DETAILED ACTION
Status of Claims
The amendments, and arguments, filed January 08, 2026, are acknowledged and have been fully considered. Claims 1-2, 4, 6-9, 11, 13-16, 20-21, 25-27, 31, 33-35 and 38-40 are pending. Claims 20 and 35 have been amended; claims 1-2, 4, 6-9, 11, 13-16, 21, 33-34, 38 and 40 have been withdrawn; and claims 3, 5, 10, 12, 17-19, 22-24,28-30, 32 and 36-37 were previously cancelled. Claims 20, 25-27, 31, 35 and 39 are currently under consideration. 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 Office Action: Final
Withdrawn Claim Objections & Rejections
The objection to claim 39 (at par. 5-6 of the 09/10/2025 Office action) is withdrawn in light of applicant’s 01/08/2026 amendments.
The rejection of claims 20, 25-27, 31, 35 and 39 under 35 U.S.C. § 112 (b) or 35 U.S.C. § 112 (pre-AIA ), second paragraph, as being indefinite (items A. and B. at par. 7-8 of the 09/10/2025 Office action), is withdrawn in light of applicant’s 01/08/2026 amendments.
The rejection of claims 20, 25, 27, 31, 35 and 39 under 35 U.S.C. § 102 (a)(1) by over HAE (KR 10-2017-0053608) (at par. 9-19 of the 09/10/2025 Office action), is withdrawn in light of applicant’s 01/08/2026 amendments (in particular, the amendments to independent claim 20 reciting “wherein the particles of the composition comprising particles in (i) or (ii) are solid particles prepared from one or more biological materials that are capable of locating to or at an interface when combined with two or more immiscible liquids, wherein the one or more biological materials are obtained from photosynthetic organisms selected from the group consisting of spirulina, marshmallow, and similarly for claim 35). Applicant’s 01/08/2026 arguments are acknowledged, but are moot in light of the new rejections presented herein.
The rejection of claim 26 under 35 U.S.C. § 102 (a)(1) by over HAE, as evidenced by DJORDJEVIC (Earth Environ. Sci., 333 (2019) pp. 1-6) (at par. 20-22 of the 09/10/2025 Office action), is withdrawn in light of applicant’s 01/08/2026 amendments.
New Claim Objections – Necessitated by Amendments
The following claims are objected to because of the following informalities:
Claim 35 is objected to because the claim should read:
35. ([...]) A method for the preparation of an emulsion, wherein the method comprises: mixing a composition comprising particles with either:
(a) two or more immiscible liquids; or
(b) a pre-prepared emulsion comprising an internal phase dispersed in a continuous external phase;
wherein
wherein the particles of the composition comprising particles are solid particles prepared from one or more of the biological materials in a form selected from a dried raw material an undried raw material, a powder, a by-product of an extract, an extraction cake, or mixtures thereof;
and wherein the emulsion is a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition, or the emulsion is part of a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition.
Appropriate correction is required.
New Claim Rejections – 35 U.S.C. § 103 – Necessitated by Amendments
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. § 103(a) 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 C.F.R. § 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 20, 25-27, 31, 35 and 39 are rejected under 35 U.S.C. § 103 as being unpatentable over DEJMEK (US 2015/0125498 A1, Publ. May 7, 2015; hereinafter, “Dejmek”).
Dejmek is directed to:
NEW PARTICLE STABILIZED EMULSIONS AND FOAMS
ABSTRACT
The present invention relates to a particle stabilized emulsion or foam comprising at least two phases and solid particles, wherein said solid particles are starch granules and said starch granules or a portion thereof are situated at the interface between the two phases providing the particle stabilized emulsion or foam. The invention further relates to the use of said particle stabilized emulsion or foam for encapsulation of substances chosen from biopharmaceuticals, proteins, probiotics, living cells, enzymes and antibodies, sensitive food ingredients, vitamins, and lipids in food products, cosmetic products, skin creams, and pharmaceutical formulations.
Dejmek, title & abstract. In this regard, Dejmek discloses a claim embodiment directed to using “[a] particle stabilized emulsion or foam comprising at least two phases and solid particles, wherein said solid particles are starch granules,” wherein “the starch granules are obtained from any botanical source” such as “oat” for “encapsulation of substances” such as “lipids”:
1. A particle stabilized emulsion or foam comprising at least two phases and solid particles, wherein said solid particles are starch granules and said starch granules or a portion thereof are situated at the interface between the two phases providing the particle stabilized emulsion or foam.
[…]
6. A particle stabilized emulsion or foam according to claim 1, wherein the starch granules are obtained from any botanical source.
7. A particle stabilized emulsion or foam according to claim 6, wherein the starch granules are obtained from quinoa, rice, maize, amaranth, barley, immature sweet corn, rye, triticale, wheat, buckwheat, cattail, dropwort, durian, grain tef, oat, parsnip, small millet, wild rice, canary grass, cow cockle, dasheen pigweed, or taro including waxy and high amylose varieties of the above.
[…]
13. Use of a particle stabilized emulsion according to claim 1 for encapsulation of substances chosen from biopharmaceuticals, proteins, probiotics, living cells, enzymes, antibodies, sensitive food ingredients, vitamins, and lipids.
14. Use of a particle stabilized emulsion according claim 1 in food products, cosmetic products, skin creams, lotions, pharmaceutical formulations, and consumer products.
Dejmek, claims 1, 6-7 and 13-14.
Regarding independent claims 20 and 35 and the requirements:
20. ([...]) A method for reducing oxidation and/or enhancing the oxidative stability of an emulsion comprising either:
(i) forming an emulsion comprising an internal phase dispersed in a continuous external phase and adding a composition comprising particles to the emulsion; or
(ii) forming an emulsion comprising an internal phase dispersed in a continuous external phase and a composition comprising particles by mixing two or more immiscible liquids and the composition comprising particles under conditions suitable for forming an emulsion;
wherein the particles of the composition comprising particles in (i) or (ii) are solid particles prepared from one or more biological materials that are capable of locating to or at an interface when combined with two or more immiscible liquids, wherein the one or more biological materials are obtained from photosynthetic organisms selected from the group consisting of spirulina, marshmallow,
wherein the solid particles of the composition comprising particles are prepared from one or more of the biological materials in a form selected from a dried raw material, an undried raw material, a powder, a by-product of an extract, an extraction cake, or mixtures thereof;
wherein at least one of the internal or external phase comprises an oxidisable material;
and wherein the emulsion is a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition, or the emulsion is part of a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition.
[...]
35. ([...]) A method for the preparation of an emulsion, wherein the method comprises: mixing a composition comprising particles with either:
(a) two or more immiscible liquids; or
(b) a pre-prepared emulsion comprising an internal phase dispersed in a continuous external phase;
wherein the solid particles of the composition comprising particles are prepared from one or more biological materials that are capable of locating to or at an interface when combined with two or more immiscible liquids, wherein the one or more biological materials are obtained from photosynthetic organisms selected from the group consisting of spirulina, marshmallow,
wherein the particles of the composition comprising particles are solid particles prepared from one or more of the biological materials in a form selected from a dried raw material an undried raw material, a powder, a by-product of an extract, an extraction cake, or mixtures thereof;
and wherein the emulsion is a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition, or the emulsion is part of a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition.
Dejmek clearly teaches using “[a] particle stabilized emulsion or foam comprising at least two phases and solid particles, wherein said solid particles are starch granules,” wherein “the starch granules are obtained from any botanical source” such as “oat” (Dejmek, claims 1 and 6-7), WHEREBY it is noted:
“starch granules” that is “obtained from any botanical source” such as “oat” (Dejmek, claims 1 and 6-7) are:
“solid particles prepared from one or more biological materials that are capable of locating to or at an interface when combined with two or more immiscible liquids, wherein the one or more biological materials are obtained from photosynthetic organisms selected from the group consisting of […], oat, […], wherein the solid particles of the composition comprising particles are prepared from one or more of the biological materials in a form selected from a dried raw material, an undried raw material, a powder, a by-product of an extract, an extraction cake, or mixtures thereof” of claim 20, and
“solid particles of the composition comprising particles are prepared from one or more biological materials that are capable of locating to or at an interface when combined with two or more immiscible liquids, wherein the one or more biological materials are obtained from photosynthetic organisms selected from the group consisting of spirulina, marshmallow, […], oat, […], wherein the particles of the composition comprising particles are solid particles prepared from one or more of the biological materials in a form selected from a dried raw material[,] an undried raw material, a powder, a by-product of an extract, an extraction cake, or mixtures thereof” of claim 35;
“[u]se of a particle stabilized emulsion according to claim 1 for encapsulation of substances” (Dejmek, claim 13) meets the active step requirements of:
claim 20 for “(i) forming an emulsion comprising an internal phase dispersed in a continuous external phase and adding a composition comprising particles to the emulsion; or (ii) forming an emulsion comprising an internal phase dispersed in a continuous external phase and a composition comprising particles by mixing two or more immiscible liquids and the composition comprising particles under conditions suitable for forming an emulsion,” and
claim 35 for “wherein the method comprises: mixing a composition comprising particles with either: (a) two or more immiscible liquids; or (b) a pre-prepared emulsion comprising an internal phase dispersed in a continuous external phase”; AND
“[u]se of a particle stabilized emulsion according to claim 1 for encapsulation of substances chosen from […], and lipids” (Dejmek, claim 13) is:
“at least one of the internal or external phase compris[ing] an oxidisable material” of claim 20, as well as a “lipid” of claim 25:
25. ([...]) The method according to claim 20, wherein the oxidisable material comprises a lipid.
wherein “[u]se of a particle stabilized emulsion according claim 1 in food products, […], pharmaceutical formulations, and consumer products” (Dejmek, claim 14) relates to the requirements of claim 20 for “wherein the emulsion is a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition, or the emulsion is part of a nutraceutical composition, dietary composition, food product, nutritional supplement, or flavouring composition” (and similarly for claim 35).
However, Dejmek DOES NOT EXPRESSLY TEACH a specific exemplary embodiment of forming using (Dejmek, claim 13) “[a] particle stabilized emulsion” (Dejmek, claim 1) of “starch granules” obtained from “oat” (Dejmek, claim 7) encapsulating lipids (Dejmek, claim 13) in order to be anticipatory, and therefore, would be obvious per Demjek’s broader disclosure. In this regard, it is noted that a reference is analyzed using its broadest teachings. MPEP § 2123 [R-5] states: “[W]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007)(quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious”, the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR v. Teleflex, 127 S.Ct. 1727, 1741 (2007). The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to obtain the disclosed above cited components of Demjek in order to arrive at the instant claimed invention.
Thus, Demjek renders claims 20, 25 and 35 obvious.
Regarding claims 31 and 39, it is noted that the requirements:
31. ([...]) The method according to claim 20, wherein the particles reduce, delay the formation of oxidation products, secondary oxidation products and/or nonvolatile secondary oxidation products.
[...]
39. ([...]) The method according to claim 31, wherein the particles reduce, delay the formation of at least one of oxidation products, secondary oxidation products, and non-volatile secondary oxidation products.
are functional requirements. In this regard, it is noted that the structure, material or act in the claim that is connected to (i.e., performs) the recited function is the combination of recited elements of claim 20, which achieve the resulting reduction, delay and/or preventative effects. Therefore, the broadest reasonable interpretation (see MPEP § 2111 with respect to broadest reasonable interpretation) of the functional language is: an intended reduction, delay and/or preventative effect of a composition that meets the structural requirements of claim 20. Because this functional language merely recites the intended result of the recited structural limitations, it imposes no patentable distinction on the claim (i.e., the functional language is not further limiting beyond the noted structural limitations). Therefore, one of ordinary skill in the art would understand that a composition meeting the structural requirements of claim 20 will achieve the intended result of the functional limitations and fall within the boundaries of the claims.
Thus, Demjek renders claims 31 and 39 obvious.
Regarding claim 26 and the requirements:
26. ([...]) The method according to claim 25, wherein the lipid has at least one carbon-carbon double bond in the fatty acyl chain and is selected from the group consisting of palmitoleic acid, oleic acid, myristoleic acid, linoleic acid, arachidonic acid, linolenic acid, eicosapentaenoic acid, docosahexaenoic acid, sunflower, soybean, canola, olive, peanut, corn, cottonseed, palm, fish oils, and combinations thereof.
Demjek teaches an exemplary embodiment, wherein “[o]ils that have been used as the dispersed phase include: […], soybean oil” (Demjek, par. [0121]), which encompasses “soybean” of claim 26. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Thus, Demjek renders claim 26 obvious.
Regarding claim 27 and the requirements:
27. ([...]) The method according to claim 20, wherein the internal phase comprises oil and the external phase comprises water.
Demjek teaches: “At least two phases of the particle stabilized emulsion or foam are chosen from oil based phase/aqueous based phase, and gas phase/aqueous based phase.” Demjek, par. [0053]. See MPEP § 2123 [R-5] regarding the obviousness of rearranging a reference according to the teachings of that same reference.
Thus, Demjek renders claim 27 obvious.
Summary/Conclusion
Claims 20, 25-27, 31, 35 and 39 are rejected. No claims are allowed.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOMINIC LAZARO whose telephone number is (571)272-2845. The examiner can normally be reached on Monday through Friday, 8:30am to 5:00pm EST; alternating Fridays out.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BETHANY BARHAM can be reached on (571)272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOMINIC LAZARO/Primary Examiner, Art Unit 1611
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