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 Claims
Claims 1-18 are currently under examination and the subject matter of the present Office Action.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 03/20/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement was considered by the Examiner.
Specification
The disclosure is objected to because of the following informalities: pages 4 and 6 of the specification refer to Figure 1 but should state The Figure as there is only one figure. Appropriate correction is required.
Additionally, a substitute specification excluding the claims is required pursuant to 37 CFR 1.125(a) because the last lines in pages 4 and 5 are misprinted and are not legible.
A substitute specification must not contain new matter. The substitute specification must be submitted with markings showing all the changes relative to the immediate prior version of the specification of record. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. An accompanying clean version (without markings) and a statement that the substitute specification contains no new matter must also be supplied. Numbering the paragraphs of the specification of record is not considered a change that must be shown.
Drawings
The drawing is objected to because there is only one figure and the drawing refers to it as Figure 1. However, 37 CFR 1.84(u)(1) indicates when there is only one drawing, it must not be numbered and the abbreviation FIG must not appear. Therefore, the figure must be referred to as The Figure. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 15-16 are objected to because of the following informalities:
In Claim 15, the Examiner believes that Applicant meant to write “25 x 109 cfu/g” instead of “25 x 109 cfu/g”. Appropriate correction is required.
Claim 16 recites “wherein said probiotic is in sports form”. The Examiner believes that Applicant meant to write “…in spores form”. Clarification or correction is required.
Claim Rejections - 35 USC § 112
Claim 15 is 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 15 is indefinite because it is unclear if the minimum amount of probiotic is based on the total weight of the product, the oil solution containing the probiotic, or something else. As such, the metes and bounds of the claims are unclear. For compact prosecution, the Examiner will interpret the amount to be based on the dried apricot product.
Double Patenting
Claim 5 is objected to under 37 CFR 1.75 as being a substantial duplicate of Claim 4. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m). Both Claims 4 and 5 require mixing the probiotic oil solution with the dried apricot, and appears to require the use of a drum. The claims overlap extensively and therefore are duplicate claims.
Similarly, Claim 7 is objected to under 37 CFR 1.75 as being a substantial duplicate of Claim 1. Both Claims 1 and 7 require the probiotic to be a powder. The claims overlap extensively with negligible difference, and therefore are duplicate claims.
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 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, 7-8, 10, 13, and 15-18 are rejected under 35 U.S.C. 103(a) as being unpatentable over Van Drunen et al. (US 2010/0098806 A1), hereinafter Van Drunen, in view of Mariani (Probiotic Apricots. obtained on 04/06/2026 from Wayback Machine. URL: < https://web.archive.org/web/20210729212531/https://mariani.com/collections/probiotics/products/probiotic-apricots>).
Van Drunen discloses a dehydrated and unprocessed food item, including fruit, at least partially coated with a non-aqueous and nutritionally acceptable solvent comprising a probiotic organism, giving compositions with a long shelf life and preserved taste and flavor (Abstract).
Regarding Claims 1 and 18, Van Drunen teaches dehydrated fruit, coated in a non-aqueous solvent such as vegetable oil, wherein dehydrated probiotic microorganisms are dispersed or combined in the solvent to a desired concentration of coating solution with a total probiotic content of at least 104 cfu/gram of the food item ([0026]-[0027], Claims 1, 8, and 12). The probiotics are also known to be formulated in a powder, reading on the required feature in Claim 7 [0007].
Van Drunen teaches dehydrated fruit but does not teach any specific dried fruit containing sulfur dioxide. Van Drunen does not teach the packaging step.
Mariani teaches a healthy Probiotic Apricots snack, wherein one serving per day deliver active cultures 10x more effectively than yogurt (p. 1, bottom line). Mariani teaches that the packaged dried apricot snack contains apricot, sunflower oil, Bacillus Coagulans, sulfur dioxide and/or sodium bisulfite as preservatives
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine Mariani with Van Drunen and package the dried fruit with probiotic of Van Drunen for commercial distribution. One would choose any desired dried fruit, starting with dried apricot, which Mariani teaches is a good snack, and include sulfur dioxide and/or sodium bisulfite which Mariani teaches act as preservatives.
Regarding Claim 8, Van Drunen teaches the probiotic bacteria may be prepared by freeze-drying, or spray-drying [0025].
Regarding Claim 10, Van Drunen teaches that the amount of coating solution and probiotic organisms may vary considerably, but typically the weight ratio of the coating solution
to the dehydrated food item will be in the range of between 0.001:1 to 10:1, which reads on the claimed feature of at least 3g of probiotic oil solution per 1 kg dried apricots [0028].
Regarding Claim 13, Van Drunen teaches that the probiotic bacteria may be resuspended in an appropriate solvent which may or may not include suitable nutrients including inulin [0025].Regarding Claim 15, Van Drunen teaches a probiotic-fortified dehydrated food having between 104 - 1010 cfu/gram of food item [0027].
Regarding Claim 16, Van Drunen teaches the final probiotic culture comprises spores [0024].
Regarding Claim 17, Van Drunen does not teach application of another coating is required.
Claims 2, 11-12 and 14 are rejected under 35 U.S.C. 103(a) as being unpatentable over Van Drunen in view of Mariani, as applied to Claim 1 above, and further in view of Li et al. (CN 109645500 A, machine translation in IP.com), hereinafter Li, and Kirejevas et al. (US 2012/0058225 A1), hereinafter Kirejevas.
Van Drunen teaches the vegetable oil and probiotic microorganism for coating, but does not teach the probiotic oil components and amounts claimed.
Regarding the high oleic acid oil in Claims 2 and 11-12, Li also teaches a healthy snacks containing dried fruit, oil and bacterium powder, and teaches the oil is high oleic sunflower oil (Abstract; Claim 1). Li teaches that the high oleic sunflower oil contains up to 3 times the oleic acid of common sunflower oil, less saturated fatty acid, has better oxidation stability, is more resistant to heat etc. (p. 9, 1st paragraph). Therefore, one of ordinary skills in the art before the effective filing date would be motivated to use the high oleic sunflower oil as the vegetable oil in the method of Van Drunen as Li teaches the many benefits of using it in a healthy snack.
Further regarding Claim 2, Kirejevas teaches a suspension comprising a vegetable oil and at least one probiotic microorganism (Claim 1). Kirejevas expressly teaches mixing dry powder probiotic with oil at 0.3-15 kg of the probiotic powder per 100 kg oil (Example 2). At 15 kg probiotic, the Examiner calculates the amount of bacteria in the solution to be around 13%, which is within claimed range, and would put the oil to be in the claimed range as well. Kirejevas teaches the suitable oil options to include sunflower oil, and the bacteria to include B. subtilis, which renders Claim 14 obvious. ([0080], Claim 51). This is a situation where elements of references are combined in a predictable manner so that the elements retain their function. As such, the artisan would enjoy a reasonable expectation of success. Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Claim 3 is rejected under 35 U.S.C. 103(a) as being unpatentable over Van Drunen in view of Mariani, as applied to Claim 1 above, and further in view of Yadav, L. (Edible Films and Coatings. Presentation. 2020. 10.13140/RG.2.2.31537.20320/1.).
Van Drunen does not teach the application of the probiotic oil solution on the dried apricots by dripping.
Yadav is in the edible coating field, and teaches dripping as one method of coating (p. 22). Yadav relates that dripping is the most economic coating method, and has been commonly used for coating fruits and vegetables (p. 23).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use a dripping method in coating the probiotic oil solution on dried fruit in the method of Van Drunen as it is suitable for coating fruits. One would have been motivated to do so if cost is of great consideration because Yadav teaches that dripping is the most economic method of coating.
Claims 4-6 are rejected under 35 U.S.C. 103(a) as being unpatentable over Van Drunen in view of Mariani, as applied to Claim 1 above, and further in view of Blanthorn, M. (US 4,961,943).
Van Drunen does not teach the application of the probiotic oil solution on the dried apricots using a drum.
Blanthorn also teaches coating dried fruit pieces with melted fat or oil (Abstract).
Regarding Claims 4-5, Blanthorn relates that fruit pieces are most advantageously coated using a rotating coating drum, wherein the fruit pieces are added to the drum while continuously being rotated, followed by the fat component and the dry coating composition ensuring that the pieces are completely coated (Col. 8, lines 50-58). As such, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use a drum according to Blanthorn to coat the dried apricot taught by Van Drunen in view of Mariani. One would have been motivated to do so to ensure complete coating of the dried apricot pieces.
Regarding Claim 6, because Blanthorn teaches continuous tumbling and agitating, the probiotic oil solution is necessarily continuously mixed as well, which would render the continuous stirring feature obvious (Claims 1-2).
Claims 9 are rejected under 35 U.S.C. 103(a) as being unpatentable over Van Drunen in view of Mariani, as applied to Claim 1 above, and further in view of Stadtman et al. ("Storage of dried fruit-influence of moisture and sulfur dioxide on deterioration of apricots." Industrial & Engineering Chemistry 38.1 (1946): 99-104.), hereinafter Stadtman.
Van Drunen does not teach the amount of sulfur dioxide.
Stadtman is in a related field teaching edible storage life of dried food (Abstract). Stadtman teaches that dried fruits darken and deteriorates over time with storage, and that the most effective method of prolonging the storage life of dried apricots is typically by adding 1000-3000 ppm sulfur dioxide in commercial practice (p. 99, 1st paragraph; p. 102, bottom half of R. Col.). Stadtman teaches studies of different amounts of SO2 initially added to determine effect on storage life under the influence of moisture and temperature (p. 103; Fig. 6.)
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teaching of Stadtman with that of Van Drunen and increase the edible storage life of dried fruit, particularly dried apricot, and slow down deterioration by adding 1000-3000 ppm sulfur dioxide per commercial practice.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the 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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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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