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 of Group I, claims 1-6 in the reply filed on December 23, 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)). Thus, claims 12-16 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
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 1-6 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1-3 and 6 recite “an oily liquid flavor composition”. It is unclear as to the metes and the bounds of the term “oily”. For example, it is unclear as to if the term requires the flavor composition include an oil, or if the term is broader and only require the composition have oil-like characteristics, such as being hydrophobic. It is noted that the disclosure does not help with clarity because it simply states that oil “may be” included in the oily liquid flavor composition, thus, suggesting, but not clarifying that oil may be excluded from the “oily composition” (see instant specification paragraphs 45-46 and 49).
Claim 4 recites “polyols with non-plasticizing properties” and “polyols with plasticizing properties”. Although some examples of polyols with plasticizing properties are given in the specification paragraph 36, it is unclear as to what degree of plasticizing need be present in order for a polyol to be classified as plasticizing or non-plasticizing. It is further unclear as to if plasticizing only need be present in one type of composition, or if it would be required in all compositions in order for the polyol to be considered “with plasticizing properties”. It is additionally noted that the exemplary “polyol” with non-plasticizing properties disclosed in the specification paragraph 36 is starch, which is not a polyol. Similarly, some of the “polyols” disclosed as with plasticizing properties in the specification paragraph 36 are not polyols, such as trehalose which is a disaccharide.
Claim 5 recites “wherein the continuous gelled matrix comprises the uncross-linked gelatin and the filler is obtained from a gelatin having a Bloom value of between 150 and 300”. It is unclear as to if the claim is requiring that the filler also be a gelatin, and thus, is not necessarily a distinct ingredient from the originally recited gelatin component, or if the claimed limitation is requiring the uncross-linked gelation as obtained from gelatin with the claimed bloom strength.
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 (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 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.
Notes:
“Coefficient of variance” has been defined in the instant specification paragraph 26 as “a measure of relative variability and is expressed as a percentage by dividing the standard deviation by the mean and then multiplying by 100.”
“Uncross-linked gelatin” has been defined in the instant specification paragraph 28 as “the absence of ionic or covalent linkages, arising from treatment with chemical or enzymatic cross-linking agents, between one section of the gelatin gelling agent to another section in a gelled mixture.”
“Substantially void of acid polysaccharide gelling agents” has been defined in the instant specification paragraph 30 as “the continuous gelled matrix comprises less than 1 wt.% of acid polysaccharide gelling agents, based on the entire weight of the continuous gelled matrix.”
Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Coursieres et al (WO 2020/115139) in view of Kramer et al (US 2,886,446).
Regarding claim 1, Coursieres et al (Coursieres) teaches an encapsulated flavor delivery system comprising: a plurality of dried spherical beads, each in the form of a gelled matrix comprising gelatin and a filler, surrounding an oily liquid flavor composition comprising a flavorant, wherein the plurality of dried beads have an average particle size of 400-1000um with a coefficient of variance of less than 15% (abstract, paragraphs 1, 12, 24, 26,38, 42, 43, 56, 57, 64, 74, and 85, and claims 1, 3, 6, 8, 10, 13, 15, and 17).
Regarding the dried spherical beads as each in the form of a continuous gelled matrix as recited in claim 1, Coursieres is not explicit to the gelled microcapsule as continuous, however, as Coursieres teaches that the matrix forms a seamless capsule (paragraphs 25, 26, and 74) and seamless is defined as smoothly continuous or uniform, the dried spherical beads as taught by Coursieres would encompass formation from a continuous gelled matrix as claimed.
Regarding the gelled matrix as comprising an uncross-linked gelatin, i.e. a gelatin which is not cross lined with chemical or enzymatic cross-linking agents, as recited in claim 1, Coursieres teaches that the gelling agent is gelatin (paragraph 42 and claims 8 and 17). Although Coursieres teaches that the hydrocolloid gelling agent may be crosslinked in some embodiments (paragraphs 14 and 29, and claim 7), as Coursieres teaches that various embodiments may be used separately (paragraph 11); the microcapsule is formed with co-extrusion with a temperature gradient to induce gel formation (paragraphs 74 and 98); and does not require cross-linking with chemicals and/or enzymes, in every embodiment and/or to induce gel formation, the formation of the gelled mix comprising gelatin in uncross-linked form would have been encompassed or at least obvious over the teachings of the prior art. The position is further supported as Coursieres teaches that “the uncrosslinked shell of the formed capsules may be treated with a curing solution that comprises one or more crosslinking agents” (paragraph 52), thus showing that the shell may be formed as an uncross-linked shell, wherein cross-linking may, or alternatively, may not be performed.
Regarding the gelled matrix as substantially void of acid polysaccharide gelling agents as recited in claim 1, although Coursieres teaches that the gelling agent is selected from the group including gelatin and acid polysaccharide gelling agents such as alginates and pectin, and combinations thereof (paragraph 38 and claims 6 and 15), as Coursieres teaches that the gelling agent is gelatin (paragraph 42 and claims 8 and 17), the teachings of Coursieres would encompass or alternatively make obvious the gelling agent as consisting of gelatin and thus would encompass or alternatively make the gelled matrix as substantially void of acid polysaccharide gelling agents. It is noted that Coursieres does not require acid polysaccharide gelling agents in the composition, and to form the product of the prior art with the components as disclosed would have been obvious and well within the purview of one of ordinary skill in the art.
Coursieres is not specific to the oily flavor composition as in the form of a plurality of droplets with a diameter of about 1-20 microns as recited in claim 1.
Kramer et al (Kramer) teaches a process of preparing improved chewing gum which is characterized by a flavor which is controllably released over an extended period of time at a high level (column 1 lines 15-18). Kramer teaches that the product comprises a water immiscible flavor agent encapsulated or dispersed within particles of gelatin (column 1 lines 68-70, and column 2 lines 19-21), wherein the flavor oil is in the form of discrete or minute microdroplets (column 2 lines 25-27, 45-47 and 70). Kramer teaches that the size of the oil drop is in a low micron range, such as 2-5 microns (column 4 lines 11-15). Kramer teaches that the invention provides for greater availability of flavor and that controlled liberation of flavor of the product chewing gum may be obtained by using mixtures of flavoring compositions with different particles sizes, wherein the initial flavor comes from smaller particles and much of the later flavor is from the larger particles (column 4 lines 68-73 and column 5 lines 26-38).
Regarding the oily flavor composition as in the form of a plurality of droplets with a diameter of about 1-20 microns as recited in claim 1, it would have been obvious for the oily core of Coursieres to contain a plurality of droplets with a low micron diameter such as 2-5 microns in order to provide greater availability of flavor, and early release of flavor through the use of smaller particles in view of Kramer.
Regarding claim 2, Coursieres teaches hydrophobic sweeteners in the continuous gelled matrix (paragraphs 43, 44, and 50). Coursieres is not specific to the sweetener as homogenously dispersed throughout the gelled matrix, however, as Coursieres teaches that the matrix forms a seamless capsule (paragraphs 25, 26, and 74) and seamless is defined as smoothly continuous or uniform, it would have been encompassed, or at least obvious for the matrix ingredients, including the sweetener to be homogenously dispersed throughout. It would have been further obvious that the sweetener could only be in one of two options, either homogenously or non-homogenously dispersed, and that to homogenously disperse it would provide an equal amount of sweetener throughout the composition for consumption. Thus, the claimed limitation is further considered obvious over the teachings of the prior art.
Regarding claim 3, Coursieres teaches the oily liquid flavor composition further comprises medium chain triglycerides, including caprylic and capric acids which have a melting point of about 30C or less (paragraph 59). It is noted that the term “about” means near or close to, and thus encompasses ranges above 30C.
Regarding claim 4, as discussed above, the claimed limitation is unclear. Regardless Coursieres teaches the filler includes: starch derivatives, cellulose derivatives, and polyols which would encompass non-plasticizing polyols, polyols with plasticizing properties, and combinations thereof as the polyol disclosed would either be plasticizing or non-plasticizing (paragraph 43).
Regarding claim 5, as discussed above, the claimed limitation is unclear. Regardless as Coursieres teaches the composition comprises gelatin, wherein the gelatin has a bloom of at least 200 (paragraph 38), the product of Coursieres would encompass a product with gelatin and/or a filler derived from gelatin with a bloom of at least 200, which encompass the claimed range.
Regarding claim 6, Coursieres teaches the dried microcapsule, i.e. the spherical bead excluding any water mass, contains 10-80% core, i.e. the oily flavor composition, (paragraph 57) and thus, 20-90% of the gelled matrix.
Regarding the claimed ranges, it is noted that the prior art disclosed overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
WO 2009/012131 teaches flavor bead compositions benefit from the use of a sweetener within the hydrophilic shell material, the use of flavor beads with a diameter of about 200-200um particle size is preferred for use in chewing gums, and that the beads are substantially uniform, with less than 15% variance, for consumer appeal.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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