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 Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 4 fails to include all the limitations of the claim upon which it depends. Claim 3, from which claim 4 depends recites that the gelatin is in an amount of less than 6%, which encompasses only values less than 6%, and not 6% itself. Claim 4 however recites that the gelatin is present in an amount of “between 3 and 6%”. As seen in the instant specification, see for example page 2 line 22 and page 3 Example 3, the term “between” is considered as encompassing the end points of both 3 and 6%. Thus, claim 4 does not include all the limitations of the claim from which it depends as it encompasses 6% and is not limited to only values below 6%.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Cao et al (US 2014/0127375 A1) in view of SyrupMachine.com (“What is starch syrup” pages 1-8, 2018 http://www.syrupmachine.com/syrup_process_technology/what_is_the_starch_syrup_194.html).
Cao et al (Cao) teaches a gummy candy, i.e. a chewable composition, comprising: 2-5% starch; 0.2-1.2% pectin; 4-10% gelatin; 10-50% starch syrup with a DE of 38-44; and 2-6% sorbitol for the same purpose of the disclosed invention of good stability (abstract and paragraphs 18, 19, and 29).
Cao is not specific to the starch syrup as glucose syrup as recited in claim 1.
SyrupMachine.com (SMC) teaches that starch syrup is divided into four different types: low saccharified syrup, confectionery syrup, maltose syrup, and high-saccharified syrup (page 1, paragraph 3), wherein low-saccharified syrup has limited starch hydrolysis, (page 1, paragraph 4); confectionary syrup, which is also known as glucose syrup is used in the confectionery industry and has a DE of 36-44 (page 2 paragraph 1); maltose syrup is mostly used in beer brewing and has a DE above 38 (page 2 paragraph 2); and high saccharified syrup has a DE of greater than 45 (page 3 paragraph 2). Thus, as glucose syrup was the starch syrup with an overlapping DE and known to be used in confections, it would have been obvious to one of ordinary skill in the art that the starch syrup with a DE of 38-44 as taught by Cao would encompass or at least make obvious glucose syrup as claimed.
As the prior art teaches of the same ingredients as claimed, including pectin, gelatin, glucose syrup, and sorbitol, as well as the ingredients within the claimed and disclosed ranges, the ingredients would be considered as functioning in the manners as claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 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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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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