DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 02/20/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment, persuasive remarks, and/or filing of a Terminal Disclaimer: (1) the 35 U.S.C. §112(a) rejections of claims 1, 3, 5-20, and 22-27 have been withdrawn; and (2) the double patenting rejection over U.S. Patent No. 11,582,981 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3, 5-20, 22-27
Withdrawn claims: None
Previously cancelled claims: 2, 4, 21
Newly cancelled claims: None
Amended claims: 1, 10, 25-26
New claims: None
Claims currently under consideration: 1, 3, 5-20, 22-27
Currently rejected claims: 1, 3, 5-20, 22-27
Allowed claims: None
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.
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, 5-6, 8-9, 11-13, 15, 25, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by ICAR (“Biology of Oryza sativa L. (Rice)”, 2023, Indian Council of Agricultural Research (ICAR) Biosafety Portal, ttps://web.archive.org/web/20230928234748/https://biosafety.icar.gov.in/biology-of-oryza-sativa-l-rice/; previously cited) and McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited).
Regarding claims 1 and 25, Ajami teaches an oil-in-water Pickering emulsion [0158]-[0159] containing a mixture of emulsifiers comprising rice gluten protein and a nonionic amphiphilic substance (corresponding to polyglycerol esters of fatty acids and sucrose esters of fatty acids) [0164]. Rice belongs to the Gramineae family as evidenced by ICAR. Therefore, the rice protein of Ajami is a protein derived from Gramineae as claimed.
Furthermore, since Pickering emulsifiers are colloidal particles which adsorb to oil droplet surfaces, thereby reducing interfacial tension and preventing aggregation of oil droplets as evidenced by McClement (page 15, column 1, paragraph under “4. Natural emulsifiers”), the rice protein in the Pickering emulsion of Ajami is a solid particle insoluble in the aqueous phase component and the oil phase component as presently claimed. Ajami also teaches that the Pickering emulsion comprises an oil phase component [0162] and an aqueous component [0163] as presently claimed.
Ajami also discloses that the emulsion [0158]-[0159] contains a mixture of emulsifiers comprising rice gluten protein and a nonionic amphiphilic substance so that the total amount of emulsifiers in the emulsion is from about 0.1 wt.% to about 10 wt.% [0164]. As such, the mixture of the rice gluten protein and the nonionic amphiphilic substance provides concentrations for the rice gluten protein from an amount greater than 0 wt.% to an amount less than about 10 wt.%; and concentrations for the nonionic amphiphilic substance from an amount greater than 0 wt.% to an amount less than about 10 wt.%. This concentration range of rice gluten protein overlaps the concentration of solid particle recited in present claim 25. This concentration range of nonionic amphiphilic substance encompasses the concentration range recited in present claim 25. These concentration ranges of nonionic amphiphilic substance and rice gluten protein also provide weight ratios of nonionic amphiphilic substance to rice gluten protein which encompass the claimed weight ratio recited in present claim 1 (e.g., the emulsion comprising 0.01 wt.% rice gluten protein and 0.01 wt.% nonionic amphiphilic substance has a weight ratio of rice gluten protein to nonionic amphiphilic substance of 1).
In regards to the overlapping range of solid particle, the encompassing range of nonionic amphiphilic substance, and the encompassing range of weight ratios of nonionic amphiphilic substance to rice gluten protein, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention 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
Regarding claim 5, Ajami teaches the invention as described above in claim 1, including the nonionic amphiphilic substance (corresponding to sucrose esters of fatty acids) has an HLB of at least about 4 [0164], which falls within the claimed range.
Regarding claim 6, Ajami teaches the invention as described above in claim 1, including the nonionic amphiphilic substance is sucrose esters of fatty acids [0164].
Regarding claim 8, Ajami teaches the invention as described above in claim 1, including the oil phase is a fat which is solid at normal temperature (corresponding to oils that are solid at ambient temperature) [0162].
Regarding claim 9, Ajami teaches the invention as described above in claim 1, including the dispersed oil phase [0162] has an average particle size of about 4-50 µm [0172], which falls within the claimed range.
Regarding claim 11, Ajami teaches a food comprising the emulsion according to claim 1 [0267].
Regarding claim 12, Ajami teaches a milk substitute (corresponding to dairy product analog) comprising the emulsion according to claim 1 [0267].
Regarding claim 13, Ajami teaches a pharmaceutical comprising the emulsion according to claim 1 [0267].
Regarding claim 15, Ajami teaches a personal care product (corresponding to pharmaceutical formulations and nutritional supplements) comprising the emulsion according to claim 1 [0267].
Regarding claim 27, Ajami teaches the invention as described above in claim 1, including the solid particle is rice gluten protein [0164] and, therefore, a rice-derived protein as presently claimed.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by ICAR (“Biology of Oryza sativa L. (Rice)”, 2023, Indian Council of Agricultural Research (ICAR) Biosafety Portal, ttps://web.archive.org/web/20230928234748/https://biosafety.icar.gov.in/biology-of-oryza-sativa-l-rice/; previously cited) and McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 1 above, as further evidenced by Jayaprakash (Jayaprakash et al., “A Narrative Review on Rice Proteins: Current Scenario and Food Industrial Application”, 2022, Polymers, vol. 14, issue 3004; previously cited).
Regarding claim 3, Ajami teaches the invention as described above in claim 1, including the solid particle is rice gluten protein [0164], which is a hydrophobic protein as evidenced by Jayaprakash (page 9, paragraph 2).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by ICAR (“Biology of Oryza sativa L. (Rice)”, 2023, Indian Council of Agricultural Research (ICAR) Biosafety Portal, ttps://web.archive.org/web/20230928234748/https://biosafety.icar.gov.in/biology-of-oryza-sativa-l-rice/; previously cited) and McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 6 above, and further in view of Aramaki (Aramaki et al., “Self-organization of Sucrose Fatty Acid Ester in Water”, 2001, Studies in Surface Science and Catalysis, vol. 132, pages 985-988; previously cited).
Regarding claim 7, Ajami teaches the invention as described above in claim 6, including the nonionic amphiphilic substance is sucrose fatty acid ester having an HLB of at least 4 [0164]. Ajami does not teach that the monoester content in the sucrose fatty acid ester is 20-100 wt.%.
However, Aramaki teaches sucrose fatty acid esters with an HLB of 5 and 16 wherein the monoester content is 33.0 wt.% and 81.3 wt.%, respectively (Table 1 on page 986), which fall within the claimed concentration.
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to have modified the emulsion of Ajami to include sucrose fatty acid esters having a monoester content of 33.0 wt.% and 81.3 wt.% as taught by Aramaki. Since Ajami teaches that the sucrose fatty acid esters have an HLB of at least 4 [0164], but does not disclose a monoester content that provides such an HLB, a skilled practitioner would have been motivated to consult an additional reference such as Aramaki in order to determine a suitable monoester content for sucrose fatty acid esters having an HLB of at least 4. Therefore, the claim is rendered obvious.
Claims 10, 16-18, 20, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited).
Regarding claims 10 and 26, Ajami teaches an oil-in-water Pickering emulsion [0158]-[0159] comprising a Pickering emulsifier in the form of rice gluten protein [0164]. Since Pickering emulsifiers are colloidal particles which adsorb to oil droplet surfaces, reducing interfacial tension and preventing aggregation of oil droplets as evidenced by McClement (page 15, column 1, paragraph under “4. Natural emulsifiers”), the rice protein in the Pickering emulsion of Ajami is a solid particle insoluble in the aqueous phase component and the oil phase component as claimed. Ajami also teaches that the Pickering emulsion comprises an amphiphilic substance (corresponding to sucrose esters of fatty acids) [0164], an oil phase component [0162], and an aqueous component [0163].
Ajami also discloses that the emulsion [0158]-[0159] contains a mixture of emulsifiers comprising rice gluten protein and a nonionic amphiphilic substance so that the total amount of emulsifiers in the emulsion is from about 0.1 wt.% to about 10 wt.% [0164]. As such, the mixture of the rice gluten protein and the nonionic amphiphilic substance provides concentrations for the rice gluten protein in the emulsion from an amount greater than 0 wt.% to an amount less than about 10 wt.%; and concentrations for the nonionic amphiphilic substance in the emulsion from an amount greater than 0 wt.% to an amount less than about 10 wt.%. This concentration range of rice gluten protein overlaps the concentration of solid particle recited in present claim 26. This concentration range of nonionic amphiphilic substance encompasses the concentration range recited in present claim 26. These concentration ranges of nonionic amphiphilic substance and rice gluten protein also provide weight ratios of nonionic amphiphilic substance to rice gluten protein which encompass the claimed weight ratio recited in present claim 10 (e.g., the emulsion comprising 0.01 wt.% rice gluten protein and 0.01 wt.% nonionic amphiphilic substance has a weight ratio of rice gluten protein to nonionic amphiphilic substance of 1).
In regards to the encompassing range of nonionic amphiphilic substance and the encompassing range of weight ratios of nonionic amphiphilic substance to rice gluten protein, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention 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.
Regarding claim 16, Ajami teaches a food comprising the emulsion according to claim 10 [0267].
Regarding claim 17, Ajami teaches a milk substitute (corresponding to dairy product analog) comprising the emulsion according to claim 10 [0267].
Regarding claim 18, Ajami teaches a pharmaceutical comprising the emulsion according to claim 10 [0267].
Regarding claim 20, Ajami teaches a personal care product (corresponding to pharmaceutical formulations and nutritional supplements) comprising the emulsion according to claim 10 [0267].
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by ICAR (“Biology of Oryza sativa L. (Rice)”, 2023, Indian Council of Agricultural Research (ICAR) Biosafety Portal, ttps://web.archive.org/web/20230928234748/https://biosafety.icar.gov.in/biology-of-oryza-sativa-l-rice/; previously cited) and McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 1 above, and further in view of Yang (Yang et al., “An Overview of Pickering Emulsions: Solid-Particle Materials, Classification, Morphology, and Applications”, 2017, Frontiers in Pharmacology, vol. 8, article 287; previously cited).
Regarding claim 14, Ajami teaches the invention as described above in claim 1, including the Pickering emulsion [0158]-[0159] has a wide variety of uses such as nutritional supplements, pharmaceuticals, and food products [0267]. Ajami does not teach a cosmetic comprising the emulsion.
However, Yang teaches that emulsions are widely used in different fields including pharmaceutics, drug delivery, cosmetics, and the food industry. Yang also exemplifies Pickering emulsions as a type of emulsion of recent interest due to its associated benefits such as lower toxicity using food-grade solid particles (page 1, paragraph 1).
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to have modified the emulsion of Ajami to include the emulsion in a cosmetic as taught by Yang. Since Ajami teaches that its Pickering emulsion has a variety of uses, including in food products [0267], a skilled practitioner would be motivated to consult an additional reference such as Yang in order to determine other suitable applications of the Pickering emulsion, wherein the incorporation of food-grade ingredients with lower toxicity would be beneficial. Therefore, the claim is rendered obvious.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 10 above, and further in view of Yang (Yang et al., “An Overview of Pickering Emulsions: Solid-Particle Materials, Classification, Morphology, and Applications”, 2017, Frontiers in Pharmacology, vol. 8, article 287; previously cited).
Regarding claim 19, Ajami teaches the invention as described above in claim 10, including the Pickering emulsion [0158]-[0159] has a wide variety of uses such as nutritional supplements, pharmaceuticals, and food products [0267]. Ajami does not teach a cosmetic comprising the emulsion.
However, Yang teaches that emulsions are widely used in different fields including pharmaceutics, drug delivery, cosmetics, and the food industry. Yang also exemplifies Pickering emulsions as a type of emulsion of recent interest due to its associated benefits such as lower toxicity using food-grade solid particles (page 1, paragraph 1).
It would have been obvious for a person of ordinary skill in the art before the effective filing date of the claimed invention to have modified the emulsion of Ajami to include the emulsion in a cosmetic as taught by Yang. Since Ajami teaches that its Pickering emulsion has a variety of uses, including in food products [0267], a skilled practitioner would be motivated to consult an additional reference such as Yang in order to determine other suitable applications of the Pickering emulsion, wherein the incorporation of food-grade ingredients with lower toxicity would be beneficial. Therefore, the claim is rendered obvious.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by ICAR (“Biology of Oryza sativa L. (Rice)”, 2023, Indian Council of Agricultural Research (ICAR) Biosafety Portal, ttps://web.archive.org/web/20230928234748/https://biosafety.icar.gov.in/biology-of-oryza-sativa-l-rice/; previously cited) and McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 1 above, as further evidenced by Jayaprakash (Jayaprakash et al., “A Narrative Review on Rice Proteins: Current Scenario and Food Industrial Application”, 2022, Polymers, vol. 14, issue 3004; previously cited) and Xi (Xi, E., Patel, A.J., “The hydrophobic effect, and fluctuations: The long and the short of it”, 2016, PNAS, vol. 113, no. 17, pages 4549-4551; previously cited).
Regarding claim 22, Ajami teaches the invention as described above in claim 1, including the solid particle is a rice-derived protein (corresponding to rice gluten protein) [0164], which is a hydrophobic protein as evidenced by Jayaprakash (page 9, paragraph 2). Since the amphiphilic substance has hydrophobic groups on it and the protein is hydrophobic, the substances are attracted to one another (corresponding to the hydrophobic effect wherein the oily objects have an affinity for one another) as evidenced by Xi (page 4549, column 1, paragraph 1). Therefore, the solid particle interacts with the nonionic amphiphilic substance as claimed.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 10 above, as further evidenced by Jayaprakash (Jayaprakash et al., “A Narrative Review on Rice Proteins: Current Scenario and Food Industrial Application”, 2022, Polymers, vol. 14, issue 3004; previously cited) and Xi (Xi, E., Patel, A.J., “The hydrophobic effect, and fluctuations: The long and the short of it”, 2016, PNAS, vol. 113, no. 17, pages 4549-4551; previously cited).
Regarding claim 23, Ajami teaches the invention as described above in claim 10, including the solid particle is a rice-derived protein (corresponding to rice gluten protein) [0164], which is a hydrophobic protein as evidenced by Jayaprakash (page 9, paragraph 2). Since the amphiphilic substance has hydrophobic groups on it and the protein is hydrophobic, the substances are attracted to one another (corresponding to the hydrophobic effect wherein the oily objects have an affinity for one another) as evidenced by Xi (page 4549, column 1, paragraph 1). Therefore, the solid particle interacts with the amphiphilic substance as claimed.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami (US 2017/0105438; previously cited) as evidenced by ICAR (“Biology of Oryza sativa L. (Rice)”, 2023, Indian Council of Agricultural Research (ICAR) Biosafety Portal, ttps://web.archive.org/web/20230928234748/https://biosafety.icar.gov.in/biology-of-oryza-sativa-l-rice/; previously cited) and McClements (McClements, D.J., Gumus, C.E., “Natural Emulsifiers – Biosurfactants, Phospholipids, Biopolymers, and Colloidal Particles: Molecular and Physicochemical Basis of Functional Performance”, 2016, Advances in Colloid and Interface Science, vol. 234, pages 3-26; previously cited) as applied to claim 1 above, as further evidenced by Bronski (Bronski, P., “GFamily Ties…Clarifying the Meaning of Gluten”, 2011, No Gluten, No Problem, https://nogluten-noproblem.com/2011/03/gfamily-ties-clarifying-themeaning-of-gluten.html; previously cited)).
Regarding claim 24, Ajami teaches the invention as described above in claim 1, including the solid particle is rice gluten protein [0164]. Rice belongs to the Gramineae family as evidenced by ICAR. Therefore, the rice protein of Ajami is a protein derived from Gramineae as claimed. The term “gluten” refers to the proteins glutelin and prolamin as evidenced by Bronski (page 1, 7th paragraph). Therefore, the solid particle comprises glutelin and/or prolamin as presently claimed.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(a) of claim 1, 3, 5-20, and 22-27: Applicant amended claims 1 and 10 to remove the feature regarding a temperature stability. Applicant pointed to support in the specification for the feature regarding a weight ratio of amphiphile substance to solid particles. Therefore, the rejections are withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1, 5-6, 8-9, 11-13, 15, 25, and 27 over Ajami as evidenced by ICAR and McClements; claim 3 over Ajami as evidenced by ICAR, McClements, and Jayaprakash; claim 7 over Ajami and Aramaki as evidenced by ICAR and McClements; claims 10, 16-18, 20, and 26 over Ajami as evidenced by McClements; claim 14 over Ajami and Yang as evidenced by ICAR and McClements; claim 19 over Ajami and Yang as evidenced by McClements; claim 22 over Ajami as evidenced by ICAR, McClements, and Jayaprakash; claim 23 over Ajami as evidenced by McClements and Jayaprakash; claim 24 over Ajami as evidenced by ICAR, McClements, and Bronski: Applicant’s amendments and arguments have been fully considered and are considered unpersuasive.
Applicant amended independent claims 1 and 10 to no longer require a specific thermal stability for the emulsion. Applicant argued that, although Ajami discloses materials that may be added as emulsifiers, Ajami does not expressly or otherwise indicate combining: (A) solid particles with a nonionic amphiphilic substance as recited in present claim 1; or (B) solid particles with an amphiphilic substance as recited in present claim 10. Applicant argued that Ajami also fails to indicate that the cooling stability of the emulsion is improved when the amphiphilic substance is present in an amount of 0.00001-5 wt.% with respect to the weight of the solid particles. Applicant argued that Ajami does not provide a basis to arrive at the presently claimed invention which achieves excellent stability upon cooling. Applicant pointed to Tables 1 and 2 of the present specification to demonstrate that emulsions containing both solid particles and amphiphilic substance exhibit excellent heat resistance and stability upon cooling when compared to that of emulsions containing only solid particles or only an amphiphilic substance (Applicant’s Remarks, page 6, 2nd paragraph - page 9, 3rd paragraph).
However, in response to Applicant’s assertion that Ajami does not expressly or otherwise indicate combining: (A) solid particles with a nonionic amphiphilic substance as recited in present claim 1; or (B) solid particles with an amphiphilic substance as recited in present claim 10, Ajami expressly discloses that the emulsion may be a Pickering emulsion [0159]. Pickering emulsions are, by definition, emulsions that contain solid particles as evidenced by at least McClements (page 15, column 1, paragraph under “4. Natural emulsifiers”). Therefore, Ajami expressly discloses an emulsion that comprises solid particles. Furthermore, Ajami expressly states that the emulsions may further contain an emulsifier wherein the emulsifier may be mixture of a Pickering emulsifier (i.e., the solid particles) and sucrose esters of fatty acids [0164]. Sucrose esters of fatty acids is a nonionic amphiphilic substance. Therefore, Ajami at least suggests combining: (A) solid particles with a nonionic amphiphilic substance as recited in present claim 1; or (B) solid particles with an amphiphilic substance as recited in present claim 10.
In response to Applicant’s assertion that Ajami fails to indicate that the heat resistance and cooling stability of the emulsion is improved when the amphiphilic substance is present in an amount of 0.00001-5 wt.% with respect to the weight of the solid particles, the Examiner notes that the present claims do not recite that the amphiphilic substance is present in an amount of 0.00001-5 wt.% with respect to the weight of the solid particles. The present claims recite that the weight ratio of the amphiphilic substance to the solid particles is 0.00001 to 5 which is not the same as the amphiphilic substance being present in an amount of 0.00001-5 wt.% with respect to the weight of the solid particles (i.e., a weight ratio of amphiphilic substance to solid particles of 5 means that the concentration of amphiphilic substance is 500 wt.% based on the concentration of solid particle being 100 wt.%).
Further in response to Applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which Applicant relies (i.e., heat resistance and cooling stability of the emulsion) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims are maintained as written herein.
Double Patenting Rejection: Applicant filed a Terminal Disclaimer. Therefore, the rejection is withdrawn.
Conclusion
THIS ACTION IS MADE FINAL. 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 Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 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, 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.
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.
/KELLY P KERSHAW/Examiner, Art Unit 1791
Prosecution Insights