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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7/13/26 and 9/3/26 was filed after the mailing date of the Restriction Requirement on 5/18/26. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Election/Restrictions
Applicant's election with traverse of claims 1-4 and 15 in the reply filed on 6/22/26 is acknowledged. The traversal is on the ground(s) that a search for the invention of claims 1-4 and 15 would necessarily render prior at pertaining to the remaining claims. This is not found persuasive because a search for claims 5-14 do not require any of the components of claims 1-4 and 15 .
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 1-4 and 15 are objected to because of the following informalities: Claims 1 and 3 recite periods after steps A1-A8 and B1-B9. However, there can only be one period per claim. As claims 2, 4 and n15 depend from claim 1 and 3, they are likewise objected. 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.
Claim(s) 1-4, 15 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combined disclosures of Endo et al (Visualization of Happiness Elicited Taking a Food Using Near Infra-red Spectroscopy, 8th International Conference on Information Technology and Electrica, Engineering, Yogyakarta, Indonesia, 2016 hereafter Endo) in view of Minematsu et al (Activity of frontal pole cortex reflecting hedonic tone of food and drink: fNIRS study in humans, Scientific Reports, 8:16197, 2018 hereafter Minematsu) and Baumgartner (US 2002/0048553 hereafter Baumgartner).
Endo discloses a method of assessing an ability of an oral ingredient comprising establishing a baseline happiness state via (fNIRS), providing the test oral ingredient wherein the test subject applies the oral ingredient, measuring the happiness state of the human test via fNIRS and determining a difference in the measured resulting happiness state (Experiments II), meeting limitations of claim 1 and 16. Channel 14 shows a statistically significant difference in observed variation in oxygen (Fig. 1 and 2), meeting limitations of claim 1 and 3.
While the reference discloses a method of assessing happiness in a human patient via fNIRS, the reference does not disclose the same channel arrangement and head placement in the instant claims. These features are known in the art as seen in the Minematsu study.
Minematsu discloses a study identifying activity of the frontal pole cortex when responding to preferred taste using fNIRS (abstract). The hemodynamic changes are measured in response to taste both bitter and sweet after establishing a baseline (page 2). OxyHeb measurements are taken at four separate time intervals with the first at 15 seconds after exposure (page 2), meeting limitations of claim 1, 3 and 4. Channels 6 and 11 show a measurable difference as early as 10 seconds after exposure (Figure 1, A), meeting limitations of claim 1, 3 and 4. The nodes are applied to measure both hemispheres of the brain (Figure 7, A,B), meeting limitations of claim 1. It would have been obvious to apply the channel arrangement of Minematsu to the study of Endo as they solve the problem.
While the combination would provide a method for assessing an emotional connection to an oral stimulus. The stimulus of Minematsu is an oral formulation comprising sucrose as a sweetener. The use of sweeteners in oral care is known in the art as seen in the Baumgartner patent.
Baumgartner discloses an oral care composition comprising sweetener filled capsules (abstract). The oral care composition is in the form of a toothpaste with a tasty and enjoyable ingredient in the capsules [0005-0006]. The toothpaste comprises sugar ingredients as the tasty flavor [claims]. It would have been obvious to use this oral car product in the method as it solves the same problem.
Regarding the placement of the nodes along the hemispheres of the brain, it is the position of the Examiner that barring evidence to the contrary, the limitations do not overcome the prior art. The prior at provides that the nodes are applied to both hemispheres of the brain. Channels 4, 6 and 11 all record significantly different changes in oxyHeb as measured at those nodes. The specific arrangement of the nodes along the scalp can be optimized by one of ordinary skill in the art to achieve the best and most accurate measurements, and this would be achieved through routine experimentation. The Office does not have the facilities for examining and comparing applicant’s product with the product of the prior art in order to establish that the product of the prior art does not possess the same material structural and functional characteristics of the claimed product. In the absence of evidence to the contrary, the burden is upon the applicant to prove that the claimed products are functionally different than those taught by the prior art and to establish patentable differences. See Ex parte Phillips, 28 U.S.P.Q.2d 1302, 1303 (PTO Bd. Pat. App. & Int. 1993), Ex parte Gray, 10 USPQ2d 1922, 1923 (PTO Bd. Pat. App. & Int.) and In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977).
With these aspects in mind, it would have been obvious to combine the prior art to produce a means of assessing joy on an oral care product. It would have been obvious to include the node placement of precises time-based measurements of Minematsu to the method of Endo to produce a repeatable and measurable means of visualizing the joy centers of the brain after intaking sweet products. It would have been obvious to use the oral care product of Baumgartner as it uses sugars similar to those of Minematsu as they are known to be enjoyable flavors. One of ordinary skill in the art would apply this data to reproduce stable oral care products that can reliably be enjoyed by a target audience as the data would show which flavors show happiness in the brain.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICAH PAUL YOUNG whose telephone number is (571)272-0608. The examiner can normally be reached Monday through Friday, 9:00 am to 5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at 5712720616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICAH PAUL YOUNG/ Primary Examiner, Art Unit 1618
