DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The amendment filed March 4, 2026 is acknowledged. Claims 1-6, 8-11, 13, 14, and 16-21 are pending in the application. Claims 7, 12, and 15 have been cancelled.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 10, 2026 has been entered.
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 1-6, 8-11, 13, 14, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Tsunematsu et al. WO 2013183767 (hereinafter “Tsunematsu”) (refer to the corresponding machine translation) in view of Yin et al. CN 113907166 (hereinafter “Yin”) (refer to the corresponding machine translation).
With respect to claim 1, Tsunematsu teaches a coated chewing gum composition (paragraphs [0001], [0019], and [0020]).
Regarding the recitation of comprising vitamin C, vitamin E, and collagen in an amount of from about 6% to about 20% by weight of the coated chewing gum, wherein the coated chewing gum comprises a coating and a chewing gum center, and further wherein the vitamin C is included in the chewing gum center and the vitamin E is included in the coating, wherein one piece of the coated chewing gum comprises about 125 mg of collagen to about 600 mg of collagen in claim 1, Tsunematsu teaches the coated chewing gum composition comprises ascorbic acid (vitamin C), vitamin E, and collagen. The coated chewing gum composition comprises a chewing gum center and a coating. Vitamin E is in the coating and ascorbic acid (vitamin C) is present in the center (paragraphs [0001], [0003], [0007], [0014], [0015], [0017], [0019]-[0024], [0026], and [0035]).
However, Tsunematsu does not expressly disclose the amount of collagen in the coated chewing gum composition.
Yin teaches a coated health care confection. The confection comprises vitamin C, vitamin E, and 1-20,000 mg or 0.001-20g /100 g (0.001-20%) of collagen based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 4).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed ranges, including the instantly claimed ranges of collagen, from the ranges disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches the blending amount of the functional component such as collagen is not particularly limited but can be appropriately adjusted in consideration of the effect of the functional component used and the functional component is good for health (paragraphs [0014], [0015], and [0034]), and Yin teaches the health care composition has uniform content and accurate dosage (paragraph [0033]). There would have been a reasonable expectation of success. "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.
Regarding the recitation of wherein the coated chewing gum has a chew-out rate that is between 92-99%, wherein the chew-out rate is assessed by determining a nitrogen content remaining after a chew-out of a fresh sample of the coated chewing gum for a predetermined time period in claim 1, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the coated chewing gum would naturally arrive at this claimed feature since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]). Additionally, there is no structural difference between the composition of claim 1 and the composition of modified Tsunematsu. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 2, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the coated chewing gum comprises collagen in an amount of from about 6.1% to about 18.5% by weight of the coated chewing gum in claim 2, Tsunematsu as modified by Yin teaches the limitation since Tsunematsu teaches the coated chewing gum comprises collagen (paragraphs [0014], [0015], [0017], [0020], and [0021]),Yin is relied upon for the teaching of the collagen content as addressed above in claim 1, and Yin teaches the composition comprises 0.001-20g/100 g (0.001-20%) of collagen (P10-P11, claims 1 and 4). 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 3, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the coated chewing gum comprises vitamin C in an amount of at least 0.2% by weight of the coated chewing gum in claim 3, Tsunematsu does not expressly disclose the content of ascorbic acid (vitamin C).
Yin teaches a coated health care confection. The confection comprises vitamin E, collagen, and 0.001-5g/100 g (0.001-5%) of vitamin C (antioxidant) based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed range of vitamin C, from the range disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches utilizing the antioxidant ascorbic acid in the composition (paragraphs [0003] and [0024]), and Yin teaches the health care composition has good taste and stability (paragraph [0036]). There would have been a reasonable expectation of success. "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.
With respect to claim 4, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the coated chewing gum comprises vitamin C in an amount of about 0.296% by weight of the coated chewing gum in claim 4, Tsunematsu does not expressly disclose the content of ascorbic acid (vitamin C).
Yin teaches a coated health care confection. The confection comprises vitamin E, collagen, and 0.001-5g/100 g (0.001-5%) of vitamin C (antioxidant) based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed quantity of vitamin C, from the range disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches utilizing the antioxidant ascorbic acid in the composition (paragraphs [0003] and [0024]), and Yin teaches the health care composition has good taste and stability (paragraph [0036]). There would have been a reasonable expectation of success. "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.
With respect to claim 5, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the coated chewing gum comprises vitamin E in an amount of at least 0.1% by weight of the coated chewing gum in claim 5, Tsunematsu does not expressly disclose the content of vitamin E.
Yin teaches a coated health care confection. The confection comprises vitamin C, collagen, and 0.001-5g/100 g (0.001-5%) of vitamin E based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed range of vitamin E, from the range disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches the amount of vitamin E can be appropriately adjusted in consideration of the effect thereof (paragraph [0034]), and Yin teaches the health care composition has uniform content and accurate dosage (paragraph [0033]). There would have been a reasonable expectation of success. "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.
With respect to claim 6, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the coated chewing gum comprises vitamin E in an amount of about 0.167% by weight of the coated chewing gum in claim 6, Tsunematsu does not expressly disclose the content of vitamin E.
Yin teaches a coated health care confection. The confection comprises vitamin C, collagen, and 0.001-5g/100 g (0.001-5%) of vitamin E based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed quantity of vitamin E, from the range disclosed in the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches the amount of vitamin E can be appropriately adjusted in consideration of the effect thereof (paragraph [0034]), and Yin teaches the health care composition has uniform content and accurate dosage (paragraph [0033]). There would have been a reasonable expectation of success. "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.
With respect to claim 8, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the chewing gum center comprises collagen in an amount of from about 8% to about 25% by weight of the chewing gum center in claim 8, Tsunematsu as modified by Yin teaches the limitation since Tsunematsu teaches the coated chewing gum comprises a coating and a chewing gum center (70% of the composition) and the collagen is present in the center (paragraphs [0014], [0015], [0017], [0019]-[0021], and [0044]),Yin is relied upon for the teaching of the collagen content as addressed above in claim 1, and Yin teaches the composition comprises 0.001-20g/100 g (0.001-20%) of collagen (P10-P11, claims 1 and 4). Thus the amount of collagen in the chewing gum center is about 0.0007% to about 14% (calculated from [70 g center x (0.001 g and 20 g collagen)] x 100). 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, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 8 as addressed above.
Regarding the recitation of wherein the chewing gum center comprises collagen in an amount of from about 8.33% to about 25% by weight of the chewing gum center in claim 9, Tsunematsu as modified by Yin teaches the limitation since Tsunematsu teaches the coated chewing gum comprises a coating and a chewing gum center (70% of the composition) and the collagen is present in the center (paragraphs [0014], [0015], [0017], [0019]-[0021], and [0044]),Yin is relied upon for the teaching of the collagen content as addressed above in claim 1, and Yin teaches the composition comprises 0.001-20g/100 g (0.001-20%) of collagen (P10-P11, claims 1 and 4). Thus the amount of collagen in the chewing gum center is about 0.0007% to about 14% (calculated from [70 g center x (0.001 g and 20 g collagen)] x 100). 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 10, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the chewing gum center comprises vitamin C in an amount of at least 0.1% by weight of the chewing gum center in claim 10, Tsunematsu teaches the coated chewing gum comprises a coating and a chewing gum center (70% of the composition) and the ascorbic acid (vitamin C) is present in the center (paragraphs [0003], [0019]-[0020], [0024], and [0044]).
However, Tsunematsu does not expressly disclose the content of ascorbic acid (vitamin C).
Yin teaches a coated health care confection. The confection comprises vitamin E, collagen, and 0.001-5g/100 g (0.001-5%) of vitamin C (antioxidant) based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the range of about 0.0007% to about 3.5% of vitamin C (calculated from [70 g center x (0.001 g and 5 g collagen)] x 100), including the instantly claimed range of vitamin C, from the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches utilizing the antioxidant ascorbic acid in the composition (paragraphs [0003] and [0024]), and Yin teaches the health care composition has good taste and stability (paragraph [0036]). There would have been a reasonable expectation of success. "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.
With respect to claim 11, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the chewing gum center comprises vitamin C in an amount of about 0.4% by weight of the chewing gum center in claim 11, Tsunematsu teaches the coated chewing gum comprises a coating and a chewing gum center (70% of the composition) and the ascorbic acid (vitamin C) is present in the center (paragraphs [0003], [0019]-[0020], [0024], and [0044]).
However, Tsunematsu does not expressly disclose the content of ascorbic acid (vitamin C).
Yin teaches a coated health care confection. The confection comprises vitamin E, collagen, and 0.001-5g/100 g (0.001-5%) of vitamin C (antioxidant) based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select any portions of the range of about 0.0007% to about 3.5% of vitamin C (calculated from [70 g center x (0.001 g and 5 g collagen)] x 100), including the instantly claimed vitamin C content, from the prior art with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches utilizing the antioxidant ascorbic acid in the composition (paragraphs [0003] and [0024]), and Yin teaches the health care composition has good taste and stability (paragraph [0036]). There would have been a reasonable expectation of success. "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.
With respect to claim 13, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the coated chewing gum is a sugarless chewing gum in claim 13, modified Tsunematsu teaches this limitation since Tsunematsu teaches the composition comprises non-reducing sugar(s) such as sugar alcohols (paragraphs [0007], [0022], [0023], and [0029]).
With respect to claim 14, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein the collagen is located in the chewing gum center in claim 14, modified Tsunematsu teaches the limitation since Tsunematsu teaches the collagen is present in the center (paragraphs [0014], [0015], [0017], [0019]-[0021], and [0044]).
With respect to claim 16, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein 300-500 mg of collagen is released from the coated chewing gum after a user chews three pieces of the coated chewing gum for at least twelve minutes in claim 16, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the coated chewing gum would naturally arrive at this claimed feature since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]). Additionally, there is no structural difference between the composition of claim 1 and the composition of modified Tsunematsu. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 17, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 16 as addressed above.
Regarding the recitation of wherein at least 375 mg of collagen is released after the user chews three pieces of the coated chewing gum for at least twelve minutes in claim 17, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the coated chewing gum would naturally arrive at this claimed feature since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]). Additionally, there is no structural difference between the composition of claim 1 and the composition of modified Tsunematsu. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 18, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 6 as addressed above.
Regarding the recitation of wherein at least 411 mg of collagen is released after a user chews three pieces of the coated chewing gum for at least twelve minutes in claim 18, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the coated chewing gum would naturally arrive at this claimed feature since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 6, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]). Additionally, there is no structural difference between the composition of claim 6 and the composition of modified Tsunematsu. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 19, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein about 115 mg of vitamin C per 100 g of gum or gum center is released from the gum after chewing in claim 19, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the coated chewing gum would naturally arrive at this claimed feature since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]). Additionally, there is no structural difference between the composition of claim 1 and the composition of modified Tsunematsu. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 20, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein about 70 mg of vitamin E per 100 g of gum is released from the gum after chewing in claim 20, it is noted that this recitation relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the coated chewing gum would naturally arrive at this claimed feature since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]). Additionally, there is no structural difference between the composition of claim 1 and the composition of modified Tsunematsu. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Tsunematsu et al. WO 2013183767 (hereinafter “Tsunematsu”) (refer to the corresponding machine translation) in view of Yin et al. CN 113907166 (hereinafter “Yin”) (refer to the corresponding machine translation) as applied to claim 1 above, and in further view of Kawasaki et al. JP 2008048674 (hereinafter “Kawasaki”) (refer to the corresponding machine translation published in English).
With respect to claim 21, modified Tsunematsu is relied upon for the teaching of the coated chewing gum of claim 1 as addressed above.
Regarding the recitation of wherein multiple pieces of the coated chewing gum are packaged in a can wherein the can provides about 2840 mg of collagen in claim 21, Tsunematsu teaches packaging multiple pieces of the coated chewing gum (paragraphs [0034], [0042], [0044], and [0052]).
However, Tsunematsu does not expressly disclose the packaging is a can.
Kawasaki relates to a coated chewing gum product. Multiple pieces of the coated chewing gum may be packaged in cans (paragraphs [0001] and [0052]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Kawasaki, to select cans as the packaging in the product of modified Tsunematsu based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Tsunematsu and Kawasaki similarly teach packaged coated chewing gum pieces, Tsunematsu is not limited to the particular packaging used, packaging coated chewing gum pieces in cans was well known in the art before the effective filing date of the claimed invention as shown in Kawasaki, Kawasaki teaches packaging in cans prevents deterioration of the gum (paragraph [0052]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Modified Tsunematsu does not expressly disclose the amount of collagen provided in the can of chewing gum pieces. 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 quantity of collagen provided in the can of chewing gum pieces through routine experimentation with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because the quantity of collagen provided in the can is contingent on the number of pieces of coated chewing gum in the can and their respective amounts of collagen, a coating gum comprising the claimed amount of collagen in claim 1 has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, Tsunematsu teaches the amount of collagen per package can be appropriately adjusted in consideration of the effect thereof (paragraph [0034]), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II). prior art.
Response to Arguments
Applicant’s remarks filed March 4, 2026 are acknowledged.
Due to the amendments to the claims, the claim objections in the previous Office Action have been withdrawn (P6).
Applicant’s arguments have been fully considered but they are unpersuasive.
Applicant argues neither Yin nor Tsunematsu teaches a specific amount of collagen contained in a single piece of gum. Neither Tsunematsu nor Yin, alone or in combination, teaches or suggest any chew-out rate or release rate for collagen or measuring release via nitrogen content assessment after chewing. The high release rate with high collagen loading represents an unexpected result not suggested by the prior art references, which are silent on collagen release rates entirely. Neither Tsunematsu nor Yin teaches this combination of features or provides any motivation to achieve such high collagen release rates (P6-P10).
Examiner disagrees. Modified Tsunematsu teaches the claimed invention. As addressed above, Tsunematsu teaches the coated chewing gum composition comprises ascorbic acid (vitamin C), vitamin E, and collagen. Vitamin E is in the coating and ascorbic acid (vitamin C) is present in the center (paragraphs [0003], [0007], [0014], [0015], [0019], [0020], [0024], [0026], and [0035]). While Tsunematsu does not expressly disclose the claimed quantity of collagen, Yin is relied upon for this teaching since Yin teaches the confection comprises 1-20,000 mg or 0.001-20g /100 g (0.001-20%) of collagen based on the weight of the product (paragraphs [0001], [0017], [0018], and [0027]; and P10-P11, claims 1 and 4). One of ordinary skill in the art would have been motivated to select any portions of the disclosed ranges, including the instantly claimed ranges of collagen, from the ranges disclosed in the prior art with the expectation of successfully preparing a functional product because Tsunematsu and Yin similarly teach coated confections comprising similar ingredients, Tsunematsu teaches the amount of collagen can be appropriately adjusted in consideration of the effect thereof (paragraph [0034]), and Yin teaches the health care composition has uniform content and accurate dosage (paragraph [0033]). "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.
The claimed chew-out rate relates to functional language within the claim. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
The coated chewing gum would naturally arrive at the claimed chew-out rate, absent any clear and convincing evidence to the contrary, since this characteristic is a function of the ingredients present in the coated chewing gum, a coating gum comprising vitamin C, vitamin E, and collagen and their quantities as presently claimed has been shown to be obvious in view of modified Tsunematsu as addressed above in claim 1, and Tsunematsu teaches the coated chewing gum comprising the functional components (vitamin C, vitamin E, and collagen) is capable of efficiently delivering the functional components (paragraphs [0001], [0006], [0014], [0015], [0017], [0020], [0021], and [0024]).
Additionally, there is no structural difference between the composition of claim 1 and the composition of modified Tsunematsu. Applicant is reminded that any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986) (differences in sedative and anticholinergic effects between prior art and claimed antidepressants were not unexpected). In other words, the unexpectedness must be sufficient “to secure the validity of the claims in suit.” Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1381 (Fed. Cir. 2005) and MPEP 716.02.
Further, mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979) (Claims were directed to grooved carbon disc brakes wherein the grooves were provided to vent steam or vapor during a braking action. A prior art reference taught noncarbon disc brakes which were grooved for the purpose of cooling the faces of the braking members and eliminating dust. The court held the prior art references when combined would overcome the problems of dust and overheating solved by the prior art and would inherently overcome the steam or vapor cause of the problem relied upon for patentability by applicants. Granting a patent on the discovery of an unknown but inherent function (here venting steam or vapor) "would remove from the public that which is in the public domain by virtue of its inclusion in, or obviousness from, the prior art." 596 F.2d at 1022, 201 USPQ at 661.); In re Baxter Travenol Labs., 952 F.2d 388, 21 USPQ2d 1281 (Fed. Cir. 1991) (Appellant argued that the presence of DEHP as the plasticizer in a blood collection bag unexpectedly suppressed hemolysis and therefore rebutted any prima facie showing of obviousness, however the closest prior art utilizing a DEHP plasticized blood collection bag inherently achieved same result, although this fact was unknown in the prior art.).
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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