DETAILED ACTION
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 .
Information Disclosure Statement
The information disclosure statement filed 6/19/2025 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 9-11 and 16-27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, 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.
Sole independent claim 9 recites “the emulsion is vegan and is configured to be used in a meat analogue product”. It is unclear how the emulsion would be configured to be used in a meat analogue product. In particular, it is unclear what, if any, structural changes to the emulsion (e.g., ingredients or difference in phases) would be needed so that the emulsion is “configured” for use in a meat analogue product.
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 9-11 and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2018/0077942 (MCKEE) in view of United States Patent Application Publication No. 20090291188 (MILNE) and United States Patent Application No. 2013/0045322 (WUBBOLDTS), as evidenced by http://veganbaking.net/articles/tools/fat-and -oil-melt-point-temperatures (Vegan Baking).
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As to claims 9, 18-20, MCKEE teaches a water-in-oil emulsion having a continuous non-aqueous phase (i.e., a fatty composition) and a disperse aqueous phase, the at least one lipophilic flavor compound being dissolved or dispersed in the continuous phase and the at least one hydrophilic flavor compound dissolved or dispersed in the disperse phase [0005].
MCKEE teaches in [0022] that the emulsion can be added to food products in general where a meat flavor is desired. It would have been obvious to add the emulsion to analogue products where a meat flavor is desired.
MCKEE does teach that water soluble fibers such as xanthan “may be” added as a thickener [0014] and [0016]. MCKEE is silent as to how much thickener can be added. However, it is noted that Example 1 does not appear to contain a thickener. Example 6 contains the thickener candela wax in an amount of about 1% (i.e., 1 part candelia wax/99.91 parts for the remaining ingredients). Given example 1 contains no thickeners and Example 6 provides a thickener in an amount of 1%, it would have been obvious that thickeners are optional and if present, can be in amounts no more no more than 5% by weight of the emulsion.
MCKEE does teach that plant oils such as soy can be used [0015].
MCKEE is silent as to adding meat flavors.
MILNE teaches a meat analogue composition comprising simulated meat flavorings such as pork flavor, pepperoni flavor, smoke powder, chicken flavor, beef flavor, seafood flavor, savory flavorings (e.g., onion, garlic), and mixtures thereof. In addition, thermally-preformed, texturized vegetable protein components are also preferably included in the composition when a sausage or pepperoni meat analogue is desired. It would have been obvious to add a meat flavoring to MCKEE, as the flavors simulate meat flavorings.
MCKEE and MILNE are silent as to having sold particle dispersed within the oil.
WUBBOLDTS teaches a pourable edible oil composition, suitable for use in the preparation of a food product, comprising from 1% to 15% by weight of fat particles dispersed in a liquid oil [0026]. By producing a fatty composition in this manner, the compositions may be stored at a higher temperature than the mixing temperature [0024]. It also results in a mixture of liquid oil and structuring agent that remains pourable on storage but allows the structuring properties of the structuring agent to be “released” at a later stage in the process when a food product is manufactured [0008].
The solid fat particle can be cocoa butter [0014]. The liquid oil can be soybean oil, rapeseed oil, sunflower oil, safflower oil, corn oil and mixtures thereof [0015].
Vegan Baking evidences that cocoa butter (i.e., the fat particles in WOBBOLT) has a melting point of 34-38oC (i.e., higher than at least 30oC and no higher than 15oC, as claimed) and that soybean oil (i.e.., the liquid oil in WOBBOLTS) liquid oil has a melting point is
-16oC (i.e., no higher than 15oC).
WUBBOLTS also teaches the fatty composition can be added to an emulsion, such as a water-in-oil or oil-in-water emulsion. When the food product is in the form of an emulsion, it may be formed by a method which comprises mixing the composition with a water phase [0028].
It would have been obvious to use the fatty composition of WUBBOLDTS in MCKEE, as WUBBOLDTS teaches that the oil composition has greater stability and remains pourable.
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MCKEE does not disclose a particular range for the water/dispersed phase.
However, MCKEE teaches in [0028] that the proportion of flavor composition used may vary widely, depending on the natures of the flavors, the flavor effect desired and the particular end-use of the comestible product. However, the selection of suitable proportion can be made in every case by the ordinary skill of the art. Given MCKEE teaches that there is at least one lipophilic flavor compound being dissolved or dispersed in the continuous phase and the at least one hydrophilic flavor compound dissolved or dispersed in the disperse phase [0005], it would have been obvious to vary the amount of each phase based on the desire flavor and what flavors are added to each phase.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("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 of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc .v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
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MCKEE teaches that xanthan gum (i.e., a water-soluble fiber) can be used as a thickener at [0016] and claim 11. Thus, it would have been obvious to add a water -soluble fiber to the composition, as MCKEE teaches that water-soluble fibers in the form of xanthan can be added as a thickener.
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As to claims 16-17, MCKEE is silent as to adding solid fat particles.
WUBBOLDTS teaches a pourable edible oil composition, suitable for use in the preparation of a food product, comprising from 1% to 15% by weight of fat particles dispersed in a liquid oil [0026].
The solid fat particle can be cocoa butter [0014].
It would have been obvious to use the fatty composition of WUBBOLDTS in MCKEE, as WUBBOLDTS teaches that the oil composition has greater stability and remains pourable.
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MCKEE teaches in [0020] that emulsifiers are added to the oil first prior to adding any water.
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In Example 1 of MCKEE, the aqueous phase comprises 55%, providing 45% of oil [0030]-[0034]. However, it would have been obvious to vary the amount of phases based on the desired physical characteristics of the emulsion.
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As to claims 23 and 25, In Example 1 of MCKEE, the aqueous phase comprises 55% of an aqueous phase, providing 45% of oil [0030]-[0034]. However, the principles of stabilization of W/O emulsions are well known to the art, and the skilled person will readily comprehend what is required in each case, or can determine what is needed by simple, non-inventive routine experimentation. Examples include the use of comestible surfactants, emulsifiers and thickeners. There is available to the art a considerable number of these, of different physical characteristics and capabilities, and the selection of a suitable material or combination is within the skill of the art [0014].
It would have bene obvious to vary the amount of phases based on the desired physical characteristics of the emulsion.
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As to the elastic shear modulus of claims 26-27, Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Response to Arguments
Applicant's arguments filed 10/2/2025 have been fully considered but they are not persuasive.
At the outset, it noted a new reference is cited (i.e. MILNE) to teach a meat flavoring.
The applicant also argues that the invention exhibits unexpected properties such as the melting properties. The applicants cite to Figure 5 in support of this position.
However, the results of Figure 5 are based on Examples that are not commensurate in scope with the current claims. The temperature-dependent behavior of the material as prepared in the previous examples is shown in FIG. 5 for the case of example 2 for a temperature sweep test performed from 5° C. to 80° C (see [0156] of the published version of this application). Example provides precise amounts and types of ingredients (e.g., pork fat, juicy flavor, cocoa butter, emulsifiers and oi)l not reflected in the claims. There is no evidence if unexpected results.
Conclusion
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 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 PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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 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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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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