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 .
Continued examination under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e) was filed after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 11/17/2025 and 09/08/2025 has been entered.
Claim status
The examiner acknowledged the amendment made to the claims on 11/17/2025 and 09/08/2025. Claims filed 11/17/2025 are examined.
Claims 1-4, 6-8, 10-13 and 15-23 are pending in the application. Claims 1, 13 and 21 are currently amended. Claims 5, 9 and 14 remain cancelled. Claims 22-23 are newly presented. The rest of the claims are previously presented. Claims 1-4, 6-8, 10-13 and 15-23 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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 1-4, 6-8, 10-13 and 15-23 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 1 recites a D3,3 value of 3.5-4.5 and an e-sigma value of up to 2.2 for water droplet size distribution. It is unclear what the unit is for each of the two parameters. Claims 13 and 21 are rejected for the same reason. For the purpose of examination, microns are assumed for both parameters.
Claims 2-4, 6-8, 10-12, 16-18 and 22-23 ultimately depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
Claims 15 and 19-20 ultimately depend from claim 13 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
Claim 17 depends from claim 1 and recites wherein the non-lecithin emulsifier in the emulsion is PGPR. However, claim 1 does not teach a non-lecithin emulsifier thus there is insufficient antecedent basis for the limitation “the non-lecithin emulsifier” in the claim. For the purpose of examination, claim 17 is interpreted to mean that the emulsion further comprises a non-lecithin emulsifier, wherein the non-lecithin emulsifier is PGPR. Appropriate correction is required.
Claim Rejections - 35 USC § 103
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.
Claims 1-4, 6-8, 10-11, 16-18 and 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Bons et al. (WO 2012/084438 A1) in view of Wester (USPGPub 2004/0219277 A1) and Dobenesque et al. (USPGPub 20110287160A1, cited in IDS filed 09/21/2020).
With respect to claims 1-4, 10, 17 and 22, Bons et al. teach a method of preparing an edible fat-continuous emulsion spread comprising preferably 40 to 70 wt% of an aqueous phase and 30 to 60 wt% of a fat phase (Abstract; page 1, lines 4-7; page 5, lines 19-29; page 10, lines 6-9; page 16, lines 21-25). In Examples 5-7, Bons et al. teach a method of preparing a fat continuous spread in which melted plant sterols (heated in an oven of about 60 degrees Celsius) were added to sunflower oil, said sunflower oil having a temperature of 15 degrees Celsius (liquid oil which is at a temperature of 1-15°C) (page 21, SET Il, lines 10-13; page 22, lines 6-8). This mixture was cooled to 15 degrees Celsius. Subsequently the structuring fat (hardstock- i.e. the interesterified mixture of 65% palm oil stearin (IV14) and 35% palm kernel oil), which is a fat powder produced by supercritical melt micronisation, was added to the mixture of plant sterol esters and sunflower oil (page 22, Table 4; page 23, lines 1-3). The resulting mixture (i.e. fat phase- fat slurry) had a temperature of 16 degrees Celsius (page 23, lines 3-4).
In addition, an aqueous phase was prepared by mixing all the aqueous phase ingredients), wherein the resulting aqueous phase was then cooled down to 12 degrees Celsius (page 23, lines 5-8). The fat phase was combined with the aqueous phase and mixed in a cooled pin stirrer, wherein the resulting fat continuous (water-in-oil emulsion) product exiting the mixture had a temperature of about 19 degrees Celsius (page 23, lines 9-13). According to Table 4, the fat-continuous spread composition of the above examples comprises 4.27 and 5.27 wt % fat powder (fat powder comprising hardstock- interesterified mixture of palm oil stearin and palm kernel oil) in the fat phase. Table 4 also demonstrates that the plant sterol ester is in an amount of 12.5 wt% in the fat phase.
Further, Bons et al. teach that smaller water droplet sizes are preferred as this leads to increased microbiological stability and/or aid the firmness of the water in oil emulsion. Therefore, the water droplets preferably have a water droplet size of less than 15 micrometer, more preferably of less than 10 micrometer and even more preferably of less than 5 micrometer (page 10, line 11-15). Bons et al. further teach that the water droplet size distribution is expressed as D3,3 and e-sigma (e.g., exp(σ)), in which D3,3 is the volume weighted mean droplet diameter and exp(σ) is the stand deviation of the logarithm of the droplet diameter (page 15, line 4-8). In one of the example, Bons et al. teaches a D3,3 value of 3.5 micron and an e-sigma value of 1.1 for water droplet size distribution (Table 5).
The overall disclosure of Bons et al. teach a method in which the plant sterol esters are melted before they are mixed with the liquid oil and wherein the plant sterol esters have been subjected to a temperature of at least the melting temperature of the plant sterol esters (temperature above its melting point) ((page 6, lines 21-20; page 7, lines 10-17). According to Bons et al., the combination of using plant sterols in the form of plant sterol esters and the step of mixing the plant sterol esters and structuring fat only when said structuring fat is present as fat crystals (fat powder) results in the plant sterols being finely divided in a thin non-continuous layer around the water droplets (page 7, lines 24-29).
In addition to what has been recited in the specific examples, Bons et al. also disclose that the fat phase of the fat continuous emulsion spread comprises 15 to 40 wt% (calculated on fat phase) of plant sterols esters (page 11, lines 1-3). Bons et al. disclose that the aqueous phase and/or the fat phase may suitably contain emulsifiers (page 10, lines 17-18; page 14, lines 13-14). Further, according to Bons et al., preferably the fat continuous emulsion spread comprises polyglycerol polyricinoleate (PGPR) emulsifier at an amount of 0.05 to 1 wt% (page 14, lines 10-11).
While Bons et al. teach a method for manufacturing edible fat-continuous emulsions as recited above, wherein plant sterol esters are provided in liquid form at a temperature above its melting point, wherein the plant sterol esters in liquid form are mixed with liquid oil, and wherein the fat phase comprises liquid oil and fat powder (one or more fat components), the reference fails to teach providing a hardstock fat in liquid form and mixing liquid oil with hardstock in liquid form, said hardstock fat being at a temperature above its melting point as claimed.
Wester discloses that stanol and sterol fatty acid esters, such as phytosterol esters which have been derived from plant sterols, form crystal networks with similar properties as those of conventional hardstock triglycerides (abstract; [0003]; [001 1]- [0012]; and [0014]). As a result, Wester teaches a method in which stanol and/or sterol esters are used to partly or totally replace hardstock (e.g., tropical oil and animal fat) in conventional fat blends for use in the preparation of foods like margarines and spreads, in order to give a crystal network with similar physical and melt-down properties in the mouth [0003; 0018].
Further, Bons et al recognizes that tropical oil such as shea oil (e.g., shea butter), palm fat, and coconut oil, etc., and animal fat such as butter fat fraction (e.g., dairy fat fraction) are suitable hardstock fat (e.g., structuring fat) used in the edible fat-continuous emulsion spread (page 13, line 17-21; page 1, line 23).
Both Bons et al. and Wester disclose the use of plant sterol esters in fat blends for edible spreads (fat continuous emulsions), wherein the fat blend also comprises liquid oil and hardstock. Given that Wester teaches that plant sterol esters (phytosterol esters) can be used to totally replace conventional hardstock (e.g., tropical oil and animal fat) because of the similarity in the crystallinity and physical properties of the esters to those of hardstock fats, one having ordinary skill in the art would have considered plant sterol esters and hardstock fat to be interchangeable in the capacity of preparation of foods like margarines and spreads. Because plant sterol esters can totally replace hardstock fats (e.g., tropical oil and animal fat) in fat blends, it would have been obvious to substitute plant sterol esters for hardstock fats in fat blends and vice versa. Therefore, it would have been obvious to one of ordinary skill in the art to substitute the plant sterol esters in the method of Bons et al. with a hardstock fat component such as shea butter or butter fat fraction, since the two types of lipid impart the same and/or similar characteristics in fat blends as demonstrated by Wester. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established that plant sterol esters and hardstock fat to be interchangeable in the capacity of preparing foods like margarines and spreads.
Given that Bons et al. teach providing plant sterol esters in liquid form and a step of mixing liquid oil at a temperature of 15°C with 12.5 wt% plant sterol ester, wherein the plant sterol ester can be at a temperature above its melting point, as well as combining the mixture with fat powder as recited above, it would have been obvious to subject a hardstock fat such as shea butter or butter fat fraction in liquid form to each of the above steps of Bons et al., since Wester demonstrates that the components are interchangeable.
While Bons et al. as recited above teach that the fat continuous emulsion spread can comprise a non-lecithin emulsifier polyglycerol polyricinoleate (PGPR) in an amount of 0.05 to 1 wt%, the reference fails to disclose wherein the composition further comprises lecithin and/or a lecithin derivative in an amount of 0.05 to 0.4% (or narrowly 0.07-0.35% as recited in claim 10).
In the same field of endeavor, Dobenesque et al. teach a process for preparing an edible fat continuous spread emulsion comprising a fat phase that contains liquid oil and fat powder, and an aqueous phase, comprising the steps of mixing liquid oil, fat powder to form a slurry, followed by mixing the slurry with an aqueous phase to form the water-in-oil continuous emulsion ([0023-0026; 0041]). Further, Dobenesque et al. teach that fat soluble emulsifiers are commonly used in the preparation of fat continuous spreads to stabilize the desired water-in-oil emulsion; the fat soluble emulsifiers may be one or a combination of monoglyceride, lecithin, polyglycerol esters, etc.; it is within the reach of the skilled person to determine the suitable amount depending on the amount of fat used, and preferably the amount of fat soluble emulsifiers on total amount of product is 0.05 to 1.5 wt %, preferably 0.1 to 1, more preferably 0.15 to 0.6 and even more preferably 0.2 to 0.4 ([0041-0042; 0044-0045]).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bons et al. by submitting a polyglycerol ester (e.g., PGPR as disclosed by Bon et al.) with lecithin at an amount of 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%) in the emulsion of Bons et al. with reasonable expectation of success, for the reason that substituting equivalents known for the same purpose is prima facie obvious. See MPEP 2144.06.II.
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bons et al. by including both a polyglycerol ester (e.g., PGPR as disclosed by Bon et al.) and lecithin in the emulsion of Bons et al. such that the total amount of emulsifiers is within the preferred range of 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%), for the reason that Dobenesque et al. teach that it is suitable to use a combination of polyglycerol ester and lecithin emulsifiers to stabilize an edible fat-continuous emulsion that comprises a fat phase and an aqueous phase, and suitable amount of emulsifiers is 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%). One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established the suitability of combining polyglycerol ester and lecithin emulsifier in an edible fat-continuous emulsion at an amount of 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%) See also MPEP 2144.06 which states, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
As for the amount of lecithin, given that Dobenesque et al. as recited above teach the polyglycerol ester- lecithin emulsifier combination could be used to stabilize the edible W/O emulsion and the amount of emulsifiers is preferably 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%), it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the amount of each emulsifiers such that the emulsion could be better stabilized by the emulsifiers present and/or the total amount of emulsifier meets what Dobenesque et al. has suggested. As such, the amounts of emulsifier as recited in the claims are merely obvious variants of the prior art, absent a clear showing of the criticality of such.
It is also noted that Bons et al. in view of Wester and Dobenesque et al. teach a method in which each of the weight percentages and the temperature ranges overlap with the respective claimed ranges. In the case where the claimed ranges “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) (MPEP 2144.05 1).
Regarding claims 6-8 and 16, Bons et al. as modified by Wester and Dobenesque et al. teach the method as recited above with respect to claim 1. As previously disclosed, Example 7 of Bons et al. teaches a fat-continuous emulsion, wherein the fat phase comprises 5.27 wt% fat powder comprising hardstock fat and 12.5 wt% plant sterol ester.
Bons et al. in view of Wester suggests substituting the plant sterol esters with melted hardstock fat (hardstock fat in liquid form) in the method of Bons et al. Therefore, the modified Bons et al. teach concentrations of the total amount of hardstock fat, the amount of fat powder comprising hardstock, and the amount of hardstock fat that is added in liquid form that are within the respective claim ranges as recited in claims 6-8 and 16.
Regarding claims 11 and 18, Bons et al. as modified by Wester and Dobenesque et al. teach the method as recited above with respect to claim 1. Further Bons et al., teach that the aqueous phase may suitably contain a variety of food grade ingredients including protein (page 10, lines 17-19). Bons et al. is silent regarding the amount of protein.
In the same field of endeavor, Dobenesque et al. teach a process for preparing an edible fat continuous spread emulsion comprising a fat phase that contains liquid oil and fat powder, and an aqueous phase, comprising the steps of mixing liquid oil, fat powder to form a slurry, followed by mixing the slurry with an aqueous phase to form the water-in-oil continuous emulsion ([0023-0026; 0041]); additionally, Dobenesque teaches that the aqueous phase comprises a protein the purpose of which is to enhance the taste perception of spreads and preferably the aqueous phase comprises 0.05 to 1 wt % on total spread composition of protein (0053).
Where prior art has established that the protein is added to enhance the taste perception of spreads, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the amount of protein in the emulsion such that they could enhance the taste perception of spreads to a desired level. As such, the amounts of protein as recited in the claims 11 and 18 are merely obvious variants of the prior art.
Regarding claim 23, as recited above, it would have been obvious to one of ordinary skill in the art to substitute the plant sterol esters in the method of Bons et al. with an additional hardstock fat component such as shea butter or butter fat fraction, since the two types of lipid (e.g., plant sterol ester and hardstock) impart the same and/or similar characteristics in fat blends as demonstrated by Wester. Further, it would also have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined shea butter and butter fat fraction as the source of hardstock in liquid from in the emulsion of Bons et al. because either one has been recognized by prior art as a suitable source of hardstock in a fat-continuous emulsion spread. As stated in MPEP 2144.06 I, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Bons et al. as modified by Wester and Dobenesque et al. as applied to claim 1 above, and further in view of Dobenesque WO2010/069752 A1 (hereinafter referred to as ‘752).
Regarding claim 12, Bons et al. as modified by Wester and Dobenesque et al. teach the method as recited above with respect to claim 1. Further according to Bons et al., the aqueous phase may suitably contain a variety of food grade ingredients such as protein and hydrocolloid (e.g., polysaccharides) (page 10, lines 17-19). Bons et al. is silent regarding the amount of hydrocolloid.
In the same field of endeavor, ‘752 teaches a process for preparing an edible fat continuous spread emulsion comprising a fat phase that contains liquid oil and fat powder, and an aqueous phase, comprising the steps of mixing liquid oil, fat powder to form a slurry, followed by mixing the slurry with an aqueous phase to form the water-in-oil continuous emulsion (page 5, line 10-17); additionally, ‘752 teaches that the aqueous phase comprises a hydrocolloid (e.g., polysaccharide) for use as a thickening agent (page 11, line 10-15).
Where prior art has established that the hydrocolloid is added to thicken the emulsion spread, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the amount of hydrocolloid in the emulsion such that they could suitably thicken the emulsion. As such, the amount of hydrocolloid as recited in the claim is merely an obvious variants of the prior art.
Claims 13, 15 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Bons et al. (WO 2012/084438 A1) in view of Wester (USPGPub 2004/0219277 A1), Dobenesque et al. (USPGPub 20110287160A1 A1, cited in IDS filed 09/21/2020) and Dobenesque WO2010/069752 A1 (hereinafter referred to as ‘752).
Regarding claims 13, 19 and 21, Bons et al. as modified by Wester and Dobenesque et al. teach the edible fat-continuous emulsion spread obtained from the method as recited above with respect to claim 1, the entirety of which is incorporated herein by reference. Note that the respective concentrations of total fat, dispersed water phase and lecithin overlap with the claimed concentrations.
Regarding the limitation about the measurable amount of non-lecithin emulsifier, as set forth above, given that Dobenesque et al. teach the polyglycerol ester- lecithin emulsifier combination could be used to stabilize the edible W/O emulsion and the amount of emulsifiers is preferably 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%), it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the amount of each emulsifiers such that the emulsion could be better stabilized by the emulsifiers present and/or the total amount of emulsifier meets what Dobenesque et al. has suggested. As such, the limitation about the measurable amount of non-lecithin emulsifier is merely an obvious variant of the prior art, absent a clear showing of the criticality of such.
Regarding the limitation about the protein in the emulsion, Bons et al., teach that the aqueous phase may suitably contain a variety of food grade ingredients including protein (page 10, lines 17-19). Further, Dobenesque et al. teach a process for preparing an edible fat continuous spread emulsion comprising a fat phase that contains liquid oil and fat powder, and an aqueous phase, comprising the steps of mixing liquid oil, fat powder to form a slurry, followed by mixing the slurry with an aqueous phase to form the water-in-oil continuous emulsion ([0023-0026; 0041]); additionally, Dobenesque teaches that the aqueous phase comprises a protein the purpose of which is to enhance the taste perception of spreads and preferably the aqueous phase comprises 0.05 to 1 wt % on total spread composition of protein (0053).
Where prior art has established that the protein is added to enhance the taste perception of spreads, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the amount of protein in the emulsion such that they could enhance the taste perception of spreads to a desired level. As such, the amounts of protein as recited in the claims 13, and 21, and the limitation about measurable amount of protein as recited in claim 21 are merely obvious variants of the prior art.
Regarding the limitation about hydrocolloid or thickener, according to Bons et al., the aqueous phase may suitably contain a variety of food grade ingredients such as protein and hydrocolloid (e.g., polysaccharides) (page 10, lines 17-19). Bons et al. is silent regarding the amount of hydrocolloid.
In the same field of endeavor, ‘752 teaches a process for preparing an edible fat continuous spread emulsion comprising a fat phase that contains liquid oil and fat powder, and an aqueous phase, comprising the steps of mixing liquid oil, fat powder to form a slurry, followed by mixing the slurry with an aqueous phase to form the water-in-oil continuous emulsion (page 5, line 10-17); additionally, ‘752 teaches that the aqueous phase comprises a hydrocolloid (e.g., polysaccharide) for use as a thickening agent (page 11, line 10-15).
Where prior art has established that the hydrocolloid is included to act as a thickener, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the amount of hydrocolloid in the emulsion such that they could suitably thicken the emulsion. As such, the amount of hydrocolloids, and the limitation about measurable amount of thickener/hydrocolloid as recited in the claims 13 and/or 21 are merely an obvious variants of the prior art.
Regarding the Stevens value as recited in claims 13, 19 and 21, Bons et al. as modified by Wester, Dobenesque et al. and ‘752 teach an edible fat-continuous emulsion that is substantially similar to that of the claimed fat continuous emulsion, especially in term of the amount of hardstock fat. Therefore, fat- continuous emulsion of the modified Bons et al. would have been expected to have a firmness as measured by Stevens value that is similar to that of the claimed emulsion in the absence of convincing arguments or evidence to the contrary.
Regarding claims 15 and 20, Where Dobenesque et al. as recited above teach the fat soluble emulsifiers may be one or a combination of monoglyceride, lecithin, polyglycerol esters, etc., it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have included a monoglyceride in the polyglycerol ester and lecithin emulsifier combination and has a reasonable expectation that doing so would be successful, for the reason that prior art has established that it is suitable to combine a monoglyceride, lecithin and a polyglycerol ester to stabilize the edible fat-continuous emulsion. See also MPEP 2144.06.
As for the amount of monoglyceride emulsifier, given that Dobenesque et al. as recited above teach a combination of monoglyceride, lecithin and polyglycerol esters could be used to stabilize the edible W/O emulsion and the amount of emulsifiers is preferably 0.2 to 0.4%, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the amount of monoglyceride such that the emulsion could be better stabilized by the emulsifiers present and/or the total amount of emulsifiers meets what Dobenesque et al. has suggested. As such, the amounts of monoglycerides as recited in the claims are merely obvious variant of the prior art, absent a clear showing of the criticality of such.
Claims 1 and 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Bons et al. (WO 2012/084438 A1) in view of Wester (USPGPub 2004/0219277 A1), Beltman (WO 2011/144405 A1) and Dobenesque et al. (USPGPub 20110287160A1, cited in IDS filed 09/21/2020).
With respect to claims 1 and 22-23, Bons et al. teach a method of preparing an edible fat-continuous emulsion spread comprising preferably 40 to 70 wt% of an aqueous phase and 30 to 60 wt% of a fat phase (Abstract; page 1, lines 4-7; page 5, lines 19-29; page 10, lines 6-9; page 16, lines 21-25). In Examples 5-7, Bons et al. teach a method of preparing a fat continuous spread in which melted plant sterols (heated in an oven of about 60 degrees Celsius) were added to sunflower oil, said sunflower oil having a temperature of 15 degrees Celsius (liquid oil which is at a temperature of 1-15°C) (page 21, SET Il, lines 10-13; page 22, lines 6-8). This mixture was cooled to 15 degrees Celsius. Subsequently the structuring fat (hardstock- i.e. the interesterified mixture of 65% palm oil stearin (IV14) and 35% palm kernel oil), which is a fat powder produced by supercritical melt micronisation, was added to the mixture of plant sterol esters and sunflower oil (page 22, Table 4; page 23, lines 1-3). The resulting mixture (i.e. fat phase- fat slurry) had a temperature of 16 degrees Celsius (page 23, lines 3-4).
In addition, an aqueous phase was prepared by mixing all the aqueous phase ingredients), wherein the resulting aqueous phase was then cooled down to 12 degrees Celsius (page 23, lines 5-8). The fat phase was combined with the aqueous phase and mixed in a cooled pin stirrer, wherein the resulting fat continuous (water-in-oil emulsion) product exiting the mixture had a temperature of about 19 degrees Celsius (page 23, lines 9-13). According to Table 4, the fat-continuous spread composition of the above examples comprises 4.27 and 5.27 wt % fat powder (fat powder comprising hardstock- interesterified mixture of palm oil stearin and palm kernel oil) in the fat phase. Table 4 also demonstrates that the plant sterol ester is in an amount of 12.5 wt% in the fat phase.
Further, Bons et al. teaches that smaller water droplet sizes are preferred as this leads to increased microbiological stability and/or aid the firmness of the water in oil emulsion. Therefore, the water droplets preferably have a water droplet size of less than 15 micrometer, more preferably of less than 10 micrometer and even more preferably of less than 5 micrometer (page 10, line 11-15). Bons et al. further teaches that the water droplet size distribution is expressed as D3,3 and e-sigma (e.g., exp(σ)), in which D3,3 is the volume weighted mean droplet diameter and exp(σ) is the stand deviation of the logarithm of the droplet diameter (page 15, line 4-8). In one of the example, Bons et al. teaches a D3,3 value of 3.5 micron and an e-sigma value of 1.1 for water droplet size distribution (Table 5).
The overall disclosure of Bons et al. teaches a method in which the plant sterol esters are melted before they are mixed with the liquid oil and wherein the plant sterol esters have been subjected to a temperature of at least the melting temperature of the plant sterol esters (temperature above its melting point) ((page 6, lines 21-20; page 7, lines 10-17). According to Bons et al., the combination of using plant sterols in the form of plant sterol esters and the step of mixing the plant sterol esters and structuring fat only when said structuring fat is present as fat crystals (fat powder) results in the plant sterols being finely divided in a thin non-continuous layer around the water droplets (page 7, lines 24-29).
In addition to what has been recited in the specific examples, Bons et al. also discloses that the fat phase of the fat continuous emulsion spread comprises 15 to 40 wt% (calculated on fat phase) of plant sterols esters (page 11, lines 1-3). Bons et al. disclose that the aqueous phase and/or the fat phase may suitably contain emulsifiers (page 10, lines 17-18; page 14, lines 13-14). Further, according to Bons et al., preferably the fat continuous emulsion spread comprises polyglycerol polyricinoleate (PGPR) emulsifier at an amount of 0.05 to 1 wt% (page 14, lines 10-11).
While Bons et al. teach a method for manufacturing edible fat-continuous emulsions as recited above, wherein plant sterol esters are provided in liquid form at a temperature above its melting point, wherein the plant sterol esters in liquid form are mixed with liquid oil, and wherein the fat phase comprises liquid oil and fat powder (one or more fat components), the reference fails to teach providing a hardstock fat in liquid form and mixing liquid oil with hardstock in liquid form, said hardstock fat being at a temperature above its melting point as claimed.
Wester discloses that stanol and sterol fatty acid esters, such as phytosterol esters which have been derived from plant sterols, form crystal networks with similar properties as those of conventional hardstock triglycerides (abstract; [0003]; [001 1]- [0012]; and [0014]). As a result, Wester teaches a method in which stanol and/or sterol esters are used to partly or totally replace hardstock (e.g., tropical oil and animal fat) in conventional fat blends for use in the preparation of foods like margarines and spreads, in order to give a crystal network with similar physical and melt-down properties in the mouth [0003; 0018].
Further, Bons et al recognizes that tropical oil such as shea oil (e.g., shea butter) palm fat, and coconut oil, etc., and animal fat such as dairy fat fraction are suitable hardstock fat (e.g., structuring fat) used in the edible fat-continuous emulsion spread (page 13, line; page 1, line 23).
Further, Beltman in the same field of endeavor teaches an edible fat-continuous emulsion spread comprises a water phase and a fat phase, wherein the fat phase comprises liquid oil, plant sterol and a structuring fat, wherein the structuring fat includes butter fat, palm oil, coconut oil, etc. (Abstract; page 8, line 16- page 9, line 15).
Bons et al., Wester and Beltman all disclose the use of plant sterol esters in fat blends for edible spreads (fat continuous emulsions), wherein the fat blend also comprises liquid oil and hardstock. Given that Wester teaches that plant sterol esters (phytosterol esters) can be used to totally replace conventional hardstock (e.g., tropical oil and animal fat) because of the similarity in the crystallinity and physical properties of the esters to those of hardstock fats, one having ordinary skill in the art would have considered plant sterol esters and hardstock fat to be interchangeable in the capacity of preparation of foods like margarines and spreads. Because plant sterol esters can totally replace hardstock fats (e.g., tropical oil and animal fat) in fat blends, it would have been obvious to substitute plant sterol esters for hardstock fats in fat blends and vice versa. Therefore, it would have been obvious to one of ordinary skill in the art to substitute the plant sterol esters in the method of Bons et al. with an additional hardstock fat component such as shea butter or butter fat, since the two types of lipid impart the same and/or similar characteristics in fat blends as demonstrated by prior art. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established that plant sterol esters and hardstock fat to be interchangeable in the capacity of preparing foods like margarines and spreads.
It would also have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined shea butter and butter fat as the source of hardstock in liquid from in the emulsion of Bons et al. because either one has been recognized by prior art as a suitable source of hardstock in a fat-continuous emulsion spread. As stated in MPEP 2144.06 I, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Given that Bons et al. teach providing plant sterol esters in liquid form and a step of mixing liquid oil at a temperature of 15°C with 12.5 wt% plant sterol ester, wherein the plant sterol ester can be at a temperature above its melting point, as well as combining the mixture with fat powder as recited above, it would have been obvious to subject a hardstock fat such as shea butter or dairy fat fraction in liquid form to each of the above steps of Bons et al., since Wester demonstrates that the components are interchangeable.
While Bons et al. as recited above teach that the fat continuous emulsion spread can comprise a non-lecithin emulsifier polyglycerol polyricinoleate (PGPR) in an amount of 0.05 to 1 wt%, the reference fails to disclose wherein the composition further comprises lecithin and/or a lecithin derivative in an amount of 0.05 to 0.4%.
In the same field of endeavor, Dobenesque et al. teach a process for preparing an edible fat continuous spread emulsion comprising a fat phase that contains liquid oil and fat powder, and an aqueous phase, comprising the steps of mixing liquid oil, fat powder to form a slurry, followed by mixing the slurry with an aqueous phase to form the water-in-oil continuous emulsion ([0023-0026; 0041]). Further, Dobenesque et al. teach that fat soluble emulsifiers are commonly used in the preparation of fat continuous spreads to stabilize the desired water-in-oil emulsion; the fat soluble emulsifiers may be one or a combination of monoglyceride, lecithin, polyglycerol esters, etc.; it is within the reach of the skilled person to determine the suitable amount depending on the amount of fat used, and preferably the amount of fat soluble emulsifiers on total amount of product is 0.05 to 1.5 wt %, preferably 0.1 to 1, more preferably 0.15 to 0.6 and even more preferably 0.2 to 0.4 ([0041-0042; 0044-0045]).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bons et al. by submitting a polyglycerol ester (e.g., PGPR as disclosed by Bon et al.) with lecithin at an amount of 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%) in the emulsion of Bons et al. with reasonable expectation of success, for the reason that substituting equivalents known for the same purpose is prima facie obvious. See MPEP 2144.06.II.
Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bons et al. by including both a polyglycerol ester (e.g., PGPR as disclosed by Bon et al.) and lecithin in the emulsion of Bons et al. such that the total amount of emulsifiers is within the preferred range of 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%), for the reason that Dobenesque et al. teach that it is suitable to use a combination of polyglycerol ester and lecithin emulsifiers to stabilize an edible fat-continuous emulsion that comprises a fat phase and an aqueous phase, and suitable amount of emulsifiers is 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%). One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because prior art has established the suitability of combining polyglycerol ester and lecithin emulsifier in an edible fat-continuous emulsion at an amount of 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%) See also MPEP 2144.06 which states, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
As for the amount of lecithin, given that Dobenesque et al. as recited above teach the polyglycerol ester- lecithin emulsifier combination could be used to stabilize the edible W/O emulsion and the amount of emulsifiers is preferably 0.05-1.5% (or narrowly 0.1-1%, 0.15-0.6% and 0.2-0.4%), it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the amount of each emulsifiers such that the emulsion could be better stabilized by the emulsifiers present and/or the total amount of emulsifier meets what Dobenesque et al. has suggested. As such, the amounts of lecithin emulsifier as recited in the claims are merely obvious variants of the prior art, absent a clear showing of the criticality of such.
It is also noted that Bons et al. in view of Wester and Dobenesque et al. teach a method in which each of the weight percentages and the temperature ranges overlap with the respective claimed ranges. In the case where the claimed ranges “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) (MPEP 2144.05 1).
Response to Arguments
Applicant's arguments filed 09/08/2025 have been fully considered and the examiner’s response is shown below:
Applicant argues on page 7 of the Remarks that cited arts fail to teach hard fat in liquid form as being of a particular source.
The argument is considered but found moot over the new ground of rejection set forth in the instant office action.
Applicant argues on page 7 of the Remarks that Bons teaches away from the use of hardstock fat in liquid form as being of a particular source. In particular, applicant argues that butter fat is discouraged in view of the presence of trans fat.
The argument is considered but found unpersuasive. Bons et al. does not teaches away using component comprising trans-fat, rather, Bons et al state that component that comprises trans-fat is not preferred. See Bons page 12, first para, which disclose that “Trans unsaturated fatty acids.. are not preferred”. On the other hand, Bons discloses that dairy fat fraction can be used as the hardstock fat for fat powder (page 13, line 17-20). To this end, prior art is available for all it teaches, not just the preferred embodiment. See MPEP 2141.02, "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). See also MPEP 2123 II. Nonpreferred and alternative embodiments constitute prior art. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) (The invention was directed to an epoxy impregnated fiber-reinforced printed circuit material. The applied prior art reference taught a printed circuit material similar to that of the claims but impregnated with polyester-imide resin instead of epoxy. The reference, however, disclosed that epoxy was known for this use, but that epoxy impregnated circuit boards have "relatively acceptable dimensional stability" and "some degree of flexibility," but are inferior to circuit boards impregnated with polyester-imide resins. The court upheld the rejection concluding that applicant’s argument that the reference teaches away from using epoxy was insufficient to overcome the rejection since "Gurley asserted no discovery beyond what was known in the art." Id. at 554, 31 USPQ2d at 1132.).
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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