Obviousness

Obviousness Analysis of US Patent 9,750,267 under 35 U.S.C. § 103

This analysis identifies combinations of prior art references that could render the claims of US Patent 9,750,267 obvious to a person having ordinary skill in the art (PHOSITA) at the time of the invention (priority date October 24, 2007). The framework for obviousness includes identifying the scope and content of the prior art, differences between the prior art and the claims, the level of ordinary skill, and secondary considerations. Examiners are instructed to adopt a flexible approach, viewing a PHOSITA as possessing ordinary creativity, common sense, and common knowledge.

Prior Art References from US9750267

The patent US9750267 itself lists several prior art documents in its "Cited By" section (Patent Citations). These references disclose various food products, some containing probiotics, and methods of their preparation. The following are directly cited within US9750267 and are considered relevant for an obviousness analysis:

• US 5,968,569 (Nestec S.A.): Pet food product containing probiotics.
• US 6,375,998 (The Quaker Oats Company): Process for preparing a hand-held snack item.
• US 6,528,102 (Brach's Confections, Inc.): Fruit snacks with varied center filling.
• US 6,676,982 (Cadbury Adams Usa Llc): Nutritional food bar for sustained energy.
• US 6,723,358 (General Mills, Inc.): Encapsulation of components into edible products.
• US 6,827,957 (Mars Incorporated): Multicomponent pet food or animal food.
• US 2004/0253347 A1 (Kraft Foods Holdings, Inc.): Food products having moisture release system for maintaining texture during shelf life.
• US 2005/0095348 A1 (Mccabe David J.): High protein foodstuff.
• US 2005/0191406 A1 (Lonette Alexander): Coated confectionery product.
• US 2006/0068019 A1 (Dalziel Sean M): Coated polyunsaturated fatty acid-containing particles and coated liquid pharmaceutical-containing particles.
• US 2006/0110493 A1 (Mars, Incorporated): Snack having a soft edible layer and method of making.
• US 2006/0134285 A1 (Joan Schnieber): Method of making a shelf stable edible snack having an outer dough layer.
• US 2007/0110844 A1 (Natalia Kubantseva): Reduced sweetness confectionary compositions and coated/filled food products.
• US 2007/0148324 A1 (Solae, Llc): Dressed or Multi-Layer High Protein Food Bars Comprising Sugar Alcohols and Having Improved Texture and Shelf-Life.
• US 2007/0160589 A1 (Attune Foods): Probiotic food, process for its preparation and dietary regimen.
• US 2007/0231450 A1 (Kraft Foods Holdings, Inc.): Protein system and food products including same.
• US 2008/0026108 A1 (Martek Biosciences Corporation): Encapsulated Labile Compound Compositions and Methods of Making the Same.
• US 2008/0102163 A1 (General Mills, Inc.): Cultures Encapsulated With Chocolate Food Products Coated With Chocolate And Method Of Preparation.

Obviousness Combinations and Rationale

The central inventive step of US9750267 is the combination of a high-moisture fruit snack center with heat-sensitive probiotics, rendered stable at room temperature through the use of a moisture-barrier layer and cooling the center before probiotic application. A PHOSITA would be motivated to combine elements from the cited prior art to achieve a shelf-stable, probiotic-containing fruit snack, given the known benefits of probiotics and the desire for convenient, palatable food products.

Combination 1: US 6,528,102 (Brach's Confections) + US 2007/0160589 A1 (Attune Foods) + US 2004/0253347 A1 (Kraft Foods)

• US 6,528,102 (Brach's Confections): Discloses fruit snacks with varied center fillings. This reference establishes the concept of a multi-component fruit snack with a distinct center.
• US 2007/0160589 A1 (Attune Foods): Discloses probiotic food products and processes for their preparation. This reference explicitly teaches the inclusion of probiotics in food and the desire for stable probiotic-containing foods. It would motivate a PHOSITA to incorporate probiotics into popular snack formats.
• US 2004/0253347 A1 (Kraft Foods): Discloses food products having a moisture release system for maintaining texture during shelf life. This teaches the concept of managing moisture migration within a multi-component food product to enhance stability.

Motivation for Combination: A PHOSITA, aiming to create a shelf-stable fruit snack with the health benefits of probiotics, as generally taught by Attune Foods, would naturally look to existing fruit snack technologies (Brach's Confections) and solutions for moisture management (Kraft Foods). The teaching of Kraft Foods to prevent moisture migration would directly address the known challenge of maintaining probiotic viability in high-moisture environments. The cooling step, while explicitly claimed in US9750267, would be a conventional step for handling heat-sensitive ingredients in food processing, making it an obvious choice for preserving probiotics.

Combination 2: US 2008/0102163 A1 (General Mills) + US 2006/0110493 A1 (Mars) + US 6,723,358 (General Mills)

• US 2008/0102163 A1 (General Mills): Discloses cultures encapsulated with chocolate food products coated with chocolate and methods of preparation. This reference directly teaches encapsulating cultures (including probiotics) and coating food products with chocolate to protect them. The cooling of the center before applying the chocolate coating (containing the cultures) would be inherent in using chocolate, which is temperature-sensitive.
• US 2006/0110493 A1 (Mars, Incorporated): Discloses a snack having a soft edible layer and a method of making. This reference establishes the desirability and methods for creating multi-layered snacks with varying textures, including soft centers.
• US 6,723,358 (General Mills): Discloses encapsulation of components into edible products. This further supports the general knowledge of protecting sensitive ingredients through encapsulation or layering.

Motivation for Combination: A PHOSITA interested in shelf-stable probiotic snacks, and aware of General Mills' work on encapsulating cultures in chocolate coatings, would consider applying this principle to a multi-layered snack product, such as those described by Mars. The chocolate coating itself acts as a moisture barrier, and the process of applying temperature-sensitive chocolate would inherently involve cooling the underlying layers to prevent melting and ensure proper adhesion, thus protecting the probiotics. The "soft edible layer" of Mars would correspond to the high-moisture fruit snack center of US9750267.

Combination 3: US 2007/0148324 A1 (Solae, Llc) + US 2006/0134285 A1 (Joan Schnieber) + General Knowledge of Probiotic Stability

• US 2007/0148324 A1 (Solae, Llc): Discloses dressed or multi-layer high protein food bars with improved texture and shelf-life. This demonstrates the prior art's focus on multi-layered food products designed for stability and extended shelf life, addressing both moisture and texture.
• US 2006/0134285 A1 (Joan Schnieber): Discloses a method of making a shelf-stable edible snack having an outer dough layer. This teaches general methods for achieving shelf stability in snacks through layering.
• General Knowledge of Probiotic Stability: It is well-established in the background of US9750267 that probiotics are live microorganisms sensitive to high moisture content and temperatures exceeding refrigeration, which dramatically reduces their shelf life and viability. This forms a strong motivation for a PHOSITA to protect them.

Motivation for Combination: Faced with the known instability of probiotics in high-moisture, room-temperature environments (as acknowledged by the patent itself), a PHOSITA would be motivated to combine the multi-layered, shelf-stable food product approaches of Solae and Schnieber with their understanding of probiotic fragility. The use of a barrier layer to prevent moisture migration and cooling the product before adding the heat-sensitive probiotics would be an obvious solution to overcome the known problems of probiotic degradation. The specific composition of the barrier layer (e.g., yogurt coating, zein protein, gums, or chocolate as exemplified in US9750267) would be a matter of routine experimentation or selection from known food coatings.

Conclusion on Obviousness

While US9750267 presents a useful commercial product, the combination of a high-moisture fruit center, a moisture-barrier layer, an outer probiotic-containing layer, and the crucial cooling step before probiotic application, appears to be an obvious combination of elements found in the prior art. The motivation to combine these elements stems from the well-known challenges of maintaining probiotic viability in food products and the existing knowledge of multi-layered, shelf-stable food construction and moisture management. A PHOSITA would have been motivated to combine these teachings to create a shelf-stable, probiotic-enhanced fruit snack.