DETAILED ACTION
Status of Application
Receipt of the Claims filed on 4/30/2024, is acknowledged.
Claims 1-19 are pending.
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 § 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 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 of this title, 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 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:
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.
Claims 1-19 are rejected under 35 U.S.C. 103 as being unpatentable over in view of Gao et al. (US 20100291245 A1) hereinafter Gao in view of Denisse ("Mixed Berry Kombucha Gummy Snacks". At least 27 January 2016 (27-01-2016), [online] [retrieved on 14 July 2022 (14-07-2022)]. Retrieved from the Internet: https://lepetiteats.com/mixed-berry-kombucha-gummy-snacks/).
Gao is drawn to a soft, chewable and orally dissolvable and/or disintegrable product includes a biopolymer-sugar based matrix and botanical powder dispersed throughout the biopolymer-sugar based matrix. The biopolymer-sugar based matrix includes at least one biopolymer, at least one sugar and optional additives. Soft, chewable and orally dissolvable and/or disintegrable product can also include flavor beads (abstract).
Regarding claims 1-19, Gao discloses suitable biopolymers include, without limitation, agar, alginate, carrageenans, cellulose, gellan gum, guar gum, gum Arabic, konjac gum, locust bean gum, modified starch, pectin, xanthan gum, and/or combinations thereof [0012].
Gao discloses method of making a soft, chewable and orally dissolvable and/or disintegrable product comprising: dispersing tobacco powder in water to form a suspension; adding at least one enzyme in an amount of up to about 5 wt % by weight of the tobacco powder to the suspension; storing the suspension at a temperature above about 35° C. for about 24 hours to about 60 hours to form enzyme treated tobacco; dissolving a biopolymer and a sugar in water to form a solution; adding the enzyme treated tobacco to the solution; stirring the solution to form a suspension; gelling the suspension to form a gel; drying the gel to form a dried gel; and portioning the dried gel to form a pre-portioned, soft, chewable and orally dissolvable and/or disintegrable product (claim 25).
Gao discloses to form a soft, chewable and orally dissolvable and/or disintegrable product containing tea powder, up to about 10 wt % food grade emulsifier, up to about 30 wt % carrageenan, up to about 30 wt % modified starch, and up to about 30 wt % honey are dissolved in water at about 90° C. while stirring to form a mixture.
Then, up to about 30 wt % tea extract powder is added to the mixture. After a homogenous dispersion is obtained, up to about 10 wt % of an additional flavorant is added to the mixture. The mixture is then cast on a polyethylene tray. The mixture is gelled at about 5° C. for about 2 hours and then dried at about 60° C. overnight. The dried sample is cut into the desired shapes to form the soft, chewable and orally dissolvable and/or disintegrable product. Soft, chewable and orally dissolvable and/or disintegrable product including tea powder can be chewed for about 30 seconds to about 40 minutes, more preferably about 5 minutes to about 10 minutes depending on the size and composition. The soft, chewable and orally dissolvable and/or disintegrable product containing tea powder is chewy and/or gummy in texture and dissolves in a user's mouth after chewing [0054-0056].
Gao discloses the soft, chewable and orally dissolvable and/or disintegrable product containing tea powder is chewy and/or gummy in texture and dissolves in a user's mouth after chewing [0056].
Gao discloses pre-portioned, soft, chewable and orally dissolvable and/or disintegrable product wherein the biopolymer is selected from the group consisting of agar, alginate, carrageenan, cellulose, gellan gum, guar gum, gum Arabic, konjac gum, locust bean gum, modified starch, pectin, xanthan gum, and combinations thereof (claim 12). Gao discloses pre-portioned, soft, chewable and orally dissolvable and/or disintegrable product further comprises (a) at least one vitamin, (b) at least one mineral, (c) at least one nutraceutical, (d) at least one amino acid, (e) at least one energizing agent, (f) at least one soothing agent, (g) at least one sweetener, (h) at least one coloring agent, (i) at least one chemesthesis agent, (j) at least one antioxidant, (k) at least one food-grade emulsifier and/or (l) at least one pH modifier (claim 8).
Gao discloses the soft, chewable and orally dissolvable and/or disintegrable product can include various active agents having antioxidant properties. For example, the active ingredients that can be extracted from Ginkgo biloba include flavonoid glycosides ("ginkgoflavonoids"), such as (iso)quercitin, kaempferol, kaempferol-3-rhamnosides, isorhamnetin, luteolin, luteolin glycosides, sitosterol glycosides, and hexacyclic terpene lactones, referred to as "ginkgolides" or "bilobalides." The active ingredients that can be extracted from Camellia sinensis, such as green tea [0024].
Gao discloses the soft, chewable and orally dissolvable and/or disintegrable product includes at least one botanical powder in an amount of up to about 75 wt % by weight based on the weight of the soft, chewable and orally dissolvable product. Suitable botanical powders can include tea powder [0031].
Gao discloses the soft, chewable and orally dissolvable and/or disintegrable product may be formed in many shapes including, without limitation, spheres, rectangles, oblong shapes, crescent shapes, star shapes, leaf shapes, fruit shapes, ovals, and cubes. The shape of the soft, chewable and orally dissolvable and/or disintegrable product can indicate the type of botanical powder and/or flavorant included in the soft, chewable and orally dissolvable and/or disintegrable product. For example, a tea leaf shape could indicate that tea powder is incorporated in the soft, chewable and orally dissolvable and/or disintegrable product [0066].
Gao discloses as shown in FIGS. 2 and 3, the soft, chewable and orally dissolvable and/or disintegrable product can comprise a biopolymer-sugar based matrix, botanical powder and flavor beads. The flavor beads can provide a different texture to the soft, chewable and orally dissolvable and/or disintegrable product. The flavor beads can include encapsulated flavorants, other additives and/or botanicals. The flavor beads can have a solid, liquid or gel center with a hard exterior coating. The coating can be cross-linked or non-cross-linked, and can include one or more polymers [0070].
Preferably, the flavor beads 12 are substantially spherical and have diameters of ranging from about 0.5 mm to about 4.0 mm. Flavor beads 12 included in an individual soft, chewable and orally dissolvable and/or disintegrable product can have the same size or an individual soft, chewable and orally dissolvable and/or disintegrable product can include flavor beads of different sizes [0072].
Gao does not explicitly disclose wherein the tea powder in the soft, chewable and orally dissolvable and/or disintegrable product is kombucha.
However, Denisse is drawn to kombucha gummy candy.
Denisse discloses a berry kombucha gummy candy made with berries, kombucha, and agave syrup (pg. 1, 7, and 14). Denisse discloses different shapes and dimensions of the gummy (pg. 9). Denisse discloses different flavors from strawberries and raspberries (different berries would also impart different colors to the product) (pg. 10). Denisse discloses agar powder can be used in the composition (pg. 18-19).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the soft chewable product comprising tea powder as previously disclosed by Gao, to comprise kombucha, as previously disclosed by Denisse, and arrive at the instant invention.
One of ordinary skill in the art would have been motivated to do so because Gao and Denisse are both in the field of soft chewable gummy comprising a tea ingredient, and Denisse discloses kombucha gummy and discloses kombucha comprises probiotics, thus combining prior art elements according to known methods to yield predictable results, see MPEP 2141.
From the teachings of the references, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, as evidenced by the references, especially in the absence of evidence to the contrary.
Double Patenting
The nonstatutory 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 nonstatutory 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 nonstatutory 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 §§ 706.02(l)(1) - 706.02(l)(3) 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 eTerminal 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-I.jsp.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-30 of prior U.S. Patent No. 12,178,836.
Although the claims at issue are not identical, they are not patentably distinct from each other because both disclose a soft, chewable, and orally dissolvable and/or disintegrable composition. Instant claim 1 is drawn to a composition whereas claims 1-30 of the ‘836 patent does not; however, claim 15 of the instant application is drawn to a method for producing a soft, chewable, and orally dissolvable and/or disintegrable composition.
This is a nonstatutory double patenting rejection.
Conclusion
No claims are allowed.
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/QUANGLONG N TRUONG/Examiner, Art Unit 1615
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