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 .
DETAILED ACTION
Status of Claims
Note: The amendment of November 6th 2025 has been considered.
Claims 5 and 15 are cancelled.
Claims 1-4 and 6-14 are pending in the current application.
Claims 12-14 are withdrawn from consideration.
Claims 1-4 and 6-11 are examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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 and 6-11 are rejected under 35 U.S.C. 103 as being unpatentable over Beute et al. (EP3459365A1) in view of Broaddus, “Sunflower Oil: Good or Bad?” (from https://www.centrafoods.com/blog/sunflower-oil-good-or-bad#:~:text=High%20oleic%20expeller%20pressed%20sunflower%20oil%20is%20a%20different%20story,in%20comparison%20to%20other%20options).
Regarding claims 1-2 and 11: Beute discloses an oil-in-water composition comprising vegetable oil mixture and apple vinegar, which is known to comprise acetic acid, a second organic acid (i.e., citric acid), phenolic compounds and an amino acid at amounts that overlap the acetic acid, second organic acid, amino acid and phenolic compounds expressed as gallic acid equivalents measured by the Follin-Ciocalteu assay as recited in claims 1-2 (see Beute abstract; paragraphs [0025]-[0029] and [0036]-[0037]), which renders the claims prima facie obvious. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As to the high oleic acid vegetable oil and lack of olive oil recited in claim 1: Beute discloses the vegetable oil preferably comprises oleic acid and C18:2 (i.e., linoleic acid), with a maximum content of olive oil of 10wt% (see Beute paragraphs [0016]-[0017]), while olive oil comprises more than 70wt% oleic acid, Beute fails to disclose a high oleic oil comprising the claimed linoleic acid and oleic acid contents that is not olive oil; However, Broaddus discloses that high oleic sunflower oil comprises the claimed fatty acid profiles (see Broaddus page 7) and that it is preferred over olive oil by consumers who prefer using a high oleic acid oil that was physically extracted via expeller press (i.e., high oleic acid sunflower oil) over oil that was extracted using a chemical solvent (i.e., olive oil). Therefore, it would have been obvious to a skilled artisan, at the time the application was filed, to have modified Beute and to have substituted the oleic acid comprising olive oil with high oleic acid sunflower oil, in order to provide a product comprising oil that was not extracted using a chemical solvent, but was prepared by an expeller press, and thus arrive at the claimed limitations.
As to the linolenic acid (i.e., C18:3) content recited in claim 1: Given the fact that high oleic acid sunflower oil in Broaddus is the same or similar to the high oleic sunflower oil contemplated by Applicant, it is examiner’s position the linolenic acid content recited in claim 1 is inherently present in Beute modified by Broaddus. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claims 3 and 9: Beute discloses the oil-in-water composition comprises 3% to 18% apple vinegar (see Beute paragraph [0023]).
Regarding claim 4: Beute discloses the oil-in-water composition comprises 20wt%-45wt% of vegetable oil (see Beute paragraph [0017]).
Regarding claims 6-8: Beute discloses the oil comprises C18:1 (i.e., oleic acid), C18:2 (i.e., linoleic acid) and C18:3 (i.e., linolenic acid) at contents that overlap the contents recited in the claims (see Beute paragraphs [0016]-[0017]), which renders the claims prima facie obvious. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 10: Beute discloses the vegetable oil maybe sunflower oil (see Beute paragraph [0016]), which comprises about 4wt% saturated fatty acids.
Response to Arguments
Applicant's arguments filed on November 6th 2025 have been fully considered but they are not persuasive.
Applicant argues on page 8 of the “Remarks” that the prior art reference fail to render the claimed invention obvious, because NPL Oklahoma evidencing that the oleic acid content of the high oleic acid sunflower oil in Broaddus, reads on the claimed limitations, because NPL Oklahoma post-dates the effective filing date of the current application. The examiner respectfully disagrees.
Given the fact NPL Oklahoma is a factual reference, as NPL Oklahoma provides characteristics and properties of the high oleic acid sunflower in Broaddus, NPL Oklahoma does not need to antedate the filing date. As set forth in MPEP §2124 “In certain circumstances, references cited to show a universal fact need not be available as prior art before the effective filing date of applicant’s claimed invention. In re Wilson, 311 F.2d 266, 135 USPQ 442 (CCPA 1962). Such facts include the characteristics and properties of a material or a scientific truism”.
Applicant argues on pages 8-9 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because Oklahoma is not a factual reference for the linoleic acid content as Broaddus discloses high oleic acid sunflower that comprises about 80wt% oleic acid, and Oklahoma discloses high oleic acid sunflower oils comprising more than 80wt% oleic acid. The examiner respectfully disagrees.
Given the fact the oleic acid contents of the high oleic acid sunflower oils in Broaddus and Oklahoma are at least similar.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792