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 .
Status of the Claims
Acknowledgement is made of the response filed on September 12, 2025. In that response, claims 1, 3-7, 12, and 21 were amended; claims 9, 10, and 12 were cancelled; and claim 23 was added. Claims 1, 3-8, 12, and 21-23 are treated on the merits in this action. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Objections
Claim 1 is objected to because of the following informalities: “wherein the oleogel formulation… is iii) formulated wherein the at least …” has a grammatical error.
Claim 12 is objected to because of the following informalities: “formulation of claim 1 is configured with…” has a grammatical error.
Claim 22 is objected to because of the following informalities: dependence from cancelled claim 9.
Appropriate corrections are required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 4, 7, 8, 12, 22, and 23 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Yang (Yang, D.-X, et al., Phytosterol-based oleogels self-assembled with monoglyceride for controlled volatile release, J Sci Food Agric 2018; 98: 582–589; see IDS).
Yang teaches an oleogel comprising monoglyceride and β-sitosterol as oleogelators at about 10%, and refined sunflower oil at about 90% (p.583 left col.; see title; abstract). A mixture of four volatile actives including myrcene, an allelochemical, was added to this oleogel at 1% (p.583 rt col., last para.). “[A] synergistic effect of sitosterol and monoglyceride for the hydrophobic volatiles (ethyl butyrate, cis-3-hexenol and myrcene) mainly contributed to the flavour–binder interactions of aroma compounds with matrixes.” (P.587 rt.col. (emphases added).) The bolded text and the underlined part show that myrcene is a “hydrophobic volatile semiochemical in a matrix of the oleogel” in claim 1, limitation (iii). The volatiles released from the oleogel over time (Fig.5 and accompanying text). The three other volatiles serve as “density modifiers” in claim 7. Diacetyl (2,3-butanedione) is one of these and it is hydrophilic (p.587 rt.col. last para.).
Regarding claim 12 it is noted that for product claims, “when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent”. MPEP §2112.01(I). Thus while Yang does not expressly discuss hydrophilic and hydrophobic regions of its oleogel, it would comprise those regions and 2,3-butanedione would reside in the hydrophilic region and myrcene in the hydrophobic region.
Claim Rejections - 35 USC § 103
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, 3-8, 12, and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over Yang (Yang, D.-X, et al., Phytosterol-based oleogels self-assembled with monoglyceride for controlled volatile release, J Sci Food Agric 2018; 98: 582–589; see IDS) in view of Marangoni (Davidovich-Pinhas, M., et al., Development, Characterization, and Utilization of Food-Grade Polymer Oleogels, Annual Review of Food Science and Technology, vol. 7, Feb. 28, 2016, 65-91).
Regarding claims 3, 5, 6, and 21, Yang does not specifically teach using the oleogelators in those claims.
Marangoni is drawn to “organogels (oleogels) for oil structuring”, “with an emphasis on ethyl-cellulose (EC), the only direct food-grade polymer oleogelator” (abstract). Marangoni also teaches candelilla wax is a small molecule oleogelator (Table 1, p. 68).
It would have been prima facie obvious for one having ordinary skill in the art before the effective filing date to combine the teachings of Yang and Marangoni and use ethylcellulose and candelilla wax as oleogelators in Yang ‘s oleogels as recited in the instant claims. The skilled person would have been motivated to do so because both are drawn to oleogels safe for oral consumption, and Marangoni specifically teaches ethyl cellulose and candelilla wax as oleogelators suitable food-grade oleogels. Substituting equivalents known for the same purpose, where the equivalency has been recognized in the prior art, presents strong evidence of obviousness; an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. MPEP §2144.06 (II) (citations omitted).
Response to Arguments
Applicant’s arguments and claim amendments filed September 12, 2025 overcame the rejection over Iwanaga. The rejections over Iwanaga are withdrawn.
Regarding Yang, Applicant's arguments filed September 12, 2025 have been fully considered but they are not persuasive. Applicant argues that myrcene is hydrophilic but not hydrophobic, and Yang does not comprise hydrophobic volatile in a matrix of the oleogel. However as discussed above Yang expressly teaches that myrcene is hydrophobic and within the matrix of the oleogel (p.587 rt.col.).
Applicant further argues that none of the art teaches limitations (i), (ii), or (iii). (Remarks, 6, September 12, 2025.) Furthermore “the present inventors noted that the shell capsule is obtained …invention does not require additional surroundings” which Yang is silent about. (Id. 6-7.)
In response it is noted that (i), (ii), and (iii) are alternatives and as discussed above yang teaches (iii). Limitation (iii) does not require a shell or a capsule.
Applicant also contends that the combination of ethylcellulose and candelilla wax in claim 6 is not described. (Remarks, 7.)
However as noted above Marangoni specifically teaches ethyl cellulose and candelilla wax as oleogelators suitable food-grade oleogels. Substituting equivalents known for the same purpose, where the equivalency has been recognized in the prior art, presents strong evidence of obviousness; an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. MPEP §2144.06 (II) (citations omitted). Prima facie obviousness is thus established and some showing of nonobviousness is necessary to overcome the same.
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 H. S. PARK whose telephone number is (571)270-5258. The examiner can normally be reached on weekdays.
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/H. SARAH PARK/Primary Examiner, Art Unit 1614