DETAILED ACTION
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-14, drawn to a colored composition, classified in A23L 5/42.
II. Claims 15-20, drawn to a method of making a composition, classified in A23L 29/25.
The inventions are independent or distinct, each from the other because:
Inventions Groups I and II are related as process of making and product made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case the product as claimed can be made by another and materially different process; for example, the product recited in Group I can be made by compression of particulate material with a binder and does not require extrusion as recited in the method of Group II.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply: the inventions require a different field of search (for example, searching different classes/subclasses or electronic resources, or employing different search queries); and/or the prior art applicable to one invention would not likely be applicable to another invention.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
This application contains claims directed to the following patentably distinct species of the product form: powder, paste, liquid, solid, semi-solid, puree, chew, or candy (see claim 20). The species are independent or distinct because have mutually exclusive characteristics. In addition, these species are not obvious variants of each other based on the current record.
Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable.
There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: the species require a different field of search (for example, searching different classes/subclasses or electronic resources, or employing different search queries); and/or the prior art applicable to one species would not likely be applicable to another species.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election.
The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species.
Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
During a telephone conversation with Sarah Eddy on July 15, 2026 a provisional election was made with traverse to prosecute the invention of Group II and the powder species, claims 15-20. Affirmation of this election must be made by applicant in replying to this Office action. Claims 1-14 have been withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “106” has been used to designate both coloring agent and flavoring agent (See Figure 1 and instant specification paragraph 80). 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. 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.
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 17-20 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 17 recites “contacting two or more of a plurality of first particles, a plurality of second particles, and a plurality of third particles with an aqueous solution… dissolving the two or more of the plurality of first particles, a plurality of second particles, and a plurality of third particles in the aqueous solution”. It is unclear as to if the phrase “two or more” is in relation to each plurality of particles, which requires a plurality, i.e. two or more, of the first particles, or as to if the term is related to two or more of the particle groups, such that the claim requires to or more selected from the first, second, or third particles.
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 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Ludwig et al (US 2005/0118306) in view of Porzio (“Melt Extrusion and Melt Injection” Perfumer and Flavorist June 2008, pages 48-53 https://img.perfumerflavorist.com/files/base/allured/all/document/2008/05/pf.PF_33_06_048_05.pdf).
Ludwig et al (Ludwig) teaches that there is a need in the food industry to provide interesting novelties to differentiate product lines and spark consumer interest (paragraphs 2 and 14). Ludwig teaches a method of making a colored composition by teaching that particles which impart a unique and entertaining optical and/or organoleptic effect in foods when exposed to aqueous environments include those which provide sequential changes in color or other visual appearance characteristics (abstract and paragraphs 15, 22, 26, and 27). Ludwig teaches that more than one plurality of particles can be used to provide the color changing effect (paragraphs 18, 43, 46 and 64-66), thus encompassing a first and second plurality of particles.
Regarding the plurality of particles as each formed from a colorant and matrix comprising one or more hydrocolloids and one or more sugars, wherein the matrix defines at least a portion of the outer surface of each of the particles as recited in claim 15, Ludwig teaches that the particles can be formed from a core with a coating, i.e. matrix thereon (paragraphs 17-18). Ludwig teaches that the coating layers are edible water-soluble materials including: a coloring, and a matrix including starch or other hydrocolloids and sugar (paragraph 20, 28, 33-34, 38, 40, and 48). Thus, as Ludwig teaches of a coating matrix, the matrix would define at least a portion of the outer surface of each particle and the teachings of Ludwig encompass the claimed limitations.
Regarding the particles as formed by mixing, melting, and extruding as recited in claim 15, Ludwig teaches that extrusion can be used to form the particles (paragraph 37). Ludwig is not specific to the particles as first mixed and melted.
Porizo teaches that melt extrusion, which mixes, melts, and extrudes material, was a known type of extrusion which was continuous, simple for commercial scaling and had high production efficiency (Melt Extrusion pages 48-49, Table T-2, and Conclusion).
It would have been obvious for the extrusion process of Ludwig to be melt extrusion, and thus include mixing, melting, and extrusion, as it was a known form of extrusion and was continuous, simple for commercial scaling and had high production efficiency as taught by Porizo.
Regarding forming a third plurality of particles by mixing melting, and extruding as recited in claim 16, as discussed above, it would have been obvious for the particles of Ludwig to be formed with mixing, melting, and extrusion in view of Porizo. Ludwig teaches that particles which impart a unique and entertaining optical and/or organoleptic effect in foods when exposed to aqueous environments include those which provide sequential changes in color or other visual appearance characteristics (abstract and paragraphs 15, 22, 26, and 27). Ludwig is not explicit to the method as comprising a plurality of first particles, a second plurality of particles, and a third plurality of particles, however does teach that more than one plurality of particles can be used to provide the color changing effect (paragraphs 18, 43, 46 and 64-66), and that the number, nature and duration of each sequential [color] change can be modified to provide the desired effect (paragraphs 16 and 44), thus to use a combination of three pluralities of particulates which provide for sequential release of different colors would have been an obvious suggestion of the prior art in order to produce a food product with three sequential color changes. Furthermore, as Ludwig teaches that the particles comprise coating layers that are edible water-soluble materials including: a coloring, and a matrix including starch or other hydrocolloids and sugar (paragraph 20, 28, 33-34, 38, 40, and 48), the particles would comprise a matrix that defines at least a portion of the outer surface of the three or more plurality of particles.
Claims 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Ludwig et al (US 2005/0118306).
Ludwig et al (Ludwig) teaches that there is a need in the food industry to provide interesting novelties to differentiate product lines and spark consumer interest (paragraphs 2 and 14). Ludwig teaches that particles which impart a unique and entertaining optical and/or organoleptic effect in foods when exposed to aqueous environments include those which provide sequential changes in color or other visual appearance characteristics (abstract and paragraphs 15, 22, 26, and 27).
Regarding each of a plurality of particles as contacted with an aqueous solution and dissolved to provide a first color, second color, and/or third color, as recited in claim 17, wherein the dissolution rates of the particles are different from one another as recited in claim 18, Ludwig teaches that particles which impart a unique and entertaining optical and/or organoleptic effect in foods when exposed to aqueous environments include those which provide sequential changes in color or other visual appearance characteristics (abstract and paragraphs 15, 22, 26, and 27). Ludwig teaches that once the material is dissolved the optical modifying ingredients can be released (paragraph 31). Ludwig is not explicit to the method as comprising a plurality of first particles at one dissolution rate, a second plurality of particles at a second dissolution rate, and a third plurality of particles at a third dissolution rate, however does teach that more than one plurality of particles can be used to provide the color changing effect (paragraphs 18, 43, 46 and 64-66), and that the number, nature and duration of each sequential [color] change can be modified to provide the desired effect (paragraphs 16 and 44), thus to use three pluralities of particulates which provide for sequential release of different colors, and thus different dissolution rates, would have been an obvious suggestion of the prior art in order to produce a food product with three sequential color changes.
Regarding the particles as comprising a coloring agent and a matrix as comprising one or more hydrocolloids and one or more sugars, wherein the matrix defines at least a portion of the outer surface of each of the particles as recited in claim 17, Ludwig teaches that the particles can be formed from a core with a coating, i.e. matrix thereon (paragraphs 17-18). Ludwig teaches that the coating layers are edible water-soluble materials including: a coloring, and a matrix including starch or other hydrocolloids and sugar (paragraph 20, 28, 33-34, 38, 40, and 48). Thus, as Ludwig teaches the particles comprising a coating matrix, the plurality of particles would comprise a coloring agent and a matrix that defines at least a portion of the outer surface of each particle.
Regarding the time between dissolution of each of the two or more pluralities of particles as recited in claim 17, Ludwig teaches that the number, nature and duration of each sequential [color] change can be modified to provide the desired effect (paragraphs 16 and 44), and that the release time between color changes may be for example 0.5-30 minutes (paragraph 16), thus the claimed limitation is considered encompassed or alternatively obvious over the prior art. It is noted that although the disclosure of 0.5-30 minutes is related to color released from the same particle, one of ordinary skill in the art would find it obvious suggestion of the art to use the disclosed amount of time as a guideline and obvious suggestion when using multiple particle compositions for the color changing effect.
Regarding claim 19, as Ludwig teaches that the number, nature and duration of each sequential [color] change can be modified to provide the desired effect (paragraphs 16 and 44), and that the coating layers are edible water-soluble materials including: a coloring, and a matrix including starch or other hydrocolloids and sugar (paragraph 20, 28, 33-34, 38, 40, and 48), wherein it would have been obvious to have at least three sequential particles for color release, it would have been further obvious for the thee pluralities of particulates to have matrixes comprising materials of hydrocolloid(s) and sugar(s) with different dissolution rates in order to achieve the desired release profile, and thus the claimed limitations are considered an obvious suggestion of the prior art.
Regarding claim 20, the particles as taught by Ludwig are disclosed as used with beverage powders (see for example paragraph 43) and thus are considered to encompass or make obvious the product as a powder 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
Prosecution Insights