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 1, 3-8, 10-14, 16, 19-30, 32-33, 36-39 in the reply filed on 2 March 2026 is acknowledged. Claim 41 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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 3 and 22 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.
Claim 3 recites “xanax polysaccharide”. This does not appear to be a term of art and applicant’s specification does not provide a definition. As such, it is unclear what is encompassed by this term. Appropriate correction is required.
Claim 22 recites “the fruit juice”. Neither claim 22 nor claims 21 and 1, from which claim 22 depends, positively recite a fruit juice. As such, there is insufficient antecedent basis for this term in the claims. Appropriate correction is required.
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.
Claims 1, 3, 4, 8, 14, 19, 20 and 23-29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DeBrock USPGPub 20070172570.
Regarding claims 1, 3, 4, 8 and 14, DeBrock teaches a composition comprising:
Coconut oil [0025]
Water [0030]
Condensed whole milk solids which necessarily comprise the animal-derived gum casein [0024]
High ester citrus pectin [0032]
The pH of the composition of DeBrock can be 6.45.[0031] The composition is disclosed to be a stable mixture of oil and water and is therefore interpreted to be an emulsion.
Regarding claims 19, 20 and 26, DeBrock teaches additives such as sugar which is a nutritive sweetener. [0033,0031]
Regarding claims 23-25 and 27-29, these claims recite specific species of the genus elements recited in claim 20, but do not positively recite that the species elements recited are required to be present. As such, the additive sugar reads on these claims since sugar reads on claim 20.
Claim Rejections - 35 USC § 102/103
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.
Claims 32, 33 and 36-39 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over DeBrock USPGPub 20070172570 as applied to claim 1 above.
Regarding claims 32, 33 and 36-39, DeBrock is silent regarding the specific stability parameters recited in these claims. However, given that DeBrock comprises the same composition as claimed and disclosed by applicant and given that DeBrock recites the composition is “suitable for long-term storage” [0007], it necessarily follows that the composition of DeBrock would have a stability as recited in claims 32, 33 and 36-39, or in the alternative the stability parameters recited therein are merely an obvious variant of the prior art.
Claim Rejections - 35 USC § 102/103
Claims 5-7, 10, 12 and 13 are rejected under 35 U.S.C. 103 as obvious over DeBrock USPGPub 20070172570 as applied to claim 1 above in further view of Tatz USPGPub 20060093720.
Regarding claims 5-7, DeBrock teaches what is recited above but is silent regarding the hydrocolloid gums recited in claims 5-7.
Tatz teaches “Gelling polysaccharide polymers are well-known in the art (see, e.g., Clark, "Gels and gelling" in Physical Chemistry of Foods, Schwartzberg and Hartel, editors; published by Marcel Dekker, 1992). Polysaccharide gelling agents that can be transformed from a liquid state to a semi-solid or solid state include, but are not limited to, carrageenan, agar, gellan gum, pectin, gelatin, xanthan gum/locust bean gum, konjac glucomannan, furcelleran, chitosan, modified starch, curdlan and alginate.”[0120]
DeBrock and Tatz are both directed to compositions comprising hydrocolloid thickening (gelling) agents. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used any of the hydrocolloids disclosed by Tatz in combination with the high ester pectin disclosed by DeBrock since these gums were well known to those of ordinary skill in the art to be suitable gelling agents. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07) Additionally, As stated in MPEP 2144.06 ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)” As such, claims 5-7 are obvious over DeBrock and Tatz.
Regarding claims 10, 12 and 13, DeBrock is silent regarding high acyl gellan gum.
Tatz teaches “A polymer of bacterial origin that can be used as a gelling agent is, for example, gellan gum. Gellan gum is known to those skilled in the art (see, e.g., Sanderson, "Gellan Gum" in Food Gels (edited by Peter Harris, London: Elsevier Applied Science, Elsevier applied food science series (1990), ISBN 1-85166-441-6). Gellan gum is the extracellular polysaccharide produced by the organism Sphingomonas elodea during aerobic fermentation. The primary structure of gellan gum is composed of a linear tetrasaccharide repeat unit containing glucose, glucuronic acid, glucose and rhamrose residues. The biopolymer is produced with two acyl substituents present on the 3-linked glucose, namely, L-glyceryl, positioned at O(2) and an acetyl substituent at O(6). The degree of acylation influences the resulting gel. Low acyl gellan gum produces firm, brittle gels which are very heat stable. High acyl gellan gum produces soft, elastic gels which are thermo-reversible. Blends of the high acyl and low acyl gellan gums can be used to formulate gels of intermediate hardness and varying degrees of heat stability. The low or high acyl gellan gums or blends thereof can be used as a gelling agent in the compositions provided herein.”
DeBrock and Tatz are both directed to compositions comprising hydrocolloid thickening (gelling) agents. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used high acyl gellan gum as disclosed by Tatz in combination with the high ester pectin disclosed by DeBrock since this gum was well known to those of ordinary skill in the art to be a suitable gelling agent. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07) Additionally, As stated in MPEP 2144.06 ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
Regarding the proportions of high ester pectin (high methoxy) and high acyl gellan recites in claims 12 and 13, the obvious combination of high ester pectin and high acyl gellan encompasses proportions of each component of 0-100%. As such, the ratio of these components to one another encompasses the ratios recited in claims 12 and 13. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) Therefore, the modification of DeBrock with Tatz renders obvious claims 10, 12 and 13.
Claims 16 is rejected under 35 U.S.C. 103 as obvious over DeBrock USPGPub 20070172570 as applied to claim 1 above.
Regarding claim 16, DeBrock teaches what is recited above but is silent regarding a pH less than about 5. However, given that DeBrock teaches adjusting the pH of the beverage [0031], it would have been obvious to one of ordinary skill in the art at the time the application was filed to have varied the amount of acidulant added depending on the acidity desired for the final beverage. As such, claim 16 is merely an obvious variant of the prior art.
Claims 21 and 22 are rejected under 35 U.S.C. 103 as obvious over DeBrock USPGPub 20070172570 as applied to claim 1 above in further view of Shioya USPGPub 20050147728.
Regarding claims 21 and 22, DeBrock teaches what has been recited above but is silent regarding green coffee extract. DeBrock further teaches the beverage may comprise flavor such as natural orange, peach or strawberry (i.e. juice). [0035]
Shioya teaches a beverage having antihypertensive action from the presence of chlorogenic acid added to the beverage via green coffee extract. [0001,0004,0012] When chlorogenic acid is added in the presence of fruit flavor such as orange, peach or strawberry the bitter taste thereof is ameliorated. [0006,0016]
DeBrock and Shioya are both directed towards beverages comprising flavor such as orange, peach or strawberry. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have included green coffee extract in the beverage of DeBrock in order to impart antihypertensive action thereto with a reasonable expectation of ameliorating the bitter taste thereof because of the presence of fruit flavor such as natural orange, peach or strawberry. The obvious modification of DeBrock with Shioya would have produced the invention as claimed in claims 21 and 22.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793
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