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 .
Election/Restrictions
Applicant’s election without traverse of group I, claims 1-7, 9-12 and 16-21 in the reply filed on 20 July 2026 is acknowledged. Claims 8, 13 and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
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 1-7, 9-12, 17, 18, 20 and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Saitoh USPGPub 20130108763.
Regarding claims 1, 2, 4 and 7, Saitoh teaches a nanoemulsion [0052] flavor delivery system comprising[0019-0024]:
A flavor composition comprising:
Surfactant comprising sucrose diacetate hexaisobutyrate (sugar ester) [0034]
A non-polar phase comprising flavor oil [0031]
A polar phase comprising polar non-aqueous solvent such as sorbitol or glycerin [0042] and water [0024]
A stabilizer system comprising a biopolymer such as gum Arabic [0038]
Regarding claim 3, the flavor oil of Saitoh is present in an amount of at least 1 wt%. [0033]
Regarding claims 5 and 12, the gum Arabic of Saitoh is present in an amount of 4 to 24 wt% which reads on claims 5 and 12. [0038]
Regarding claims 6 and 18, Saitoh discloses an embodiment that is 80 wt% flavor composition and 20 wt% gum Arabic which yields a ratio of flavor composition:gum Arabic of 4:1. [0038]
Regarding claims 9-12, Saitoh discloses that the emulsion of the invention can be added to acidic beverages in a concentration of 0.02 to 10 wt%. [0062,0063] In the embodiment of Saitoh where gum Arabic comprises 20 wt% of the emulsion and the emulsion is added to a beverage at a content of 10 wt% the resulting beverage would comprise 2 wt% gum Arabic which reads on claim 12.
Regarding claims 20 and 21, Saitoh discloses the beverage can have a pH of 3.3.[0081,0083]
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.
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 16 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Saitoh USPGPub 20130108763 as applied to claims 1, 4, 6 and 18 above in further view of Ragnarsson USPGPub 20130189399.
Regarding claims 16 and 19, Saitoh teaches what has been recited above. Saitoh further teaches that the emulsion comprises up to 50 wt% flavor oil.
Ragnarsson teaches compositions comprising flavor emulsions comprising flavor oils. [0039] Ragnarsson discloses that viscosity increasing agents such as resistant maltodextrin slow the rate of degradation reactions such as hydrolysis and oxidation. [0016,0028]
Saitoh and Ragnarsson are both directed to emulsions comprising flavor oils. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have added resistant maltodextrin as disclosed by Ragnarsson to the invention of Saitoh in order to slow the rate of degradation reactions such as hydrolysis and oxidation. This modification of Saitoh with Ragnarsson renders claim 16 obvious.
The modification of Saitoh with Ragnarsson would increase the content of biopolymer in the invention of Saitoh because the biopolymer would comprise both gum Arabic and resistant maltodextrin. Given Saitoh discloses an embodiment comprising 24 wt% gum Arabic, the modification of Saitoh with Ragnarsson would yield a composition comprising greater than 24 wt% biopolymer. This proportion of biopolymer overlaps with the ratio recited in claim 19. In the case where the claimed ranges "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)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
