DETAILED ACTION
Status of Application
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 10, 11, 14, 15, 20, 22, 25, 26, 28, 30, 31, 33, 35, 37, 43-45, 48-50, and 52 are cancelled.
Claims 1-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53 are pending.
Claim Objections
Claims 2-9, 12, 13, 16, 18-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53 are objected to because of the following informalities:
Claims 2-9, 12, 13, 16, 18-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53 recites “A composition” which should read as “The composition”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 is indefinite for reciting “the gelling composition comprising or consisting of Component A and Component B” and then further reciting “wherein Component A comprises at least one firm or rigid gel-forming agent and Component B comprises at least one flexibility modifier”, which is unclear whether the composition consists of just two ingredients of Component A and Component B or if the composition is comprises at least Component A and Component B as well as other ingredients.
Claim 2 is indefinite for reciting the ratio “1:4 to 1.5:1” which is unclear because claim 2 depends from claim 1 but further recites a ratio range that is outside of the range of the 1:4 to 1.4:1 ratio recited in claim 1.
Regarding claim 41, the phrase "preferably " renders the claims indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention.
Claims 3-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-40, 42, 46, 47, 51, and 53 are included in the rejection because the claims do not correct for the defect of the claim from which they depend.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
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.
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 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 1-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53 are rejected under 35 U.S.C. 103 as being unpatentable over Yaranossian et al. (US 20170251692 A1) hereinafter Yaranossian.
It is noted that the instant claim 53 is set forth in the form of product-by-process claims, which are considered product claims by the Office. Applicants are reminded that process limitations cannot impart patentability to a product that is not patentably distinguished over the prior art. In re Thorpe et al. (CAFC 1985), supra; In re Dike (CCPA 1968) 394 F2d 584, 157 USPQ 581; Tri-Wall Containers, Inc. v. United States et al. (Ct CIs 1969) 408 F2d 748, 161 USPQ 116; In re Brown et al. (CCPA 1972) 450 F2d 531, 173 USPQ 685; Ex parte Edwards et al. (BPAI 1986) 231 USPQ 981.
Regarding claims 1-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53, Yaranossian is drawn to a composition comprising a low viscosity iota carrageenan, and provides a gelled confectionery containing a texturizer composition comprising low viscosity iota carrageenan, which allows the partial or full replacement of gelatin in the composition (abstract).
Yaranossian discloses a confectionery composition comprising (i) a texturizer including a low viscosity iota carrageenan and an additional hydrocolloid; and (ii) a sweetener, wherein the low viscosity iota carrageenan has a viscosity less than about 30 cP when measured in 1.5% concentration at 75° C., and wherein the texturizer provides a gelled texture to the final confectionery product; the additional hydrocolloid may be selected from the group consisting of a kappa carrageenan [0009-0010].
Yaranossian discloses the texturizer composition comprises the low viscosity iota carrageenan and an additional hydrocolloid. The additional hydrocolloid component may be selected from the group consisting of carboxymethyl cellulose, starches and derivatives thereof, pectins (including high methoxyl (“HM”), low methoxyl pectins, and acetylated pectins (such as beet pectin)), alginate, carrageenans (lambda, kappa, kappa-2, mu, nu, theta, or mixtures thereof), xanthan gum, agar gum, and gellan gum, and mixtures thereof. In preferred embodiments of the invention, the hydrocolloid is kappa carrageenan, HM pectin, co-processed cellulose/cellulose gum or a combination of these hydrocolloids [0024].
Yaranossian discloses a composition comprising 50% iota carrageenan (component B), 44% kappa carrageenan A (component A), 6% Sugar (Example 2, Table 2.1).
Yaranossian discloses a composition comprising 50% iota carrageenan, 44% kappa carrageenan and 6% Avicel GP 7210 (MCC, CMC) (Example 3, Table 3.1).
Yaranossian does not explicitly disclose each of the components of the composition together as claimed in a single embodiment for an anticipation rejection.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Yaranossian, to arrive at the instant invention.
One of ordinary skill in the art would have been motivated to do so because Yaranossian discloses all the required ingredients and Yaranossian discloses “the composition allows for the creation of additional and alternative textures in confectionery products. The present invention allows lower gelling temperature while hot depositing of high brix confectionery using a low viscosity iota type carrageenan” [0007]. Further, one having ordinary still in the art would reasonably expect success in combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QUANGLONG N TRUONG whose telephone number is (571)270-0719. The examiner can normally be reached on 8:00am-5:00pm.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615
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