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 Application
Claims 1-9 and 11-13 filed in a preliminary amendment on 8/2/2024 are pending in the application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 8/12/2025 and 8/2/2024 were filed before the first Office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 13 and dependent claims 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 13 recites “the pectin methylesterase source” without antecedent basis. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Appropriate correction is required.
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.
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.
Claim(s) 1-9 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. (CA2415956C) cited in an IDS.
Regarding claim 1, Roy discloses a sweetened low moisture food product, comprising: about 55% to 85% by weight of a nutritive carbohydrate sweetener (corresponding to the limitation “non-dietary fiber carbohydrate”); a gelling system, comprising: about 0.5% to about 2% by weight of an added high methoxyl pectin having a degree of esterification, D.E., ranging from about 50 to 65, (corresponding to “dietary fiber”) and about 0.1 % to about 0.6% by weight kappa carrageenan; about 0.1 % to about 1 % by weight of an edible organic acidulant; and about 10 to 25% by weight moisture, wherein the food has a water activity ranging from about 0.5 to 0.65.(claim 1).
The composition may further contain fruit materials including apple and blueberry derived ingredients as claimed (page 8 lines 10-25, page 9 lines 5-8), which contribute dietary fiber, fiber materials (page 22 lines 19-29). One of ordinary skill in the art looking to provide a fruit-like snack with higher amount of fiber to support health, would have added a sufficient amount of dietary fiber to the composition in Roy with a reasonable expectation of success. At about 5% to 10% fiber as disclosed in Roy, the ratio of non-dietary fiber carbohydrate to dietary fiber carbohydrate would therefore meet the claimed limitations.
Regarding claim 2 and 6, Roy discloses calcium salt for example calcium phosphate providing 0.15%-5.5% calcium by weight of the composition (page 18 lines 9-12), falling within or overlapping the claimed range. Roy does not prefer calcium chloride for taste reasons, but lists the salt as a possible calcium source in the composition.
Regarding claims 3 and 4, Roy discloses preferred pure nutritive carbohydrate sweetening agents are those selected from the group consisting of sucrose, glucose, fructose, (page 7 line 30) with a ratio between saccharides being adjusted to reduce crystallization.
Regarding claim 5, Roy does not specifically disclose citrus fiber. However, as Roy discloses fruit solids as an integral part, it would have been obvious to one of ordinary skill in the art to substitute the inulin with a cellulose/hemicellulose/pectin containing citrus fiber, with a reasonable expectation of success.
Regarding claim 7, Roy discloses the product having a water activity in the range of 0.4-0.7 (page 16 line 4) encompassing the claimed range, and a preferred pH of 3.2-3.6 (page 22 line 2) which encompasses the claimed pH.
Regarding claim 8 Roy discloses having a base solids concentration of about 80-86% (page 24 line 22) falling within the claimed range.
Regarding claim 9, the composition may further contain fruit materials including apple and blueberry derived ingredients as claimed (page 8 lines 10-25, page 9 lines 5-8), which contribute dietary fiber, fiber materials (page 22 lines 19-29).
Regarding claim 11, Roy discloses producing a gellable slurry (page 6a lines 10-18) and setting in starch molds (page 31 lines 26-27) to obtain individual pieces. The steps include providing a base blend, comprising: about 55 to 80% by weight of the blend, wet basis, of a sugar; a gelling system comprising about 0.5% to about 2% by weight of the blend of an added high methoxyl pectin having a degree of esterification, D.E., ranging from about 50 to 65 by weight; and about 0.1 % to about 0.6% by weight of the blend of kappa carrageenan; a moisture content of about 13 to 25%, and having a temperature of about 55°C to about 95°C; and admixing a sufficient amount of an edible organic acidulant to the base blend to provide a gellable slurry having a pH ranging from about 3.2 to 5.5, a temperature of about 55°C to about 95°C.
Regarding claim 12, Roy discloses using different fruit source ingredients ((page 8 lines 10-25, page 9 lines 5-8),
Regarding claim 13, a meaningful comparison with the art cannot be made as the claim does not meet the requirements of 35 USC 112(b).
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).
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
No coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function has been established in this instance.
Claims 1-9 and 11-13 are therefore prima facie obvious in view of the art.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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/SUBBALAKSHMI PRAKASH/ Primary Examiner, Art Unit 1793
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