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
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 1-14 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, and 7, the term “slowly” is a relative term which renders the claim indefinite. The term “slowly” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims 2-14 are rejected based on their dependency on a rejected claim.
Regarding Claim 11, the term “warm” is a relative term which renders the claim indefinite. The term “warm” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 6-7, 9-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Williams et al. (US 4,268,533- cited as No. A in IDS filed 12/17/2024).
Regarding Claim 1, William discloses a particulate composition for preparing a gel composition by mixing with water (see abstract), comprising a pectin (a. LM pectin), a divalent metal ion component (b. calcium ions), and an acid component (c. a slowly dissolving edible acid), wherein the divalent metal ion component and the acid component has been made to slowly dissolve in water (Col 2, ln. 63-Col. 3, ln. 3).
Regarding Claim 6, Williams further teaches wherein the divalent metal ion component is integrated with a water-disintegrable substance to be made to slowly dissolve in water (coating or encapsulation, see Col. 5, ln. 3-6).
Regarding Claim 7, Williams further teaches wherein the divalent metal ion component is formed into a granule to be made to slowly dissolve in water (control of granulation size, Col. 5, ln. 3-6).
Regarding Claims 9 and 10, Williams further teach comprising a gellant other than the pectin (starches, Col. 4, ln. 47-50).
Regarding Claim 11, Williams further teaches a particulate composition capable of mixing with warm water to prepare a gel composition. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In this case, since the composition of Williams is configured to be mixed with water to form a gel composition (see abstract) in temperatures of 40°F to 85°F (Col. 4, ln. 32-35), the composition of Williams is therefore capable of being mixed with warm water to prepare a gel composition.
Regarding Claim 12, Williams further teaches a gel composition prepared by using the particulate composition according to claims 1 (gel formation, see abstract).
Regarding Claim 13, Williams further teaches a food product comprising the particulate composition according to claim 1 (see abstract). That is, the particulate composition itself constitutes as a food product.
Regarding Claim 14, Williams further teaches a food product comprising a gel composition prepared by using the particulate composition according to claim 1 (dessert, Col. 6, ln. 60).
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.
Claim(s) 2-5 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Williams et al. (US 4,268,533- cited as No. A in IDS filed 12/17/2024).
Regarding Claims 2-5 and 8, while Williams discloses a pH level of 3.5 to 4.5 which overlaps with the claimed range (as per Claim 3, see abstract), Williams is silent to the particular rate of dissolution of the divalent metal ion component (as per claim 2 and 4), the acid component (as per claim 3), the granules (as per claim 8), and the rate to reach the pH level (as per claim 5). However, Williams discloses a composition that requires 15 minutes to prepare a gel formation when mixed with water (see Col. 3, ln. 22-25) at a temperatures of 40°F to 85°F (Col. 4, ln. 32-35), thus meeting the limitations of “5 seconds or more”, and “15 seconds or more” as required by the claims 2-5. As to Claim 8, Williams further discloses controlling the granulation size by coating or encapsulation, thereby controlling the rate of solubility (Col. 5, Ln. 3-6). Therefore, it would have been obvious to one of ordinary skill in the art to control the rate of solubility based on the desired granule size.
Furthermore, the claim limitations are all directed to an intended use of the claimed particulate composition by reciting the term “when” followed by a step of using. A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Therefore, the rate of dissolution of claims 2-5 and 8 are capable of being achieved based on the method of dissolving the particulate composition, such as using very little agitation.
Lastly, since Williams is also directed to a gelling composition with “slowly dissolving” divalent metal ion component and acid component, the claimed rate of dissolution is not patentably distinguishable over the prior art and amounts to mere optimization through routine experimentation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05.II.A. In this case, Williams notes that the rate of the dissolution of the calcium ion and the acid component provides good texture and mouth-feel characteristics by effecting the crosslinking of neighboring pectic carboxylic acid groups (see Col. 3, Ln. 7-28). Therefore, controlling the rate of dissolution of the metal ion and the acid component group would have been obvious to one of ordinary skill in the art based on the desired texture of the formed gel composition.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH H NGUYEN whose telephone number is (571)270-0346. The examiner can normally be reached 10am-6pm.
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/T.H.N/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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