DETAILED ACTION
Background
The response dated November 20, 2025 (Reply) not containing an amendment has been entered. Claims 1, 3-5, 7-10, 12, 14-15 and 17-22 as filed with the amendment have been examined. Claims 2, 6, 11, 13 and 16 have been canceled.
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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: means for homogenization in claim 18.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 4-5, 7-10, 12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over CA 3080090 A1 to Gautier et al. (Gautier) in view of US 20110200732 A1 to Kielmeyer et al. (Kielmeyer), both of record.
Unless otherwise disclosed in the art, art disclosed percentages are interpreted as a weight percent (wt%).
Regarding instant claims 1, 5, 7 and 9-10, in Example 2.3 (N1, and F1, respectively) in Table 14 at page 32 Gautier discloses a liquid plant-based whipping cream comprising, respectively, 1 % w/w (wt.%) of pea protein isolate and faba bean protein isolate (claim 9), both of which are non-soy pulse proteins at 0.1 to 1% w/w non-soy pulse protein (claim 10). Further, Gautier discloses at page 12, lines 2-7 a combination of fats including liquids and solids from lauric oils, such as coconut oil (claim 5), palm oil (claim 5), and sunflower seed oil (“unsaturated triglyceride oil” and as in claim 7) and combinations thereof (claim 5). Finally, Gautier discloses plant-based whipping cream Example P1 at Table 11 comprising 65.27 wt% of water (about 35.3% w/w total solids); and, Gautier discloses at P1 (Table 11) and in Examples N1, F1 on Table 14 on page 29, plant-based whipping cream and comprising 25 wt% of hydrogenated palm kernel oil. The Office considers the claimed saturated triglyceride oil to include the hydrogenated palm kernel oil of Gautier.
Further and regarding instant claim 8, Gautier does not disclose a plant-based whipping cream comprising 0.01 to 10% w/w (claim 1) or 2 to 10% w/w unsaturated triglyceride oil (claim 8) or 0.01 to 10% w/w of sunflower oil (claim 7). However, Gautier at page 6, lines 9-16 discloses a plant-based whipping cream comprising 0.5 to 10 wt% of the non-soy pulse protein, about 0 to 15 wt% sugar, 15 to 30 wt% vegetable oil and additives in the amount of from 0.05 to 2 wt%, such that the total solids of the cream ranges from (0.5 + 15 + 0.05 or) 15.55 wt% to (10 + 15 + 30 + 2 or) 67 wt%, within which lies the claimed 30 to 36 % w/w total solids content. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I.
Kielmeyer at [0037] and Example 1 discloses whipping agents that comprise 28% sunflower oil, discloses at [0010] that whipping agents can contain sunflower oil to give good whipping properties and a stable foam after whipping, At [0012], Kielmeyer discloses that suitable whipping agents can comprise liquid oils because the composition comprises at least one protein and at least 0.1% of an emulsifier. And, at [0022] discloses a whipped food comprising from 0.1 to 50 wt% of the whipping agent. Accordingly, the plant-based whipping cream disclosed in Kielmeyer at [0012] comprises from 0.03% to 14 % w/w (50% of 28% w/w) of sunflower oil, within which the claimed range of 0.01 to 10% w/w and 2 to 10% w/w (claim 8) of an unsaturated triglyceride oil lies. See MPEP 2144.05.I. The ordinary skilled artisan in Kielmeyer would have found it obvious to include the claimed amount of a saturated triglyceride oil, including one comprising sunflower oil because Kielmeyer discloses that the claimed amount of an unsaturated triglyceride oil or sunflower oil makes a desirable whipping composition.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kielmeyer for Gautier to include the sunflower oil in the Gautier plant-based whipping cream. Both references disclose whipping creams comprising fat, protein and emulsifiers. The ordinary skilled artisan working with Gautier would have desired to use the claimed 0.1 to 10% w/w or 2 to 10% w/w of an unsaturated triglyceride oil or sunflower oil in the whipping cream of Kielmeyer to provide a whipping cream that is whippable and is suitable in making a stable foam as in Gautier.
Regarding instant claim 4, Gautier at page 15, lines 3-5 discloses cream substitutes as milk desserts made without sugar (is ”free of added sugars”).
Regarding instant claim 12, at page 31, lines 3-6 and Fig. 4, Gautier discloses that a plant-based whipped cream made from the liquid cream in P1 gave a maximum overrun of 270% and 229%.
Regarding instant claim 14, Gautier at page 29, lines 1-2 refers to page 28, lines 12-13 that discloses homogenizing the mixture in P1 at Table 11 to form a whipped cream as at Fig. 4. The Office considers the Gautier whipped cream of a non-soy pulse protein, saturated triglyceride oil and emulsifying agent composition and made by homogenization to be substantially same as the claimed plant-based whipping cream having any or all of at least 80% of particles having a maximum dimension equal to or less than 50 μm. Accordingly, absent a clear showing as to how the of the maximum dimension of the particles in the Gautier whipping cream differs from that of the plant-based whipping cream as claimed, the Office considers the Gautier plant-based whipping cream in Example N1, F1 and P1 to have the claimed at least 80% of particles having a maximum dimension equal to or less than 50 μm. See MPEP 2112.01.I.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over CA 3080090 A1 to Gautier et al. (Gautier) in view of US 20110200732 A1 to Kielmeyer et al. (Kielmeyer), as applied to claim 1, above, and further in view of US 2013/0101703 A9 to Colavito (Colavito), of record.
As applied to claim 1, Gautier in Example P1 at Table 11, page 12, lines 2-7 and Example 2.2 and 2.3 (F1 and N1) in Example 2.3 and at Table 14 discloses a plant-based whipping cream comprising from 0.1 to 1.5 % w/w (wt%) of a non-soy pulse protein, 0.01% to 10% w/w of an unsaturated triglyceride oil and 10% to 45% w/w of a saturated triglyceride oil, wherein the plant-based whipping cream has a total solids content of from 30 to 36% w/w.
Regarding instant claim 3, Gautier does not disclose a plant-based whipping cream comprising from 0.01 to 5% w/w guar gum.
Colavito at [0009] discloses a non-dairy and non-soy protein containing whippable food product which comprises at [0009] a non-soy and non-dairy protein, and a fatty acids component, and which contains at table 1 on page 5 a liquefying agent and a gelling agent, such as (at [0046]) guar gum.
As of the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Colavito for Gautier to use guar gum as a stabilizer. Both references disclose whipped cream comprising vegan ingredients. The ordinary skilled artisan would have desired to include the guar gum of Colavito to thicken and preserve the texture of the whipped cream containing it.
Claims 15 and 20-21 are rejected under 35 USC 103 as unpatentable over CA 3080090 A1 to Gautier et al. (Gautier) in view of US 20130101703 A9 to Colavito et al. (Colavito) and US 20110200732 A1 to Kielmeyer et al. (Kielmeyer).
Regarding instant claim 15, at page 32, at Table 14, Gautier discloses in Example F1 a plant-based whipping cream comprising 1 wt.% of faba bean protein isolate. Also, F1 at Table 14 of Gautier discloses 25 wt% of hydrogenated palm kernel oil, which the Office considers to be a saturated triglyceride oil, within which the claimed 20 to 25% w/w of unsaturated triglyceride oil lies. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, at page 18, line 26, Gautier discloses that its whipping cream can comprise from 15 to 30 wt% in total of vegetable oils. And, at page 12, lines 3-7 Gautier discloses combinations of liquid and solid fats, wherein solid fats include coconut and palm kernel oils and liquid fats include sunflower oil.
Further regarding instant claim 15, Gautier does not disclose coconut oil as the saturated triglyceride oil and does not disclose 5 to 10% w/w of sunflower oil. Further, Gautier does not disclose 0.1 to 0.25% w/w guar gum and 0.2 to 0.4% w/w flavouring agents. Still further, Gautier does not disclose an example a plant-based whipping cream comprising faba bean protein and having a total solids content of from 30 to 36% w/w. However, Gautier at page 6, lines 9-16 discloses a plant-based whipping cream comprising 0.5 to 10 wt% of the non-soy pulse protein, about 0 to 15 wt% sugar, 15 to 30 wt% vegetable oil and additives in the amount of from 0.05 to 2 wt%, such that the total solids of the cream ranges from (0.5 + 15 + 0.05 or) 15.55 wt% to (10 + 15 + 30 + 2 or) 67 wt%, within which lies the claimed 30 to 36 % w/w total solids content. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I.
Kielmeyer at [0037] and Example 1 discloses whipping agents that comprise 28% w/w sunflower oil, discloses at [0010] that whipping agents can contain sunflower oil to give good whipping properties and a stable foam after whipping, and at [0022] discloses that a whipped food may comprise 0.1 to 50 wt% of the whipping agent. Accordingly, a plant-based whipping cream in Kielmeyer comprising 25 wt% whipping agent will comprise from about 0.03% w/w to 14% w/w (50% of 28% w/w) of sunflower oil, which the claimed range of 5 to 10% w/w lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. At [0012], Kielmeyer discloses that suitable whipping agents can comprise liquid oils because the composition comprises at least one protein and at least 0.1% of an emulsifier.
Colavito at Table 2 on page 6 discloses whippable topping mixtures (“plant-based whipping cream”) including an emulsifying agent, from 0.1 to 2 wt.% of guar gum as a gelling agent, which the claimed range lies within, and discloses 0.01 to 1 wt% of salt and flavorings, which the claimed range lies within. See MPEP 2144.05.I.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kielmeyer for Gautier to include 5 to 10% w/w of sunflower oil in the Gautier as whipping cream. All references disclose whipping creams comprising fat, protein and emulsifiers. The ordinary skilled artisan working with Gautier would have desired to use the 5 to 10% w/w of sunflower oil in the whipping cream of Kielmeyer to provide a whipping cream that is whippable and is suitable in making a stable foam.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Colavito for Gautier to include in its plant-based whipping cream all of 0.1 to 0.25% w/w guar gum, and 0.2 to 0.4% w/w flavouring agents. Both references disclose plant-based whipping creams. The ordinary skilled artisan reading Gautier would have desired to make a stable, flavored whipping cream using the guar gum and flavouring agents in Colavito in amounts overlapping the claimed ranges for each. The Office considers In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05.I.
Regarding instant claim 20, Gautier discloses at Table 16 on page 33 the plant-based whipping cream of Example F1 has a pH of 7.02.
Regarding instant claim 21, the plant-based whipping cream of Gautier as modified by Kielmeyer at Example 6 and Colavito appears to be substantially the same plant-based whipping cream as the claimed plant-based whipping cream. Accordingly, absent a clear showing as to how the shelf life of the Gautier as modified by Colavito and Kielmeyer whipping cream differs from that of the plant-based whipping cream as claimed, the Office considers the Gautier Example F1 as modified by Kielmeyer Example 6 and Colavito plant-based whipping cream to have the claimed at least 80% of particles having a maximum dimension equal to or less than 50 μm. See MPEP 2112.01.I.
Regarding instant claim 22, Gautier does not disclose a plant-based whipping cream further comprising from 0.01 to 0.2% w/w of a sunflower lecithin HLB 3-6 but does disclose at page 6, lines 17-20 plant-based whipping creams that comprise an emulsifier and that comprise from 0.05 to 2% w/w of emulsifiers and discloses at Table 11 on page 29 Example P1 and at Table 14 on page 32, Examples N1 and F1 all including an emulsifier.
Colavito at Table 2 on page 6 discloses whippable topping mixtures including 0.1 to 4 wt% of an emulsifying agent, which the claimed 0.01 to 0.2% w/w overlaps. See MPEP 2144.05.I. Further, at [0047], Colavito discloses sunflower lecithin as a suitable emulsifier for a plant-based whipping cream. The Office considers the claimed sunflower lecithin HLB 3-6 as claimed to include the sunflower lecithin of Colavito.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Colavito for Gautier to include from 0.01 to 0.2% w/w of a sunflower lecithin HLB 3-6 in its plant-based whipping cream. Both references disclose aqueous plant-based whipping creams comprising an emulsifier. The ordinary skilled artisan would have desired to use the claimed sunflower lecithin HLB 3-6 in the amount of from 0.01 to 2% w/w as its emulsifier as in Colavito to stabilize the plant-based whipping cream and whipped products made therefrom.
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over CA 3080090 A1 to Gautier et al. (Gautier) in view of US 20110200732 A1 to Kielmeyer et al. (Kielmeyer) and US 2013/0101703 A9 to Colavito (Colavito).
Regarding instant claims 17-18, at page 32, at Table 14, Gautier discloses in Example F1 a method for making a plant-based whipping cream comprising 1 wt.% of faba bean protein isolate and water (“aqueous mixture”) by (at page 29, line 1-2) a Protocol of Example 1,1 (page 21, line 30 to page 22, line 2) comprising dispersing and homogenizing (“emulsifying” the aqueous mixture “carried out by means for homogenization” – claim 18)) . Also, F1 at Table 14 of Gautier discloses 25 wt% of hydrogenated palm kernel oil, which the Office considers to be a saturated triglyceride oil, within which the claimed 20 to 25% w/w of unsaturated triglyceride oil lies. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, at page 18, line 26, Gautier discloses that its whipping cream can comprise from 15 to 30 wt% in total of vegetable oils. And, at page 12, lines 3-7 Gautier discloses combinations of liquid and solid fats, wherein solid fats include coconut and palm kernel oils and liquid fats include sunflower oil as an unsaturated triglyceride oil.
However, Gautier does not disclose coconut oil as the saturated triglyceride oil and does not disclose 5 to 10% w/w of sunflower oil. Further Gautier does not disclose an aqueous mixture comprising 0.01 to 10% w/w (wt%) of an unsaturated triglyceride oil, does not disclose packaging the plant-based whipping cream, and, further, does not disclose an example of a Faba bean protein containing whipping cream having a solids content of from 30% to 36% w/w.
Gautier at page 6, lines 9-16 discloses a plant-based whipping cream comprising 0.5 to 10 wt% of the non-soy pulse protein, about 0 to 15 wt% sugar, 15 to 30 wt% vegetable oil and additives in the amount of from 0.05 to 2 wt%, such that the total solids of the cream ranges from (0.5 + 15 + 0.05 or) 15.55 wt% to (10 + 15 + 30 + 2 or) 67 wt%, within which range lies the claimed 30 to 36 % w/w total solids content. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Gautier discloses that suitable whipping creams can have a wide range of solids contents.
Kielmeyer at [0037] and Example 1 discloses whipping agents for plant-based whipping creams that comprise 28% sunflower oil and which (at [0010]) whipping agents give good whipping properties and a stable foam after whipping. At [0022] , Kielmeyer discloses that a whipped food may comprise 0.1 to 50 wt% of the whipping agent. Accordingly, a plant-based whipping cream in Kielmeyer comprising 25 wt% whipping agent will comprise 7 wt% (1/4 of 28%) or 0.025 to 12.5 wt% (1/4 of 0.1 to 50 wt%) of sunflower oil, whereby the claimed range of 0.01 to 10% w/w encompasses the 7 wt% and lies within the 0.025 to 12.5 wt% disclosed in Kielmeyer. See MPEP 2144.05.I. At [0012], Kielmeyer discloses that suitable whipping agents can comprise liquid oils because the composition comprises at least one protein and an emulsifier.
Colavito at [0072] discloses sealing a non-dairy whippable composition in a sterilized hermetic container to form a whippable topping to provide at [0073] a product with a long shelf life.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Kielmeyer for Gautier to include 5 to 10% w/w of sunflower oil in the Gautier whipping cream. All references disclose whipping creams comprising fat, protein and emulsifiers. The ordinary skilled artisan working with Gautier would have desired to use the 5 to 10% w/w of sunflower oil as in the non-dairy whipping cream of Kielmeyer to provide a whippable whipping cream that is suitable in making a stable foam.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Colavito for Gautier to seal its plant-based whipping cream product in a container to provide a packaged product having a long shelf life.
Regarding instant claim 19, the method of making an aqueous plant-based whipping cream in Example 2 at page 28, lines 10-13 of Gautier by homogenizing is substantially same as the claimed method of homogenizing a plant-based whipping cream having any or all of at least 80% of particles having a maximum dimension equal to or less than 50 μm. Absent a clear showing as to how the of the maximum dimension of the particles in the Gautier as modified by Colavito and Kielmeyer whipping cream differs from that of the plant-based whipping cream as claimed, the Office considers the Gautier as modified by Colavito and Kielmeyer plant-based whipping cream to have the claimed at least 80% of particles having a maximum dimension equal to or less than 50 μm. See MPEP 2112.01.I.
Response to Arguments
Regarding the request for interview in the Reply at page 5, the Office the Office has just now issued an Office action to the Applicant. In all cases, any interview should await Applicants review of the Office action and take place before Applicant prepares a Reply so that it serves the purpose of facilitating the Reply and best furthers examination.
The positions taken in the remarks accompanying the response dated November 20, 2025 (Reply) at pages 5-7 have been fully considered but they are not found persuasive for the following reasons:
Regarding the newly recited total solids content, Gautier at page 6, lines 9-16 discloses a plant-based whipping cream comprising 0.5 to 10 wt% of the non-soy pulse protein, about 0 to 15 wt% sugar, 15 to 30 wt% vegetable oil and additives in the amount of from 0.05 to 2 wt%, such that the total solids of the cream ranges from (0.5 + 15 + 0.05 or) 15.55 wt% to (10 + 15 + 30 + 2 or) 67 wt%, within which lies the claimed 30 to 36 % w/w total solids content. See MPEP 2144.05.I.
Responsive to the alleged teaching away, the position alleges that Kielmeyer does not desire saturated triglyceride oil. Respectfully, however the position does not read Kielmeyer as a whole because it ignores the disclosure in Kielmeyer of including 10 to 90 wt% unsaturated fatty acids in its fat, such that the base whipping agent already has a saturated fatty acid as in [0008]. In addition, this position is respectfully irrelevant to the combinability of Kielmeyer with Gautier which already discloses at page 12, lines 2-7 a combination of saturated triglyceride oil and unsaturated triglyceride oil.
Regarding the position taken in the Reply alleging that Kielmeyer’s example uses whey protein, respectfully the position does not read Kielmeyer as a whole. Kielmeyer at [0016] discloses use of a variety of plant-based proteins and may not be limited to its examples.
Regarding the positions taken alleging unexpected results, the Office finds that the comparisons of plant-based whipping creams having various amounts of fava bean protein in Table 1 of the instant specification and the comparisons in Table 2 of the instant specification comparing plant-based whipping creams having various amounts of coconut oil would support the alleged results for claim 22 as long as a comparison with the same composition were to show that the sunflower lecithin used substantially outperforms the lactem disclosed in Gautier. However, as such a comparison is lacking, the Office cannot properly ascertain the scope of the showing.
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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