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 .
This office action is in regard to the application filed on April 22, 2022 and in response to a Request for Continued Examination filed on January 21, 2026.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on January 21, 2026 has been entered.
Status of Application
The amendment filed January 21, 2026 has been entered. Claims 1-3, 6-9, and 11-27 are currently pending in the application; claims 20-26 are withdrawn; claims 4, 5, and 10 are canceled. Claims 1 and 19 have been amended. Claims 1-3, 6-9, 11-19, and 27 are hereby examined on the merits.
Claim Objections
Claims 1 and 19 are objected to because of the following informalities:
Each claim recites “ratio of cellulose ether to gum” and “amount of cellulose ether and gum” in lines 9-10 in claim 1 and lines 13-14 in claim 19; should read “ratio of the cellulose ether to the gum” and “amount of the cellulose ether and the gum” since cellulose ether and gum have already been recited earlier in each claim.
Each claim recites “wt.% gum” in line 7 in claim 1 and line 5 in claim 19; should read “wt.% of a gum” to align with the earlier and later claim language of each claim (e.g., wt.% of a cellulose ether).
Appropriate correction is required.
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 1-3, 6-9, 11-19, and 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.
Claim 1 refers to percentages of the gum and the cellulose ether (in lines 7-8) without defining the basis of the percentage. It is not clear if the percentages are based on the total weight of the whippable emulsion, the weight of a singular component, the weight of a selective combination of components, or something else. As such, the claim fails to distinctly claim the subject matter of the invention and is therefore indefinite. For the purposes of examination, the percentages will be interpreted on a basis of the total weight of the whippable emulsion.
Claim 19 recites that the combined amount of cellulose ether and gum is based on the weight of the whippable emulsion, while the amounts of the non-nutritive natural sweetener, fat, water, gum, cellulose ether, protein, and nutritive sweetener in the emulsion refer to percentages without defining the basis of the percentage. It is not clear if the percentages are based on the total weight of the whippable emulsion, the weight of a singular component, the weight of a selective combination of components, or something else. As such, the claim fails to distinctly claim the subject matter of the invention and is therefore indefinite. For the purposes of examination, the percentages will be interpreted on a basis of the total weight of the whippable emulsion.
Claims 2, 3, 6-9, 11-18, and 27 are rejected as being dependent on a rejected base claim.
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, 3, 6-9, 11-15, 17, 18, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Grealy et al. (US Patent 4,770,892) in view of Kim et al. (KR 102204328 B1; cited on PTO-892 dated March 11, 2025), herein after referred to as Grealy and Kim, respectively.
Examiner’s note: citations of Kim refer to the machine translation and a page of the machine translated tables are found on page 27 of the previously provided Kim reference (after the description and before the claims).
Regarding claim 1, Grealy discloses a whippable emulsion comprising:
about 14 to about 24 wt.% sugar based on the total weight of the whippable emulsion;
about 16 to about 24 wt.% of a fat based on the total weight of the whippable emulsion;
about 0.025 to about 0.1 wt.% hydroxypropyl methylcellulose (i.e., a gum) based on the total weight of the whippable emulsion; and
about 0.2 to about 0.3 wt.% of methylcellulose (i.e., a cellulose ether) based on the total weight of the whippable emulsion;
wherein the weight ratio of the cellulose ether to the gum is from 2:1 to 12:1 and the combined amount of the cellulose ether and the gum is from 0.225 to 0.4 wt.% of the whippable emulsion; and
wherein the whippable emulsion has an overrun ranging from about 250 to about 320% when whipped (claim 1; col. 2 lines 3-59).
The range of fat disclosed by Grealy lies within the claimed range of about 10-30 wt.%. The upper limit of the range of sugar disclosed by Grealy, about 24 wt.%, reads on the claimed limitation of at least about 30 wt.% since “about 24 wt.%” is considered to be “about 30 wt.%.” Per the instant specification, the term “about” refers to a range of values that fall within 1-20% of the reference value [00019]. Thus, “about 24 wt.%” is “about 30 wt.%.”
The ranges of the sugar, gum, cellulose ether, weight ratio of the cellulose ether to the gum, combined amount of the cellulose ether and the gum, and overrun disclosed by Grealy either overlap with or encompass the respective claimed ranges. Where the claimed ranges 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). See MPEP 2144.05.I.
Grealy is silent as to that the sugar is a non-nutritive natural sweetener that comprises allulose.
Kim, in the same field of invention, teaches a whippable emulsion comprising allulose as a replacement for sugar. Kim offers the motivation that replacing the sugar with allulose in a whippable emulsion enables easier use of the emulsion, reduces cracks during storage, and increases solubility [0012]. Therefore, it would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to have substituted the sugar of Grealy with the allulose of Kim, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of improving the properties of the whippable emulsion.
Regarding claims 3, 13, and 15, Grealy teaches that the whippable emulsion further comprises water, an emulsifier, and salt (claim 1). Grealy also teaches that sodium alginate can be present in the gum blend and is used to stabilize the whippable emulsion (col. 4 lines 39-46). Therefore, it would have been obvious to have added a stabilizer to the emulsion where Grealy teaches the addition of sodium alginate to the emulsion to achieve advantageous stabilization properties.
Grealy is silent as to that the whippable emulsion further comprises a protein and a nutritive sweetener.
Kim teaches that the whippable emulsion further comprises sodium caseinate (i.e., a protein) and fructose (i.e., a nutritive sweetener) [0049].
Therefore, as it was known in the art to make whippable emulsions, it would have been obvious to have incorporated the sodium caseinate and fructose of Kim into the composition of Grealy, as Kim teaches that whippable emulsions are known to comprise of proteins and nutritive sweeteners.
Regarding claims 6-8, Grealy teaches that the fat is hydrogenated palm kernel oil and hydrogenated coconut oil (claim 5).
Regarding claim 9, Grealy teaches that the whippable emulsion comprises from about 50 to about 70 wt.% water based on the total weight of the whippable emulsion (claim 1), which overlaps with the claimed range of 40-55 wt.%, and where the claimed ranges 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).
Regarding claim 11, Grealy teaches that the whippable emulsion comprises sodium alginate, hydroxypropyl methylcellulose (i.e., gums), and methylcellulose (i.e., a cellulose ether) (claim 1).
Grealy is silent as to that the gum is xanthan gum.
Kim teaches that the stabilizer/gum can be xanthan gum, sodium alginate, hydroxypropyl methylcellulose, etc. [0051], thereby teaching that xanthan gum is a suitable alternative gum for use in the invention. Thus, it would have been obvious to one of ordinary skill in the art to select and use xanthan gum as the gum in place of the hydroxypropyl methylcellulose in the whippable emulsion of modified Grealy, as both of xanthan gum and hydroxypropyl methylcellulose are taught to be interchangeable.
Regarding claim 12, modified Grealy teaches that the whippable emulsion comprises 0.2 wt.% of sodium caseinate (i.e., protein) based on the total weight of the whippable emulsion (Kim: Table 1).
Regarding claim 14, where modified Grealy teaches that the weight ratio of fructose:allulose is 1:2 to 1:5 (Kim: claim 1) and where the amount of sweetener (i.e., allulose) is 14-24 wt.% (Grealy: claim 1), the amount of fructose in the whippable emulsion is 2.8-12 wt.%.
Regarding claim 17, modified Grealy teaches that the whippable emulsion further comprises a flavoring agent (Grealy: col. 3 lines 65-68).
Regarding claim 18, modified Grealy teaches that the whippable emulsion further comprises a coloring agent (Grealy: col. 3 line 65 to col. 4 line 1).
Regarding claim 27, modified Grealy teaches a whipped topping for desserts (i.e., a whipped food product) comprising the whippable emulsion of claim 1 as set forth above, wherein the whipped food product has an overrun of 250-320% (Grealy: col. 1 lines 47-60).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Grealy et al. (US Patent 4,770,892) in view of Kim et al. (KR 102204328 B1; cited on PTO-892 dated March 11, 2025) as applied to claim 1 above, and further in view of Lee et al. (US PG Pub 2002/0197371; cited on PTO-892 dated July 10, 2024), herein after referred to as Lee.
Modified Grealy teaches the whippable emulsion as set forth above with regard to claim 1.
Modified Grealy is silent as to the non-nutritive natural sweetener further comprises tagatose.
Lee, in the same field of invention, teaches a low-calorie food composition comprising non-nutritive sweeteners and D-tagatose (herein after referred to as tagatose) (Abstract). Lee offers the motivation that the combination of non-nutritive sweeteners and tagatose as components in food products improves the taste of the food product ([0013]; [0028]), as well as that the inclusion of tagatose improves the overall taste of the product [0026]. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have incorporated the tagatose of Lee into the composition of modified Grealy, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of improving the overall taste of the food product composition.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Grealy et al. (US Patent 4,770,892) in view of Kim et al. (KR 102204328 B1; cited on PTO-892 dated March 11, 2025) as applied to claim 1 above, and further in view of Budd et al. (US Patent 4,910,031; cited on PTO-892 dated Sept. 19, 2023), herein after referred to as Budd.
Modified Grealy teaches the whippable emulsion as set forth above with regard to claim 1.
Modified Grealy is silent as to that the whippable emulsion further comprises a sweetness inhibitor.
Budd, in the same field of invention, teaches a sugar-based food coating comprising Lactisole (Example II), which is a sweetness suppressor/inhibitor. Budd offers the motivation that Lactisole is effective in reducing sweetness at low dosage levels and that it doesn’t impart an additional flavor or after taste, or adversely affect flavor (except for the desired lower sweetness) (col. 4 lines 5-26). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have incorporated Lactisole of Budd into the whippable emulsion of modified Grealy, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of imparting a sweetness inhibitor to the whippable emulsion without adversely affecting the flavor of the total composition.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Grealy et al. (US Patent 4,770,892) in view of Kim et al. (KR 102204328 B1; cited on PTO-892 dated March 11, 2025) and Budd et al. (US 4,910,031; cited on PTO-892 dated Sept. 19, 2023).
Grealy teaches a whippable emulsion comprising:
from about 14 to about 24 wt.% sugar;
from about 16 to about 24 wt.% fat;
from about 50 to about 70 wt.% water;
from about 0.025 to about 0.1 wt.% hydroxypropyl methylcellulose (i.e., a gum);
from about 0.2 to about 0.3 wt.% methylcellulose (i.e., a cellulose ether);
no fructose or sucrose (i.e., less than about 10 wt.% of a nutritive sweetener);
an emulsifier;
salt (claim 1; col. 2 lines 3-59); and
a flavoring agent (col. 3 lines 65-68);
wherein the weight ratio of the cellulose ether to the gum is from 2:1 to 12:1 and the combined amount of the cellulose ether and the gum is from 0.225wt.% to 0.4 wt.% of the whippable emulsion; and
wherein the whippable emulsion has an overrun ranging from about 250% to about 320% when whipped (claim 1; col. 2 lines 3-59).
The range of fat taught by Grealy lies within the claimed range of about 10-25 wt.%. The upper limit of the range of sugar disclosed by Grealy, about 24 wt.%, is considered to read on the claimed limitation of at least about 30 wt.% since “about 24 wt.%” is considered to be “about 30 wt.%.”
The ranges of the sugar, water, gum, cellulose ether, weight ratio of the cellulose ether to the gum, combined amount of the cellulose ether and the gum, and overrun taught by Grealy either overlap with or encompass the respective claimed ranges. Where the claimed ranges 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). See MPEP 2144.05.I.
Grealy is silent as to that the sugar is a non-nutritive natural sweetener and that the whippable emulsion also comprises about 0.1 wt.% to about 2 wt.% protein and a sweetness inhibitor.
Kim, in the same field of invention, teaches a whippable emulsion comprising allulose (i.e., a non-nutritive natural sweetener) as a replacement for sugar. Kim offers the motivation that replacing the sugar with allulose in a whippable emulsion enables easier use of the emulsion, reduces cracks during storage, and increases solubility. Therefore, it would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to have substituted the sugar of Grealy with the allulose of Kim, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of improving the properties of the whippable emulsion.
Kim further teaches that the whippable emulsion comprises 0.2 wt.% sodium caseinate (i.e., a protein) ([0049]; Table 1).
Therefore, as it was known in the art to make whippable emulsions, it would have been obvious to have incorporated the sodium caseinate of Kim into the composition of Grealy, as Kim teaches that whippable emulsions are known to comprise of proteins.
Modified Grealy is silent as to that the whippable emulsion also comprises a sweetness inhibitor.
Budd, in the same field of invention, teaches a sugar-based food coating comprising Lactisole (Example II), which is a sweetness suppressor/inhibitor. Budd offers the motivation that Lactisole is effective in reducing sweetness at low dosage levels and that it doesn’t impart an additional flavor or after taste, or adversely affect flavor (except for the desired lower sweetness) (col. 4 lines 5-26). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have incorporated Lactisole of Budd into the whippable emulsion of modified Grealy, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of imparting a sweetness inhibitor to the whippable emulsion without adversely affecting the flavor of the total composition.
Response to Arguments
Applicant's arguments filed July 11, 2025 have been fully considered but they are not persuasive.
Applicant’s arguments, filed January 21, 2026, with respect to claims 1-3, 6-9, 11-19, and 27 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s arguments are directed to the failure of Kim to teach the newly amended claim limitations regarding the individual amounts, weight ratio, and combined amounts of the gum and the cellulose ether, as well as the overrun of the whippable emulsion. In the present rejection, Kim is no longer used to teach these limitations, thereby rendering these arguments moot.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791