DETAILED ACTION
Status
This Official Action is Non-Final.
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 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 1-10 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2011/0281015 (HIGGINS) in view of WO 2015/128155 (VAN DER HIJDEN) (see IDS of 4/12/2018).
Claim 1 recites a composition comprising a structured oil phase, wherein the oil phase comprises;
a) liquid oil;
b) hardstock fat; and
c) a fibrous preparation of delaminated cell wall material dispersed in said oil phase, wherein the cell wall material is sourced from plant tissue; and wherein said fibrous preparation has a specific surface area corresponding to an SBET of at least 5 m2/g, and a water content of at most 10%.
As to claim 1, HIGGINS teaches a composition comprising an oil, hard fat (i.e., hardstock fat) and cellulose fiber [0008], [0010], [0020]. The oil is a liquid oil [0009]. The hard fat comprises fully or partially hydrogenated oil(s), solid stearin fractions, partial esters such as diglycerides and monoglycerides, waxes or mixtures thereof [0009]. The cellulose fibers are obtained from plants sourced including citrus ([0026]). The combination provides a structured fat/fiber mixture [0024]. The use of cellulose fibers allows a plastic shortening like material to be produced with reduced levels of both trans fatty acids and saturated fatty acids compared to a shortening compositions without the fibers ([0024]).
The composition contains less than 1% water [0025].
HIGGINS does not teach a delaminated fibrous material having the claimed SBET. It is noted that the claimed invention is a product and has been examined on that basis. Product claims are examined based on the structural and physical characteristics of the product, including the ingredients. As to the claimed fibrous material, the issue is whether one skilled in the art would be motivated to include the claimed delaminated fibrous material as part of the product.
VAN DER HIDJEN teaches a of plant parenchymal cell wall cluster, wherein the cell wall clusters have a: a. volumetric mass density of at least 0.1 gram/ml; b. SBET of at least 3 m2/gram (see abstract).
VAN DER HIDJEN teaches that such a preparation can be used as a structurant. The cell wall clusters of the invention act as a thickener wherein the rehydrated intact parenchymal plant cell walls and/or plant parenchymal cell wall fragments' structure by space filling (see pg. 10, lines 28-33).
Thus, it would have been obvious to add the preparation of VAN DER HIDJEN to HIGGINS as a structurant.
Claim 2 recites that the oil phase comprises a synergistic combination of the hardstock fat and the fibrous preparation.
HIGGINS is cited for the reasons noted above in claim 1. Additionally, it would have been obvious to add hardstock to the above based on the desired thickness and texture of the mixture. This inherently includes a synergistic structuring effect of the oil phase. Thus, it would have been obvious to vary the texture of the product based on desired viscosity and thickness of the product.
Claim 3 recites that the composition has a shear storage modulus G' of at least 100 Pa.
HIGGINS is cited for the reasons noted above in claim 1. Additionally, the shear storage modulus measures the stiffness of a material. HIGGINS teaches in [0010] that the method of preparation comprises the step of providing a composition comprising a cellulose fiber, a hard fat and a liquid oil, and mixing the composition to provide a shortening composition. During the mixing step, the composition is brought to a molten state such that the admixture becomes homogenized. The order of adding the ingredients and heating the ingredients can be changed as required by a particular process. The molten homogeneous composition then is cooled, in one embodiment, with agitation, to promote a crystal structure that imparts the desired physical properties to the shortening. This crystallization results in a hardening of the material.
It would have been obvious to vary the hardness based on the desired level of crystallinity and obtaining that level by varying the amount of shortening and oil.
Additionally, it is noted the cellulose fibers are obtained from plant sources including citrus ([0026]). The combination provides a structured fat/fiber mixture [0024]. The use of cellulose fibers aid in structuring the shortening, partly at least by taking some of the oil into capillaries and tying up some oil wetting the fiber surfaces, and partly by physically acting to re-enforce the crystal structure formed by the higher melting fractions incorporated into the composition ([0024]).
Clearly, HIGGINS teaches that these ingredients can both be added and work together to enhance the particular structure/hardness of the product. In this regard, the amount of these ingredients can be optimized as result effective variables to obtain the desired level of hardness.
Moreover, as to the measuring the hardness via a shear storage modulus parameter, applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. 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). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Claim 4 recites that the oil phase comprises from 1 to 20 wt-% of said hardstock fat and from 0.1 to 10 wt % of the fibrous preparation with regard to the oil phase.
Claim 5 recites that the hard stock fat and the particles are present in a ratio by weight of particles to hardstock fat of between 1 to 40 and 1 to 1.
Claim 6 recites that the fibrous preparation has a specific surface area corresponding to a SBET of at least 15 m2/g.
As to clams 4-6, HIGGINS teaches a composition comprising an oil, hard fat (i.e., hardstock fat) and cellulose fiber [0008], [0010], [0020]. The oil is a liquid oil [0009]. The hard fat comprises fully or partially hydrogenated oil(s), solid stearin fractions, partial esters such as diglycerides and monoglycerides, waxes or mixtures thereof [0009]. The cellulose fibers are obtained from plants sourced including citrus ([0026]). The combination provides a structured fat/fiber mixture [0024]. The use of cellulose fibers allows a plastic shortening like material to be produced with reduced levels of both trans fatty acids and saturated fatty acids compared to a shortening compositions without the fibers ([0024]).
The composition contains less than 1% water [0025].
Additionally, HIGGINS teaches that hardstock can be in an amount of 5 to 20% by weight of the composition [0030].
This would provide a ratio of at least 1:1 in that overlapping amounts are provided.
At [0027] HIGGINS teaches the composition comprises cellulose fiber in an amount of from about 1 to about 15%. Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. 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). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
HIGGINS does not teach a delaminated fibrous material having the claimed SBET.
VAN DER HIDJEN teaches a of plant parenchymal cell wall cluster, wherein the cell wall clusters have a: a. volumetric mass density of at least 0.1 gram/ml; b. SBET of at least 3 m2/gram (i.e., including amounts greater than at least 15) (see abstract).
VAN DER HIDJEN teaches that such a preparation can be used as a structurant in an amount of . The cell wall clusters of the invention act as a thickener wherein the rehydrated intact parenchymal plant cell walls and/or plant parenchymal cell wall fragments' structure by space filling (see pg. 10, lines 28-33).
Thus, it would have been obvious to add the preparation of VAN DER HIDJEN to HIGGINS as a structurant.
In Example 12, 7.5 g is added to 22.5g wheat flour, 500 grams milk, 125 grams butter and 1 cube of chicken bouillon (5g). This approximately 1% and touches on the claimed range (i.e., 7.5g/660g).
However, as to the amount of preparation, it would have been obvious to vary the amount based on the amount of structure needed given VAN DER HIDJEN teaches that the preparation acts as a thickener and structure.
Claim 7 recites that the liquid oil includes an edible liquid oil, a liquid paraffin, a liquid silicone oil or a combination thereof.
HIGGINS additionally teaches the use of a liquid oil [0013]. Given HIGGINS teaches a food product, the product is edible.
Claim 8 recites that the composition is an edible composition.
HIGGINS teaches that the oil can be used in foods [0055].
Claim 9 recites that the cell wall material is citrus fiber.
Higgins is cited for the reasons noted above for claim 1. Additionally, Higgins teaches that the fiber can be from citrus [0026].
Claim 10 recites that the fibrous preparation is in particulate form and wherein upon the fibrous preparation is such that, when a dispersion containing between 0.05 and 0.2 wt-% of the fibrous preparation in a hydrophobic liquid is sieved, at least 70 wt% of the fibrous preparation passes a sieve with apertures of 500 µm and not more than 30 wt% of the fibrous preparation passes a sieve with apertures of 125 µm
HIGGINS does not recite the claimed particle sizes.
VAN DE HIDJEN does teach that the particle size affects the rheology and structuring of the product (see pg. 14, lines 5-12 and pg. 18, lines 5-9). In this regard, it would have been obvious to vary the particle size distribution based on the desired rheology and structuring.
Claim 15 recites that the hydrophobic liquid is a triglyceride oil.
Claim 16 recites that the oil is sunflower.
HIGGINS teaches the oil can be a triglyceride and sunflower oil [0009].
Claim 17 recites that the delaminated cell wall material is a dried fibrous preparation that, when contacted with the liquid oil, is readily dispersed therein.
Claim 18 recites that the delaminated cell wall material has an open network structure of fibers with an openness that is retained in the fibrous preparation when the delaminated cell wall material is dried.
As to claims 17-18, HIGGINS does not teach the structure of the composition.
However, VAN DER HIDJEN teaches a of plant parenchymal cell wall cluster, wherein the cell wall clusters have a volumetric mass density of at least 0.1 gram/ml and SBET of at least 3 m2/gram (i.e., including amounts greater than 3 and including 15) (see abstract). Given the product has an overlapping density, as claimed, and appears to be of the same material, the preparation would naturally disperse on oil.
VAN DER HIDJEN teaches that such a preparation can be used as a structurant. The cell wall clusters of the invention act as a thickener wherein the rehydrated intact parenchymal plant cell walls and/or plant parenchymal cell wall fragments' structure by space filling (see pg. 10, lines 28-33). In Example 1 beginning on page 13, it is noted that liquid nitrogen is used to produce the parenchymal cell wall cluster.
Thus, it would have been obvious to add the preparation of VAN DER HIDJEN to HIGGINS as a structurant.
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-11 and 15-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 12,426,608 (608 Patent). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the present application recites a broader composition.
Claim 1 of the 608 Patent recites comprising an oil phase and a fibrous preparation of delaminated cell wall material dispersed in said oil phase, wherein the cell wall material is sourced from plant tissue, and wherein said fibrous preparation has a specific surface area corresponding to an SBET of at least 5 m2/g,
wherein the delaminated cell wall material has an open network structure of fibers formed by liquid nitrogen freezing and freeze-drying,
wherein the cell wall material is citrus fibre, tomato fibre, sugar beet fibre, sugar cane fibre or a combination thereof; and
wherein the fibrous preparation is in particulate form and wherein the fibrous preparation is such that, when a dispersion containing between 0.05 and 0.2 wt-% of the fibrous preparation in a hydrophobic liquid is sieved, at least 70 wt % of the fibrous preparation passes a sieve with apertures of 500 μm and not more than 30 wt % of the fibrous preparation passes a sieve with apertures of 125 μm.
While the 608 Patent does not recite a hardstock, Claim 1 of the 608 Patent does reference an oil phase. It would have been obvious that a hardstock is a fat and could be a part of an oil phase for emulsion.
Claim 1 of the present application is broader than that of claim 1 of the 608 Patent in that the claim does not specify the properties and source material of the fibrous preparation, i.e., open cell wall material, origin of cell wall material, and particulate parameters. However, clam 1 appears to recite the same fibrous preparation. Indeed, both fibrous preparations recite the same SBET. At pg. 10, lines 20-30 of the present specification, it is taught that the cell wall material is from similar materials. Additionally, the present specification teaches at pg. 16 lines 1-5 that delamination occurs with rapid freezing and freeze-drying. The same as the 608 Patent (e.g., col. 9, lines 40-65).
Claim 10 of the present application also recites that same particulate parameters.
Thus, claims 1-11 and 15-19 of the present application are obvious in view of the 608 Patent.
Response to Arguments
Applicant's arguments filed 1/27/2026 have been fully considered but they are not persuasive.
Any rejection from the previous Official Action not repeated above have bene withdrawn.
The Declaration under 37 CFR 1.132 (DECLARATION) filed 1/27/2026 is insufficient to overcome the rejection of claims 1-10, 15-18 based upon United States Patent Application Publication No. 2011/0281015 (HIGGINS) in view of WO 2015/128155 (VAN DER HIJDEN) as set forth in the last Office action because:
Applicant argues that Higgins and Van der Hijden does not teach the claimed invention. In particular, it is argued that Van Der Hijden teaches cell wall clusters with a specific SBET surface area of at least 3 m²/g and being compressed to achieve volumetric mass density of at least 0.1 g/ml for use in instant dry food products that require rehydration in water (see page 4, lines 18-26 of Van der Hijden 's). Hence, the cell wall clusters of Van der Hijden are specifically designed to rehydrate in aqueous systems, not to disperse in oil, and are thus hydrophilic. Further, Van der Hijden is silent on the water content of these fibers. The combination of Higgins and Van der Hijden fails to teach or suggest that delaminated cell wall material with retained open network structure after drying would be readily dispersible in an oil phase to obtained a structured oil phase.
However, the claimed invention is based on a product. The applicant seeks to distinguish the claimed product based on the use of VAN DER HIDJEN product (i.e., although at pg. 10, lines 28-35 it is identified as a structurant). Additionally, this disregards Higgins.
HIGGINS teaches a composition comprising an oil, hard fat (i.e., hardstock fat) and cellulose fiber [0008], [0010], [0020]. The oil is a liquid oil [0009]. The hard fat comprises fully or partially hydrogenated oil(s), solid stearin fractions, partial esters such as diglycerides and monoglycerides, waxes or mixtures thereof [0009]. The cellulose fibers are obtained from plants sourced including citrus ([0026]) and provides structure. The composition contains less than 1% water [0025].
Moreover, applicant’s arguments and Declaration argue that the claimed invention provides structure to a fat composition at a lower concentration. The Declaration suggest that fibrous preparation must undergo rapid freezing and freeze drying to obtain these goals (i.e., see points 14-22 of the Declaration indicates that the fiber preparation which had undergone rapid freezing AND freeze drying is required to provide structure at lower concentrations). While this is sufficient to overcome the rejections based on BLIJDENSTEIN, the product of VAN DER HIDJEN does appear to made of similar materials, provide an overlapping SBET, and produced by rapid freezing and freeze drying (see quench freezing of plant material and freeze drying at pg. 3, lines 10-20 and pg. 10, lines 10-15).
Thus, the rejection of claims 1-11 and 14-19 in view of HIGGINS and VAN DER HIDJEN is maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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 on 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.
/PHILIP A DUBOIS/Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
Prosecution Insights