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 1-16, 18- 21 is pending in this office action.
Claims 1-16, 18-21 are rejected.
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.
3. Claims 3 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.
4. Claim 3 recites “applies voltage of about 0.1 kV or more”. It is to be noted that the claim limitation claims voltage. Therefore, it is unclear as to what range may be considered to limit (e.g. cannot be any unlimited higher value) the higher value voltage in order to fulfil the criteria set. Therefore, it is unclear and it renders claim 3 indefinite.
5. Dependent claims 4-6 and claim 21 depends on claim 3 and they claim the ‘voltage’. This renders claims 4-6, and claim 21 unclear and indefinite.
Claim Rejections - 35 USC § 103
6. 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.
7. 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.
8. Claim(s) 1-4, 7-9, 11-16, 18-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Deng Z et al. (CN 111387291 A) (Applicant’s filed FOR prior art on 8/22/2024).
9. Regarding claims 1, 2, Deng Z et al. discloses a method of providing an oil emulsion powder comprising at least one oil, an encapsulating agent, and an emulsifier (optional) by using electrostatic spray drying method for producing perilla oil microcapsules, with a wall material solution at an inlet temperature of 60-100 degree C and outlet temperature 40-60 degree C ( at least in claims 1, 6, 8, 9, 12, 14 ) which reads on claim limitations of independent claim 1. It 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).
10. Regarding claim 3, Deng Z et al. discloses that the spray drying is conducted at an electrostatic voltage between 1kV to 15 kV (at least in claim 6 of Deng Z et al.). Therefore, the disclosed voltage between 1kV to 15 kV overlaps with the claimed voltage of “ about 0.1 kV or more” as claimed in claim 3. It 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).
11. Regarding claim 4, Deng Z et al. discloses that the method is large scale continuous production (at least in Abstract and page 7, last line of paragraph 9 ). Therefore, it would have been obvious that in order to achieve large scale continuous production, the applied voltage be continuous which reads on claim 4. It is also to be noted that the disclosure does not disclose that the method is ‘without continuous voltage’.
12. Regarding claim 7, Deng Z et al. discloses that surface oil is 0.82 -0.85 % (a least in Tables 1). It is also to be noted that the disclosed method meets the claimed method and therefore, the disclosed product made by the method would have identical claimed method which includes the disclosed method will result claimed ‘oil emulsion powder having lower amount of surface free fat compared to a spray dried powder of the same emulsion” as claimed in claim 7.
13. Regarding claim 8, Deng Z et al. discloses that embedding rate is embedding rate is 98% ( page 7, first paragraph, Two paragraphs above “Description of the drawings) and it can vary including 94.9% (at least last paragraph of example 3, Page 10). It is also to be noted that the disclosed method meets the claimed method and therefore, the disclosed product made by the method would have identical claimed method which includes the disclosed method will result claimed ‘encapsulation efficiency 50% or more” as claimed in claim 8.
14. Regarding claim 9, Deng Z et al. discloses that the oil emulsion powder has higher oil content (i.e. equivalent to oil load) of greater than 50% and embedding rate is 98% ( at least on page 8, first paragraph, Two paragraphs above “Description of the drawings”). These meets claim 9. If we interpret higher oil content is “oil load”, it 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).
15. Regarding claims 11, 12, Deng Z et al. discloses the method encapsulation and it can include encapsulating vegetable oil(s), at least perilla oil also (i.e. plant origin) (at least , on page 2, first paragraph , under “Summary of the invention”).
16. Regarding claim 13, 14, 16, Deng Z et al. discloses wall material solution comprises ingredients e.g. carbohydrate e.g. lactose, a lipid, a protein e.g. whey protein etc. (at least on page 17, in claim 8 , step 1 of Deng Z et al. e.g. wall material is encapsulating agent material) and it reads on one or more “ encapsulating agent” as claimed in claim 13, 14, 16 .
17. Regarding claim 15, Deng et al. discloses the step of pre-emulsification step to pre emulsify wall material and coat material (at least claim 1 step 4). It is understood that wall material is encapsulating agents containing encapsulating composition. Therefore, it includes emulsifiers which includes glycerides, citric acid fatty glyceride etc. ( at least in claim 9 of Deng et al.). It is known that citric caid fatty glyceride is a citric acid fatty acid ester of glycerol to meet claim 15.
18. Regarding claim 18, Deng Z et al. discloses that the oil emulsion product contains an emulsifier also which can be monoglyceride ( at least on page 18, in claim 9 of Deng Z et al.).
19. Regarding claims 19, 20, Deng Z et al. discloses that the oil emulsion product further contains an additive e.g. vitamin E (at least on page 18, in claim 14 step 3 of Deng Z et al.).
20. Claim(s) 5, 6 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Deng Z et al. (CN 111387291 A) as applied to claim 3 and further in view of Ackerman et al. US 2017/0120267 A1.
21. Regarding claim 5, Deng Z et al. is silent about “wherein the applied voltage is modulated between two or more different voltages” as claimed in claim 5 and also “wherein the applied voltage alternates charges” as claimed in claim 6.
Ackerman et al. discloses that spray drying method can be performed by using modulation of different voltages by activating a pulse width modulation (PWM) mode of operation for the electrostatic spray assembly in order to produce sprayed particles of different sizes resulting in a varying extent of agglomeration (at least in [0024] of Ackerman et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Deng Z et al. to include the teaching of Ackerman et al. to perform spray drying method by using modulation of different voltages by activating a pulse width modulation (PWM) mode of operation for the electrostatic spray assembly in order to produce sprayed particles of different sizes resulting in a varying extent of agglomeration (at least in [0024] of Ackerman et al.).
Regarding the claim limitation of modulation between “two or more voltages” , it is to be noted that it must be “two” because at least two can account for modulation. However, the number of modulations is optimizable.
Absent showing of unexpected results, the specific number of modulations between two or more voltages is not considered to confer patentability to the claims. As the size of the agglomerated particles are variables that can be modified, among others, by adjusting the number of ‘modulation between two or more voltages’, the precise number of modulation of voltages 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 ‘number of ‘modulation between two or more voltages’ in Deng Z et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired sprayed particles of different sizes resulting in a varying extent of agglomeration (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).
22. Regarding claim 6, it is to be noted that the claim limitation “applied voltage alternates charges” as claimed in claim 6, is interpreted as switching between positive and negative charges as is evidenced by applicant’s own specification (at least in PGPUB [0020]). This is addressed below with claim 21.
23. Regarding claims 6, 21, Deng et al. discloses that the electrical force brings water molecules to move to the outside the droplets (at least in page 4, mid-section, step 4).
However, Deng et al. is specifically silent about the claim limitation of applied voltage alternates charges” as claimed in claim 6” and also “where the applied voltage is modulated between positive and negative charges” as claimed in claim 21.
Ackerman et al. discloses that recirculation of the inert drying gas through the spray drying system 10, furthermore, has been found to enable highly energy efficient operation of the spray drying system 10 at significantly lower operating temperatures, and correspondingly, with significant cost savings. As indicated previously, emulsions to be sprayed typically are made of three components, for example, water (solvent), starch (carrier) and a flavor oil (core). In that case, the object of spray drying is to form the starch around the oil and dry off all of the water with the drying gas. The starch remains as a protective layer around the oil, keeping it from oxidizing. This desired result has been found to be more easily achieved when a negative electrostatic charge is applied to the emulsion before and during atomization (at least in [0112]) because of the fact that the composition including the ingredient liquids including oil molecules having different charges are rearranged properly so that the process is believed to contribute to more rapid drying, or drying with a lower heat source, as well as to more uniform coating (at least in [0113]). Ackerman et al. also discloses that force directs the water molecules to the outer surface of the droplet where they have the greatest surface area to the drying gas which enhances the drying process ([0113]). This is similar to the teaching of Deng et al. that the electrical force brings water molecules to move to the outside the droplets (at least in page 4, mid-section, step 4).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Deng Z et al. to include the teaching of Ackerman et al. to perform spray drying method by using modulation of different voltages including considering applying a negative electrostatic charge which is appropriately applied to the emulsion before and during atomization (at least in [0112]) because of the fact that the composition including the ingredient liquids including oil molecules having different charges are rearranged properly so that the process is believed to contribute to more rapid drying, or drying with a lower heat source, as well as to more uniform coating (at least in [0113]).
24. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Deng Z et al. (CN 111387291 A) as applied to claim 1 and as evidenced by Womack et al. (WO 2019243501 A1).
25. Regarding claim 10, claim 10 claims “oil load 61-90%” and the encapsulation efficiency ranges from 55-90%”. Therefore, claim 10 claims an immediate higher range amount of “oil load” and claims an immediate lower range amount of “encapsulation efficiency” compared to claim 9. It is known and it is evidenced by Womack et al. that there is an inverse relation between “encapsulation efficiency” and “oil load” e.g. the encapsulation efficiency is the ratio between the amount of oil inside the microcapsules and the amount of oil loaded into the slurry during the microencapsulation process and expressed as a percentage (page 30, third paragraph). It is also evidenced by applicants’ specification that “encapsulation efficiency” and “oil load” have inverse relation (at least in PGPUB [0077]).
Deng Z et al. meets claim 9 as discussed above and is applicable here. Therefore,
It would have been obvious that as because claim 10 claims an immediate higher range amount of “oil load 61-90%” as compared to claim 9, therefore, it would have an obvious immediate lower range amount of “encapsulation efficiency” as claimed in claim 10 as compared to claim 9.
It is also within the skill of one of ordinary skill in the art to consider optimization of “encapsulation Efficiency” with the amount of “oil load” in order to achieve desired percent of oil inside the final encapsulated product.
Absent showing of unexpected results, the specific amount of “oil load” and “Encapsulation Efficiency” are not considered to confer patentability to the claims. As the amount of oil inside the microcapsules is variable that can be modified, among others, by adjusting the amount of “Encapsulation Efficiency” with the amount of ‘oil load’ having inverse relation, 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 of “oil load” and “Encapsulation Efficiency” 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 “oil load” and “Encapsulation Efficiency” in Deng Z et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired amount of oil inside the microcapsules in the final product (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).
Conclusion
26. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
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