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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-2, 5-6, 19, 21-23, and 25 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.
Claim 1 has been amended to recite that the lecithin is co-crystalized with the structuring fat in the porous micronized fat powder. It is argued that support for this amendment can be found at page 4, lines 13-24, page 6, lines 5-24, and in the Examples. There is no discussion at these excerpts from the specification of lecithin being co-crystalized with the structuring fat.
Claims 2, 5-6, 19, 21-23 and 24 are rejected as they are dependent on or rely claim 1 and include all the limitations of claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 2, 5, 6, 19, 21-23 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2015/0164099 (ADEL) in view of Delacharlerie, et al., Structuring effects of lecithins on model fat systems: A comparison between native and hydrolyzed forms, Vol. 72, pg. 552-558, 2016 (DELACHARLERIE) and United States Patent Application Publication No. 2015/0118383 (VAN DEN BERGH).
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ADEL teaches a micronized fat powder [0043].
The fat powder is micronized and preferably co-crystallized with an emulsifier [0045]. ADEL does not mention moisture or water being present.
ADEL teaches in [0035] that the weight ratio of the hardstock fat to emulsifier is 1:0.010 (i.e., this ratio converts to 1% of emulsifier) to 1:0.5 (i.e., this percentage converts to 50% of emulsifier). The ratio converts to a percentage of about 1 to 50% for the emulsifier. The hardstock can range from about 99 to 50%. This overlaps the claimed range of 70-99.8%. 65% can be palm oil stearin 35% can be palm kernel oil [0038]. These amounts fall with that claimed.
No water is provided [0043].
ADEL does not teach the use of lecithin as an emulsifier.
DELACHARLERIE teaches that lecithins can be added to impact fat crystallization that lead to differences at both microscopic and macroscopic scales. At the macroscopic level, differences have been measured among the hardness of the samples, which are due to different crystal sizes and shapes; polymorphic stability is also impacted by the presence of lecithins. (See 4. Conclusion).
Thus, it would have been obvious to one skilled in the art to add lecithin and vary the type of lecithin to ADEL based on the desired crystallization properties.
The references above are silent as to the size of the fat crystal platelets.
VAN DEN BERGH teaches that the use of micro fat crystal powder/platelets allows the incorporation of heat-sensitive ingredients and/or that avoids deterioration [0014]. The thickness of the platelets should be submicron, preferably the thickness is on average 0.01-0.5 μm [0023]. The claimed thickness of fat crystal platelets falls within this range. Additionally, it is noted that soybean-based lecithin is used in conjunction with the fat [0030], [0084]. Thus, it was well-known that lecithin can be used with fat products.
Thus, it would have been obvious to use fat crystal platelets with the thickness as claimed, as VAN DEN BERGH teaches that is allows for heat-sensitive ingredients to be incorporated and avoids deterioration of the fat/emulsion.
Claim 2 recites a micronized fat powder comprises 90-99.8% by weight of a structuring fat.
ADEL teaches in [0035] that the weight ratio of the hardstock fat to emulsifier is 1:0.010 (i.e., this ratio converts to 1% of emulsifier) to 1:0.5 (i.e., this percentage converts to 50% of emulsifier). The ratio converts to a percentage of about 1 to 50% for the emulsifier. Thus, the hardstock can range from about 99 to 50% as noted above. This overlaps the claimed range of 90-99.8%.
Claim 5 recites that the micronized fat powder comprises from 0.5 to 5% by weight of lecithin.
ADEL teaches in [0035] that the weight ratio of the hardstock fat to emulsifier is 1:0.010 (i.e., this ratio converts to 1% of emulsifier) to 1:0.5 (i.e., this percentage converts to 50% of emulsifier). The ratio converts to a percentage of about 1 to 50% for the emulsifier. This overlaps the claimed range of 0.5 to 5%.
ADEL does not teach the use of lecithin as the emulsifier.
DELACHARLERIE teaches that lecithins can be added to impact fat crystallization that lead to differences at both microscopic and macroscopic scales.. At the macroscopic level, differences have been measured among the hardness of the samples, which are due to different crystal sizes and shapes; polymorphic stability is also impacted by the presence of lecithins. (See 4. Conclusion).
Thus, it would have been obvious to one skilled in the art to add lecithin and vary the type of lecithin to ADEL based on the desired crystallization properties.
Given ADEL teaches an overlapping amount of emulsifier (see above) and DELACHARLERIE teaches that lecithin can be used as the emulsifier (see above), it would have been obvious to provide lecithin in the claimed amounts.
Claim 6 recites that the structuring fat has a solid fat content N10 from 50 to 100, N20 from 26 to 95, and N35 from 5 to 60.
ADEL teaches that the hardstock fat is characterized by the following solid fat profile:
N10 from 90 to 40;
N20 from 85 to 20; and
N35 from 25 to 2 [0061].
Each of these profiles overlap the 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) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claim 19 recites that the micronized fat powder comprises from 1 to 5% by weight of lecithin.
ADEL teaches in [0035] that the weight ratio of the hardstock fat to emulsifier is 1:0.010 (i.e., this ratio converts to 1% of emulsifier) to 1:0.5 (i.e., this percentage converts to 50% of emulsifier). The ratio converts to a percentage of about 1 to 50% for the emulsifier. This overlaps the claimed range of 0.5 to 5%.
ADEL does not teach the use of lecithin as the emulsifier.
DELACHARLERIE teaches that studied lecithins impact fats crystallization, leading to differences at both microscopic and macroscopic scales. At the macroscopic level, differences have been measured among the hardness of the samples, which are due to different crystal sizes and shapes; polymorphic stability is also impacted by the presence of lecithins. (See 4. Conclusion).
Thus, it would have been obvious to one skilled in the art to add lecithin and vary the type of lecithin to ADEL based on the desired crystallization properties.
Given ADEL teaches an overlapping amount of emulsifier (see above) and DELACHARLERIE teaches that lecithin can be used as the emulsifier (see above), it would have been obvious to provide lecithin in the claimed amounts.
Claim 21 recites that the micronized fat powder comprises from 0.5 to 5 % by weight lecithin; and wherein the structuring fat comprises an interesterified fat blend of a mixture of 60-70% palm oil stearin and 30-40% palm kernel oil.
ADEL teaches a micronized fat powder [0043].
ADEL teaches in [0035] that the weight ratio of the hardstock fat to emulsifier is 1:0.010 (i.e., this ratio converts to 1% of emulsifier) to 1:0.5 (i.e., this percentage converts to 50% of emulsifier). The ratio converts to a percentage of about 1 to 50% for the emulsifier. The hardstock can range from about 99 to 50%. This overlaps the claimed range of 70-99.8%. 65% can be palm oil stearin 35% can be palm kernel oil [0038]. These amounts fall with that claimed.
ADEL does not teach the use of lecithin as an emulsifier.
DELACHARLERIE teaches that studied lecithins impact fats crystallization, leading to differences at both microscopic and macroscopic scales. At the macroscopic level, differences have been measured among the hardness of the samples, which are due to different crystal sizes and shapes; polymorphic stability is also impacted by the presence of lecithins. (See 4. Conclusion).
Given ADEL teaches an overlapping amount of emulsifier (see above) and DELACHARLERIE teaches that lecithin can be used as the emulsifier (see above), it would have been obvious to provide lecithin in the claimed amounts.
Claim 22 recites that the fat powder comprises fat crystal platelets having a thickness of 0.06-0.12 um.
Claim 23 recites that the fat powder consists of fat crystal platelets having a thickness of 0.03-0.2 um.
The references above are silent as to the size of the fat crystal platelets.
VAN DEN BERGH teaches that the use of micro fat crystal powder/platelets allows the incorporation of heat-sensitive ingredients and/or that avoids deterioration [0014]. The thickness of the platelets should be submicron, preferably the thickness is on average 0.01-0.5 μm [0023]. The claimed thickness of fat crystal platelets falls within this range.
Thus, it would have been obvious to use fat crystal platelets with the thickness as claimed, as VAN DEN BERGH teaches that it allows for heat-sensitive ingredients to be incorporated and avoids deterioration of the fat/emulsion.
Claim 25 recites that the fat powder is prepared by:
providing a mixture of structuring fat with lecithin at a temperature above the melting point of the structuring fat and below 80oC;
pressurizing the mixture of structuring fat and lecithin with a gas comprising from 50-100% of CO2 under a pressure of 100-270 bar; and
spaying the pressurized mixture of structuring fat and lecithin through a nozzle in a space having a pressure of 0-10 bar and temperature of below 30oC.
As to claim 25, it is noted that the claimed invention is a product. Products are examined based on the structure of the product. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (Claim was directed to a novolac color developer. The process of making the developer was allowed. The difference between the inventive process and the prior art was the addition of metal oxide and carboxylic acid as separate ingredients instead of adding the more expensive pre-reacted metal carboxylate. The product-by-process claim was rejected because the end product, in both the prior art and the allowed process, ends up containing metal carboxylate. The fact that the metal carboxylate is not directly added, but is instead produced in-situ does not change the end product.).
While the process steps have been considered, it is noted that VAN DEN BERG teaches the resulting same particle sizes. ADEL and DELACHARLERIE are silent as to the size of the fat crystal platelets. However, VAN DEN BERGH teaches that the use of micro fat crystal powder/platelets allows the incorporation of heat-sensitive ingredients and/or that avoids deterioration [0014]. The thickness of the platelets should be submicron, preferably the thickness is on average 0.01-0.5 μm [0023]. The claimed thickness of fat crystal platelets falls within this range.
Thus, it would have been obvious to use fat crystal platelets with the thickness as claimed, as VAN DEN BERGH teaches that is allows for heat-sensitive ingredients to be incorporated and avoids deterioration of the fat/emulsion.
Response to Arguments
Applicants’ arguments filed 7/1/2026 have been fully considered but they are not persuasive.
The applicant argues that one would not look to Adel as a starting point for achieving the claimed invention. It is argued that Adel specifies that the emulsifier "comprises at least 40 wt. %, based on the total weight of the emulsifier, of mono- and/or diglycerides, having saturated fatty acids with a carbon chain length of at least 12." Lecithin is not embraced by this disclosure.
However, ADEL does not teach that lecithin cannot be added. While ADEL requires “at least one” emulsifier as set forth in [0028], ADEL does not exclude lecithin. Moreover, while ADEL teaches that emulsifiers such as DIMODAN RT do not help in the absence of those emulsifiers in [0028], ADEL does not teach that other emulsifiers should necessarily be excluded.
It is argued that Adel's teachings regarding hardstock fat composition likewise do not suggest the claimed structuring fat. Adel's working examples employ a hardstock fat comprising 35% dry fractionated palm oil stearin and 65% palm kernel oil. See Adel Table 2. It is argued that Adel further explains that "little or no improvement" could be observed when hardstock fat was used with a solid fat profile not according to the invention. Examples of such hardstock fats are hardstock fat consisting essentially of dry fractionated palm oil stearin or hardstock fat consisting of an interesterified mixture of 65% dry fractionated palm oil stearin with an Iodine Value of 14 and 35% palm kernel oil." The applicant concludes that Adel thus reports no improvement for an interesterified blend in which palm oil stearin predominates over palm kernel oil-like the 60-90% palm oil stearin and 10-40% palm kernel oil blend recited in claim 1.
However, as noted above, claim 1 recites that “wherein the structuring fat comprises an interesterified fat blend of a mixture of 60[[30]]- 90% palm oil stearin and 10-40[[70]]% palm kernel oil”. ADEL does teach the fat profile. As acknowledged by applicant, ADEL does teach Examples of such hardstock fats are hardstock fat consisting essentially of dry fractionated palm oil stearin or hardstock fat consisting of an interesterified mixture of 65% dry fractionated palm oil stearin with an Iodine Value of 14 and 35% palm kernel oil." DELACHARLERIE and VAN DEN BERGH are cited to teach additional ingredients such as the
The applicant argues that the specification discloses that co-crystallizing lecithin with the structuring fat achieves a significantly faster build-up of viscosity when the fat powder is mixed with oil to form a slurry.
However, DELACHARLERIE now teaches this feature.
The applicant also argues that the Examples in the present specification evidence unexpected results.
However, the Examples are narrowly tailored and do not include the claimed structuring fats. Examples 1-4 are directed to micronized fat powders made with erES 48 and lecithin (two different lecithins) (see Tables 1 and 3 starting on pg. 8). The powders were made with the process known as supercritical melt micronisation. In this regard, the results set forth in the present specification are not commensurate in scope with the claims.
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. 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 at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/ Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
