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 . Claims 1-16, and 18-28 are examined herein.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/21/2025 has been entered.
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 5-6 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 5-6 recite percentages with no unit, therefore the scope of the amounts are unclear.
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.
Claims 1-16 and 18-28 are rejected under 35 U.S.C. 103 as being unpatentable over Doucet (2011/0135805) in view of the combination of Sahasranamam (US 20020001662) and Action-on-Salt.
Action-on-Salt: 2013 Butter and margarine Survey; published online at least by May 18, 2018 at: https://web.archive.org/web/20180518115147/http://www.actiononsalt.org.uk/news/surveys/2013/fat-spreads/
Independent claims 1 and 15
Doucet teaches methods of making lipid blends, with spreadable consistencies comprising beta-prime crystal structures (ab.)
Plant based oils (i.e. vegetable oils, i.e. liquid oil)
Doucet teaches the lipid blends, comprises, about 77 to 97 wt% of edible oils, including a variety of liquid vegetables oil (i.e. plant based oils) (0037).
The lower limit of about 77 wt% of plant-based liquid oils encompasses the upper limit of the claimed range of the plant-based liquid oil, because about 77 wt%, as taught, encompasses about 75.5 wt%, as claimed.
Therefore, Doucet provides a range of plant-based liquid oils that encompasses from about 57 to 75.5 wt%, as claimed.
In the alternative, for specificity, Sahasranamam also teaches methods of making plant oil based spread (ab.), and further provides the use of 60 to 95 wt% of a liquid oil (ref. clm. 1), which encompasses from about 57 to 75.5 wt% of a plant-based liquid oil, as in claims 1 and 15.
It would have been obvious to one of skill in the art, at the time of filing to modify the method of making spreadable lipid mixtures comprising liquid oils and structuring fats, as Doucet, to include from about 57 to 75.5 wt% of a plant-based liquid oils----------------------, as claimed, because: 1) Doucet shows the use of about 77 to 97 wt% of edible plant oils, which shows a range that is so close that one skilled in the art would have expected it to reach down to about 57 to 75.5 wt%, as claimed, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use; and 2) Sahasranamam shows that it was known for encompassing amounts to have been successfully achieved and published at the time of filing, wheren making spreadable fat mixtures, comprising plant based liquid oils which means it was within the general skill of a worker in the art to select this amount of liquid oil, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Structuring oil
Doucet teaches the lipid blends, comprises, about 3 to 35 wt% of a hydrogenated fat system (0012), comprising a mixture of glycerides (0012, 0037, ref. clm. 1), which encompasses the use of from about 27 to 38.5 wt % of a structuring oil, blended with the plant-based liquid oil, as claimed.
Salt
Doucet provides an embodiments where salt is used (Table 7) in an amount of 1.5 wt%, however does not discuss its broad use.
Action-on-Salt also teaches about spreadable fats, and further provides that they have from zero to 2.5 grams of salt per 100 grams of the fat compositions (see High examples of Margarines/Spreads; and Low examples of Margarines/Spreads), which encompasses from about 0.5 to 3.0 wt% salt suspended in the composition, as claimed.
It would have been obvious to one of skill in the art, at the time of filing to modify the method of making margarine/plant-based spreads, as Doucet, to include the use of salt, as claimed, because Action-on-Salt shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed use of salt when making margarine/plant-based spreads, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Less than 1 wt% water
Doucet shows embodiments having no water (see Table A-F), therefore imparts an option wherein the spread includes less than 1% by weight water, as claimed..
Less than 0.01% by weight dairy or dairy-derived products
Doucet does not discuss the use of dairy products in the mixtures of blended fat, therefore imparts the use of less than 0.01% by weight dairy or dairy-derived products, as claimed.
Less than 0.01% by weight soy or soy-derived products
Doucet provides the optional use of soybean oil (0012, ref. clm. 3), however, does not require its use, therefore imparts the use of less than 0.01% by weight soy or soy-derived products, as claimed.
On the composition comprising beta prime crystal structures
When looking for light in the pending Specification, it is noted that the claimed crystal structure, beta prime crystal structures, are formed by the heated blended mixture being cooled wherein mechanical work is used by shearing.
Doucet provides that it is known for crystal structure of fats and oils to be mechanically tempered to have beta-prime crystal structures, wherein after controlled heating, a subsequent cooling rate determines the crystal properties of the lipid composition, including a stable crystal formation wherein alpha crystals are modified into a measurable beta-prime form (0011).
Doucet further provides that said tempering of the lipids into the beta-prime form is dependent on the types of lipids used, wherein some types transition very rapidly (i.e., in seconds), while others types transition much slower (i.e. minutes).
Therefore, Doucet provides that it is known for blended fat compositions to comprise a beta prime crystal structure (0011), by showing how to achieve such a thing, which provides one in the art enough information that they would have a reasonable expectation of success in producing fat blends comprising this structure, as claimed, because they have sufficient information to design an expereint to achieve such a thing, and further because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use.
Function of the oil composition
On spreadability: When looking for light in the pending Specification, it is noted that the spreadability is due to the beta prime crystal structure of the composition, wherein when tested for spreadability under a constant shear rate of 7.5 s-1 at a temperature of 40 °F, has a stress overshoot of about 4,000 to 8,000 Pa (see pending paras. 0026-0027).
Therefore, since the modified teaching provides a blended fat composition, withing the scope of the claims, it would have been obvious to one of skill in the art, at the time of filing to modify the method of making blended fat compositions comprising beta prime crystal structure, as taught, to include that said composition will have similar utility, including: when tested under conditions, including applying a constant shear rate of 7.5 s-1 at a temperature of 40 °F, said composition would function to have a stress overshoot of about 4,000 to 8,000 Pa, as claimed, because the composition established through the teachings above, provides a sufficiently close relationship between the ingredients to create an expectation that such a similar compositions would have similar capabilities, properties or functionality because the claims are not physically or structurally distinguishable over the prior art compositions. See MPEP 2144. III, which states that when case law imparts legal precedence, wherein the facts in this prior legal decision are sufficiently similar to those in an application, wherein the court applied the law of obviousness to similar facts. This includes a wide spectrum of illustrations and accompanying reasoning (i.e. obviousness) that exist in case law. In re Eli Lilly & Co., 902 F.2d 943, 14 USPQ2d 1741 (Fed. Cir. 1990). Herein, although not cited in the MPEP, more recent caselaw on the topic, “In re Dillon, 919 F.2d 688 (1990)” ( (https://cite.case.law/f2d/919/688/)) provides that when a claimed compositions has been made obvious from combined teachings, it is clear that the discovery that the claimed composition possesses a property not disclosed for the prior art subject matter, and this itself does not defeat a prima facie case.
Dependent claims
As for claim 2, Doucet provides the use of canola and sunflower oils (0037) and the modified teaching in Sahasranamam provides at least one of olive oil, canola oil (ref. clm. 1), and sunflower seed oil (0011).
As for claims 3 and 18, Doucet provides the use of canola and sunflower oils (0037) and the modified teaching in Sahasranamam provides the structuring oil includes at least one of palm kernel oil (0002).
As for claims 4 and 19, Doucet provides the use of sunflower oils (0037); and the modified teaching, in Sahasranamam, provides the plant-based liquid oil includes at least one of olive oil (ref. clm. 1), and wherein the structuring oil includes palm kernel oil (0002).
As for claims 5 and 20, the modified teaching, in Sahasranamam, provides the use of 5 to 40 wt% of a structuring fat blending with the liquid oil (ref. clm. 1), which encompasses wherein the plant oil based spread has a solid fat content from about 19.1 to 25 wt%.
As for the solid fat content being at 40°F, since the teaching provides the specifically claimed type of structuring fat blending with the liquid oil, as discussed in the rejection of claims 3 and 18 above, it would be reasonable to expect that it functions at a temperature of 40°F, as claimed, absent a showing of criticality, because the teaching of a similar composition imparts a suggestion in or expectation that the composition taught will have the same or a similar utility.
As for claims 6 and 21, Sahasranamam teaches the use of 5 to 40 wt% of a structuring fat blending with the liquid oil (ref. clm. 1), which encompasses wherein the plant oil based spread has a solid fat content from about 3.4 to about 5.5 %
As for the solid fat content being at 70°F, since the teaching provides the specifically claimed type of structuring fat blending with the liquid oil, as discussed in the rejection of claims 3 and 18 above, it would be reasonable to expect that it functions at a temperature of 70°F, as claimed, absent a showing of criticality, because the teaching of a similar composition imparts a suggestion in or expectation that the composition taught will have the same or a similar utility.
As for claim 7, Doucet provides the optional use of emulsifiers (0039), which encompasses less than 0.01% by weight emulsifier, as claimed.
As for claim 8, Doucet does not discuss the use of preservatives, therefore encompasses the claimed amount of less than 0.01 wt%.
As for claims 9 and 22, as discussed above, Doucet teaches the lipid blends, comprises, about 77 to 97 wt% of edible oils, including a variety of liquid vegetables oil (i.e. plant based oils) (0037), which encompasses from about 61.5 to 75.5 wt%, as claimed. Also, for specificity, Sahasranamam is discussed above as providing 60 to 95 wt% of a liquid oil (ref. clm. 1), which encompasses an amount from about 61.5 to 75.5 wt%, as claimed.
As for claims 10 and 23, as discussed above, Doucet teaches the lipid blends, comprises, about 3 to 35 wt% of a hydrogenated fat system (0012), comprising a mixture of glycerides (0012, 0037, ref. clm. 1), which encompasses structuring oil in an amount from about 27 to 33 wt%, as claimed.
The modified teaching, in Sahasranamam, also provides 5 to 40 wt% of a structuring fat blending with the liquid oil (ref. clm. 1), which encompasses wherein the plant oil based spread includes the structuring oil in an amount from about 27 to 33 wt%, as claimed.
As for claims 11 and 24, as discussed above, the modifed teaching, in Sahasranamam provides the use of 60 to 95 wt% of a liquid oil (ref. clm. 1), which encompasses wherein the plant oil based spread includes the plant based liquid oil in an amount from about 57 to 70 wt%.
As for claims 12 and 25, as discussed above, Doucet teaches the lipid blends, comprises, about 3 to 35 wt% of a hydrogenated fat system (0012), comprising a mixture of glycerides (0012, 0037, ref. clm. 1), which encompasses structuring oil in an amount about 31.5 to 38.5 wt%, as claimed.
The modified teaching, in Sahasranamam, also provides 5 to 40 wt% of a structuring fat blending with the liquid oil (ref. clm. 1), which encompasses wherein the plant oil based spread includes the structuring oil in an amount from about 31.5 to 38.5 wt%, as claimed.
As for claims 13 and 26, as for the plant oil based spread having a melting point from about 68.5 to 74°F, since the modified teaching provides a similar composition comprising similar amounts of similar ingredients, which similarly functions as a plant oil based spread having beta-prime crystal structures, which reflects the breadth of the claim composition, it would be reasonable to expect that the plant oil has a similar melting point, as claimed, absent a showing of criticality, because the teaching of a similar composition imparts a suggestion in or expectation that the composition taught will have the same or a similar utility.
As for claims 14 and 27, as for the plant oil based spread having a fatty acid nutritional profile, comprising:
a saturated fat content from about 27.7g/100g to about 36.9g/100g,
a polyunsaturated fat content from about 5.4g/100g to about 15.7g/100g, and
a monounsaturated fat content from about 35.4g/100g to about 53.9g/100g, wherein these fat profiles are specifically dependent on the types and amounts of lipids used to make the blended oil composition.
Therefore, since the modified teaching provides a similar composition comprising similar amounts of similar ingredients, which similarly functions as a plant oil based spread comprising beta-prime crystal structures, which reflects the breadth of the claim composition, it would be reasonable to expect that the plant oil based spread has a fatty acid nutritional profile, as claimed, absent a showing of criticality, because the teaching of a similar composition imparts a suggestion in or expectation that the composition taught will have the same or a similar utility.
As for claim 16, the modified teaching above, in Action-on-Salt, provides salt suspended in the plant-based liquid oil, as discussed above.
As for claim 28, since the modified teaching provides a blended fat composition, withing the scope of the claims, it would have been obvious to one of skill in the art, at the time of filing to modify the method of making blended fat compositions comprising beta prime crystal structure, as taught, to include that said composition will have similar utility, including: when tested under conditions, including applying a constant shear rate of 7.5 s-1 at a temperature of 40 °F, wherein the constant shear rate, a rheological property, is measured by a rheometer having a serrated parallel plate on a serrated surface, that said composition would function to have a stress overshoot of about 4,000 to 8,000 Pa, as claimed, because the composition established through the teachings above, provides a sufficiently close relationship between the ingredients to create an expectation that such a similar compositions would have similar capabilities, properties or functionality because the claims are not physically or structurally distinguishable over the prior art compositions. See MPEP 2144. III, which states that when case law imparts legal precedence, wherein the facts in this prior legal decision are sufficiently similar to those in an application, wherein the court applied the law of obviousness to similar facts. This includes a wide spectrum of illustrations and accompanying reasoning (i.e. obviousness) that exist in case law. In re Eli Lilly & Co., 902 F.2d 943, 14 USPQ2d 1741 (Fed. Cir. 1990). Herein, although not cited in the MPEP, more recent caselaw on the topic, “In re Dillon, 919 F.2d 688 (1990)” ( (https://cite.case.law/f2d/919/688/)) provides that when a claimed compositions has been made obvious from combined teachings, it is clear that the discovery that the claimed composition possesses a property not disclosed for the prior art subject matter, and this itself does not defeat a prima facie case.
Response to Arguments
Claims status
It is asserted, that Claims 1-27 stand rejected. Claim 17 is canceled, without prejudice, thereby rendering moot any rejections thereof. Any amendments herein are not a concession as to the veracity of any of the arguments set forth in the pending Office Action. Applicant respectfully reserves the right to pursue any subject matter in the specification and/or the claims as initially presented in any forthcoming continuation application(s). Reconsideration is respectfully solicited.
In response, Applicant’s timely response is appreciated.
35 U.S.C.§112(b) rejections
It is asserted, that claims 5 and 6 were rejected under 35 U.S.C. § 112(b) as allegedly being indefinite. In particular, the Office Action asserted that:"Claims 5-6 recite percentages with no unit, therefore the scope of the amounts are unclear" (Office Action, p. 2). Applicant respectfully traverses. Solid fat content is a term of the art that would be understood for an oil as the weight percentage of the total oil that is solid at a specific temperature, and typically is expressed as a dimensionless percentage. U.S. Patent Application Publication No. 2002/0001662 to Sahasranamam (hereinafter "Sahasranamam") cited in the Office Action refers to "a solid fat content of >75% at 40 Deg C" in claim 5.
The Office Action also asserted that:"Applicant's opinion is appreciated, and the examiner also performed a search on this topic, however, no clear evidence that solid fat content known in the art as a weight percentage was found or provided" (Office Action, p. 14). Applicant respectfully traverses and notes that Sahasranamam ultimately issued as U.S. Patent No. 6,808,737, with claim 5 reciting "A margarine and spread fat blend according to claim 1, wherein said hard palm oil fraction . . . has a solid fat content of greater than 75% at 40 degrees Celsius" (emphasis added).
In response, Applicant’s argument is not persuasive, as a single patent application reference/patent is not a reasonable showing of what is known in the art, the reference provides no description of the type of the percentage implied therein. See MPEP 2173.05(b), which discusses that the specification must provide examples or teachings that can be used determine the term/measure of degree, which is not the case herein. Therefore, this argument is not persuasive because a proper showing of evidence is not provided, for example, specificity by way of: a definition or description in: the pending disclosure, a textbook, food encyclopedia, or some other food science academic reference.
Claim Rejections - 35 U.S.C.§103
It is asserted, that Claims 1 and 15 are amended and now recites a plant oil based spread that includes a combination of features that is not disclosed or suggested by Sahasranamam or Action, alone or in combination.
In response, please see the new grounds of rejection, above, which was necessitated by said amendments.
It is asserted, that Sahasranamam does not discuss the stress overshoot of the margarine made.
In response, the examiner agrees, however, absent a showing of criticality, this imparts that the composition made is open to having said structure as it is also not taught way by the reference, and the new grounds of rejection above provides this structure was known for use by those of skill in the art.
It is asserted, that the pending Specification imparts that it is the method of shear mixing of a cooled blended mixture that facilitates the formation of a beta prime crystal structure.
In response, the examiner reviewed this part of the disclosure extensively before performing a prior art search, wherein the now applied primary teaching shows it was known to process lipid blends of plant oils and structuring fats, to form beta prime crystal structures, if desired. Therefore this limitation does not require Applicant’s specific product by process, because the determination of patentability is based solely on the claimed product itself. In this case, the claim is unpatentable even though the prior product was made by a different process as shown by Doucet, above (see In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)).
It is asserted, that claim 28 further requires the type of rheometer used to measure the shear rate.
In response, therein the claim is toward a composition, wherein the modified teaching makes obvious, therefore it is reasonable for one of skill in the art to expect that it would have similar utility/functionality, including those claimed, as further discussed above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Skogerson (USPN 7691428).
Skogerson discloses vegetable oil based shortening containing 65-80% diglyceride ( an emulsifier) and preferably less than 20% monoglyceride (abstract and Table 1), wherein the emulsifier is seen to be the structuring composition. The emulsifier is useful in preparing shortening from non-hydrogenated vegetable oil that is trans free. The shortening is disclosed to be predominantly in the beta prime crystalline form (abstract), which examiner understands to be more than 50%. At column 2, lines 61-64, the fat blend is said to replace typical blends of trans fat and saturated fat to provide the benefit of a healthier source of fat (2, 18-30). At column 4, lines 59+ it is another benefit is noted, including that the beta prime fats provide a smother and creamier texture that other crystal structures. Skogerson does discloses the use of soybean oil, however, is clear that hydrogenated cotton seed is an alternative option (2, 42+)
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PATRICIA ANN GEORGE whose telephone number is (571)272-5955. The examiner can normally be reached T-TH 9:00 am - 5:00 pm.
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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.
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/PATRICIA A GEORGE/Primary Examiner, Art Unit 1793
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