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 .
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 1-4,6-9,16-18,20-28 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.
Claims 2 and 16 recite that the hardstock fat is in “completely liquid” form. However, claim 1 only requires the hardstock fat to be in liquid form.
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.
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.
Claims 1-4,6-9,16-18, 20-26,28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Unilever(GB 1327511) in view of Gupta(WO2013/037605A1).
Regarding claims 1-3,6,17,18, Unilever teaches a process for the manufacture of a non-pourable edible water-in-oil emulsion comprising the steps:
a)providing 45% hardstock fat(example IV, 37.4% hardstock fat(first liquid) out of 82.9% total fat) at a temperature of 36.5C). Unilever teaches that the hardstock fat comprises coconut oil and palm oil which are both vegetable fats(example IV). The hardstock fat is heated to a temperature of at least 28C, which is up to 5C above the melting point of 45C
b) providing a liquid mixture of water and the vegetable oil, sunflower oil(consists essentially of a vegetable oil) at a temperature below the melting point of the hardstock fat(second mixture is at a temperature of 6C and hardstock fat has a melting point of 45C)
c) mixing the hardstock fat in liquid form with the liquid mixture of oil and water wherein the temperature of the mixture is about 5 to 20C(p.2, line 37-42),i.e. below the melting point of the hardstock fat. Emulsion is in the form of a non-pourable spread.
Regarding the hardstock fat being in liquid form, Unilever specifically describes the first composition comprising the coconut oil and hydrogenated palm oil as a “first liquid.”(example IV). Unilever also consistently refers to the hardstock fat as a “liquid” throughout the rest of the disclosure(see the entire disclosure but especially p.1, line 30-41; p.1, line 55-67; p.2, line 28-37, example IV). Therefore, it is clear from the disclosure of Unilever that the hardstock fat is in liquid form.
Furthermore, Unilever teaches that the emulsion does not crystalize until combining with the second liquid(p.2, line 38-51). Therefore, it is clear that the hardstock fat is liquid and does not crystallize until the two fat compositions have been combined in step c). In step a), the hardstock composition is in liquid form as is explicit in the disclosure of Unilever.
Unilever also describes the liquid hardstock fat as “molten”(p.1, line 21-29). Molten is defined by the Merriam-Webster Dictionary as “liquefied by heat.” Therefore, Unilever provides several more indications that the hardstock fat is liquid in step a).
Additionally, Unilever discloses that the hardstock fat can be coconut oil, palm oil, palm kernel oil, and/or partially hydrogenated vegetable oils(p.1, line 55-67), the same hardstock fats that are recited in the instant spec(see instant spec, p.13, line 11-24). Unilever further teaches heating the hardstock fat to a temperature of 36.5C(example IV). Likewise, the instant spec and claim 2 recite heating the hardstock fat to a temperature of at least 25C, with a highly preferable range of from 35 to 60C. Therefore, Unilever teaches heating the same hardstock fats to the same temperature as applicant. One of ordinary skill in the art would expect that the same hardstock fat of the prior art would become liquid upon heating to the same temperature as in the instant invention.
Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Unilever teaches that the mixing is step c) is done at an RPM of 835-1400rpm but does not specifically teach that it is a fluid dynamic mixer. However, Gupta teaches the use of a fluid dynamic mixer to mix an emulsion for a spread comprising oil, water, and a hardstock fat(p.21). Gupta teaches mixing at a speed of 300rpm to 7500rpm which yields stable emulsions with a narrow particle distribution(p.23-24). It would have been obvious to use a fluid dynamic mixer in Unilever at an RPM of 300rpm to 7500rpm in order to create a stable hardstock fat and oil emulsion as taught in Gupta.
Unilever is silent on the rotor tip speed of the fluid dynamic mixer. However, the purpose of the mixing step is to achieve an emulsified, homogenous product of aqueous and fat components. Therefore, it would have been obvious to adjust the fluid dynamic rotor tip speed in order to achieve a homogenous emulsion.
Regarding claim 4, Unilever is silent on the mixing number of the fluid dynamic mixer. However, the purpose of the mixing step is to achieve an emulsified, homogenous product of aqueous and fat components. Therefore, it would have been obvious to adjust the fluid dynamic mixer mixing speed in order to achieve a homogenous emulsion.
Regarding claim 7,23-26, Unilever in view of Papadogianakis is silent on the N line and Stevens value of the emulsion. However, Unilever in view of Papadogianakis teaches the method of claim 1 and the relative amounts of hardstock fat, liquid fat, and water as recited in claims 6,8 and 9. Unilever also teaches that the hardstock fat is in the form of coconut oil and hydrogenated palm oil and the liquid fat is in the form of sunflower oil(example IV). Likewise, the instant spec teaches that these fats can also be used in the instant invention for the hardstock and liquid fats. Since Unilever uses the same types of fats and corresponding amounts as well as the same method of making the emulsion, one of ordinary skill in the art would expect the non-pourable emulsion to have the associated N line and Stevens value properties as claimed.
Regarding claims 8,9,21,22, Unilever teaches that the emulsion comprises 45.5% liquid oil out of a total of 82.9 fat%. Therefore, the liquid fat is present in an amount of 55% based on the total amount of fat. Unilever further teaches that the emulsion comprises 16.5% of water-phase(example IV).
Regarding claim 16, Unilever teaches that the hardstock fat is a liquid fat at provided at a temperature of at least 28C(p.1, line 30-41), which overlaps the temperature range of at least 38 to 50C and renders it obvious.
Regarding claim 20, Unilever teaches that the emulsion comprises 16-60% of a first liquid which substantially consists of a hardstock fat(p.1, line 30-41).
Regarding claim 28, Unilever teaches in step c) mixing the hardstock fat in liquid form with the liquid mixture of oil and water wherein the temperature of the mixture is about 5 to 20C(p.2, line 37-42),i.e. below the melting point of the hardstock fat. Gupta renders obvious using a fluid dynamic mixer. Therefore, the temperature of the mixture when exiting the fluid dynamic mixer is about 5 to about 20C, which overlaps up to 8C and renders it obvious.
Claim 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Unilever(GB 1327511) in view of Gupta(WO2013/037605A1) further in view of Papadogianakis (US 2010/0022664) and Huizinga(US 2009/0246348).
Regarding claim 27, Unilever teaches that the liquid fat comprises at least 40% polyunsaturated fatty acids, preferably in the form of cis fatty acids, i.e. one would expect less than 60% trans unsaturated fatty acids in the liquid fat(p.1, line 81-88). Unilever is silent on the presence of trans unsaturated fatty acids in the hardstock fat based on the weight of the hardstock fat. However, Papadogianakis teaches that trans fats are known to have negative health effects and are typically formed during hydrogenation of unsaturated fatty acids. Papadogianakis further teaches(paragraph 5)
“Therefore, there is increasing interest in the development of new industrial hydrogenation processes producing lower amounts of trans- and saturated fats. One development involves the use of selective homogeneous transition metal complexes as catalysts to obtain mainly cis-C18:1 fats and these homogeneous catalysts should be easily and quantitatively recovered and recycled. Ideal homogeneous catalysts for such conversions would be water soluble transition metal complexes to act in aqueous/organic two phase systems. The other development involves the use of shape-selective zeolites that allow the rather straight trans-isomer to enter the pores while keeping the more curved cis-isomer outside.”
Therefore, it would have been obvious to reduce the amount of trans-unsaturated fatty acids in the hardstock fat through the use of the hydrogenation methods as taught in Papadogianakis in order to avoid the negative health effects of trans unsaturated fatty acids.
Papadogianakis renders obvious minimizing the amount of trans fatty acid in the hardstock fat of Unilever in order to prevent the negative health effects associated with trans-fat. Since no method is perfect, it would have been reasonable to achieve between 3 to 7wt% trans fatty acids based on the weight of the total fat through the hydrogenation methods of Papadogianakis, thus still having a minimal amount of trans unsaturated fatty acids present in the hardstock fat. The applicant has not shown that the amount of between 3 to 7wt% trans fatty acids in the hardstock fat based on the weight of hardstock fat is critical.
As such, Huizinga teaches a hardstock fat comprising less than 5% trans fatty acids. Huizinga teaches that the hardstock fat is considered to have “essentially no” trans unsaturated fatty acids. Therefore, one of ordinary skill in the art would reasonably expect when minimizing the trans fat to “essentially nothing” according to Papadogianakis that the composition would still comprise trace amounts, i.e 3 to 7%, of trans unsaturated fatty acids in the hardstock fat based on the weight of the total fat.
Response to Arguments
Applicant's arguments filed 10/15/2025 have been fully considered but they are not persuasive.
Please see the new rejections over Unilever in view of Gupta.
Conclusion
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791