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 .
DETAILED ACTION
Status of the application
2. Claims 1-12 are pending in this application.
Claims 1-12 have been rejected.
Claim Rejections - 35 USC § 103
3. 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.
4. 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.
5. 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 non-obviousness.
6. Claim(s) 1-4, 6, is/are rejected under 35 U.S.C. 103 as being unpatentable over Magana et al. US2016/0242450.
7. Regarding claims 1, 3, Magana et al. discloses a functional gel food product composition with gelling agent (s) which can be used as a food or as a supplement to another food , e.g. meal, snack food ([0026]) . Magana et al. discloses that gelling agent(s) ([0030]) including agar, locust bean gum etc. (at least in claim 5 of Magana et al.) and that the gelling agent is used in an amount ranging from about 0.1 to 12 percent ([0031]) which meets claimed range amount of 1 to 40 gm thickening agent per liter of water (i.e. 0.1-4.0 % by weight thickener)” as claimed in claim 1. Magana et al. also discloses that functional gel comprises water ranging from 2-90% by weight ([0030], [0035]) which meets claimed range amount of 30-45% by weight of water in the food composition. Therefore, the disclosed range amounts of gelling agent and water content encompasses the claimed range amount of shows prima facie case of obviousness according to MPEP 2144.05. 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).
Magana et al. also discloses that wherein said food composition comprises sweetener(s), flavoring, medium chain triglyceride (MCT) (at least in [0178]-[0181]).
However, Claim 1 claims “dehydrated form having a water content 30-45% w/w”
Magana et al. discloses “gelled food precursor” ([0030] can be used as food or can supplement to meal , snack food etc. ( [0025]) as claimed in claim 1.
As discussed above, Magana et al. discloses 2-90 wt.% water ([0035]). Therefore, Magana et al. encompasses claimed range amount of 30-45% by weight water as claimed in claim 1.
In order to address “dehydrated form”, Magana et al. is specifically silent about this claim limitation, in particular, “a dehydrated form having water content of 30% w/w to 45% w/w ”. However, it is within the skill of one of ordinary skill in the art to perform desired dehydration to remove moisture as desired to make desired food having claimed 30-45% water content as claimed in claim 1. It is within the skill of one of ordinary skill in the art to optimize the water content of the food product by dehydrating to a desired limit to have desired water content in order to have desired dehydrated gelled food.
Absent showing of unexpected results, the specific amount of water content of the dehydrated form gelled food precursor is not considered to confer patentability to the claims. As the water content is variable that can be modified, among others, by adjusting the conditions e.g. by adjusting programming of the extruder temperature, and also by considering further drying after extrusion, if needed, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of water content in Magana et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired moisture content for desired dehydrated form (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding the claim limitation of “ wherein the thickening agent, sweetener, water, and flavoring agent do not produce an insulin spike or increased blood glucose level upon consumption” is considered as the property of the thickening agent comprising these components as mentioned above. As discussed above, the disclosed functional gel comprising gelling agents and other components including MCT oil etc. are identical to the claimed functional gel comprising gelling agents and other components including MCT oil etc. and therefore, will have identical claimed property including the claimed property of “do not produce an insulin spike or increased blood glucose level upon consumption” as claimed in independent claim 1.
8. Regarding claims 2, 3, Magana et al. discloses that at least one gelling agent including agar, locust bean gum etc. (at least in claim 5 of Magana et al.) and agar is agar-agar ( [0038], [0039]).
9. Regarding claim 4, Magana et al. discloses that sweeteners can include sugar alcohol e.g. xylitol, erythritol etc. ( [0178], [0179]).
10. Regarding claim 6, Magana et al. discloses the food composition further comprising preservatives ([0189]).
11. Claim 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Magana et al. US2016/0242450 as claimed in claim 1 and further in view of Jones et al. WO 97/07690 A2.
12. Regarding claim 5, Magana et al. discloses MCT oil can be included in such a composition ([0181]). However, Magana et al. is silent about the amount of MCT oil to be used.
Jones et al. discloses that a medium chain triglyceride can be introduced in such a gel composition in an amount from 4% to about 25% by weight (Second para under DETAILED DESCRIPTION, lines 17-19, 4-25 wt.% MCT).
Jones et al. also discloses that MCT provide a number of important benefits to the inventive food gel. For example, the caloric density of MCT (8.3 kcal/gram) is more than twice the caloric density of carbohydrates and proteins (about 3 to about 4 kcal/gram). Thus, on a weight basis, MCTs are known to deliver more than twice the energy (expressed in calories) of carbohydrates and proteins (gram for gram) upon digestion in the body (page 6 lines 6-10) .
Other benefits result from incorporation of MCTs in the food gel. For example, MCTs included in the body appear to improved absorption of amino acids derived from protein. Also, calcium and magnesium absorption appear to be enhanced when the diet includes MCTs. Additionally, it appears that MCTs improve the body's tolerance for carbohydrates ( page 7, lines 5-12).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Magana et al. to include the teaching of Jones et al. to include medium chain triglyceride to be introduced in such a gel composition in an effective amount from 4% to about 25% by weight (Second para under DETAILED DESCRIPTION, lines 17-19, 4-25 wt.% MCT). In such a gel composition in order to improve absorption of amino acids derived from protein. Also, calcium and magnesium absorption appear to be enhanced when the diet includes MCTs. Additionally, it appears that MCTs improve the body's tolerance for carbohydrates ( page 7, lines 5-12).
13. Claims 7, 8-10, is/are rejected under 35 U.S.C. 103 as being unpatentable over Magana et al. US2016/0242450 and further in view of Shank USPN 4341810 A.
14. Regarding claims 7, 9, Magana et al. discloses a food composition comprising at least one gelling agent including agar, locust bean gum etc. (at least in claim 5 of Magana et al.) and that the gelling agent is used in an amount ranging from about 0.1 to 12 percent and water can be 2-90% by weight ([0012]). Magana et al. also discloses that wherein said food composition comprises sweetener(s), flavoring, medium chain triglyceride (MCT) ([0181]), optionally water ([0030]).
Regarding the claim limitation of “wherein the dehydrated form is formed from a gelled food precursor comprising 1 to 40 gm thickening agent per liter of water (i.e. 0.1-4.0 % by weight thickener)” as claimed in claim 7.
It is to be noted that Magana et al. discloses that food product ([0026]) comprises functional gel ([0030]-[0035]) containing agar and locust bean gum to make elasticity of the gel ([0038]).
Therefore, Magana et al. discloses “gelled food precursor” ([0030] of snack food ( [0025]) as claimed in claim 7.
Magana et al. discloses 2-90 wt.% water ([0035]). Therefore, Magana et al. encompasses claimed range amount of less than 10% by weight water as claimed in claim 7.
In order to address “dehydrated form”, Magana et al. is specifically silent about this claim limitation, in particular, “a dehydrated gel product having less than 10 % by weight water”. However, it is within the skill of one of ordinary skill in the art to perform desired dehydration to remove moisture as desired to have claimed less than 10% by weight water content as claimed in claim 7. It is within the skill of one of ordinary skill in the art to optimize the water content of the food product by dehydrating to a desired limit to have desired water content in order to have desired puffed or popped form of gelled food.
Therefore, it is addressed using result effective variable as presented below.
Absent showing of unexpected results, the specific amount of water content of the dehydrated form gelled food precursor is not considered to confer patentability to the claims. As the water content is variable that can be modified, among others, by adjusting the conditions e.g. by adjusting programming of the extruder temperature, and also by considering further drying after extrusion, if needed, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of water content in Magana et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired moisture content for desired dehydrated form (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
However, Magana et al. is silent about “A puffed or popped form of a gelled food product” as claimed in independent claim 7.
Shank discloses such nutritional dehydrated gelled product can include an alkaline material which is selected from the group consisting of sodium and potassium carbonates, and bicarbonates and mixtures thereof, which can trap carbon dioxide bubbles emitted therein and provides the benefit of making quickly carbon di oxide trapped foamed gelled food product (at least in col 9 lines 30-40 and in claims 19, 20 of Shank). It would have been obvious that this is interpreted as the presence of carbon -di-oxide makes expanded gelled product and expanded term can be named foamed or equivalent without requiring beating or air entrapment (col 9 lines 40-42) as puffed or popped when product made by extrusion is considered.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Magana et al. to include the teaching of Shank to incorporate sodium bicarbonate to make expanded extruded gelled product in order to have desired specific texture for further consumption as food or with food.
Regarding the claim limitation of “ wherein the thickening agent, sweetener, water, and flavoring agent do not produce an insulin spike or increased blood glucose level upon consumption” is considered as the property of the thickening agent comprising these components as mentioned above. As discussed above, the disclosed functional gel comprising gelling agents and other components including MCT oil etc. are identical to the claimed functional gel comprising gelling agents and other components including MCT oil etc. and therefore, will have identical claimed property including the claimed property of “do not produce an insulin spike or increased blood glucose level upon consumption” as claimed in independent claim 7.
15. Regarding claim 8, Magana et al. discloses that at least one gelling agent including agar, locust bean gum etc. (at least in claim 5 of Magana et al.).
16. Regarding claim 10, Magana et al. discloses the food composition further comprising preservatives ([0189]).
17. Claim 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Magana et al. US2016/0242450 in view of Shank USPN 4341810 A as applied to claim 7 and further in view of Popel USPN 3800050.
18. Regarding claim 11, Magana et al. in view of Shank are silent about “fried -in-oil form” as claimed in claim 11.
Popel et al. discloses that “When a piece is fried in hot cooking oil, the relatively impermeable surface produced by the extrusion process retards the penetration of oil and tends to seal the water in the interior of the piece until the temperature of the interior is above the boiling point of the water, at which time the pressure from the inside of the piece suddenly blows it up and expands it to such a low specific gravity that it rises to the surface of the hot oil in which it is fried and facilitates its easy and automatic removal. The piece is drained of excess fat to produce a puffed, crisp fried-food snack” (Col 6 lines 15-27).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Magana et al. in view of Shank to include the teaching of Popel et al. to further fried in hot cooking oil, the relatively impermeable surface produced by the extrusion process retards the penetration of oil and tends to seal the water in the interior of the piece until the temperature of the interior is above the boiling point of the water, at which time the pressure from the inside of the piece suddenly blows it up and expands it to such a low specific gravity that it rises to the surface of the hot oil in which it is fried and facilitates its easy and automatic removal. The piece is drained of excess fat to produce a puffed, crisp fried-food snack” (Col 6 lines 15-27).
19. Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Magana et al. US2016/0242450 and further in view of Shank USPN 4341810 A as applied to claim 7 and further in view of Thami et al. USPN 5496936.
20. Regarding claim 12, Magana et al. in view of Shank are silent about the claim limitation of “air frying” of the gelled product.
Thami et al. discloses that such a product can be dried with hot air after extrusion ( at least in col 2 lines 32-41, e.g. line 40 has “hot air drying”). It is to be noted that hot air drying” is “air frying” to make air fried form.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Magana et al. in view of Shank to include the teaching of Thami et al. to perform further hot air drying (at least in col 2 lines 32-41, e.g. line 40 has “hot air drying”) which is simple and effective method in order to have dried puffed gelled product as desired choice.
Conclusion
21. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792