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 .
Claim Rejections - 35 USC § 101 and 35 USC § 112
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
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 15 and 16 are rejected under 35 U.S.C. 101 as directed to nonstatutory subject matter and/or 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 (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. The claims do not fall within at least one of the four categories of patent eligible subject matter because the claim fails to recite any process steps. Further, the claims merely recite a use (“for reducing an odor”) without any active, positive steps delimiting how this use is actually practiced (See MPEP 2173.05(q)).
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.
Claims 1-2 and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2018/161069 (Miyazawa) in view of JP 2007185109 (Koyanagi) OR alternatively, Koyanagi in view of Miyazawa and further in view of CN 102090684 (Zhang).
Miyazawa discloses a flavor and smell correcting agent and aroma composition for flavor correcting and smell correcting. Miyazawa discloses a method of removing or reducing a foreign taste and a foreign odor of health food and drink without damaging a preferable taste inherent in the food and drink to thereby make it easy to take the food and drink (abstract). Specifically, an active ingredient including ethyl butyrate is added to the food/drink to correct the flavor and smell. The food and drink may be a vegetable juice containing beverage with functional ingredients such as peptides. Miyazawa discloses that the prior art discloses adding ginger to mask the unpleasant odor of collagen peptides, thus recognizing that peptides, such as collagen, are in need of masking with an agent.
Miyazawa does not expressly disclose that the peptides in the beverage are collagen peptides although the reference does cite a prior art teaching of collagen peptides. Koyanagi discloses collagen peptides are added to juice beverages and other types of beverages for the benefit of skin improvements (background) and that the collagen needs to be provided with a flavor to mask the odor and flavor of the collagen peptides. Thus, it would have been obvious to one of ordinary skill in the art to use collagen peptides as the peptide source in Miyazawa as Koyanagi discloses that such collagen peptides are known for use in beverages.
Regarding the amount of peptides in the food/drink, Miyazawa does not expressly disclose the amount of peptides. Koyanagi discloses that the amount of collagen peptides is not particularly limited and gives an example of 0.1-4wt% in consideration of the flavor of the resulting beverage. Additionally, Zhang discloses a marine collagen peptide drink comprising collagen peptides in an amount of 1-10wt% in addition to juice. It would have been obvious to provide the collagen peptides in amounts up to 10wt% as demonstrated by Zhang and balanced with the flavoring of the beverage and masking agents as suggested by Koyanagi. One of ordinary skill would have found it obvious to optimize the amount of collagen peptides to obtain the benefits thereof with the flavoring and juice amounts to optimize the taste.
Alternatively, it would have been obvious to modify Koyanagi to add the flavoring agent of ethyl butyrate thereto as suggested by Miyazawa to mask the smell or flavor thereof. One of ordinary skill would reasonably expect the ethyl butyrate to act as a mask for the collagen peptides in Koyanagi as this masking ability is recognized by Miyazawa.
Claims 1-2 and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over CN 102090684 (Zhang) in view of JP 2018/161069 (Miyazawa).
Zhang and Miyazawa are discussed above. Zhang discloses a drink with collagen peptides in an amount of 1-10wt% but does not disclose ethyl butyrate as a flavor masking agent for the collagen. Miyazawa discloses ethyl acetate can be added to food and drinks with peptides to mask the flavor and aroma thereof. It would have been obvious to one of ordinary skill in the art to add ethyl butyrate to the beverage of Zhang to mask the collagen peptide taste and aroma with a reasonable expectation of success based upon the teachings for such a use by Miyazawa.
Regarding the mass ratio of ethyl butyrate to collagen, Miyazawa discloses that ethyl butyrate may be added in amounts of 4500-135,000 ppb and Zhang discloses 1-10wt% collagen peptides. These amounts overlap with the claimed ratio and present a prima facie case for obviousness. Moreover, one of ordinary skill in the art would have found it obvious to vary the amounts of ethyl butyrate to provide the desired level of masking of the collagen and optimize the taste and aroma thereof.
Claims 3-12 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2018/161069 (Miyazawa) in view of JP 2007185109 (Koyanagi) OR alternatively, Koyanagi in view of Miyazawa and further in view of CN 102090684 (Zhang) as applied to claims 1 and 2 above, and further in view of JP 2019/041696 (Tetsui).
Miyazawa, Koyanagi and Zhang are discussed above, but do not specifically disclose the addition of linalool or lactones. Tetsui discloses an oral composition comprising collagen peptides and a method of masking the odor and taste thereof by adding linalool and decalactone in amounts of 0.1-1.2 ppm and 0.5-10ppm respectively. It would have been obvious to add linalool and/or decalactone to Miyazawa or Koyanagi as modified above with a reasonable expectation of successfully masking the collagen peptides as taught by Tetsui.
Regarding the amounts of linalool and lactone, the relative amounts of ethyl butyrate disclosed by Zhang and the amounts of Tetsui provide an overlapping range for the ratio claimed. Moreover, one of ordinary skill in the art would have found it obvious to vary the amounts of ethyl butyrate, linalool and/or decalactone to provide the desired level of masking of the collagen and optimize the taste and aroma thereof.
Claims 3-12 are rejected under 35 U.S.C. 103 as being unpatentable over CN 102090684 (Zhang) in view of JP 2018/161069 (Miyazawa) as applied to claims 1 and 2 above, and further in view of JP 2019/041696 (Tetsui).
Miyazawa and Zhang are discussed above, but do not specifically disclose the addition of linalool or lactones. Tetsui discloses an oral composition comprising collagen peptides and a method of masking the odor and taste thereof by adding linalool and decalactone in amounts of 0.1-1.2 ppm and 0.5-10ppm respectively. It would have been obvious to add linalool and/or decalactone to Miyazawa as modified above with a reasonable expectation of successfully masking the collagen peptides as taught by Tetsui.
Regarding the amounts of linalool and lactone, the relative amounts of ethyl butyrate disclosed by Zhang and the amounts of Tetsui provide an overlapping range for the ratio claimed. Moreover, one of ordinary skill in the art would have found it obvious to vary the amounts of ethyl butyrate, linalool and/or decalactone to provide the desired level of masking of the collagen and optimize the taste and aroma thereof.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/ Primary Examiner, Art Unit 1793
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