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 .
Claim Objections
Claim 4 objected to because of the following informalities: “2,16%” in line 2 and “0,2%” in line 4 uses a comma where a decimal point is expected; the limitations should read ”2.16%” and “0.2%” respectively. Appropriate correction is required.
Claim 5 is objected to because of the following informalities: the claim recites “2-3% squalene” in line 2 and “2-3% squalene” in lines 3-4. There is no embodiment in the instant disclosure that comprises greater than 3% squalene, therefore, the repetition of 2-3% Squalene in lines 3-4 is interpreted to be a mistype. For the purposes of interpretation, the second recitation will not be considered as further limiting the claim. Appropriate correction is required.
Claim 5 is objected to because of the following informalities: the claim recites “2% squalene” in line 2 and “2% squalene” in line 4. There is no embodiment in the instant disclosure that comprises greater than 3% squalene, therefore, the repetition of 2% Squalene in line 4 is interpreted to be a mistype. For the purposes of interpretation, the second recitation will not be considered as further limiting the claim. Appropriate correction is required.
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 1-6 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.
Regarding claims 1-6, all claims recite limitations represented in percentages but provide no basis for the percentage. For the purposes of examination, the percentages in claims 1-6 will be interpreted as being the percentage of the total weight of the composition.
Regarding claims 4 and 6, the phrase "preferably" 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).
For the purposes of examination, the recitations following the phrase preferably will be considered as further limiting the 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 (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.
Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Ikemoto (US 2020/0337332 A1) in view of Palabiyik et al. (Development of a Natural Chewing Gum from Plant Based Polymer, Science+Business Media).
With respect to Claim 1, Ikemoto teaches a gummy candy comprising a fat or oil, an emulsifier, [0027] and a gelling agent, [0028] wherein the fat or oil can be squalene [0037] and the gelling agent can be an agar. [0038] Ikemoto teaches the amount of fat in the composition ranges from 0.795%-3.975% [Table 1] and the amount of gelling agent can be between 5-15%. [0038] Ikemoto is silent to the use of kenger gum in the composition.
Palabiyik et al. teaches a study of kenger gum and the properties therein, as well as the functional use of kenger gum as a natural replacement for synthetic gum bases. [Abstract] Palabiyik et al. teaches that natural foods are preferred by consumers and the kenger gum exhibited antioxidant and antibacterial effects. [Conclusions] Additionally, Palabiyik et al. teaches a composition comprising the kenger gum that comprises of 25% kenger gum, 20% glucose syrup, 53% powdered sugar, and sorbitol. [Pg. 1972, Col. 2, Par. 1]
Ikemoto and Palabiyik et al. exist within the same field of endeavor, in that they teach sweet food compositions. Where Ikemoto teaches a soft candy comprising squalene, Palabiyik et al. teaches a specific, natural, and nutritive gum in kenger gum.
A gummy candy according to Ikemoto would comprise squalene in a range that overlaps with the range recited in claim 1. 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”.
Palabiyik et al. is silent to the kenger gum being used in a soft candy, but does teach that it is a substitute for other gum components. According to MPEP 2144.07, “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination”. One would have been motivated to substitute the gelling agent in Ikemoto with the kenger gum taught in Palabiyik et al. due to the natural and beneficial health properties associated with the compound.
The composition taught by Ikemoto, wherein the gelling agent is kenger gum, would have between 5-15%, and according to MPEP 2144.05 II, “[W]here 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”. Therefore, it would have been obvious to one of ordinary skill in the art to have optimized the amount of gelling agent in the confection in order to produce a soft candy comprising between 2-3% kenger gum.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Ikemoto in view of Palabiyik et al. in order to produce a soft candy with 2-3% kenger gum and 2-3% squalene, thereby rendering claim 1 obvious.
With respect to Claim 2, Ikemoto in view of Palabiyik et al. teaches the invention recited in claim 1, as described above. Additionally, a gummy candy according to Ikemoto would comprise squalene in a range that overlaps with the range recited in claim 1. 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”.
Palabiyik et al. is silent to the kenger gum being used in a soft candy, but does teach that it is a substitute for other gum components. According to MPEP 2144.07, “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination”. One would have been motivated to substitute the gelling agent in Ikemoto with the kenger gum taught in Palabiyik et al. due to the natural and beneficial health properties associated with the compound.
The composition taught by Ikemoto, wherein the gelling agent is kenger gum, would have between 5-15%, and according to MPEP 2144.05 II, “[W]here 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”. Therefore, it would have been obvious to one of ordinary skill in the art to have optimized the amount of gelling agent in the confection in order to produce a soft candy comprising 2% kenger gum.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Ikemoto in view of Palabiyik et al. in order to produce a soft candy with 2% kenger gum and 2% squalene, thereby rendering claim 2 obvious.
Claims 3-6 are rejected under 35 U.S.C. 103 as being unpatentable over Ikemoto (US 2020/0337332 A1) in view of Palabiyik et al. (Development of a Natural Chewing Gum from Plant Based Polymer, Science+Business Media) as applied to claim 1 above, and in further view of Brendel et al. (US 2017/0135368 A1).
With respect to Claim 3 and 4, Ikemoto in view of Palabiyik et al. teaches the invention recited in claim 1, as described above, wherein it would have been obvious to produce a composition comprising between 2-3% kenger gum and squalene. Additionally, Ikemoto teaches a sugar solution, derived from glucose, [0047] that reads on a glucose syrup. The addition of the sweetener in Ikemoto is between 0.55-85%. [0060] Palabiyik et al. teaches the use of powdered sugar at an amount of about 53%. [Pg. 1972, Col. 2, Par. 1] Both Ikemoto and Palabiyik et al. are silent to the inclusion of an aroma.
Brendel et al. teaches a confectionary composition comprising less than 3% fat [0023] that can be combined with 0.1-8% flavor. [0038] The flavor of Brendel et al. reads on the limitation of an aroma, and the confectionary composition of Brendel et al. possesses the beneficial attributes of retaining the organoleptic properties of a full fat composition while having a healthier nutritional profile. [0020]
Ikemoto, Palabiyik et al., and Brendel et al. exist within the same field of endeavor, in that they teach sweet food compositions. Where Ikemoto teaches a soft candy comprising squalene, Palabiyik et al. teaches a specific, natural, and nutritive gum in kenger gum, and Brendel et al. teaches that confectionary compositions are known to comprise flavor/aromas.
The amount of glucose syrup taught in Ikemoto and the amount of aroma taught in Brendel et al. overlap with the ranges recited in claims 3 and 4, and 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”.
The amount of powdered sugar taught by Palabiyik et al. teaches the use of powdered sugar in a confection, and the range is close to the amount recited in claims 3 and 4. One of ordinary skill in the art would have been motivated to determine the optimal amount of powdered sugar to add to the composition in order to determine the best flavor. According to MPEP 2144.05 II, “[W]here 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”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Ikemoto in view of Palabiyik et al. and in further view of Brendel et al. to produce a composition comprising 2-3%, or 2.16% kenger gum, 2-3%, or 2% squalene, 45-50%, or 46.72% powdered sugar, 45-50%, or 48.92% glucose syrup, and 0.1-0.3%, or 0.2% aroma, thereby rendering claims 3 and 4 obvious.
With respect to Claim 5 and 6, Ikemoto in view of Palabiyik et al. teaches the invention recited in claim 1, as described above, wherein it would have been obvious to produce a composition comprising between 2-3% kenger gum and squalene. Additionally, Ikemoto teaches the use of sugar alcohols as sweeteners, specifically, sorbitol and xylitol, [0047] in an amount between 0.55-85%. [0060] Ikemoto and Palabiyik et al. are silent to a teaching of the use of an aroma and the use of isomalt and maltitol.
Brendel et al. teaches a confectionary composition comprising less than 3% fat [0023] that can be combined with 0.1-8% flavor. [0038] The flavor of Brendel et al. reads on the limitation of an aroma, and the confectionary composition of Brendel et al. possesses the beneficial attributes of retaining the organoleptic properties of a full fat composition while having a healthier nutritional profile. [0020] Additionally, Brendel et al. teaches the use of sweeteners in the form of powder or syrup, and provides specific examples such as maltitol syrup, isomalt, sorbitol, and xylitol. [0116]
Ikemoto, Palabiyik et al., and Brendel et al. exist within the same field of endeavor, in that they teach sweet food compositions. Where Ikemoto teaches a soft candy comprising squalene, Palabiyik et al. teaches a specific, natural, and nutritive gum in kenger gum, and Brendel et al. teaches that sweeteners and flavors/aromas as claimed are known to be included in confectionary compositions.
The amount of sweetener in Ikemoto overlaps with the amount of each sweetener used in claims 5 and 6, and Brendel et al. teaches the use of isomalt, maltitol syrup, sorbitol, and xylitol as sweeteners in a confectionary composition. According to MPEP 2144.07, “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination”. Additionally, MPEP 2144.05 I states, “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 substituting the sugar alcohols taught in Brendel et al. for the amount taught in Ikemoto et al., the range of isomalt, maltitol syrup, sorbitol powder, and xylitol would overlap with the amount recited in claims 5 and 6, as well as the amount of aroma taught in Brendel et al.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have produced a composition comprising 2-3%, or 2% kenger gum, 2-3%, or 2% squalene, 55-56%, or 55.81% isomalt, 15-16%, or 15% powdered sorbitol, 19-21%, or 20% maltitol syrup, 4-6%, or 5% xylitol, and 0.1-0.3%, or 0.2% aroma, thereby rendering claims 5 and 6 obvious.
Conclusion
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/J.C.M./Examiner, Art Unit 1791