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 in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/19/2026 has been entered.
Claims
Claims 1, 2, 7-11, 13, 16-21, 23 and 25-27 are pending with claims 10, 11 and 13 withdrawn.
Examiner’s Note
When making amendments to the claims Applicant is advised to be careful and not add new matter. If Applicant believes that support is present in the Figures, then Applicant is advised to consider amending the text of the Specification to capture the new limitations while being careful not to add new matter. Applicant is advised to precisely point out where in the disclosure as filed, not the PGPUB, support is present for any amendments.
WITHDRAWN OBJECTIONS
All objections of record in the Office Action mailed 2/19/2026 have been withdrawn due to Applicant’s amendments in the Paper filed 4/20/2026.
WITHDRAWN REJECTIONS
All rejections of record in the Office Action mailed 2/19/2026 have been withdrawn due to Applicant’s amendments in the Paper filed 4/20/2026.
NEW REJECTIONS
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Official Correspondence.
Claims 1, 2, 7-9, 16-21, 23 and 25-27 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The phrase “method for preparing a creamer … sunflower oil … with water” in claim 1, lines 1-15 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
The phrase “method for preparing a creamer … powder … form” in claim 1, lines 1-10 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
The phrase “externally added tocopherols that-are between 250 and 1000 mg/kg of the ultra-high oleic oil” in claim 1, lines 5-6 is new matter as the Specification does not state the externally added tocopherols are between 250-1,000 mg/kg but rather the oil with added tocopherols is 250-1,000 mg/kg. The amount added and amount present do not have the same scope.
The phrase “a powder form, the method further comprising mixing the ultra-high oleic oil, the externally added tocopherols, the protein and the low molecular weight emulsifier with water” in claim 1, lines 13-15 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The phrase “method for preparing a creamer … powder … form” in claim 1, lines 1-10 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
The phrase “method for preparing a creamer … with water” in claim 21, lines 1-14 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
The phrase “method for preparing a creamer … powder form” in claim 21, lines 1-9 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.). The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
The phrase “method for preparing a creamer … algal oils … with water” in claim 26, lines 1-15 is new matter as the disclosure as filed only has support for a “liquid creamer” (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
The phrase “method for preparing a creamer … powder … form” in claim 26, lines 1-10 is new matter as the disclosure as filed only has support for a “liquid creamer” for this method (See p. 12, l. 11+ of the Specification.).
PNG
media_image1.png
318
638
media_image1.png
Greyscale
The claimed language is broader than “liquid creamer” and includes powder creamers. Powder creamers require solid fat like hydrogenated soy or palm kernel oil. This method does not require solid fat.
Claims 1, 2, 7-9, 16-21, 23 and 25-27 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.
The phrase “adding tocopherols to an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer” in claim 1, lines 3-4 is vague and indefinite as it is unclear how the oleic acid content can be based on anything other than the ultra-high oleic oil.
If the oleic acid content is not based on the oil, then it appears the oil may or may not be ultra-high oleic oil as no specific oleic acid content is required in the oil, but rather the creamer which may have another source of oleic acid to boost the overall oleic acid content to 85-97%.
The phrase “adding tocopherols to an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer” in claim 1, lines 3-4 is vague and indefinite as it is unclear whether the oleic acid content must be 85 to 97% in both the ultra-high oleic oil and the creamer or something else.
For example, it is unclear if the ultra-high oleic oil can have 84% or 83% or 80% or 50% oleic acid as long as there are other ingredients having oleic acid bringing the total oleic acid content to 85-97%
For example, it is unclear if the ultra-high oleic oil can have 98% or 99% or 100% oleic acid as long as there are other ingredients have lesser amounts of oleic acid to bring the total oleic acid content to 85-97%.
The phrase “externally added tocopherols that-are between 250 and 1000 mg/kg of the ultra-high oleic oil” in claim 1, lines 5-6 is vague and indefinite as it is unclear whether Applicant meant to state the oil with added tocopherols is 250-1,000 mg/kg or something else.
The phrase “adding a protein” in claim 1, line 7 is vague and indefinite as it is unclear what the protein is added to. It is unclear if it is added to a tank or added to oil or something else.
The phrase “adding a low molecular weight emulsifier” in claim 1, line 8 is vague and indefinite as it is unclear what the emulsifier is added to. It is unclear if it is added to a tank or added to oil or something else.
The phrase “form selected from the group consisting of (a) powder or liquid form … (b) liquid form …” in claim 1, lines 9-15 is vague and indefinite as is it is unclear what language is limited by the “consisting” language as 2 liquid forms are set forth and other language that is not “form” language is set forth but rather process steps. Furthermore, it is unclear how there can be more than 1 liquid form.
Claim 1 recites the limitation "the externally added tocopherols" in line 11. There is insufficient antecedent basis for this limitation in the claim. The phase “externally” was not previously set forth. Applicant is advised to consider stating "the added tocopherols".
The phrase “low molecular weight” in claim 1, line 11 is vague and indefinite as it is unclear what molecular weight this is referring to.
Claim 1 recites the limitation "the externally added tocopherols" in line 14. There is insufficient antecedent basis for this limitation in the claim. The phase “externally” was not previously set forth. Applicant is advised to consider stating "the added tocopherols".
The phrase “adding tocopherols to an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer” in claim 21, lines 3-4 is vague and indefinite as it is unclear how the oleic acid content can be based on anything other than the ultra-high oleic oil.
If the oleic acid content is not based on the oil then it appears the oil may or may not be ultra-high oleic oil as no specific oleic acid content is required in the oil, but rather the creamer which may have another source of oleic acid to boost the overall oleic acid content to 85-97%.
The phrase “adding tocopherols to an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer” in claim 21, lines 3-4 is vague and indefinite as it is unclear whether the oleic acid content must be 85 to 97% in both the ultra-high oleic oil and the creamer or something else.
For example, it is unclear if the ultra-high oleic oil can have 84% or 83% or 80% or 50% oleic acid as long as there are other ingredients having oleic acid bring the total oleic acid content to 85-97%
For example, it is unclear if the ultra-high oleic oil can have 98% or 99% or 100% oleic acid as long as there are other ingredients have lesser amounts of oleic acid to bring the total oleic acid content to 85-97%.
The phrase “adding a protein” in claim 21, line 6 is vague and indefinite as it is unclear what the protein is added to. It is unclear if it is added to a tank or added to oil or something else.
The phrase “adding a low molecular weight emulsifier” in claim 21, line 7 is vague and indefinite as it is unclear what the emulsifier is added to. It is unclear if it is added to a tank or added to oil or something else.
The phrase “low molecular weight” in claim 21, line 7 is vague and indefinite as it is unclear what molecular weight this is referring to.
The phrase “form selected from the group consisting of (a) powder or liquid form … (b) liquid form …” in claim 21, lines 8-14 is vague and indefinite as is it is unclear what language is limited by the “consisting” language as 2 liquid forms are set forth and other language that is not “form” language is set forth but rather process steps. Furthermore, it is unclear how there can be more than 1 liquid form.
Claim 21 recites the limitation "the externally added tocopherols" in lines 9-10. There is insufficient antecedent basis for this limitation in the claim. The phase “externally” was not previously set forth. Applicant is advised to consider stating "the added tocopherols".
Claim 21 recites the limitation "the externally added tocopherols" in lines 12-13. There is insufficient antecedent basis for this limitation in the claim. The phase “externally” was not previously set forth. Applicant is advised to consider stating "the added tocopherols".
The phrase “adding tocopherols to an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer” in claim 26, lines 3-4 is vague and indefinite as it is unclear how the oleic acid content can be based on anything other than the ultra-high oleic oil.
If the oleic acid content is not based on the oil then it appears the oil may or may not be ultra-high oleic oil as no specific oleic acid content is required in the oil, but rather the creamer which may have another source of oleic acid to boost the overall oleic acid content to 85-97%.
The phrase “adding tocopherols to an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer” in claim 26, lines 3-4 is vague and indefinite as it is unclear whether the oleic acid content must be 85 to 97% in both the ultra-high oleic oil and the creamer or something else.
For example, it is unclear if the ultra-high oleic oil can have 84% or 83% or 80% or 50% oleic acid as long as there are other ingredients having oleic acid bring the total oleic acid content to 85-97%
For example, it is unclear if the ultra-high oleic oil can have 98% or 99% or 100% oleic acid as long as there are other ingredients have lesser amounts of oleic acid to bring the total oleic acid content to 85-97%.
The phrase “adding a protein” in claim 26, line 7 is vague and indefinite as it is unclear what the protein is added to. It is unclear if it is added to a tank or added to oil or something else.
The phrase “adding a low molecular weight emulsifier” in claim 26, line 8 is vague and indefinite as it is unclear what the emulsifier is added to. It is unclear if it is added to a tank or added to oil or something else.
The phrase “form selected from the group consisting of (a) powder or liquid form … (b) liquid form …” in claim 26, lines 9-15 is vague and indefinite as is it is unclear what language is limited by the “consisting” language as 2 liquid forms are set forth and other language that is not “form” language is set forth but rather process steps. Furthermore, it is unclear how there can be more than 1 liquid form.
Claim 26 recites the limitation "the externally added tocopherols" in line 11. There is insufficient antecedent basis for this limitation in the claim. The phase “externally” was not previously set forth. Applicant is advised to consider stating "the added tocopherols".
Claim 26 recites the limitation "the externally added tocopherols" in lines 13-14. There is insufficient antecedent basis for this limitation in the claim. The phase “externally” was not previously set forth. Applicant is advised to consider stating "the added tocopherols".
Clarification and/or correction required.
Claim Rejections - 35 USC § 103
Claim(s) 1, 2, 7-9, 16-21, 23, 25-27 are rejected under 35 U.S.C. 103 as being unpatentable over Basa (US 6,426,110) in view of Erickson et al. (WO 98/07329) and Rauf (2017).
PNG
media_image2.png
233
1105
media_image2.png
Greyscale
Claims 1+ and 21+ are interpreted as being open which allows alternative additional sources of oils and tocopherols. The entire composition is not limited to just what is set forth in the claims.
The fatty acid concentration is interpreted as being based on either the oil or the creamer as the language in the claims appears to be interpretable either way.
Regarding claim 1, Basa (‘110) teaches a method of making a powder creamer containing ultra-high oleic oil sunflower oil (See col. 3, ll. 19-38.), protein (See col. 3, ll. 38+.), low molecular weight emulsifier (See col. 4, ll. 34+.), buffering agent (See col. 4, l. 42+.) and tocopherols/antioxidants (See col. 3, l. 26+, claim 13.), however, fails to expressly disclose claimed amount of tocopherol added.
It was very well known in the art that tocopherols are added to oils to extend their shelf-life and protect against degradation by free radicals.
Erickson (‘329) teaches similar sunflower oil-based creamers like Basa (‘110) wherein 100 ppm to 3000 ppm tocopherols are effective to protect sunflower oil compositions (See p. 4, ll. 29-31.).
It was known in the art that sunflower oil could contain varying amounts of tocopherols based on where the sunflower was grown, growing conditions, deodorization distillation conditions.
Rauf (2017) states the tocopherol content of sunflower oil being 562.8-1,872.8 mg kg-1 (See page 2, column 2.).
PNG
media_image3.png
166
583
media_image3.png
Greyscale
It was also known that the condition of the oil can vary based on whether the oil was produced many years ago or recently and whether the oil was stored in cool conditions and under a head of nitrogen or not.
It would have been foreseeable and obvious prior to the earliest effective filing date to select an amount of tocopherols to add to Basa’s (‘110) sunflower oil creamer composition in view of Erickson (‘329) and Rauf (2017), including the amounts claimed, to provide a protected sunflower oil based creamer.
Regarding claims 2, 7-9, 18-20, 23, 25, 27 Basa (‘110) teaches the method discussed above, however, fails to expressly describe the amounts of various additives and oil properties.
It is noted that Applicant does not set forth any non-obvious unexpected results for providing one amount and property over another.
It would have been foreseeable and obvious to a person having ordinary skill in the art prior to the earliest effective filing date to provide amounts of the various ingredients to provide a creamer that is suitable for intended use with desired functional and taste profile.
Regarding claim 16, Basa (‘110) teaches wherein the creamer does not include any high oleic soybean oil (See col. 3, ll. 19-38, sunflower oil.).
Regarding claim 17, Basa (‘110) teaches wherein the creamer does not include any high oleic canola oil (See col. 3, ll. 19-38, sunflower oil.).
Regarding claim 21, Basa (‘110) teaches a method of making a powder creamer containing ultra-high oleic oil sunflower oil (See col. 3, ll. 19-38.), protein (See col. 3, ll. 38+.), low molecular weight emulsifier (See col. 4, ll. 34+.), and tocopherols/antioxidants (See col. 3, l. 26+, claim 13.), however, fails to expressly disclose claimed amount of tocopherol added.
It was very well known in the art that tocopherols are added to oils to extend their shelf-life and protect against degradation by free radicals.
Erickson (‘329) teaches similar sunflower oil-based creamers like Basa (‘110) wherein 100 ppm to 3000 ppm tocopherols are effective to protect sunflower oil compositions (See p. 4, ll. 29-31.).
It was known in the art that sunflower oil could contain varying amounts of tocopherols based on where the sunflower was grown, growing conditions, deodorization distillation conditions.
Rauf (2017) states the tocopherol content of sunflower oil being 562.8-1,872.8 mg kg-1 (See page 2, column 2.).
PNG
media_image3.png
166
583
media_image3.png
Greyscale
It was also known that the condition of the oil can vary based on whether the oil was produced many years ago or recently and whether the oil was stored in cool conditions and under a head of nitrogen or not.
It would have been foreseeable and obvious prior to the earliest effective filing date to select an amount of tocopherols to add to Basa’s (‘110) sunflower oil creamer composition in view of Erickson (‘329) and Rauf (2017), including the amounts claimed, to provide a protected sunflower oil based creamer.
Regarding claim 26, Basa (‘110) teaches a method of making a powder creamer containing ultra-high oleic oil sunflower oil (See col. 3, ll. 19-38.), protein (See col. 3, ll. 38+.), low molecular weight emulsifier (See col. 4, ll. 34+.), and tocopherols/antioxidants (See col. 3, l. 26+, claim 13.), however, fails to expressly disclose the oil being algal oil and claimed amount of tocopherol added.
Applicant does not set forth any non-obvious unexpected results for using algal oil over other oils like sunflower oil. Algal oil was very well known in the art to contain long chain fatty acids like DHA. People knew that DHA is healthy and thus may appeal to some consumers to buy creamer with DHA. It thus would have been foreseeable and obvious prior to the earliest effective filing date to substitute one healthy algal oil for another healthy sunflower oil to satisfy a consumer’s preference.
It was very well known in the art that tocopherols are added to oils to extend their shelf-life and protect against degradation by free radicals.
Erickson (‘329) teaches similar sunflower oil-based creamers like Basa (‘110) wherein 100 ppm to 3000 ppm tocopherols are effective to protect sunflower oil compositions (See p. 4, ll. 29-31.).
It was known in the art that sunflower oil could contain varying amounts of tocopherols based on where the sunflower was grown, growing conditions, deodorization distillation conditions.
Rauf (2017) states the tocopherol content of sunflower oil being 562.8-1,872.8 mg kg-1 (See page 2, column 2.).
PNG
media_image3.png
166
583
media_image3.png
Greyscale
It was also known that the condition of the oil can vary based on whether the oil was produced many years ago or recently and whether the oil was stored in cool conditions and under a head of nitrogen or not.
It would have been foreseeable and obvious prior to the earliest effective filing date to select an amount of tocopherols to add to Basa’s (‘110) sunflower oil creamer composition or a creamer that has algal oil instead of sunflower oil in view of Erickson (‘329) and Rauf (2017), including the amounts claimed, to provide a protected sunflower oil based creamer.
ANSWERS TO APPLICANT’S ARGUMENTS
The limitations of the amended/new claims are discussed above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT T O'HERN whose telephone number is (571)272-6385. The examiner can normally be reached M-Th 5:00 am - 3:30 pm.
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, Emily Le can be reached at 571-272-0903. 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.
/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 June 2, 2026
Prosecution Insights