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 .
Status of the Claim
Claims 1-16 are pending in this application. Claims 1-13 and 15-16 are under examination. Claim 14 is withdrawn.
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-13 and 15-16 in the reply filed on 08/07/2026 is acknowledged. Claim 14 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention(s), there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/07/2026.
Drawings
The drawings are objected to because the y-axis on Figure 6 is labeled only by pictures and not words. These pictures can be misconstrued. For example, the third picture from the bottom could be a picture of a lemon slice or of an orange slice. It is unclear what all of these pictures represent, and words should be added to clarify what the pictures are representing.
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.
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 1-13 and 15-16 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 1 lines 9-13 recite, “wherein the hedonic component comprises from 10% to 30% of the composition, wherein the at least one stabilizer comprises from 4.5% to 27% of the composition, and wherein the biopolymer comprises from 49% to 85.5% of the composition.” However, it is unclear what these percentages are based on. Are they based on the weight of the composition or the volume of the composition? These ingredients need a basis for their percentage, e.g. wherein the hedonic component comprises from 10% to 30% w/w based on the total weight of the composition. For the purpose of examination, these ingredient percentages will be viewed as based on the total weight of the composition.
Claim 8 recites, “wherein the plant extract comprises between 0 and 90% of organic acids, between 1 and 99% of disaccharides, between 1 and 60% of fructose and between 1 and 40% of glucose.” However, it is unclear what these percentages are based on. Are they based on the weight of the plant extract? These ingredients need a basis for their percentage, e.g. wherein the plant extract comprises organic acids between 0 and 90% w/w based on the total weight of the plant extract. For the purpose of examination, these ingredient percentages will be viewed as based on the total weight of the plant extract.
Claim 16 recites, “wherein the plant extract comprises between 5 and 90% of organic acids.” However, it is unclear what these percentages are based on. Are they based on the weight of the plant extract? This ingredient needs a basis for its percentages, e.g. wherein the plant extract comprises organic acid between 5 and 90% based on the total weight of the plant extract. For the purpose of examination, the ingredient percentages will be viewed as based on the total weight of the plant extract.
Claims 2-7, 9-13 and 15 are included in the rejection because they depend from a rejected base claim.
Claim Rejections - 35 USC § 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.
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 1-5, 9-13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Subramaniam, US 20080044551.
Regarding claims 1, 2, 4 and 9 Subramaniam discloses a composition, wherein the composition is a solid, as required by claim 1 (spray dried composition in an encapsulated form; Abstract, [0002]). Subramaniam teaches a. a biopolymer selected from the group consisting of a natural gum derived from a botanical source, as required by claim 1, wherein the natural gum derived from a botanical source is selected from the group consisting of gum arabic, as required by claim 2 (spray dried composition dispersed in a carrier of gum arabic; Abstract, [0019]).
Subramaniam discloses b. a flavor, comprising: at least one stabilizer (explosion suppression agent; [0055-0057]) and a hedonic component (active ingredient such as a flavor or a fragrance; [0003], [0006], [0040]), as required by claim 1. Subramaniam teaches wherein the at least one stabilizer is selected from the group consisting of an organic acid, as required by claim 4, where the organic acid is selected from the group consisting of: citric acid, ascorbic acid, tartaric acid, and combinations thereof, as required by claim 9 [0070].
Subramaniam teaches wherein the hedonic component (flavors or fragrances) comprises up to 45% by weight, relative to the weight of the composition (powder products; [0032]). This encompasses the claim 1 range of between 10-30%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Subramaniam teaches wherein the at least one stabilizer (explosion suppressant) comprises from 2-15% by weight relative to the dry weight of the microcapsules [0073], where the microcapsules are in the composition of up to 45% or to 50% [0032], [0034-0035]. Thus, when calculated the at least one stabilizer comprises from about 0-7.5% by weight, relative to the weight of the composition. This overlaps the claim 1 range from 4.5-27%. See MPEP 2144.05(I).
Subramaniam discloses the biopolymer (gum arabic) comprises from 55-60% by weight, relative to the weight of the composition [0036]. This is within the claim 1 range of 49-85.5%.
Regarding claim 3, Subramaniam teaches the composition of claim 1, as discussed above. Subramaniam discloses the composition is free from maltodextrin (prepared using gum arabic, having substantially improved active ingredients compared to their counterparts prepared using maltodextrins as carriers; [0079]).
Regarding claims 5 and 10-13, Subramaniam discloses the composition of claim 4, as discussed above, where claim 4 is met with the teaching of “wherein the at least one stabilizer is… an organic acid.” It is noted that claims 5 and 10-13 further limit the “plant extract” stabilizer option of claim 4. However, claims 5 and 10-13 do not positively recite that the “plant extract” stabilizer is required in the composition. Thus, the claims are rejected based on their dependence on claim 4.
Regarding claim 15, Subramaniam discloses the composition as defined in claim 1. Subramaniam teaches a consumer product selected from the group consisting of a powdered beverage, a sweet good, and a savory good, comprising the composition as defined in claim 1 (a beverage, a nutrition supplement, a chewing tablet or gum, which product comprises a spray-dried composition; claim 13).
Claims 6-8 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Subramaniam, US 20080044551, as applied to claim 4 above, and further in view of Normand et al., US 20150374018 (cited on IDS dated 07/18/2024), as evidenced by Legua et al., Bioactive compounds, antioxidant activity and fruit quality evaluation of eleven blood orange cultivars, Journal of the Science of Food and Agriculture.
Regarding claims 6-8 and 16, Subramaniam teaches the composition of claim 4, as discussed above. Subramaniam does not teach the at least one stabilizer is a plant extract, as required by claims 6 and 7, with the claimed amount of monosaccharides, disaccharides and organic acids, as required by claims 8 and 16.
Normand teaches shelf stable dry particles that include flavors (oxidizable flavor; Abstract, [0010]). Normand teaches the composition includes at least one stabilizer, wherein the at least one stabilizer is a plant extract (oxidizable flavor or flavors that are subject to oxidation and are derived from fruits, where the fruit may be orange juice extracted directly from the fruit, or any variation or hybrid of orange or citrus fruit; Abstract, [0061-0062]), as required by claims 6 and 7. Normand does not specifically note the mixture and amount of monosaccharides, disaccharides and organic acids within the orange juice plant extract but these compounds are present naturally within orange juice extract.
As evidenced by Legua, oranges, specifically the blood orange cultivar of oranges, comprises a mixture of monosaccharides (fructose, glucose), disaccharides (sucrose) and organic acids (malic acid, ascorbic acid, citric acid), as required by claims 6-7. Legua discloses that oranges comprise between 12.01-22.85% organic acids (malic, ascorbic and citric acids), between 50.6-59.43% disaccharides (sucrose), between 22.2-34.26% fructose and 14.6-22.66% glucose or in other words between 36.8-56.92% monosaccharides by weight, relative to the weight of the plant extract (blood orange juice). These percentages were calculated by adding the sum of the organic acids (malic acid, ascorbic acid, citric acid) for each Parameter, i.e. cultivar of blood orange tested, on Table 3 pg. 5, and noting the lowest and highest amount of acid or sugar present in the parameters tested. Thus, the plant extract (orange juice extract) of Normand necessarily teaches the claimed ranges of between 0-90% of organic acids by weight, relative to the weight of the plant extract, as required by claim 8 and between 5-90% organic acids by weight, relative to the weight of the plant extract, as required by claim 16; and also teaches between 1-99% disaccharides, between 1-60% fructose and between 1-40% of glucose by weight, relative to the weight of the plant extract, as required by claim 8. Thus, the plant extract of Normand is considered to have the claimed ingredients within the claimed ranges of claims 6-8 and 16, since oranges naturally contain these ingredients within these ranges, absent convincing arguments or evidence to the contrary. Normand discloses the composition with the plant extract (orange juice extracted directly from the fruit; [0062]) has shelf stable dry particles that are fresher for longer [0010], [0083].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Subramaniam to incorporate the teachings of Normand by having the stabilizer include a plant extract that comprises the mixture of monosaccharides, disaccharides and organic acids as claimed because using a plant extract in the composition with the claimed mixture of acid and sugar produces a shelf stable dry particle that stays fresher for longer, as recognized by Normand [0010], [0062], [0083].
Claims 1-2, 4-7, 9-13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Witteveen et al., US 6746529 (cited on IDS dated 07/18/2024).
Regarding claims 1 and 4, Witteveen teaches a biopolymer (carbohydrate matrix) selected from the group consisting of a natural gum derived from a botanical source, wherein the biopolymer comprises 40 – 80 wt% by weight of the composition [Col 4, lines 27 – 35; Col 3, lines 65 – 67]. This overlaps the claim 1 range of 49-85.5%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(I).
Witteveen teaches 10 – 30 wt% mono-, di-, and trisaccharides are also included in the matrix, including fructose, glucose, and sucrose [Col 4, lines 14 – 20]. These saccharides are considered to be a stabilizer, as required by claims 1 and 4, and overlap the claim 1 range of 4.5-27%. See MPEP 2144.05(I). Witteveen points to sucrose being the preferred mono-, di-, and trisaccharide, implying that any combination of saccharide is possible [Col 4, lines 34 – 35]. The carbohydrate matrix can be combined with a hedonic component such as a flavoring oil that makes up 20 – 30 wt% of the final composition [Col 5, lines 50 – 54]. The flavorant at 20 – 30 wt% provides the matrix at 70 – 80 wt%. This in turn provides ranges of natural gum derived from a botanical source at 28 – 64 wt% (see. MPEP 2144.05(I)), stabilizer at 7 – 24 wt%, and flavorant (i.e., hedonic component) at 20 – 30 wt%, as required by claim 1.
Regarding claim 2, Witteveen teaches the composition of claim 1, as discussed above. Witteveen teaches the use of gum arabic, gum ghatti, gum tragacanth, and Karaya gum as a high molecular weight film forming carbohydrate in the carbohydrate matrix which is then included in the final composition [Col 3, lines 65 – 67].
Regarding claim 5, Witteveen teaches the composition of claim 4, as discussed above. Witteveen teaches the use of mandarin juice solids [Col 8, lines 61 – 63]. Page 2 and Fig 6 of the instant specification identify orange (taken to include mandarin) as a dried plant extract.
Regarding claims 6-7, Witteveen teaches the composition of claim 4, as discussed above. Witteveen teaches the use of mandarin juice solids comprising mono- and disaccharides [Example 4(b)]. Mandarin is a known citrus fruit which would comprise the organic acid citric acid. Therefore, Witteveen teaches the use of a plant extract comprising monosaccharides, disaccharides, and organic acids in the stabilizer of the compound, as required by claims 6 and 7.
Regarding claim 9 – 12, Witteveen teaches the composition of claim 4, as discussed above. Witteveen teaches the use of mandarin juice solids as well as an orange extract [Example 4(b)]. Mandarin juice solids are considered to be an orange/citrus extract which would comprise the organic acid citric acid.
Regarding claim 13, Subramaniam discloses the composition of claim 11, as discussed above, where claim 11 is met with the teaching of “wherein the plant extract is… a citrus fruit extract (mandarin juice solids; [Col 8, lines 61 – 63]).” It is noted that claim 13 further limits the “tree sap” plant extract option of claim 11. However, claim 13 does not positively recite that the “tree sap” plant extract is required in the composition. Thus, the claim is rejected based on its dependence on claim 11.
Regarding claim 15, Witteveen teaches the composition of claim 1, as discussed above. Witteveen teaches that the flavorant used can be fruit flavored or savory [Col 5, lines 45 – 50]. Presumably, compositions with savory flavorants would be used in savory goods.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Witteveen et al., as applied to claim 1 above, and further in view of Axe, Top 5 Dangers of Maltodextrin, Broth of Life (cited on IDS dated 07/18/2024).
Regarding claim 3, Witteveen teaches the composition of claim 1, as discussed above. Witteveen does not explicitly teach an alternative to the maltodextrin in the matrix, or in other words a composition free from maltodextrin, as required by claim 3. Axe teaches the replacement of maltodextrin with either guar gum or pectin [pg. 7 and 9]. Pectin is used as a thickening agent and stabilizer, and is high in water-soluble fiber which promotes digestive health [pg. 7, ¶1 and 2]. Guar gum is a common binding agent that also works as a thickener. Guar gum slows down glucose absorption which is beneficial for diabetics [pg. 9, ¶3 and 4]. It would have been obvious to a person having ordinary skill in the art to replace the maltodextrin of the matrix of Witteveen with guar gum and/or pectin as they provide multiple health benefits.
Claims 8 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Witteveen et al., US 6746529 as applied to claim 4 above, and further in view of Saleeb US 4820534 (cited on IDS dated 07/18/2024).
Regarding claim 8, Witteveen teaches the composition of claim 6, as discussed above. Witteveen does not teach the percentages of the organic acids in the composition and the percentages of each saccharide.
Saleeb teaches a method of fixing volatile flavorants that uses fructose and glucose as low molecular weight carbohydrates [Col 3, lines 28 — 30]. These can be substituted with food safe (organic) acids such as citric and malic acid as they display similar utility [Col 3, lines 37 — 41]. It would have been obvious to use the organic acids of Saleeb and the sugar of Witteveen interchangeably, resulting in the predictable product of a composition with fixed volatile flavorants.
Witteveen teaches the disaccharide is preferably 50 wt% of the saccharides. As a result, the monosaccharides, a mixture of glucose and fructose, are 50 wt%. The ratio of glucose to fructose goes from all glucose to all fructose. Therefore, the possible ranges of each monosaccharide are 0 – 50 wt%, which makes obvious the claimed concentration. In addition, Saleeb also teaches that a mix of monosaccharides and organic acids can be used together [Col 3, lines 42 – 44]. Any portion of the monosaccharides can be replaced by organic acids, resulting in an organic acid amount of 0 – 50 wt% of the stabilizer. As a result, the natural gum derived from a botanical source is 28 – 64 wt%, the stabilizer is 7 – 24 wt% (0 – 50 wt% monosaccharide, 0 – 50 wt% organic acid, and 0 – 50 wt% disaccharide), and flavorant (i.e. hedonic component) at 20 – 30 wt%.
Regarding claim 16, Witteveen discloses the composition of claim 8, as discussed above. Additionally, as set forth above, it would have been obvious to use the organic acids of Saleeb and the sugar of Witteveen interchangeably. Saleeb also teaches that a mix of monosaccharides and organic acids can be used together [Col 3, lines 42 – 44]. Therefore, given that Witteveen teaches an amount of monosaccharides (8 wt%) and disaccharides (11 wt%) in Example 4(b), and that there can be no more organic acids present in the plant extract than there are monosaccharides with which to replace, the resultant composition would comprise an amount of organic acids overlapping the claimed amount (i.e., 0 – 46 wt%).
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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