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 Request for Continued Examination (RCE under 37 CFR 1.114), the Response, and Amendment filed 08/07/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment: the 35 U.S.C. §112(b) rejection of claim 18 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-7, 9-21, 23-24
Withdrawn claims: None
Previously cancelled claims: 9, 22
Newly cancelled claims: None
Amended claims: 18
New claims: 24
Claims currently under consideration: 1-7, 9-21, 23-24
Currently rejected claims: 1-7, 9-21, 23-24
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 08/07/2025 has been entered.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 6, 11, and 24 are rejected under 35 U.S.C. 112(b) 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.
Regarding claims 6, 11, and 24, the term "including" in the phrase “other mucilaginous fibres including linseed or chia seed fibres” renders the claims indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 103
Claims 1-5, 7, 9, 11, 13-17, 19-21, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Dueso (EP 2926670; previously cited) in view of Randolph (WO 2019/209939; previously cited) as evidenced by USDA I (“Seeds, chia seeds, dried”, 2019, FoodData Central, https://fdc.nal.usda.gov/food-details/170554/nutrients) and USDA II (“Flaxseed, ground”, 2022, FoodData Central, https://fdc.nal.usda.gov/food-details/2262075/nutrients).
Regarding claims 1, 11, and 24, Dueso teaches a vegetable food product (corresponding to cheese substitute made from vegetable material) [0025] analogous to unrefined sliceable solid cheeses [0034], comprising: 5-40 wt.% crushed almonds (corresponding to the almonds being mixed to form an emulsified paste) [0040], [0047], [0057]; 0-20 wt.% vegetable fat [0050]; 0-5 wt.%, such as 1 wt.%, of a natural acidifying ingredient being a citrus-based ingredient (corresponding to natural lemon juice or concentrate) [0049], and 50-80 wt.% water [0027], [0047], [0073]. Dueso teaches that its product further contains a gelling or thickening matter besides agar-agar in an amount of 0.1-10 wt.% [0048]. The concentrations of these ingredients allow for up to 43.9 wt.% of the product to comprise other ingredients such as plants or other solid ingredients [0049].
Dueso does not teach that the product contains at least one source of unmodified starch and 0.5-8 wt.% vegetable food fibers; or that the product does not further contain the food additives recited in lines 9-12 of present claim 1.
However, Randolph teaches a vegetable food product (corresponding to plant-based products) analogous to unrefined sliceable solid cheeses (Abstract; Fig. 2 and 19-20). Randolph teaches that the product comprises: crushed (corresponding to comminuted) [00103] nuts [0027], vegetable fat (corresponding to plant-derived oils) [00123], a natural acidifying ingredient [00127], and water (corresponding to moisture content) [00116]. Randolph also discloses that the product further comprises a gelling agent in the form of unmodified starch [00129], [0161]. Randolph also discloses that the product contains 10 wt.% oilseeds which may be selected from chia seed and linseed (corresponding to flax seed) in addition to the nuts [0027] in order to provide a product that is efficiently produced, nutritionally dense, and has a low resource intensity compared to products comprising almonds and no oilseeds [0002], [0003], [0093]. Therefore, Randolph discloses a product further comprising vegetable food fibers in the form of linseed or chia seed fibers as recited by present claims 1, 11 and 24.
It would have been obvious for a person of ordinary skill in the art to have modified the product of Dueso to include unmodified starch as taught by Randolph. Since Dueso teaches that its cheese substitute contains a gelling or thickening matter besides agar-agar [0048], but does not specify a type of gelling/thickening matter, a skilled practitioner would have been motivated to consult an additional reference such as Randolph in order to determine a suitable gelling/thickening matter for a cheese substitute. Therefore, the claimed unmodified starch as recited in present claim 1 is rendered obvious.
Since concentrations of the ingredients in the product containing almonds of Dueso allow for up to 43.9 wt.% of the product to comprise other ingredients as described above; and Randolph discloses that the product further comprises at least 10 wt.% linseed or chia seed in order to provide a product that is efficiently produced, nutritionally dense, and has a low resource intensity compared to products comprising almonds and no oilseeds, the combination of Dueso and Randolph at least suggests that the product may comprise 10-43.9 wt.% linseed or chia seed in order to provide a product having the aforementioned benefits. These aforementioned benefits provide motivation for a skilled practitioner to include linseed and chia seed in the product. Chia seeds contain 34.4 wt.% fiber as evidenced by USDA I (line in table for “Fiber, total dietary”). Therefore, a product comprising 10-43.9 wt.% chia seed contains 3.4-15.1 vegetable food fibers from chia seed, which overlaps the claimed vegetable food fiber concentration recited in present claim 1. Linseeds contain 23.1 wt.% fiber as evidenced by USDA II (line in table for “Fiber, total dietary”). Therefore, a product comprising 10-43.9 wt.% linseed contains 2.3-10.1 wt.% vegetable food fibers from linseed, which also overlaps the claimed vegetable food fiber concentration recited in present claim 1.
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.I. Therefore, the claimed concentration of vegetable food fibers from the mucilaginous fibers of linseed fiber and chia seed fiber as recited in present claims 1, 11, and 24 is rendered obvious. Furthermore, since the combination of prior teaches that the composition only comprises the aforementioned ingredients, the combination of prior art teaches that the product contains no further added food additives from the list recited in lines 9-12 of present claim 1.
Regarding claim 2, Dueso teaches the invention as described above in claim 1, including the vegetable food product has a protein content of 5-30% [0028], which falls within the claimed concentration.
Regarding claim 3, modified Dueso teaches the invention as described above in claim 1, including the product is only required to comprise crushed almonds (Dueso [0040], [0057]), at least one vegetable fat (Dueso [0050]), at least one source of unmodified starch (Randolph [00129]), at least one natural acidifying ingredient (Dueso [0049], vegetable food fibers (Randolph [0027]), and water (Dueso [0027]). Therefore, modified Duest teaches that the product does not comprise protein concentrate and/or isolate.
Regarding claim 4, modified Dueso teaches the invention as described above in claim 1, including fermenting the crushed nuts with bacteria to produce palatable cheese substitutes (Randolph [0091]). Therefore, the prior art teaches that the product contains ferments.
Regarding claims 5, 19, and 20, modified Dueso teaches the invention as described above in claim 1, including the product is only required to comprise crushed almonds (Dueso [0040], [0057]), at least one vegetable fat (Dueso [0050]), at least one source of unmodified starch (Randolph [00129]), at least one natural acidifying ingredient (Dueso [0049], vegetable food fibers (Randolph [0027]), and water (Dueso [0027]). Therefore, modified Dueso teaches that the product does not comprise soybean as recited by present claims 5, 19, and 20.
Regarding claim 7, Dueso teaches the invention as described above in claim 1, including the product has a taste analogous to traditional cheese [0015]. Therefore, Dueso teaches that the product has a cheesy taste as claimed.
Regarding claim 9, modified Dueso teaches the invention as described above in claim 1, including that the product contains sugars defined as “any raw material rich in carbohydrates” and functional substances (Dueso [0049]), such as rice flour (Randolph [00122]) and/or potato or cassava starch (Randolph [00119]).
Regarding claim 13, Dueso teaches the invention as described above in claim 1, including the crushed almonds are in the form of a puree (corresponding to the almonds being mixed to form an emulsified paste) [0040], [0057].
Regarding claims 14 and 15, Dueso teaches the invention as described above in claim 1, including the vegetable food product has a protein content of 5-30% [0028], which overlaps the claimed concentration. The selection of a value within the overlapping range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claim 16, modified Dueso teaches the invention as described above in claim 2, including the product is only required to comprise crushed almonds (Dueso [0040], [0057]), at least one vegetable fat (Dueso [0050]), at least one source of unmodified starch (Randolph [00129]), at least one natural acidifying ingredient (Dueso [0049], vegetable food fibers (Randolph [0027]), and water (Dueso [0027]). Therefore, modified Dueso teaches that the product does not comprise protein concentrate and/or isolate.
Regarding claim 17, Dueso teaches the invention as described above in claim 4, including the crushed almonds are an almond puree (corresponding to almonds being mixed to form a paste) [0040], [0058] and the natural acidifying ingredient is concentrated lemon juice [0049].
Regarding claim 21, Dueso teaches the invention as described above in claim 1, including the at least one vegetable fat is olive oil [0050], [0073].
Claims 6, 18, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Dueso (EP 2926670; previously cited) in view of Randolph (WO 2019/209939; previously cited) as evidenced by USDA I (“Seeds, chia seeds, dried”, 2019, FoodData Central, https://fdc.nal.usda.gov/food-details/170554/nutrients) and USDA II (“Flaxseed, ground”, 2022, FoodData Central, https://fdc.nal.usda.gov/food-details/2262075/nutrients) as applied to claim 1 above, and further in view of Ku (US 2020/0015492; previously cited).
Regarding claims 6, 18, and 23, Dueso teaches the invention as described above in claim 1, including the product comprising: 0-20 wt.% vegetable fat (Dueso [0050]); 0.1-10 wt.% of an unmodified starch source (Dueso [0048]); 0-5 wt.% of a natural acidifying ingredient being a citrus-based ingredient such as 1 wt.% concentrated lemon juice (Dueso [0049], [0073]); and 50-80 wt.% water (Dueso [0027]). These disclosed concentrations of vegetable fat overlap the claimed fat and unmodified starch concentrations while this disclosed exemplified content of concentrated lemon juice falls within the claimed acidifying ingredient concentration recited in present claims 6 and 18. Dueso also teaches that the product comprises 5-40 wt.% crushed almond puree (corresponding to the almonds formed into an emulsified paste) [0027], which encompasses the claimed concentration of crushed almond puree. The selection of values within the overlapping and encompassing ranges renders the claimed concentrations obvious. MPEP 2144.05.I. The concentrations of these ingredients allow for up to 43.9 wt.% of the product to comprise other ingredients such as plants or other solid ingredients and/or minerals [0049].
Since concentrations of the ingredients in the product containing almonds of Dueso allow for up to 43.9 wt.% of the product to comprise other ingredients as described above; and Randolph discloses that the product further comprises at least 10 wt.% linseed or chia seed in order to provide a product that is efficiently produced, nutritionally dense, and have a low resource intensity compared to products comprising almonds and no oilseeds[0002]-[0003], [0027], [0093], the combination of Dueso and Randolph at least suggests that the product may comprise 10-43.9 wt.% linseed or chia seed in order to provide a product having the aforementioned benefits. Chia seeds contain 34.4 wt.% fiber as evidenced by USDA I (line in table for “Fiber, total dietary”). Therefore, a product comprising 10-43.9 wt.% chia seed contains 3.4-15.1 vegetable food fibers from chia seed, which overlaps the claimed vegetable food fiber concentration. Linseeds contain 23.1 wt.% fiber as evidenced by USDA II (line in table for “Fiber, total dietary”). Therefore, a product comprising 10-43.9 wt.% linseed contains 2.3-10.1 wt.% vegetable food fibers from linseed, which also overlaps the claimed vegetable food fiber concentration. The selection of a value within the overlapping range renders the claimed concentration obvious. MPEP 2144.05.I.
Dueso also discloses that calcium is important in cheese [0007] while Randolph discloses natural source of calcium [00126]. Therefore, it would have been obvious for a skilled practitioner to have included up to 43.9 wt.% of a natural source of calcium in the product, which overlaps encompasses the claimed concentration of calcium. The selection of a value within the encompassing range renders the claimed calcium concentration obvious. MPEP 2144.05.I. Although the prior art does not teach that the calcium is of the Lithothamnion type, calcium has the same chemical composition no matter the source. Therefore, the requirement that the calcium is of the Lithothamnion type does not contribute to the patentability of the claimed product. Therefore, calcium of present claim 18 is rendered obvious.
The combination of Dueso and Randolph does not disclose that the puree is a preparation of crushed almonds crushed without any added ingredient as recited in present claims 6 and 23 as Dueso discloses that the almonds are crushed with at least the water [0053]. The prior art also does not disclose that the median particle size of the crushed almonds is less than 50 microns as recited in present claims 6 and 23. However, it is noted that claims 6 and 23 are product-by-process claims and “even though product-by-process claims are limited by and defined by the process, determination of patentability is based upon 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). MPEP 2113.I. Therefore, the product of present claims 6 and 23 merely requires 5-30 wt.% crushed almonds having a median particle size of less than 50 microns.
The combination of Dueso and Randolph discloses a concentration of 5-40 wt.% crushed almond puree (Dueso [0027]). The combination of Dueso and Randolph does not disclose a median particle size of less than 50 microns.
However, Ku teaches a cheese substitute comprising crushed almonds [0016]-[0017], [0038], wherein 90% of the particles of crushed almonds (corresponding to solid particles) have a particle size of less than 60 microns in order for the product to have a smooth and creamy mouthfeel [0020]. This particle size distribution is considered to at least overlap the claimed median particle size. The selection of a value within the overlapping range renders the claimed range obvious. MPEP 2144.05.I.
It would have been obvious for a person of ordinary skill in the art to have modified the crushed almond puree of Dueso to have the median particle size disclosed by Ku. Since Dueso teaches the almonds for its cheese substitute are crushed [0053], but does not disclose a particle size for the crushed almonds, a skilled practitioner would have been motivated to consult an additional reference such as Ku in order to determine a suitable median particle size for crushed almonds in a cheese substitute. Therefore, the claimed median particle size as recited in present claims 6 and 23 is rendered obvious.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Dueso (EP 2926670; previously cited) in view of Randolph (WO 2019/209939; previously cited) as evidenced by USDA I (“Seeds, chia seeds, dried”, 2019, FoodData Central, https://fdc.nal.usda.gov/food-details/170554/nutrients) and USDA II (“Flaxseed, ground”, 2022, FoodData Central, https://fdc.nal.usda.gov/food-details/2262075/nutrients) as applied to claim 9 above, and further in view of Food (“Tailoring functional rice flour to different applications”, July 6, 2020, Food Navigator USA, https://www.foodnavigator-usa.com/News/Promotional-Features/Tailoring-functional-rice-flour-to-different-applications; previously cited).
Regarding claim 10, modified Dueso teaches the invention as described above in claim 9, including that the product is a vegetable cheese (corresponding to a cheese substitute comprising nuts) [0002] and that the product comprises rice flour (Randolph [00122]). Modified Dueso does not teach that the rice flour is pregelatinized.
However, Food teaches that pregelatinized rice flours are suitable for vegetable cheeses (page 1, paragraph 14; page 2, bullets 3-4 in the first paragraph).
It would have been obvious for a person of ordinary skill in the art to have modified the product of Dueso to include pregelatinized rice flour as taught by Food. Since Dueso teaches that its vegetable-based food product is a cheese that comprises rice flour (Randolph [00122]), but does not teach a suitable form of rice flour, a skilled practitioner would have been motivated to consult an additional reference such as Food in order to determine a suitable form of rice flour to include in a vegetable-based cheese product. Therefore, the claimed pregelatinized rice flour is rendered obvious.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Dueso (EP 2926670; previously cited) in view of Randolph (WO 2019/209939; previously cited) as evidenced by USDA I (“Seeds, chia seeds, dried”, 2019, FoodData Central, https://fdc.nal.usda.gov/food-details/170554/nutrients) and USDA II (“Flaxseed, ground”, 2022, FoodData Central, https://fdc.nal.usda.gov/food-details/2262075/nutrients) as applied to claim 1 above, and further in view of ICPG (“Hot Fill Packaging & Processing for Extended Shelf Life Food Products”, June 2020, ICPG, https://blog.icpg.co/hot-fill-packaging-and-processing-for-extended-shelf-life-food-products; previously cited).
Regarding claim 12, the combination of Dueso and Randolph teaches a vegetable food product according to claim 1. Randolph teaches a method for preparing the vegetable food product according to claim 1, comprising the following steps: (A) preparing a fermented vegetable raw material by fermentation of the crushed nuts [00147] after the nuts were hydrated and thermally treated (corresponding to soaking the oilseed material in an aqueous solution greater than about 25°C) [00145] prior to the inoculation of the ferments [00155]; (B) mixing raw materials with the fermented vegetable raw material obtained in step (A) [00153]; and (C) thermal treating the mixture at a temperature of about 80-90°C for 1-10 minutes under shearing (corresponding to stirred constantly during heating) [00158]. Randolph also teaches that the product is pasteurized and does not comprise live cultures of yeast, fungi, or bacteria [00115]. Dueso teaches that the crushed nuts are almonds [0040]. The prior art does not teach (G) hot dosing the mixture at a temperature above 70°C into its packaging.
However, ICPG teaches that after subjecting a product to heat to kill microbes, the product is cooled to about 82-85°C (corresponding to 179-185°F), filled into containers, and the container is sealed (page 1, paragraph 4). The temperature for hot-filling the containers falls within the claimed hot dosing temperature.
It would have been obvious for a person of ordinary skill in the art to have modified the method of Randolph to include hot dosing the product into its container as taught by ICPG. Since Randolph teaches that the product does not contain live cultures or yeast, fungi, or bacteria, but does not describe a method of preventing yeast, fungi, or bacteria from contaminating the food product after it has been pasteurized, a skilled practitioner would have been motivated to consult an additional reference such as ICPG in order to determine a suitable method of placing a pasteurized product into a container without contaminating the product with living cultures. Therefore, the claim is rendered obvious.
Response to Amendment
The Declaration under 37 CFR 1.132 filed 08/07/2025 is insufficient to overcome the 35 U.S.C. §103 rejections of claims 1-7, 9-21, and 23-24 based at least upon Dueso and Randolph; and the 35 U.S.C. §103 rejections of claims 6, 18, and 23 based upon Dueso, Randolph, and Ku as set forth in the last Office action because the arguments presented are not relevant to the present rejections.
The Declaration of Virginie Padel argued that the inulin cited as the emulsifier in the rejection of claim 1 in the Final Office Action filed 02/07/2025 cannot be considered as an emulsifier due to: the molecular structure of inulin only being hydrophilic; inulin not reducing surface tension between water and oil; inulin not reducing fat droplet size in emulsions; and inulin not stabilizing emulsions. The Declaration provided test results demonstrating the inability of inulin to be an emulsifier (Declaration, paragraphs 10-19).
However, in the current rejection of present claim 1 over Dueso and Randolph as evidenced by USDA I and USDA II, the product of the prior art is not described as containing an emulsifier, let alone inulin as an emulsifier. Therefore, arguments directed to inulin not being an emulsifier are moot.
The Declaration then argued that the particle size disclosed in [0020] and in Fig. 6 of Ku takes into account cell wall fragments and fat present in the form of emulsified droplets which alters the size distribution. The Declaration stated that the claimed median particle size of less than 50 microns means a median particle size of almond cell wall of less than 50 microns and not a median particle size of ground almond. The Declaration stated that the advantage of dry grinding the almonds as done in the present application instead of grinding the almonds in water as done in the prior art provides the advantage of providing a particle size of combined oil droplets and almond cell wall fragments; a particle size of oil droplets; and a particle size of almond cell fragments that are closer to one another than those found in almonds that were ground in water (Declaration, paragraphs 20-26).
However, [0020] in Ku discloses a particle size of less than 70 microns and less than 60 microns in relation to solid particles (i.e., [0020] reads “In some embodiments, step 120 is carried out to reduce 90% of the solid particles in the slurry 102 to less than 70 microns. In some embodiments, step 120 reduces 90% of the solid particles in the slurry 102 to less than 60 microns.). Also, [0044] of Ku states “With reference to FIG. 6, a graph is provided showing particle size distributions of solid particles in various non-dairy milk made in accordance with the methods described herein.” Oil droplets are not solid particles; therefore, Ku does not take oil droplet size into account when discussing the particle size distribution.
Furthermore, claims 6 and 23 are the only claims which recite a particle size for the almonds. These claims are directed toward a composition, not a method of making a composition. Therefore, the almonds of these claims are not required to be crushed by any particular means, including in the absence of water, as described in the rejections of claims 6 and 23 above. As such, arguments directed toward crushing the almonds in the absence of water are moot.
For these reasons, the Declaration is considered to be insufficient to overcome the claim rejections.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claim 18: Applicant amended the claim to fully address the rejection; therefore, the rejection is withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-5, 7, 9, 11, 13-17, and 19-21 over Dueso and Randolph; claims 6, 18, and 23 over Dueso, Randolph, and Ku; claim 10 over Dueso, Randolph, and Food; claim 12 over Dueso, Randolph, and ICPG: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Randolph teaches away from using almonds in its composition as Randolph recites that “almonds remain an expensive ingredient to source” in [0002] and Randolph teaches that its objective is to produce a product having a low resource intensity [0003]. Applicant argues that, since Dueso recites compositions comprising almonds, a skilled practitioner would not turn to Randolph due to Randolph teaching away from almonds (Applicant’s Remarks, page 7, 1st paragraph under “Distinctions over the Cited References”- page 8, 3rd paragraph).
However, Randolph does not expressly exclude almonds from any of its compositions. In fact, Randolph expressly states that nuts (a category which includes almonds) may be included in its compositions [0027], despite disclosing that nuts and almonds are expensive [0090]. For these reasons, Randolph is not considered to teach away from including almonds in its compositions. At best, Randolph encourages using a combination of oilseeds and almonds in its compositions in order to lower the expense of such products compared to compositions produced without oilseed supplementation.
Applicant then argued that Randolph fails to disclose or suggest the use of 0.5-8 wt.% vegetable food fibers (Applicant’s Remarks, page 8, 4th and 6th paragraphs).
However, since concentrations of the ingredients in the product containing almonds of Dueso allow for up to 43.9 wt.% of the product to comprise other ingredients as described above in the rejection of claim 1; and Randolph discloses that the product further comprises at least 10 wt.% linseed or chia seed in order to provide a product that is efficiently produced, nutritionally dense, and have a low resource intensity compared to products comprising almonds and no oilseeds [0027], [0090], the combination of Dueso and Randolph at least suggests that the product may comprise 10-43.9 wt.% linseed or chia seed in order to provide a product having the aforementioned benefits. These aforementioned benefits provide motivation for a skilled practitioner to include linseed and chia seed in the product. Chia seeds contain 34.4 wt.% fiber as evidenced by USDA I (line in table for “Fiber, total dietary”). Therefore, a product comprising 10-43.9 wt.% chia seed contains 3.4-15.1 vegetable food fibers from chia seed, which overlaps the claimed vegetable food fiber concentration recited in present claim 1. Linseeds contain 23.1 wt.% fiber as evidenced by USDA II (line in table for “Fiber, total dietary”). Therefore, a product comprising 10-43.9 wt.% linseed contains 2.3-10.1 wt.% vegetable food fibers from linseed, which also overlaps the claimed vegetable food fiber concentration recited in present claim 1. Therefore, the claimed concentration of vegetable food fibers in the product is rendered obvious by the combined teachings of Dueso and Randolph.
Applicant argued that the 0-5 wt.% of emulsifier of Dueso is irrelevant since emulsifiers are excluded from the presently claimed composition; and that inulin is not an emulsifier as argued in the Declaration by Virginie Padel. Applicant then argued that Ku does not disclose or suggest the claimed median particle size (Applicant’s Remarks, page 8, 5th paragraph; page 8, 7th paragraph – page 9, 3rd paragraph).
These arguments are addressed in the responses written in the section labeled “Response to Amendment” above. 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.
New Claim 24: Applicant argued that new claim 24 is patentable by reason of dependency from claim 1 (Applicant’s Remarks, page 9, 4th paragraph).
However, claim 24 is rejected as being obvious over Dueso and Randolph as evidenced by USDA I and USDA II as described above.
Conclusion
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/KELLY P KERSHAW/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791