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
Applicants’ election of Group II (claims 19-20, 22, 28, 30-33, 36 and 38-39) drawn to a microcapsule obtained by a method according to claim 3, is acknowledged. The election was made with traverse.
The grounds for traversal as indicated by Applicants, is that the prior art provided by the Examiner does not teach the newly added claim limitation (to claim 3): “adding a crosslinking agent to the dispersion of step (iii) in an amount of up to 6 [[10]] parts by weight relative to 1,000 parts by weight of the complex coacervate”. However, such is an optimizable parameter. Van Gruijthuijsen teaches an embodiment wherein the coacervate material is hardened chemically using a suitable cross-linker such as glutaraldehyde and another embodiment, wherein the coacervate is not-cross-linked. That is, Van Gruijthuijsen teaches zero crosslinking agent up to all the amounts in the Examples described by Applicants and such would affect the hardness.
As the requirement for restriction is deemed proper, it is maintained and hereby made FINAL.
Claims 3-6, 9, 11-12, 15 and 17 are hereby withdrawn from further consideration by the Examiner, pursuant to 37 CFR 1.142(b), as being drawn to non-elected inventions, there being no allowable generic or linking claim. The instant claims have been examined commensurate with the scope of the elected invention. Applicants timely responded to the restriction requirement in the reply filed 3/16/26.
Accordingly, claims 19-20, 22, 28, 30-33, 36 and 38-39 are under current examination.
Status of Claims
A new claim set was filed on 3/16/26 with the following:
Amended claims
3, 5, 28 and 30
Newly canceled claims
Newly added claims
Previously canceled claims
1-2, 7-8, 10, 13-14, 16, 18, 21, 23-27, 29, 34-35, 37 and 40-42
Instantly withdrawn claims
3-6, 9, 11-12, 15 and 17
Claims under instant examination
19-20, 22, 28, 30-33, 36 and 38-39
Claim Objections
Claim 19 is objected to because of the following informalities: claim 19 depends from a withdrawn base claim. Claim 19 should be written in independent form.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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.
Claims 32-33 and 36 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claims 32-33 and 36, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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 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.
Claims 19-20, 22, 28, 30-33, 36 and 38-39 are rejected under 35 U.S.C. 103 as being unpatentable over Van Gruijthuijsen et al. (WO 2021/018947; published: 2/4/21; of record), in view of Leclercq et al. (J. Agric. Food Chem., 2009, 57, 1426-1432).
Determination of the Scope and Content of the Prior Art
(MPEP §2141.01)
Van Gruijthuijsen is directed to composite microcapsule slurry comprising at least one microcapsule having: an oil-based core comprising an hydrophobic material, a composite shell comprising a first material and a second material, wherein: the first material and the second material are different, the first material is a coacervate, the second material is a polymeric material, and the weight ratio in the slurry between the first material and the second material is comprised between 50:50 and 99.9:0.1 (Abstract).
With regards to instant claims 19-20, Van Gruijthuijsen teaches microcapsules slurry comprising the following:
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With regards to instant claims 19, 28, 32-33, 36 and 38-39, Van Gruijthuijsen teaches that the above microcapsules were produced by the following protocol (“Protocol 3”):
an aqueous solution of 10% wt. gelatine (A) (pork or fish) is prepared separately;
a fragrance (Perfume A - see composition in Table 1) to be encapsulated is mixed with polyisocyanate (trimethylol propane-adduct of xylylene diisocyanate, Takenate® D-l 10N, Mitsui Chemical) (B);
gum Arabic (i.e., acacia gum) is dissolved in demineralized water to form the aqueous phase. The mixture is stirred until complete solubilization and warmed at 40°C;
solution (B) is dispersed in the aqueous phase and emulsified by mechanical shear, static mixer, rotor-stator or rotor-rotor to obtain the desired particle size;
solution (A) is then added to the mixture under continued mechanical shear, the pH is adjusted to 4.45 using an acid and maintained as such during 10 min; mechanical shear is maintained at the same rate and the solution is then subjected to a thermal treatment at 50-90°C; and
the stirring speed is slightly decreased, and a cross-linking agent (glutaraldehyde aq. 50% wt. Supplied by Sigma-Aldrich) is finally added to the mixture. The capsule suspension is mixed during 4 to 10 hours at 20-25°C to allow a complete reaction (See p. 55, line 17 to p. 56, line 3).
Van Gruijthuijsen does not disclose the biodegradability as recited in claim 22. However, the invention as claimed is not structurally distinguishable from the disclosure of Van Gruijthuijsen and it is therefore, the Examiner's position that the biodegradability is an inherent property of the invention taught by Van Gruijthuijsen. Since the Patent and Trademark Office does not have the facilities for examining and comparing the claimed product with that of the prior art, the burden of proof is upon the Applicants to show an unobvious distinction between the structural and functional characteristics of the claimed product and the product of the prior art. See In re Best, 562 F.2d 1252, 195 U.S.P.Q. 430 (CCPA 197) and Ex parte Gray, USPQ 2d 1922 (PTO Bd. Pat. App. & Int.).
Ascertainment of the Difference Between the Scope of the Prior Art and Claims
(MPEP §2141.012)
Van Gruijthuijsen does not specifically teach wherein that amount of crosslinking agent (e.g., glutaraldehyde) is added in an amount of up to 6 parts by weight relative to 1,000 parts by weight of the complex coacervate, as required by instant claims 19 and 28, or in an amount of up to 5 or 4 parts by weight relative to 1,000 parts by weight of the polycation and the polyanion, as required by instant claims 30-31. Van Gruijthuijsen teaches, for example, 0.02 g of glutaraldehyde (50% aqueous solution) and therefore depending on how one interprets (0.02 of glutaraldehyde itself or of the aqueous solution), the composition either contains 8.3 or 16.6 parts relative to 1,000 parts of coacervate. However, this deficiency is cured by Leclercq.
Leclercq is directed to the effects of crosslinking, capsule wall thickness and compound hydrophobicity on aroma release from complex coacervate microcapsules (Title). Leclercq teaches that cross-linking in capsule formation is an optional process that can modify the structure and properties of the coacervate microcapsules (p. 1426, 2nd col.). The role of cross-linking (e.g., a glutaraldehyde cross-linking agent) is described as to harden the wall material after the formation of the capsules, wherein the goal of hardening is to make the capsules more stable during drying and also to confer some unique properties to the wall material, such as modifying the physical state (change of the glass transition temperature) (p. 1426, 2nd col.).
Finding of Prima Facie Obviousness Rationale and Motivation
(MPEP §2142-2143)
The amount of cross-linking agent (e.g., glutaraldehyde) used in the formation of complex coacervate microcapsules is clearly a result effective parameter that a person of ordinary skill in the art would routinely optimize. Optimization of parameters is a routine practice that would be obvious for a person of ordinary skill in the art to employ and would reasonably expect success. It would have been customary for an artisan of ordinary skill to determine the optimal amount of glutaraldehyde in order to best achieve the desired results as such would provide advantageous for wall hardening, which affects the stability during drying, as taught by Leclercq. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to engage in routine experimentation to determine optimal or workable ranges that produce expected results. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F. 2d 454, 105 USPQ 233 (CCPA 1955). The Examiner considers it prima facie obvious to optimize the amounts of any biologically active agent to achieve their known biological effect, absent unexpectedly superior properties of the claimed invention. In the instant case, one of ordinary skill in the art would have recognized that the amount of cross-linking agent would impact the wall hardening and stability during drying steps and therefore be an optimizable variable.
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 would have been prima facie obvious to one of ordinary skill in the art before the invention was effectively filed, as evidenced by the references, especially in the absence of evidence to the contrary.
Thus, the claimed invention was prima facie obvious before the effective filing date of the claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GENEVIEVE S ALLEY whose telephone number is (571)270-1111. The examiner can normally be reached Monday-Friday 8:00-5:00.
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/GENEVIEVE S ALLEY/ Primary Examiner, Art Unit 1617
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