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 without traverse of Group I claims 14-20 in the reply filed on 5/29/2026 is acknowledged. Claims 1-13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 5/29/2026.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 14-15 and 17-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kanematsu (WO2019065187A1), hereinafter Kanematsu. A full English machine translation for Kanematsu reference has been provided with this office action and reference to all text of Kanematsu is with respect to the full English machine translation.
Regarding claim 14, Kanematsu (WO2019065187 A 1) packaged jelly-containing beverage (para 1 describes "jelly drink" and para 37 describes "packaging jelly drinks in various containers'') comprising a cation reactive gelling agent (such as carrageenan disclosed in para 55, that is known to be a cation reactive gelling agent such as for cations corresponding to Ca ions from calcium lactate - see para 55). Whereas claim 14 is a product claim, the claim recites a method of steps therein; i.e. "manufactured by the manufacturing method according to claim 1 ". Therefore, the claim amounts to a product by process claim. "Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself The patentability of a product does not depend on its method a/production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113.
Regarding claim 15, Kanematsu (WO2019065 l 87 A 1) teaches a packaged jelly containing beverage (para 1 describes ''jelly drink" and para 37 describes "packaging jelly drinks in various containers''), wherein a jelly in the beverage and a liquid constituting the beverage present mutually different colors and present a marbled
appearance (para 60 describes "color contrast between the liquid and gel portions was very clear"; also see para 7 and 8; also see para 44 that describes goal of "stronger contrast in color between the liquid and jelly portions of the jelly drink'').
Regarding claim 17, Kanematsu teaches the beverage according to claim 15, wherein the jelly is formed by gelling a cation reactive gelling agent such as carrageenan (para 55) that is known to be a cation reactive gelling agent such as for cations corresponding to Ca ions from calcium lactate (para 55).
Regarding claim 18, Kanematsu teaches the beverage according to claim 15, comprising one or more selected from the group consisting of pectin, carrageenan, gellan gum, and alginic acid (para 55 discloses at least carrageenan).
Regarding claim 19, Kanematsu teaches the beverage according to claim 18, further comprising calcium ions (i.e. calcium ions produced in solution by calcium salts such as "calcium lactate" described in para 55; also see para 36).
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.
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.
Claim 16 rejected under 35 U.S.C. 103 as being unpatentable over Kanematsu in view of Noguchi (JP2020089291A), hereinafter Noguchi. A full English machine translation for Noguchi reference has been provided with this office action and reference to all text of Noguchi is with respect to the full English machine translation.
Regarding claim 16, Kanematsu teaches the beverage according to claim 15, but does not teach that the liquid constituting the jelly-containing beverage has "a pH of 2.5 to 4.5". Noguchi (JP2020089291A) teaches a similar jelly containing beverage further teaching that a pH between 3 and 4 suppresses growth of microorganisms, which can help relaxing heat sterilization conditions that would otherwise deteriorate flavor and texture (para 35). It would have been obvious to one of ordinary skills in the art before the time of the effective filing of the claimed invention to modify Kanematsu so that the container is made from "PET". The ordinary artisan would have been motivated to modify Kanematsu for at least the purpose of using a material like PET that is less expensive and less fragile than glass material.
Claim 20 rejected under 35 U.S.C. 103 as being unpatentable over Kanematsu in view of lDS reference Tsuji (JP2013135665A), hereinafter Tsuji. A full English translation for Tsuji reference has been provided by the applicant and the same is being used here.
Regarding claim 20, Kanematsu teaches the beverage according to claim 15, wherein the container is may be made from glass or may be a pouch (para 37), but does not teach that the container is made from "PET". IDS reference Tsuji (JP2013135665A) teaches a similar jelly-containing beverage (para 1) further teaching that the container for the jelly containing beverage may not only be made from glass but also from PET (para 38). It would have been obvious to one of ordinary skills in the art before the time of the effective filing of the claimed invention to modify Kanematsu so that the container is made from "PET". The ordinary artisan would have been motivated to modify Kanematsu for at least the purpose of using a material like PET that is less expensive and less fragile than glass material.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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