate, as taught by Nickel, since Nickel teaches “the capsule can also be stored over a long period of time without any appreciable loss of flavour and can be used in correspondingly designed beverage vending machines.” ([0006]).
Allowable Subject Matter
Claims 31-38 and 42-45 are allowed.
The following is an Examiner’s statement of reasons for allowance of independent claim 31: as Applicant persuasively points out, the prior art fails to disclose the combined steps of providing and compacting a core material, then providing a separate system comprising a protein, and applying the system to a surface of the compacted core to obtain a coated compact, and then drying the coated compact. Upon examination, the art considered as a whole, alone or in combination, neither anticipates nor renders obvious the invention as claimed. It is Examiner's opinion that it would not have been obvious to one having ordinary skill in the art at the time of the invention to combine or modify the prior art in order to arrive at Applicant's claimed invention.
Response to Arguments
Applicant’s remarks regarding claim 21 have been carefully considered but are not persuasive for the following reasons.
Regarding the claim 21 rejection, Applicant argues “Claim 1 [sic] differs from Andreae et al. '694 at least in that shell comprises 10 % w/w of protein. This has the advantage that a high oxygen barrier is provided, mechanical and visual properties can be easily varied (para. [0020] of the application as published). Andreae et al. '694, however, is silent on the amount of protein. In fact, Andreae et al. '694 teaches to add an additional oxygen-impermeable barrier layer made of cellulose (para. [0007]) to the capsule and is thus teaching away from a capsule shell which already comprises oxygen barrier properties. Therefore, the skilled person would not arrive at the claimed invention by consulting Andreae et al. '694.”
Examiner respectfully disagrees with the argument that because Andreae is silent about the specific percent concentration of protein that it wouldn’t have been obvious to try experimenting with different weight percentages of protein, including 10% or more. Such routine experimentation would be obvious to not only gage the effect of protein concentration on the capsule, but to attempt to optimize the physical attributes of the capsule, as noted in the rejection. Examiner also takes the position that Andreae does not teach away from at least 10% w/w protein just because Andreae proposes an alternative that includes a layer of cellulose, as Applicant contends. Examiner notes that Andreae’s general teachings include “In particular, the capsule is preferably made from a biobased polymer (biopolymer). These are materials which are made from biorenewable (recyclable) raw materials. [] They are in fact synthetic biopolymers. Biopolymers may be selected from carbohydrates, polysaccharides (for example cellulose, starch, glycogen, hemicellulose, chitin, fructan inulin, lignin and/or pectin substances), gums, proteins, [], mixtures and/or modified derivatives thereof.” ([0027]). Thus, Andreae does not appear to teach away or preclude a shell having a protein content of at least 10% w/w, with no cellulose present.
Conclusion
THIS ACTION IS MADE FINAL. 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 extension fee 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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/DARIUSH SEIF/
Primary Examiner
Art Unit 3731