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 November 21, 2025 is acknowledged. Claims 1-3, 10-19, and 21 are pending in the application. Claims 4-9 and 20 have been cancelled. Claims 17-19 and 21 are withdrawn from consideration.
Election/Restrictions
Applicant’s election of Group I, claims 1-3 and 10-16 in the reply filed on November 21, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 17-19 and 21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claim Objections
Claims 4-9 are objected to because of the following informalities:
Claims 4-9 have the status identifier of “Cancelled” and include claim text. However, it is noted that claim text shall not be presented in cancelled claims. See MPEP 714.
Applicant is reminded that amendments to a claim must be made by rewriting the entire claim with all changes (e.g., additions and deletions) as indicated in this subsection, except when the claim is being canceled. Each amendment document that includes a change to an existing claim, cancellation of an existing claim or addition of a new claim, must include a complete listing of all claims ever presented, including the text of all pending and withdrawn claims, in the application. The claim listing, including the text of the claims, in the amendment document will serve to replace all prior versions of the claims, in the application. In the claim listing, the status of every claim must be indicated after its claim number by using one of the following identifiers in a parenthetical expression: (Original), (Currently amended), (Canceled), (Withdrawn), (Previously presented), (New), and (Not entered). All claims being currently amended in an amendment paper shall be presented in the claim listing, indicate a status of “currently amended,” and be submitted with markings to indicate the changes that have been made relative to the immediate prior version of the claims. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. Only claims having the status of “currently amended,” or “withdrawn” if also being amended, shall include markings. If a withdrawn claim is currently amended, its status in the claim listing may be identified as “withdrawn— currently amended.” No claim text shall be presented for any claim in the claim listing with the status of "canceled" or "not entered. See MPEP 714.
Appropriate correction is required.
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.
Claims 1-3 and 10-16 are rejected under 35 U.S.C. 103 as being unpatentable over Chawla et al. US 20180064155 (hereinafter “Chawla”) in view of Pe et al. JP 2009261393 (hereinafter “Pe”) (refer to the corresponding machine translation).
With respect to claim 1, Chawla relates to a composition that may be used to thicken a food product for subjects with dysphagia (paragraphs [0002] and [0012]).
Regarding the recitation of “for thickening a nutritional product to make the product suitable for consumption by dysphagia patients” in the preamble of claim 1, it is noted that the recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of said composition comprising by weight % of a ready to consume said product: between about 0.2% to about 2.0% of xanthan gum; 0.25% of acacia gum, wherein the acacia gum functions as an emulsifier; and between about 0.005% to about 0.0075% of high acyl gellan gum; wherein the composition is substantially free of starch in claim 1, Chawla teaches the composition comprises a small amount of hydrocolloids and stabilizers, such as xanthan gum, gum arabic (acacia gum), and gellan gum, and starch is not included in the composition (paragraphs [0002], [0005], [0012], [0024], and [0027]; and P10, claim 6).
Regarding the recitation of wherein the acacia gum functions as an emulsifier 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.
Additionally, it is understood that compositions that are physically the same will have the same properties, and the gum arabic (acacia gum) in Chawla is identical to the acacia gum of the present invention. Applicant is remined that "[p]roducts of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id.
Chawla does not expressly disclose the claimed quantities of xanthan gum, gum arabic (acacia gum), and gellan gum by weight of the food product and the gellan gum is high acyl gellan gum.
Pe relates to a foodstuff. The foodstuff comprises a gum-based thickening stabilizer which includes two or more gums such as high acyl gellan gum, xanthan gum, and gum arabic (acacia gum). The two or more thickening stabilizers can be used in the foodstuff in amounts of 0.002 to 1.0 wt% (paragraphs [0001], [0019], [0023], and [0025]).
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 Pe to select high acyl gellan gum based in its suitability for its intended purpose in the composition of Chawla as well as to select any portions of the disclosed range, including the instantly claimed ranges of gums, 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 Chawla and Pe similarly teach foodstuff comprising a gum composition including xanthan gum, gum arabic (acacia gum), and gellan gum, Pe teaches high acyl gellan gum can be used as a thickener, stabilizer, and dispersant in a wide variety of products to form stable products and the gum-based thickening stabilizers are used in a certain amount in order to provide a product with excellent dispersion stability, rich texture, and high palatability (paragraphs [0001] and [0023]), Chawla teaches the amount of hydrocolloids added to the composition depends upon the type of food product desired which is a matter of choice and the resultant food products have a taste, structure, and mouthfeel that a subject with dysphagia would desire (paragraphs [0012] and [0024]), 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). "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 2, modified Chawla is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the recitation of further comprising between about 0.001% to about 0.005% tara gum in claim 2, Chawla as modified by Pe teaches this limitation since Chawla teaches tara gum may also be included (paragraph [0024] and P10, claim 6), and Pe is relied upon for the teaching of the quantities of gums of 0.002 to 1.0 wt% as addressed above in claim 1 (paragraphs [0001] and [0025]). 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 Chawla is relied upon for the teaching of the composition of claim 2 as addressed above.
Regarding the recitation of wherein the composition comprises 0.52% xanthan gum in claim 3, Chawla as modified by Pe teaches this limitation since Chawla teaches xanthan gum as addressed above in claim 1 (paragraphs [0024] and [0028]; and P10, claim 6), and Pe is relied upon for the teaching of the quantities of gums of 0.002 to 1.0 wt% as addressed above in claim 1 (paragraphs [0001] and [0025]). 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 Chawla is relied upon for the teaching of the composition of claim 2 as addressed above.
Regarding the recitation of wherein the composition comprises about 0.001% to about 0.003% tara gum in claim 10, Chawla as modified by Pe teaches this limitation since Chawla teaches tara gum may also be included as addressed above in claim 2 (paragraph [0024] and P10, claim 6), and Pe is relied upon for the teaching of the quantities of gums of 0.002 to 1.0 wt% as addressed above in claims 1 and 2 (paragraphs [0001] and [0025]). 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 11, modified Chawla is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the recitation of further comprises between about 0.001% to about 0.75% locust bean gum in claim 11, Chawla as modified by Pe teaches this limitation since Chawla teaches locust bean gum may also be included (paragraph [0028] and P10, claim 6), and Pe is relied upon for the teaching of the quantities of gums of 0.002 to 1.0 wt% as addressed above in claim 1 (paragraphs [0001] and [0025]). 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 12, modified Chawla is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the recitation of further comprises between about 0.001% to about 0.75% guar gum in claim 12, Chawla as modified by Pe teaches this limitation since Chawla teaches guar gum may also be included (paragraph [0028] and P10, claim 6), and Pe is relied upon for the teaching of the quantities of gums of 0.002 to 1.0 wt% as addressed above in claim 1 (paragraphs [0001] and [0025]). 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 13, modified Chawla is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the recitation of wherein the composition is formulated to be added to the nutritional product in claim 13, it is noted that this recitation relates to the future intended use of the composition. 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.
Additionally, Chawla teaches a composition that may be used to thicken a food product (paragraphs [0002] and [0012]).
With respect to claim 14, modified Chawla is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the recitation of wherein the composition further comprises the nutritional product in claim 14, modified Chawla teaches this limitation since Chawla teaches the composition comprises the nutritional product (paragraphs [0002] and [0012]).
With respect to claim 15, modified Chawla is relied upon for the teaching of the composition of claim 1 as addressed above.
Regarding the recitation of wherein the composition is formulated in a ready to consume form in claim 15, modified Chawla teaches this limitation since Chawla teaches the composition is consumable (paragraphs [0002] and [0012]).
With respect to claim 16, Chawla relates to a thickened nutritional food product (paragraphs [0002] and [0012]).
Regarding the recitation of comprises the composition of claim 1, wherein the thickened nutritional product is substantially free of starch in claim 16, Chawla teaches the food product is thickened with a composition and is not thickened by starch (paragraphs [0002], [0005], and [00012]), and Chawla as modified by Pe is relied upon for the teaching of the composition of claim 1 as addressed above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793