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 .
DETAILED ACTION
Status of Claims
Note: The amendment of July 15th, 2025 has been considered.
Claims 1-13 are pending and examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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 1-9 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Shota et al. (WO 2014/178139 A1).
Regarding claims 1, 3, 6-9, 12 and 13: Shota teaches a food composition in the form of an emulsion comprising: a continuous water (W2) emulsion which comprises a W/O emulsion which is emulsified in the continuous water phase, wherein the water in oil emulsion comprises 0.1-5wt% polyglycerol polyricinoleate (PGPR); oil droplets without an internal water phase which are emulsified in the continuous water phase; and an oil in water emulsifier (egg yolk) (see Shota page 1, ¶5-8; page 7, ¶6-8). Since the content of PGPR in claims 1, 6, 7 and 12 lie inside the PGPR content in Shota, a prima facie case of obviousness exists. As set forth in MPEP 2144.05, in the case where the claimed range “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).
Moreover regarding claims 1 and 12: Shota teaches the composition components, to include the oil-in-water emulsifier and the water-in-oil emulsion, improves mouthfeel and stability of the emulsified seasoning, therefore, it would have been obvious for one to optimize the amounts of the components to arrive at a desired product having the desired mouthfeel and stability. Shota teaches, “[i]n this combined emulsified seasoning A, the ratio of the inner water phase W 1 of the first oil droplet P 1, the oil phase O 1 of the first oil droplet P 1 and the outer water phase W 2 is 25 to 75: 5 to 40: Can be from 5 to 50, and further can be from 50 to 75: 15 to 30: 5 to 20. Further, the proportion of the second oil droplet P2 can be set to 3 to 50% of the outer aqueous phase W2, and in particular, from 5% to 20% from the viewpoint of improving mouth feel and cream feel of the combined emulsified seasoning” (page 3, ¶3). As it is understood that the composition of Shota is “a composite emulsified seasoning in which a first oil droplet in which the inner water phase is dispersed and a second oil droplet in which the inner water phase is not dispersed are dispersed in an outer water phase” (page 1, ¶5). Given the fact a ratio of o/w droplets (i.e., P1) to the outer water phase W2 of 25:40 renders P1 is about 38% of the outer aqueous phase, and since 50% of the outer water phase is oil droplets without an internal water phase (i.e., P2), the amount of water-in-oil droplets (i.e., P1) based on water-in-oil droplets and oil droplets without a water phase (i.e., P1/(P1+P2)) in Shota is about 43% (i.e., 38/(38+50) =0.43). Accordingly, the claimed amount of w/o droplets based on the amount of w/o and oil only droplets overlap the value in Shota, and thus prima facie case of obviousness exists. As set forth in MPEP 2144.05, in the case where the claimed range “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).
Moreover, it is also noted that Shota teaches the separate phases make it possible to impart the desired taste (page 2, ¶3) and that mouthfeel and cream feeling are imparted by a balance of the phases (page 3, ¶3-8). Therefore, it would have been obvious to one of ordinary skill in the art to optimize the amount of water-in-oil droplets in the system to arrive at a product having the desired taste, mouthfeel, and cream feeling.
Moreover regarding claims 12 and 13: Shota teaches a method of preparing a food composition in the form of an emulsion comprising: a continuous water phase (W2), wherein the continuous water phase comprises a water in oil emulsion droplets which are emulsified in the continuous water phase and oil droplets without an internal water phase which are emulsified in the continuous water phase, the method comprises providing a primary water-in-oil emulsion by emulsifying water with oil and PGPR and emulsifying the primary emulsion and oil successively with water in the presence of an O/W emulsifier (egg yolk). PGPR is dissolved in the oil before emulsifying the oil with the water. (see page 1, ¶5-8).
Regarding claim 2: Claim 1 is applied as stated above. Shota teaches wherein the water-in-oil emulsion emulsified in the continuous water phase comprises water (W1) in an amount of more than 30wt% (page 3, ¶4). Shota does not express the calculation as W1/(W1-O1)*100; however, it would have been within the skill set of one of ordinary skill in the art to determine a needed equation.
Regarding claim 4: Claim 1 is applied as stated above. Shorta teaches wherein the oil droplet without an internal water phase is 3-50%, “the proportion of the second oil droplet P2 can be set to 3 to 50% of the outer aqueous phase W2, and in particular, from 5% to 20% from the viewpoint of improving mouth feel and cream feel of the combined emulsified seasoning” (page 3, ¶3). As set forth in MPEP 2144.05, in the case where the claimed range “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).
Regarding claim 5: Claim 1 is applied as stated above. Shorta teaches, “[t]he emulsified seasoning of the present invention can be used as salad dressing applied to at least one of vegetables or fruits, seasoning for filling for filling oil pickles of fish meat or chicken with emulsified seasoning, and the like.” (page 10, ¶10). Shorta does not expressly disclose the total amount of w/o emulsion droplets and oil drops based on the food product; however, it would have been within the skill level of one of ordinary skill in the art to determine the amount of the phases needed to impart the desired taste and mouthfeel to the desired food product. To do so would be obvious and routine determination to one of ordinary skill in the art.
Regarding claim 11: Claim 1 is applied as stated above. Shota teaches, “[t]he composite emulsified seasoning A of the present invention has a viscosity (25°C.) of 4 to 800 Pa · s. By having a viscosity (25°C.) of 4 Pa · s or more, it becomes easy to be entangled with foodstuffs and when it is 800 Pa · s or less, it becomes easy to mix with foodstuffs. In particular, from the viewpoint of improving the peculiar taste peculiar to the fat and being easy to obtain a creamy feeling, the viscosity can be set to 10 to 600 Pa · s, further to 30 to 400 Pa · s, It can be 300 Pa · s.” (page 8, ¶3). Therefore, given the teaching of Shota, one would have easily adjusted the viscosity to achieve the desired outcome. Furthermore, regarding Shota’s measurement at 25°C, as opposed to the presently claimed 20°C; as the temperatures are only slightly different and since both the prior art and the present invention disclose salad dressings, one would expect for the viscosity to overlap.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Shota et al., WO 2014/178139 in view of Campbell et al., Acidity/PH of common food and beverage.
Regarding claim 10: claim 1 is applied as stated above. Shota teaches emulsified seasoning as salad dressings, but does not expressly disclose the pH of the dressings; However, Campbell teaches the pH of condiments such as mayonnaise and salad dressing is less than 4.
Thus, it would have been obvious to one of ordinary skill in the art to have the pH of the salad dressings of Shota within the common acidity range known in the art.
Response to Arguments
Applicant's arguments filed on January 2nd 2026 have been fully considered but they are not persuasive.
Applicant argues in the “Remarks” the prior art references fail to render the claimed invention obvious, because Shota fail to teach the amount of w/o emulsion droplets based on the amount of w/o emulsion droplets and of oil droplets without internal water phase recited in claims 1 and 12. The examiner respectfully disagrees.
Shota teaches the composition components, to include the oil-in-water emulsifier and the water-in-oil emulsion, improves mouthfeel and stability of the emulsified seasoning, therefore, it would have been obvious for one to optimize the amounts of the components to arrive at a desired product having the desired mouthfeel and stability. Shota teaches, “[i]n this combined emulsified seasoning A, the ratio of the inner water phase W 1 of the first oil droplet P 1, the oil phase O 1 of the first oil droplet P 1 and the outer water phase W 2 is 25 to 75: 5 to 40: Can be from 5 to 50, and further can be from 50 to 75: 15 to 30: 5 to 20. Further, the proportion of the second oil droplet P2 can be set to 3 to 50% of the outer aqueous phase W2, and in particular, from 5% to 20% from the viewpoint of improving mouth feel and cream feel of the combined emulsified seasoning” (page 3, ¶3). As it is understood that the composition of Shota is “a composite emulsified seasoning in which a first oil droplet in which the inner water phase is dispersed and a second oil droplet in which the inner water phase is not dispersed are dispersed in an outer water phase” (page 1, ¶5). Given the fact a ratio of o/w droplets (i.e., P1) to the outer water phase W2 of 25:40 renders P1 is about 38% of the outer aqueous phase, and since 50% of the outer water phase is oil droplets without an internal water phase (i.e., P2), the amount of water-in-oil droplets (i.e., P1) based on water-in-oil droplets and oil droplets without a water phase (i.e., P1/(P1+P2)) in Shota is about 43% (i.e., 38/(38+50) =0.43). Accordingly, the claimed amount of w/o droplets based on the amount of w/o and oil only droplets overlap the value in Shota, and thus prima facie case of obviousness exists.
Applicant argues in the “Remarks” that the prior art references fail to render the claimed invention obvious, because Applicant was able to show that PGPR at level 0.4% provided superior stability than higher PGPR contents. The examiner respectfully disagrees.
While Example 3 in the Specification shows that 0.4% of PGPR 90 (i.e., an enhanced variant of PGPR known for its enhanced stability and performance in low-fat) spreads with excellent water binding effect, Example 2 in the specification shows that at 0.4%, PGPR (not PGPR 90) did not provide a superior product. Given the fact the claims recite PGPR and not PGPR 90, the evidence is not commensurate in scope with the claimed invention, and does not overcome the rejection on record at this time.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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