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 .
Claims
Claims 1, 2, 7-11, 13, 16-21, 23 and 25-27 are pending with claims 10, 11 and 12 withdrawn.
WITHDRAWN OBJECTIONS
All objections of record in the Office Action mailed 10/27/2025 have been withdrawn due to Applicant’s amendments in the Paper filed 1/27/2026.
WITHDRAWN REJECTIONS
All rejections of record in the Office Action mailed 10/27/2025 have been withdrawn due to Applicant’s amendments in the Paper filed 1/27/2026.
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.
Claim Rejections - 35 USC § 112
Claims 1, 2, 7-9, 13, 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
“mixing:
(i) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total
fatty acids in the creamer, the ultra-high oleic oil is high oleic sunflower oils;
(ii) externally added tocopherols that are between 250 and 1000 mg/kg of the ultra-high oleic oil;
(iii) a protein; and
(iv) a low molecular weight emulsifier” in claim 1, lines 2-8 is new matter.
The disclosure as filed does not have support for the entire range of 250 and 1000 mg/kg. Figure 1A provides support for the addition of 250, 500, 750 and 1000 mg/kg to HOSF (sunflower oil).
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The phrase
“mixing:
(i) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total
fatty acids in the creamer, the ultra-high oleic oil is high oleic sunflower oils;
(ii) externally added tocopherols that are between 250 and 1000 mg/kg of the ultra-high oleic oil;
(iii) a protein; and
(iv) a low molecular weight emulsifier” in claim 1, lines 2-8 is new matter.
The disclosure as filed does not have support for “mixing … added tocopherols that are between 250 and 1000 mg/kg” at the claimed concentration of tocopherols with the other the ingredients like emulsifier.
FIG-1A of the Specification refers to the addition of tocopherols to HOSF.
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Page 4, ll. 22-26 of the Specification refers to the addition of tocopherols to sunflower oil (HOSF).
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The addition of tocopherols to oil as illustrated in FIG-1B and page 4 of the Specification is not the same as “mixing” in Claim 1.
The phrase
“mixing
(i) externally added tocopherols;
(ii) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total
fatty acids in the creamer, wherein the externally added tocopherols are 1000 mg/kg of the
ultra-high oleic oil;
(iii) a protein; and(iv) a low molecular weight emulsifier”
in claim 21, lines 2-8 is new matter.
The disclosure as filed does not have support for “an ultra-high oleic oil”, which includes all ultra-high oleic oils, but only possibly for some, including “HOSF” (See FIG-1B.))
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and “high oleic algal oils” (page 13, l. 11+).
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The phrase
“mixing
(i) externally added tocopherols;
(ii) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total
fatty acids in the creamer, wherein the externally added tocopherols are 1000 mg/kg of the
ultra-high oleic oil;
(iii) a protein; and(iv) a low molecular weight emulsifier”
in claim 21, lines 2-8 is new matter.
The disclosure as filed does not have support for “mixing … added tocopherols that are 1000 mg/kg” at the claimed concentration of tocopherols with the other the ingredients like emulsifier.
FIG-1A of the Specification refers to the addition of tocopherols to HOSF.
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Page 4, ll. 22-26 of the Specification refers to the addition of tocopherols to sunflower oil (HOSF).
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The addition of tocopherols to oil as illustrated in FIG-1B and page 4 of the Specification is not the same as “mixing” in Claim 21.
The phrase
“mixing:
(i) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total
fatty acids in the creamer, the ultra-high oleic oil is high oleic algal oils;
(ii) externally added tocopherols that are between 250 and 1000 mg/kg of the ultra-high oleic oil;
(iii) a protein; and
(iv) a low molecular weight emulsifier”
in claim 26, lines 2-8 is new matter.
The disclosure at page 13, l. 11+ only has support for 1000 mg/kg.
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The phrase
“mixing:
(i) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total
fatty acids in the creamer, the ultra-high oleic oil is high oleic algal oils;
(ii) externally added tocopherols that are between 250 and 1000 mg/kg of the ultra-high oleic oil;
(iii) a protein; and
(iv) a low molecular weight emulsifier”
in claim 26, lines 2-8 is new matter.
The disclosure as filed does not have support for “mixing … added tocopherols that are between 250 and 1000 mg/kg” at the claimed concentration of tocopherols with the other the ingredients like emulsifier.
The addition of tocopherols to oil as discussed page 13, l. 11+ is not the same as “mixing” in Claim 26.
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Claims 1, 2, 7-9, 13, 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 “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 these tocopherols include the tocopherols in the sunflower oils or are they limited to a different source.
The claim does not state the tocopherols are added to the sunflower oil but rather are mixed with multiple ingredients.
FIG-1B and page 4, ll. 22-26 of the Specification refers to the addition of tocopherols to sunflower oil (HOSF).
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The phrase “externally added tocopherols that are 1000 mg/kg of the ultra-high oleic oil” in Claim 21, lines 3-6 is vague and indefinite as it is unclear whether these tocopherols include the tocopherols in the oils or are they limited to a different source.
The claim does not state the tocopherols are added to the oil but rather are mixed with multiple ingredients.
FIG-1B and page 4, ll. 22-26 of the Specification refers to the addition of tocopherols to sunflower oil (HOSF).
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The phrase “externally added tocopherols that are between 250 and 1000 mg/kg of the ultra-high oleic oil” in Claim 26, lines 5-6 is vague and indefinite as it is unclear whether these tocopherols include the tocopherols in the algal oils or are they limited to a different source.
The claim does not state the tocopherols are added to the algal oil but rather are mixed with multiple ingredients.
The addition of tocopherols to oil as discussed page 13, l. 11+ is not the same as “mixing” in Claim 26.
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Clarification and/or correction required.
Claim Rejections - 35 USC § 103
Claim(s) 1 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Basa (US 6,426,110) in view of Rauf et al., Progress in modification of sunflower oil to expand its industrial value; J Sci Food Agric2017;97: 1997-2006.
The adding of tocopherols is interpreted as being from any source including sunflower oil as the claim does not state adding to oil.
Regarding Claims 1 and 21, Basa (‘110) teaches a method of preparing a creamer, the method comprising preparing a mixture of (i) tocopherols (See col. 3, ll. 18-47 and col. 5, Example 1 where vegetable oils like soy oil are very well known to include oil soluble antioxidant like tocopherols.); (ii) an ultra-high oleic oil having an oleic acid content from 85 to 97% by weight of total fatty acids in the creamer (See col. 3, ll. 18-47 and col. 5, 85% oleic acid.); (iii) a protein (See col. 3, l. 48 to col. 4, l. 21 and col. 5, Example 1.); and (iv) a low molecular weight emulsifier (See col. 4, ll. 33-41 and col. 5, Example 1.), wherein the creamer is in a form selected from the group consisting of (a) a powder or liquid form, the method further comprising preparing a mixture of the oil soluble antioxidant, the ultra-high oleic oil, the protein, and the low molecular weight emulsifier with a buffering agent (See col. 4, ll. 42-53 and col. 5, Example 1.), however, fails to expressly describe the amount of tocopherols and the method of preparing the mixture to including mixing.
Rauf (2017) states the tocopherol content of sunflower oil being 562.8-1,872.8 mg kg-1 (See page 2, column 2.). Thus, if sunflower oil naturally has 1,000 mg/kg of antioxidant/tocopherol then 0 mg/kg are added.
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It would have been foreseeable and obvious to a person having ordinary skill in the art at the time of filing for a mixture to be formed with Basa (‘110) and Rauf (2017) before them the ingredients must be subject to a mixing step with the claimed amount of tocopherols. It would have been foreseeable and obvious to a person having ordinary skill in the art at the time of filing to select a step that includes mixing to provide a creamer composition that is of uniform consistency and can be used as intended.
ANSWERS TO APPLICANT’S ARGUMENTS
The limitations of the amended/new claims are discussed above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
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/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 January 28, 2026
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