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 .
The Amendment filed January 30, 2026 has been entered. Claims 1-7 and 9-15 are pending. Claim 1 has been amended. Claims 8 has been cancelled. Claim 15 is new.
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 1-2, 5-7, and 9-14 are rejected under 35 U.S.C. 103 as being unpatentable over Guillo (WO 01/84963 A1; Nov. 15, 2001; See attached English Translation) as evidenced by Noopur (“Science of Cookies-Ingredients and Process”, Noopur’s Kitchen, Jan. 17, 2018, Retrieved from Internet URL: https://noopurskitchen.com/science-of-cookies-ingredients-process/).
Regarding claim 1, Guillo teaches a food composition that can be cookies, food bars, candies, syrups, or drinks (page 2, 3 para from bottom of page of English Translation), wherein the food composition comprises an aragonite composition comprising aragonite particles (page 2 para 5-11, See Examples).
Guillo further teaches that the aragonite composition can have a sweetener added thereto (page 2, 4 para from bottom of page). It would have been obvious to one of ordinary skill in the art to add a sweetener to the aragonite composition depending on the desired sweetness of the composition.
As it would have been obvious for the aragonite composition of Guillo to comprise aragonite particles and a sweetener, wherein the aragonite composition is further incorporated into food product, the aragonite composition of Guillo corresponds to applicant’s claimed sweetener component, which comprises aragonite particles and at least one sweetener.
As Guillo teaches that the food composition can be cookies, which are known to comprise a dry component, e.g. flour, as evidenced by Noopur (page 2 para 1), Guillo renders obvious a food composition comprising a dry food component and a sweetener component comprising aragonite particles and at least one sweetener.
Guillo further teaches that the aragonite particles can be encapsulated (page 2, para 13; See Examples).
As stated above, Guillo teaches that the aragonite composition can further comprise a sweetener and therefore it would have been obvious to one of ordinary skill for the aragonite particles to be encapsulated with the sweetener. Guillo clearly suggests the addition of a sweetener to the aragonite particles if desired. Therefore, if desired, the sweetener would be part of the encapsulated product as it is combined with the aragonite particles.
Regarding claim 2, Guillo further teaches that the aragonite particles have a particle size of about 40 microns (page 2, para 6), while the instant claims require a particle size of about 3 to about 10 microns.
However, it would have been obvious to one of ordinary skill in the art to vary the particle size of the aragonite particles depending on the desired digestibility as taught by Guillo (page 1). Guillo teaches that the particle size needs to be large enough so that they are not destroyed by the acidic pH of the stomach but sufficiently reduced so that they are easily digestible. Therefore, one of ordinary skill in the art can vary the particle size through routine experimentation to arrive as a desired particle size having a desired digestibility, based on what is taught by Guillo. It would have been obvious to reduce the particle size to achieve a most digestible aragonite particle.
Further, as stated in MPEP 2144.04: This is merely a change in size/proportion and thus an obvious variant over the prior art absent a showing otherwise. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Regarding claim 5, Guillo as evidenced by Noopur teach that the dry food component comprises the dry ingredients that make up cookies. Noopur teaches that the dry food component of cookies comprises flour, salt, and leavening agents, all which constitute a baking mix (page 8-9). Therefore, it would have been obvious that the dry food component of Guillo comprise a baking mix as cookies are known in the art to comprise a baking mix (e.g. flour, baking soda, baking powder, salt, etc.).
Regarding claims 6-7, as stated above, Guillo teaches that the aragonite composition comprises at least one sweetener (Page 2 of English Translation).
Guillo further teaches Examples of edible compositions comprising sweeteners, wherein the sweetener can be aspartame (See Example 2).
Therefore, it would have been obvious to include aspartame as the sweetener in any food composition suggested by Guillo.
Regarding claim 9, Guillo teaches that the composition can further comprise at least one additive agent, such as a colorant, a flavor, vitamins (e.g. nutrient agents), fibrous protein, and food grade excipients (page 2, para 14-20 of English Translation).
Regarding claim 10, Guillo teaches that the composition can comprise a flavor (page 2, para 20-21). Guillo further teaches Examples comprising vanilla flavor (See Examples).
It would have been obvious to one of ordinary skill in the art to add any desired flavor to the composition depending on the desired taste. Guillo teaches that it is well known to add flavor and therefore it would have been obvious to do so.
Additionally, Guillo meets the at least on additive due to the presence of a colorant or a nutrient agent, and therefore a flavor agent is not necessarily required as the claims do not recite that the at least one additive agent is a flavor agent comprising.
Regarding claim 11, Guillo teaches that the nutrient agent can be vitamin D (page 2, para 14 of English Translation).
Regarding claim 12, Guillo teaches that the aragonite composition comprising the aragonite particles and a sweetener, which corresponds to applicant’s sweetener component, can be in powder form (page 2, para 20-21 of English Translation).
Regarding claims 13-14, Guillo teaches a sweetener component as described above, comprising at least one sweetener and aragonite particles. Guillo, however, fails to specifically teach that the aragonite particles are present in an amount of 50-75% based on the total weight of the sweetener component, or that the at least one sweetener is present in an amount of 25-50% based on the total weight of the sweetener component.
It would have been obvious to vary the amount of each of the sweetener and aragonite particles depending on the desired sweetness and/or calcium contribution to the food composition. A higher amount of aragonite will provide the composition with more calcium for the consumer, while a higher amount of sweetener will provide the composition with a sweeter taste. Therefore, it is well within the ordinary skill in the art to optimize the amount of each component to achieve a desired taste/nutrition.
As stated in MPEP 2144.05: 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. "Where 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)
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Guillo (WO 01/84963 A1; Nov. 15, 2001; See attached English Translation) in view of Hamel (Basic Whole Grain Cookies; King Arthur Baking; May 21, 2009, Retrieved from Internet URL: https://www.kingarthurbaking.com/blog/2009/05/21/whole-grains-in-hiding-more-fiber-in-every-sweet-bite).
Regarding claim 1, Guillo teaches a food composition that can be cookies, food bars, candies, syrups, or drinks (page 2, 3 para from bottom of page of English Translation), wherein the food composition comprises an aragonite composition comprising aragonite particles (page 2 para 5-11, See Examples).
Guillo further teaches that the aragonite composition can have a sweetener added thereto (page 2, 4 para from bottom of page). It would have been obvious to one of ordinary skill in the art to add a sweetener to the aragonite composition depending on the desired sweetness of the composition.
As it would have been obvious for the aragonite composition of Guillo to comprise aragonite particles and a sweetener, wherein the aragonite composition is further incorporated into food product, the aragonite composition of Guillo corresponds to applicant’s claimed sweetener component, which comprises aragonite particles and at least one sweetener.
As Guillo teaches that the food composition can be cookies, which are known to comprise a dry component as taught by Hamel, Guillo renders obvious a food composition comprising a dry food component and a sweetener component comprising aragonite particles and at least one sweetener.
Hamel further teaches that the dry component can be a cereal or a grain (e.g. oats and whole wheat flour). It would have been obvious to one of ordinary skill in the art to have the dry component in Guillo comprise a cereal or grain as taught by Hamel in order to further provide fiber to the food composition.
Allowable Subject Matter
Claims 3-4 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: Applicant’s arguments filed January 30, 2026 were found persuasive to overcome the 103 rejection over claims 3-4. The cited prior art fails to teach using oolitic aragonite in a food composition as claimed.
Response to Arguments
Applicant’s amendments and arguments have overcome the 103 rejection over claims 3-4 and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejection over claims 1,2, 5-7 and 9-14 have been fully considered but were not found persuasive.
Applicant argues that Guillo provides no teaching, suggestion, or guidance toward the aragonite particles being encapsulated with the at least one sweetener.
This is not found persuasive as Guillo further teaches that the aragonite particles can be encapsulated (page 2, para 13; See Examples).
As stated above, Guillo teaches that the aragonite composition can further comprise a sweetener and therefore it would have been obvious to one of ordinary skill for the aragonite particles to be encapsulated with the sweetener. Guillo clearly suggests the addition of a sweetener to the aragonite particles if desired. Therefore, if desired, the sweetener would be part of the encapsulated product as it is combined with the aragonite particles.
While Guillo might not specifically teach a sweetener encapsulated with the aragonite particles, the fact that Guillo teaches that a sweetener can be combined with the aragonite particles, Guillo suggests that it would have been obvious to encapsulate the sweetener with the aragonite particles.
Applicant’s arugments with respect to claim 15 are moot based upon the new grounds of rejection as stated above. Hamel teaches a cereal or grain in cookies.
For the reasons stated above, a 103 rejection is maintained.
Conclusion
No claims are allowed.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791