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 June 5th 2026 has been considered.
Claim 1 has been amended.
Claims 5, 9 and 15 have been cancelled.
Claims 1-4, 6-8 and 10-14 are pending in the current application.
Claims 12-14 are withdrawn from consideration.
Claims 1-4, 6-8 and 10-11 are examined in the current application.
Any rejections not recited below have been withdrawn.
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.
Claims 1-3 and 8 are rejected under 35 U.S.C. 112(b), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Regarding claims 1 and 2: The phrases “C18:1 from 35 to 95 wt%, preferably from 40 to 90 wt%” and “C18:2 from 1 to 50 wt%, preferably from 5 to 45 wt%”, render the claims indefinite, because it is unclear what are the contents of C18:1 and C18:2. In view of the fact that the preferences recited are nothing more than suggestive language that does not limit the claim to a particular structure, such language does not properly limits the scope of the claim, thus rendering the claim indefinite (see MPEP §2106). Applicants are urged to correct and/or clarify the metes and bounds of the phrases and the claims as recited without introducing new matter.
Moreover regarding claims 2 and 3: The phrase “the source of the organic acids and wherein the weight ratio of the total amino acids to the total organic acids in the composition, preferably in the source of organic acids”, renders the claims indefinite, because it is unclear whether the ratio of the total organic acids to the organic acids in the composition or the source of the organic acids. In view of the fact that the preferences recited are nothing more than suggestive language that does not limit the claim to a particular structure, such language does not properly limits the scope of the claim, thus rendering the claim indefinite (see MPEP §2106).
Regarding claim 8: The phrase “the high oleic oil is present in an amount of from 20 wt% to 100 wt%, preferably of from 20 to 80 wt%”, renders the claim indefinite, because it is unclear what is the content of the oleic oil in the composition. In view of the fact that the preferences recited are nothing more than suggestive language that does not limit the claim to a particular structure, such language does not properly limits the scope of the claim, thus rendering the claim indefinite (see MPEP §2106).
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 6-8 and 10-11 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 claim 3: 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 June 5th 2026 have been fully considered but they are not persuasive.
Applicant argues the prior art reference fail to render the claimed invention obvious, because Beute fails to disclose high oleic oil comprising more than 25% oleic acid. The examiner respectfully disagrees.
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
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 on M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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