Notice of Pre-AIA or AIA Status
1. 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
Status of the application
2. Claims 1-22 are pending in this office action.
Claims 1-22 have been rejected.
Double Patenting
3. The non-statutory double patenting rejection is based on a judicially
Created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321 (d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321 (b).
The USPTO Internet website contains terminal disclaimer forms which may be
used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based e-Terminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-l.jsp.
Claims 1-22 are rejected on the ground of non-statutory double patenting as being unpatentable over claims of U.S. Patent No. 12,310,390 B2. Although the claims at issue are not identical, they are not patentably distinct from each other
because:
Instant claims 1-21 and 22 of the current application numbers 18/938271 are directed to compositions and method of for the delivery of the gelled drinkable beverage product. Claims 1-18 and 19 of U.S. patent No.12,310,390 B2 is also directed to compositions and method of for the delivery of the gelled drinkable beverage product. However, present independent claims 1 and 22 is broadly directed to any range value of alginate-based polymer gelling agent. Independent claims 1 and 19 of U.S. patent No.12,310,390 B2 claims a specific range amount of 0.0005 gm to 0.01 gm of alginate-based polymer gelling agent. Therefore, instant claimed any range amount can includes the specific range amount of 0.0005 gm to 0.01 gm of alginate-based polymer gelling agent as claimed in independent claims 1 and 19 of U.S. patent No.12,310,390 B2. Therefore, the instant claims 1, 22 encompasses the specific range amount of 0.0005 gm to 0.01 gm of alginate-based polymer gelling agent of independent claims 1 and 19 of U.S. patent No.12,310,390 B2. It would have been obvious over the specific range amount of 0.0005 gm to 0.01 gm of alginate-based polymer gelling agent of independent claims 1 and 19 of U.S. patent No.12,310,390 B2. As set forth in MPEP 2144.05, in the case where the claimed range "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)].
While comparing the application numbers 18/938271 (present application) with the USPN 12,310,390 B2, the common feature is that these two applications share the same invention.
Although the conflicting claims are not identical, they are not patentably distinct.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 103
4. 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 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.
5A. The following is a quotation of 35 U.S.C. 103 that forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
5B. The factual enquiries set forth in Graham v. John Deere Co., 383 U.S. 1,148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S. C. 103 are summarized as follows:
a. Determining the scope and contents of the prior art.
b. Ascertaining the differences between the prior art and the claims at issue.
c. Resolving the level of ordinary skill in the pertinent art.
d. Considering objective evidence present in the application indicating obviousness or non-obviousness.
6. Claims 1-12, 14-16, 21, 22 are rejected under 35 U.S.C. 103 as being unpatentable over Bean et al. US 2012/0027693 in view of Murphy et al. USPN 6613400 in view of Leibovich et al. US 2009/0148582 in view of NPL Chuang et al. (International Journal of Polymer Science Volume 2017, Article ID 3902704, 9 pages) in view of Barabash Inn (WO 2017/075672) in view of NPL Banerjee et al. (in Crit. Rev. in Food Sci. and Nutrition 52:4 334-346, 2012) in view of NPL Hiromitsu H et al. (Machine translation of JP 2015/204809 A) in view of Domoto et al. (CN104853622A) and as evidenced by Wang et al. US 2014/0141146.
7. Regarding claims 1-3, 15, 21, 22, Bean et al. discloses that an oral food composition ([0009]), which includes in the form of beverage or gel for human individual ([0010], [0018]), can include sodium alginate, calcium alginate, agar in the composition having desired viscosity (i.e. desired stiffness of the gel) ([0035], [0098]) and the total amount of agar and alginate can be 0.01% to 10% by weight ([(0098]) and the pH of the composition can be greater than 2.5 and 4-9 or preferably 6.5 to 7.5 ([0040], [0042]) and acidulent(s) which includes citric acid, ascorbic acid etc. ([0041]) can be considered as pH adjuster as claimed in claims 1, 22 and meet claimed range of pH 4 to 7 as claimed in claim 3. Bean et al. also discloses that the oral formulation ([(0009]) as oral dosage can includes a water-soluble health ingredient (at least in Abstract, [0033] e.g., ascorbic acid, [0099] e.g., electrolyte, [0103] sweeteners, [0109] vitamins, etc.) and water insoluble flavoring ingredient which can include orange oil etc. ([0106]) to meet a water-soluble and lipid-base health ingredients of claims 1, 22.
Bean et al. discloses that the beverage composition includes sweeteners also in an amount from 2-20% by weight ([0103], [0104]). Therefore, Bean et al. meet the claim limitation of “Other than 50g or 75g glucose as claimed in claims 1, 22 and 1-40 g glucose as claimed in claim 15.
Bean et al. also discloses that the oral product can be packaged in a unit (including a gel volume of 250 ml also ([0121]) to meet claims 1, 15.
Bean et al. is silent about
(a) hydrocolloid gelling agent is agarose-based carbohydrate gelling agent which is non-ionic gelled polymer and
(b) gelled product is ‘firm gel’ having Bloom value 100 and 250 and
(c ) polyvalent ion gelled alginate-based polymer and agarose and ratio and
(d) A drinkable gel with a volume of 25 ml to 250 ml.
With respect to (a), Murphy et al. discloses that the hydrocolloid gelling agent can be agarose in order to serve as the hydrocolloid that form stable fluid gel (col 2 lines 38- 40). It is known that agarose which is non-ionic and derived from agar which is non-ionic agarose plus charged agaropectin as is evidenced by Wang et al. ([0046]) and also as evidenced by applicant’s own specification (in specification, [0038]).
Leibovich et al. discloses that the gelling property of agarose is better than agar because agaropectin in agar has much inferior gelling property than agarose ([0036)).
Therefore, one of ordinary skill in the art would have preferred choice of agarose over agar (Leibovich et al. [0036]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bean et al. with the teaching of non-ionic agarose gelling agent as in order to form stable fluid gels as taught by Murphy et al. (Murphy et al., col 2 lines 38-40) because the gelling property of agarose is better than agar because agaropectin in agar has much inferior gelling property than agarose (Leibovich et al. [0036)]).
With respect to (b), primary prior art by Bean et al. discloses that an oral food composition ([0009]), which includes in the form of beverage or gel for human individual ([0010], [0018]), can include sodium alginate, calcium alginate, agar in the composition having desired viscosity ([0035], [0098]) and the pH of the composition can be 2-7 ([0040], [0042]).
NPL Chuang et al. discloses that the stable gelled product with desired size and desired degree /type of gelled structure is possible at this pH range in presence of divalent cation e.g., calcium chloride and sodium alginate. NPL Chuang et al. discloses that the ‘polyvalent ion gelled polymer gelling agent’ can be alginate-based polymer gelling agent e.g., ‘alginate solution’ (e.g., sodium alginate) which is, when mixed with divalent cation e.g., calcium, the reaction can be carried out from pH 4-10, however, pH has effect on the shape of the particle in the reaction between divalent cation e.g., calcium and alginate solution (page 3, Under 3. Result and Discussion). Therefore, pH is one of the determining factors to determine desired shape of the final gelled particle.
This is also evidenced by applicant’s specification that the divalent cation calcium chloride helps cause gelling of the sodium alginate and promotes cross-linking, the polymer being cross-linked to promote gel formation (At least in PGPUB, para. [0048], [0112], [0115]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bean et al. ([0035], Alginate e.g., sodium, calcium) in view of Leibovich et al. with the teaching of NPL Chuang et al. to make specifically desired gelled structure in presence of calcium alginate which contains calcium divalent ion at pH 5-7 to have desired gelled product of the claimed invention.
As such, without showing unexpected results, the claimed pH cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the pH condition, calcium alginate (calcium ion) of Bean et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired shape of the gelled particle containing product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
With respect to (c), regarding Bloom value, Barabash Inn discloses that the drinkable gel comprising agar (i.e., agarose based) can have effective amount to make desired Bloom grade of the drinkable gel formulation of at least 100 g in a plastic pouch ([0019], [0023], [0034]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bean et al. with the teaching of Barabash Inn discloses that the drinkable gel comprising agar (i.e., agarose based) can have effective amount to make desired Bloom grade of the drinkable gel formulation of at least 100 g in a plastic pouch ([0019], [0023], [0034]).
It is also within the skill of one of ordinary skill in the art to optimize the effective amount of the agarose-based with a reasonable expectation of success to achieve desired gel strength in terms of desired Bloom Value of the gelled product.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of agarose in Bean et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g., desired bloom value to provide desired stiffness of the gel etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding the ratio, for claims 1, 2, and 22, the specific amendment of “5:1 to greater than 1:1” is interpreted as gelling agent is agarose and thickening agent is alginate and “greater than 1:1 (Agarose: alginate) means claimed product has gelling agent is greater than thickening agent.
Regarding the ratio, for claims 1, 2, and 22, the specific amendment of “5:1 to greater than 1:1” is interpreted as gelling agent is agarose and thickening agent is alginate and “greater than 1:1 (Agarose: alginate) means claimed product has gelling agent is greater than thickening agent.
It is to be noted that
(i) Murphy et al. discloses that the hydrocolloid gelling agent can be agarose in order to serve as the hydrocolloid that form stable fluid gel (col 2 lines 38-40).
(ii) Banerjee et al. discloses that the amount of agarose in food composition can be used in an amount of 0.2% agarose (Page 337, below Table 2, Under “Conc of gelling agent’: e.g., Agarose (0.2%).
(iii) Hiromitsu et al. discloses that the ratio between agar: alginate can be 9:1 to 1:9 in order to provide desired gel having good water swelling property with water retention having stabilizing effect and also thickening effect and also heat resistance property (at least Under Description First paragraph and on page 6 last two paragraphs) (page 5 second paragraph last line).
Therefore, if we consider the combinations of prior art, (i) the disclosed ratio 9:1 to 1:9 as disclosed by Hiromitsu et al. (ii) Bean et al. can be 0.01% to 10% by weight ([0098]), total gelling agent can be 0.01 to 10 wt.% (Bean et al. [0098]) and 0.2% agarose as disclosed by NPL Banerjee et al. (Page 337, below Table 2, Under “Conc of gelling agent”: e.g. Agarose (0.2%)]) as discussed above, it is understood that the combined teaching meet the claimed ratio of agarose : alginate 5:1 to 1:1 of claim 1 and 3:1 to 1:3 of claim 2. It is also to be noted that if we consider the disclosed 0.2% agarose (Banerjee et al., page 337, below Table 2, Under “Conc of gelling agent’: e.g., Agarose (0.2%) and the range ratio of agarose: alginate 5:1 to 1:1, will meet the claimed range amount of 0.5mg-10 mg alginate/gm water as claimed in the amended claims 1 and 22.
Domoto et al. also discloses that a liquid beverage (pH 3.5-7, in claim 1 of Domoto et al.) having drinkable gel (at least on page 3 sixth-seventh paragraph) form include 0.1% (w/V) and it can be 0.3 to 5 w/v % (at least on page 3 paragraph 11, page 3) and broadly it is 0.1% w/V or more alginate salt (at least in claim 1 of Domoto et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bean et al. by using the teachings of NPL Banerjee et al. and Hiromitsu et al. to use disclosed range amounts of agarose with alginate (at least Under Description First paragraph and on page 6 last two paragraphs and on page 5 second paragraph last line) and alginate can be (0.3 w/v% to 5w/v% at least on page 3 paragraph 11, page 3 of Domoto et al.) in a liquid beverage in order to have drinkable gel property as disclosed by Domoto et al. (at least on page 3 sixth-seventh paragraph), therefore, agarose as gelling agent and alginate as a thickening agent, in combination, make gelling composition ([0018]) of desired property which meet claimed invention.
It is to be noted that the disclosed ratio includes and encompasses 5:1 to 1:1 as claimed in amended claims 1 and 22.
It is also to be noted that the disclosures by Hiromitsu et al. and NPL Banerjee et al. can be considered as guidelines to be used by one of ordinary skill in the art in order to have desired proportions of agar (i.e., agar-based agarose) is a gelling agent and alginate is a thickening agent can be used in combination to make gelling composition as disclosed by Wang et al. [(0018)].
As discussed above, it is to be noted that the specific “5:1 to 1:1” ratio is interpreted as gelling agent is agarose and thickening agent is alginate and “greater than 1:1 (Agarose: alginate) means claimed product has gelling agent is greater than thickening agent.
It is within the skill of one of ordinary skill in the art to optimize the effective amount of both the agarose-based and alginate -based (calcium alginate) with a reasonable expectation of success to achieve desired gel strength in terms of desired Bloom Value of the gelled product. Therefore, this considered as Result Effective variable.
Absent showing of unexpected results, the specific ratio (amount) of agar and alginate is not considered to confer patentability to the claims. As the gelled texture, elastic nature etc. are variables that can be modified, among others, by adjusting the amount of agar and alginate, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of agarose and alginate in Bean et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g., gel elasticity, texture etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
With respect to (d), regarding the claim limitation of 25 ml to 250 ml, Bean et al. also discloses that the oral product can be packaged in a unit (including a gel volume of 250 ml also ([0121]) to meet claims 1 and 15.
Barabash Inn et al. discloses a pouch specifically can be used for such a gel product and may be used as drinkable gel product equivalent to one dosage form (Abstract) and it can be used by using a method of delivery by sucking or Squeezing ([0040]) in order to extract and drink all the contents in a short time as reasonably practicable to establish a clear time point of administration ([0040]) which reads on claim 21. It would have been obvious that the method of eating/drinking can be by squeezing or with straw in order to have the drinkable gel composition which meets claims 21, 22.
It would have been obvious that the method of eating/drinking can be by squeezing or with straw in order to have the drinkable gel composition. It is also to be noted that the gelled plastic behavior is broken due to squeezing and/or straw use because of the stress generated under pressure would convert to liquid form to meet claim limitation of “which does not exhibit plastic behavior upon stress, but rather behaves elastically upon stress to a failure point .... drinkable gel’ of claim 21.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bean et al. by including the teaching of Barabash Inn et al. by using a pouch with drinkable gel product equivalent to one dosage form (Abstract) and it can be used by using a method of delivery by sucking or squeezing or with straw from a pouch (Abstract, [0040]) in order to extract and drink all the contents in a short time as reasonably practicable from one delivery system which is one container i.e. pouch to establish a clear time point of administration ([0040]).
Regarding the claim limitation of “which does not exhibit plastic behavior upon stress, but rather behaves elastically upon stress, to a failure point where the structure of the gel breaks or shears to irreversibly create new interfaces, making it more fluid when ingested, such that it is a drinkable gel” as claimed in claims 1, 22, it is to be noted that this is considered as physical property of the claimed composition. As the disclosed drinkable gelled beverage having disclosed ingredients and amounts meet the claimed drinkable gelled beverage having claimed ingredients and amounts , therefore, the disclosed composition is identical composition of the claimed invention of claims 1, 22 having identical property including the property of “ which does not exhibit plastic behavior upon stress, but rather behaves elastically upon stress, to a failure point where the structure of the gel breaks or shears to irreversibly create new interfaces, making it more fluid when ingested, such that it is a drinkable gel” as claimed in claims 1, 22.
8. Regarding claims 4, 5, Bean et al. discloses that the oral formulation ([0009]) as oral dosage can include preservative, e.g., sorbic acid ([0110]).
9. Regarding claims 6, 7, 16, Bean et al. discloses that the oral formulation ([(0009]) as oral dosage can includes a water-soluble health ingredient (at least in Abstract, [0033] e.g., ascorbic acid, [0099] e.g., electrolyte, [0103] sweeteners, [0109] vitamins, etc.).
10. Regarding claims 8, 9, Bean et al. discloses that the oral formulation ([0009]) as oral dosage can includes flavorings, cooling agent and flavorings can include orange oil etc. ([0106]) which is water insoluble and it makes dispersion to meet claim 35.
11. Regarding claims 10, 16, Bean et al. discloses that the oral formulation ([O009]) as oral dosage can include herbal extract also ([0114]).
12. Regarding claims 11,12, Bean et al. discloses that the oral formulation ([0009]) as oral dosage can include antioxidant Vit E also ((0112], [0113]).
13. Regarding claims 13, 14, Bean et al. discloses that the oral formulation ([0009]) as oral dosage can include antioxidant Vit E also ([0112], [0113]). Bean et al. also discloses that the oral formulation ([0009]) as oral dosage can include emulsifying agent ([0114]). Therefore, it would have been obvious that the emulsifying agent can serve as emulsifier to emulsify water soluble and water insoluble (lipid soluble and/or lipid) ([0094]- [0116]) materials together to make gelled emulsion as claimed in claim 13.
14. Claims 17- 20 are rejected under 35 U.S.C. 103 as being unpatentable over Bean et al. US 2012/0027693 in view of Murphy et al. USPN 6613400 in view of Leibovich et al. US 2009/0148582 in view of NPL Chuang et al. (International Journal of Polymer Science Volume 2017, Article ID 3902704, 9 pages) in view of Barabash Inn (WO 2017/075672) in view of NPL Banerjee et al. (in Crit. Rev. in Food Sci. and Nutrition 52:4 334-346, 2012) in view of NPL Hiromitsu H et al. (Machine translation of JP 2015/204809 A) in view of Domoto et al. (CN104853622A) as applied to claim 1 and further in view of Bell et al. US 2002/0150649.
15. Regarding claims 17-20, Bean et al. is silent about a dosage form with respect to recommended dietary allowance (RDA) as claimed in claims 17-19.
Bell et al. discloses that the supplement can be provided in the form of liquid, gel etc. ((0008]) and formulation can be in a way so that multiple daily administration ([(0008]) controls intake of the subsequent meal (i.e., meal replacement) and can meet daily requirement (at least in [0008]) based on RDA ([0042]-[0043]). Bell et al. also discloses that per serving can include carbohydrate 1-75 gm, protein 1-50 gm and fat 1-20 gm ([0016], Table).
As discussed above, Bean et al. also discloses that the oral product can be packaged in a unit (including a gel volume of 250 ml also ([0121]). Which would have obvious be considered as one serving volume. It is also to be noted that it is within the skill of one of ordinary skill in the art to select number of doses e.g., two single doses together, or as required which will be “at least one third of protein, and lipid” of claims 17, 18 and “recommended daily intake of at least one of protein, carbohydrate and lipid” of claim 19.
However, it is also to be noted that and as discussed above Bell et al. discloses that per serving can include carbohydrate 1-75 gm, protein 1-50 gm and fat 1-20 gm ([(0016], Table) based on RDA value evaluation ([0042]-[0043]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Bean et al. with the teaching of Bell et al. to consider daily dosage based on RDA value ([0008], [0016], Table, [0042], [0043]).
In addition, if ‘one serving’ can include ‘two single doses’ together, as discussed above, it is also within the skill of one of ordinary skill in the art to optimize the dosage volume and the amount of at least one ingredient in a way so that the number of dosages can be determined per day as required to meet RDA of at least one of carbohydrate, protein and fat. Also, RDA depends on many factors including age, sex
etc. Therefore, itis within the skill of one of ordinary skill in the art to optimize the
number of servings per day containing more than one dose per servings together to have desired daily amount as claimed in claims 17, 18, 19.
Absent showing of unexpected results, the specific amount of ingredients in a single dosage is not considered to confer patentability to the claims. As the number of servings per day, RDA amount depend on age, sex etc. are variables that can be modified, among others, by adjusting the amount of ingredients per dosage and per servings, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the carbohydrate, protein and fat in the meal and/or daily dosage based on RDA value of Bean et al. in view of Bell et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired daily dosage containing nutritional drinkable gelled product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Conclusion
16. One pertinent prior art by NPL Hecht et al. (in Bio macromolecules 17: 2160-2167, 2016) discloses that calcium ion facilitates chain aggregation and gelation (Abstract) and gelation results from interactions between calcium ion and the G residue in alginate structure to form cage like (egg-box) configuration which is possible in presence of calcium ion and it provides a specifically desired gelled structure of the claimed invention. Therefore, calcium alginate is preferred alginate due to the presence of divalent Calcium ion. However, claims 1, 22 are broad and claims broadly alginate in beverage food product. This is addressed by the primary prior art by Bean et al. in an oral food composition ([0009]), which includes in the form of beverage or gel for human individual ([0010], [0018], [0035], [0098]). Therefore, NPL Hecht et al. is not used in this office action.
17. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 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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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
Prosecution Insights