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 .
Any rejection or objection not reiterated in this action is withdrawn.
Receipt of the Amendments to the Claims and Applicant’s arguments, filed on 4/7/2026, is acknowledged.
Claims 1-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53 are amended.
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 included in the prosecution.
Response to Amendments/Arguments
Applicants’ amendment to independent claims 1 and 53 to require “sugar-free”, which were not previously in the claim set, changes the scope of the claims.
Applicant’s arguments (pages 11-18, filed 4/7/2026) regarding the previous rejections under 35 USC 103 have been fully considered and are persuasive in light of the claim amendment.
The claim amendments are also sufficient to overcome the previous claim objections and rejections under 35 USC 112(b), which are withdrawn.
Therefore, the previous rejections have been withdrawn.
However, Examiner makes a new ground of rejection by relying on the teachings of Magana (US20160242450A1).
The new grounds of rejection are necessitated by amendment; therefore, this action is made FINAL.
New Grounds of Rejection Necessitated by Amendment
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.
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 1-9, 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 Magana (US 20160242450 A1).
Regarding claims 1-9, 12, 13, 16-19, 21, 23, 24, 27, 29, 32, 34, 36, 38-42, 46, 47, 51, and 53, Magana is drawn to functional-gel compositions as medicaments, foods, food ingredients, food supplements and to uses and methods. The functional-gels comprise an edible gelling agent and additionally a dietary protein or a dietary fiber or a combination of both. The functional-gel compositions may be formulated in a variety of ways to provide acceptable taste and texture, including for example as health bars, confections or as ready-to-eat, ready-to-drink, shelf stable and single-serve packaged foods (abstract).
Magana discloses where the functional-gels are in a gelled presentation, examples of gelling agents that may be employed and their typically characteristics and uses are as follows [0037]: Magana discloses iota carrageenan creates elastic gels and is especially effective with dairy products. Iota Carrageenan is normally mixed in a ratio range of 0.02-0.04% to just thicken a dairy based product or a 0.4-1.5% ratio to prepare a dairy gel. Non-dairy gels often require a little more iota in the range of 0.75-1.5%. Since foams are more delicate, a 0.2-1.0% ratio of iota carrageenan is needed to make foams from fluid gels. For dairy fluid gels when blended it takes a ratio range of 0.1-1.0% iota carrageenan. For an end result with a specific elasticity, mix the iota carrageenan and kappa carrageenan together; the total amount of the carrageenans used for gels is a 0.3-1.5% ratio. For a medium elasticity use 1 part iota to 1 part kappa ratio [0040].
Magana discloses kappa carrageenan can be used to create firm, brittle gels and is especially effective at gelling dairy-based liquids. To gel, the liquid must contain either calcium or potassium that is free to bind with the kappa carrageenan. For dairy gels kappa carrageenan is normally mixed in a ratio of 0.3-1.5% range. For dairy fluid gels when blended it often takes a little less, a ratio range of 0.3-1.0% is appropriate. For an end result with a specific elasticity, mix the iota carrageenan and kappa carrageenan together; the total amount of carrageenan used for gels is a 0.3-1.5% ratio. For a medium elasticity use 1 part iota to 1 part kappa ratio [0041].
Magana discloses gellan gum (E418), xanthan gum, agar, locust bean gum (E410) [0061]; examples of some humectants include: lactic acid [0195]; vitamins and minerals [0182]. Magana discloses the pH may be adjusted by the addition of suitable acid, buffer, or both [0140]. Magana discloses sometimes a small amount of sodium chloride is added for flavor enhancement [0100]. Magana discloses suitable carbohydrates that may be utilized include maltodextrin, dietary fiber, functional fiber [0176].
Magana does not explicitly disclose the composition 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 Magana, to arrive at the instant invention.
One of ordinary skill in the art would have been motivated to do so because Magana discloses each of the components of the composition and in a gel composition (abstract), and Magana discloses for an end result with a specific elasticity, mix the iota carrageenan and kappa carrageenan together; For a medium elasticity use 1 part iota to 1 part kappa ratio [0040]. 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.
The Supreme Court has acknowledged:
When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation... 103 likely bars its patentability...if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond that person’s skill. A court must ask whether the improvement is more than the predictable use of prior-art elements according to their established functions......the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results (see KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 U.S. 2007) (emphasis added).
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in the absence of evidence to the contrary.
Conclusion
No claims are allowed.
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 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Quanglong Truong whose telephone number is 571-270-0719. The examiner can normally be reached on Monday to Friday from 8:00 am – 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert A. Wax can be reached on 571-272-0623. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/QUANGLONG N TRUONG/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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