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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 2, 2025 has been entered.
Status of the Application
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-12, 14-19, 21-30
Withdrawn claims:
29
Previously canceled claims:
20
Newly canceled claims:
13
Amended claims:
1
New claims:
30
Claims currently under consideration:
1-12, 14-19, 21-28, 30
Currently rejected claims:
1-12, 14-19, 21-28, 30
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-5, 7-12, 14-19, 21-28, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Bergamini (WO 2020/002345 A1) (IDS Reference filed 07/07/2022) in view of Fiberstar FAQ (“Top Frequently Asked Questions (FAQ)”, Fiberstar Inc., Published October 14, 2019 [accessed online Nov 8, 2024], https://www.fiberstar.net/2019/10/14/citrus-fiber-top-frequently-asked-questions-faq/#:~:text=This%20natural%20fiber%20is%20made,and%2036%25%20is%20soluble%20fiber) and Struffert (EP 2484218 A1).
Regarding claim 1, Bergamini teaches a ready-to-use emulsified food formulation (a food formulation in the form of an oil-in-water emulsion which is ready for use, page 5, lines 19 – 20) comprising a vegetable in a finely divided form (at least one vegetable in a comminuted form, page 5, line 21; said vegetable in comminuted form comprises vegetable pieces having an average particle size between 0.1 mm and 15 mm, page 7, lines 28 – 29), vegetable oil (vegetable oil, page 5, line 22), water (an oil-in-water emulsion, page 5, line 19; it necessarily follows that water be added for the food formulation to be an oil-in-water emulsion), and an oleaginous seed in a finely divided form (at least one protein concentrate derived from oleaginous seeds, page 5, lines 22 – 23), wherein said oleaginous seed is present in a quantity of between 0.1% and 15% by weight of the total weight of said formulation (said protein concentrate derived from oleaginous seed is present in a quantity between 0.5% and 7.5% by weight of the total weight of said food formulation, page 5, lines 23 – 25). Although Bergamini does not teach that the oleaginous seeds do not have a husk or pericarp, Bergamini does teach that any shell fruit used in the invention is used without the husk and pericarp (p. 13, lines 10-11). Shell fruits are known in the art to also be oleaginous seeds. Evidence to support that shell fruits are oleaginous seeds is provided by the instant specification. The instant specification states that the terms oleaginous seeds and shell fruits are used interchangeably (p. 4, lines 23-24). Therefore, one of ordinary skill would recognize that if the shell fruits used in Bergamini did not have the husk or pericarp, the oleaginous seeds used for the protein concentrate of Bergamini should also not have the husk or pericarp.
Bergamini also teaches a modal diameter of the particles contained therein greater than or equal to 300 µm (comminuted form comprises vegetable pieces with an average particle size between 0.3 mm and 3 mm (300 µm and 3000 µm, respectfully), p. 8, lines 1 – 4; it logically follows that if the average particle size is between 300 µm and 3000 µm, the modal diameter is also likely to fall above 300 µm).
The claim limitation “said emulsified food formulation being obtained by homogenization carried out at a pressure equal to or higher than 10000 kPa” is a product by process claim limitation. MPEP §2113(I) states "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). The structure imparted by the process of homogenization is an emulsified food formulation. Although Bergamini does not teach high pressure homogenization, Bergamini does teach an emulsified food formulation.
Bergamini does not teach the food formulation additionally containing a vegetable fiber in a finely divided form, the vegetable oil being present in a quantity of between 10% and 15% by weight of the total formulation, the oleaginous seed not having a husk or pericarp, the composition having a fiber content greater than 70% w/w and a water binding capacity greater than 5 g water/g dry matter.
Regarding the food formulation additionally containing a vegetable fiber in a finely divided form, having a fiber content greater than 70% w/w and a water binding capacity greater than 5 g water/g dry matter, Fiberstar FAQ discloses a vegetable fiber (Citri-Fi citrus fiber, page 1, paragraph 2; the present disclosure states that citrus fiber is a vegetable fiber) in a finely divided form (can be labeled as citrus flour, page 1, paragraph 4; where flour is understood in the art to be a finely divided form), having a fiber content greater than 70% w/w (74% dietary fiber, page 1, paragraph 2; where “74%” lies within the claimed range of “greater than 70%”) and a water binding capacity greater than 5 g water/g dry matter (water holding capacity up to 9 to 10 times its weight in water (which equates to 9 to 10 g water/g dry ingredient), page 3, paragraph 7).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the food formulation of Bergamini with the addition of the citrus fiber taught by Fiberstar FAQ. One would be motivated to make this modification because Fiberstar FAQ teaches that Citri-Fi citrus fiber can be used as an emulsifier that results in a product that is stable for over 6 months (page 3, paragraph 2). The addition of a natural emulsifier to the food formulation taught by Bergamini would help to lengthen the shelf life of the product.
Regarding the vegetable oil being present in a quantity of between 10% and 15% by weight of the total formulation, Struffert discloses that step a) of the process comprises 0.5% to 15% vegetable oil ([0026]) and step b) comprises an emulsion comprising 0.3% to 82% of vegetable oil ([0033], line 50). Struffert also teaches that the final edible oil-in-water emulsion comprises from 5% to about 65% of step a) and from 35% to 95% of b)([0035]). Therefore, the final product would comprise between 0.025% to 9.75% vegetable oil contributed from step a) and between 0.105% and 80.75% vegetable oil contributed from step b). This would result in a total amount of vegetable oil in the final edible oil-in-water emulsion of 0.13% to 90.5%, which encompasses the claimed range of contains the claimed range of “between 10% and 15%”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the food formulation of Bergamini modified by Fiberstar FAQ to lower the concentration of oil in the formulation to be closer to that disclosed by Struffert. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the overlapping range, MPEP §2144.05(I) states in the case 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).
With regards to the claim limitation of “being free of food additives consisting of thickeners, emulsifiers, and stabilizers”, Bergamini teaches some additives are not suitable for vegans or consumers that prefer to buy “clean” label products, i.e., products free from additives, so there is a need for an emulsifying agent that can overcome these issues (p. 3, line 28 to p. 4, line 7). Therefore, one would be motivated to make a product that does not contain conventional food additives. Additionally, Citri-Fi citrus fiber as described above can be used in a composition that is free from additives because, as stated, Citri-Fi is a natural ingredient that can be labeled as a citrus fiber (p. 1, paragraph 4).
Regarding claim 3, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above.
Bergamini does not teach wherein the fiber content of said vegetable fiber is between 75% and 80% w/w and the water binding capacity of said vegetable fiber is between 6.0 and 28.0 g water/g dry matter.
However, Fiberstar FAQ teaches wherein the fiber content of said vegetable fiber is between 75% and 80% w/w (74% dietary fiber, page 1, paragraph 2, where “74%” lies close in range to “between 75% and 80%”) and the water binding capacity of said vegetable fiber is between 6.0 and 28.0 g water/g dry matter (water holding capacity up to 9 to 10 times its weight in water (which equates to 9 to 10 g water/g dry ingredient), page 3, paragraph 7).
With respect to the approaching ranges, MPEP §2144.05(I) states a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the citrus fiber that was added to the food formulation of Bergamini as described above to have the fiber content and water binding capacity taught by Fiberstar FAQ. One would be motivated to make this modification because the increase fiber content and water binding capacity increase the long term stability of the product (Fiberstar FAQ, page 3, paragraph 8).
Regarding claim 4, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Although Bergamini does not disclose the modal diameter of the particles in the food formulation, Bergamini teaches that the comminuted form comprises vegetable pieces with an average particle size between 0.3 mm and 3 mm (300 µm and 3000 µm, respectfully), (p. 8, lines 1 – 4). It would logically follow that the modal diameter of the particles would be close to the average particle size disclosed, which would then overlap with the claimed range of “between about 300 and 1500 micrometers”.
With respect to overlapping ranges, MPEP §2144.05(I) states in the case 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 5, the claim limitations recited in claim 5 are product by process claim limitations. MPEP §2113(I) states "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Bergamini modified by Fiberstar FAQ teach all elements of claim 1 as described above. The structure imparted on the product is an emulsified food product.
Although the food formulation of Bergamini does not teach homogenization, Bergamini does teach that high-energy homogenization is usually used for sauces to create a shelf-stable food (p. 4, lines 13 – 15).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the food formulation of Bergamini with the typical use of high-energy homogenization. One would be motivated to make this modification because it prevents the phase separation of sauces and makes the sauce shelf stable (p. 4, lines 13 – 15).
Regarding claim 7, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini also teaches the protein concentrate derived from oleaginous seeds is obtained from seeds selected from sunflower or hemp seed (page 9, lines 21 – 25).
Although Bergamini does not disclose the average particle size of the oleaginous seed, MPEP §2144.05(II) states In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (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."). Because Bergamini has success with the food formulation using the protein derived from an oleaginous seed without specifying the particle size, it is routine optimization to determine the workable range for the particle size of the oleaginous seed.
Regarding claim 8, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini also teaches wherein said oleaginous seed is cashew (pesto sauce using cashews in Example 4, page 19, line 27).
Bergamini does not teach wherein said vegetable fiber is citrus fiber.
However, Fiberstar FAQ discloses said vegetable fiber is citrus fiber (Citri-Fi citrus fiber, page 1, paragraph 2; the present disclosure states that citrus fiber is a vegetable fiber).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the pesto sauce using cashews as taught by Bergamini with the addition of the citrus fiber taught by Fiberstar FAQ. One would be motivated to make this modification because, as taught by Fiberstar FAQ, in sauces, Citri-Fi holds onto water and oil so that there is no separation during and after cooking (page 2, paragraph 3).
Regarding claim 9, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini also teaches wherein said oleaginous seed is almond (shell fruits in the present invention include almonds, p. 13, lines 13 – 14; it is understood in the art that shell fruits are oleaginous and that almonds are a seed).
Bergamini does not teach wherein said vegetable fiber is apple fiber.
However, in the same field of endeavor, Struffert discloses natural fibers recovered from apples ([0026], page 4, line 8)
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the food formulation containing cashews as taught by Bergamini modified by Fiberstar with the apple fiber as disclosed by Struffert. Bergamini discloses the ‘at least one vegetable in comminuted form comprises portions of plants such as leaves, fruits, roots, bulbs, rhizomes, flowers, sprouts or stems” (p. 7, l. 21-23) before providing limited examples of suitable vegetables (p. 11, l. 13-18). In light of the broad initial instruction regarding suitable vegetables, particularly as related to fruits, a skilled practitioner would be motivated to consult Struffert for additional instruction regarding fruit fibers suitable for use in food products. Since Struffert teaches that apple fibers ([0026]) are suitable for use as emulsifiers ([0024]-[0025]), a skilled practitioner would find the incorporation of apple fiber as the comminuted fruit material of Bergamini to be obvious.
Regarding claim 10, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein said vegetable in a finely divided form is selected from the group consisting of basil, parsley, thyme, marjoram and oregano (vegetable in a comminuted form selected from group of basil, parsley, thyme, marjoram, and oregano, page 26, lines 6 – 8).
Regarding claim 11, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini also teaches the vegetable having an average particle size between 0.1 mm and 15 mm (100 µm and 15,000 µm, respectively) (p. 7, lines 27 – 29), where “between 0.1 mm and 15 mm” overlaps with the claimed range of “equal to or less than 1500 µm.
With respect to the overlapping range, MPEP §2144.05(I) states in the case 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).
Bergamini does not teach wherein said vegetable in a finely divided form is present in a quantity of between 10% and 15% by weight of the total weight of the formulation.
However, in the same field of endeavor, Struffert discloses a fiber phase that contains 0.01% to 10% insoluble natural fiber ([0025], line 39), then later states the insoluble natural fibers can be found in vegetables ([0026], page 4, line 6). Because the insoluble natural fibers are derived from vegetables, it logically follows that content of vegetable within the formulation is 0.01% to 10%, which overlaps with the claimed range of “between 10% and 15% by weight”.
With respect to the overlapping range, MPEP §2144.05(I) states in the case 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).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the emulsified food formulation taught by Bergamini modified by Fiberstar with the percent composition of vegetable in the final formulation as taught by Struffert. One would be motivated to make this modification to achieve a milder vegetable flavor in the overall food formulation.
Regarding claim 12, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein the vegetable oil is extra virgin olive oil or sunflower seed oil (page 12, lines 9 – 11).
Regarding claim 14, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches further comprising an ingredient selected from the group consisting of salt, sugars, starches, vegetable proteins, legumes, garden vegetables, leafy greens, and natural flavorings (salt, sugar, potato flakes (a form of starch), and natural flavorings, page 12, lines 13 – 15; legume seeds, page 5, lines 22 – 23; herb leaves (which are understood to be leafy greens, garden vegetables, that contain protein), page 11, lines 13 – 15).
Regarding claim 15, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches further comprising an acidity regulator, preferably citric acid or lemon juice (page 12, lines 15 – 16), where citric acid and lemon juice are both known derivatives of citrus.
Regarding claim 16, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches a rotational viscosity of greater than or equal to 180 Pa·s (page 18, lines 14 – 15), where “180 Pa·s” falls within the claimed range of “greater than 80 Pa·s at a temperature of 22[Symbol font/0xB0]C”.
Regarding claim 17, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein the food formulation has a pH between 3.7 and 5 (page 7, lines 10 – 11), where “between 3.7 and 5” lies within the claimed range of “between 3.0 and 5.0”.
Regarding claim 18, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini also teaches a water activity not greater than 0.95, which overlaps with the claimed range of “greater than or equal to 0.95”.
With respect to overlapping ranges, MPEP §2144.05(I) states in the case 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 19, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches a food formulation that can be stored at a temperature between 2[Symbol font/0xB0]C and 30[Symbol font/0xB0]C for a period of at least two weeks (page 5, lines 19 – 21).
Regarding claim 21, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above.
Although Bergamini does not disclose the modal diameter of the particles in the food formulation, MPEP §2144.05(II) states In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (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."). Because Bergamini has success with the food formulation, it is routine optimization to determine the optimal modal diameter of the particles in the food formulation.
Regarding claim 22, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein said vegetable is a comminuted basil (page 11, lines 23 – 24).
Regarding claim 23, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein the vegetable oil is extra virgin olive oil (page 12, lines 9 – 10).
Regarding claim 24, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein said vegetable oil is sunflower oil (page 12, line 11).
Regarding claim 25, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches a rotational viscosity of greater than or equal to 180 Pa·s (page 18, lines 14 – 15), where “180 Pa·s” falls within the claimed range of “greater than 115 Pa·s at a temperature of 22[Symbol font/0xB0]C”.
Regarding claim 26, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein the food formulation has a pH between 3.7 and 5 (page 7, lines 10 – 11), where “between 3.7 and 5” overlaps with the claimed ranged of “between 3.5 and 3.9”. With respect to overlapping ranges, MPEP §2144.05(I) states in the case 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 27, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini also teaches a water activity not greater than 0.95, which overlaps with the claimed range of “between 0.95 and 0.99”.
With respect to overlapping ranges, MPEP §2144.05(I) states in the case 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 28, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above. Bergamini also teaches wherein said food formulation is storable at room temperature for a period of 24 months (page 6, lines 25 – 27). It is known in the art that room temperature is around 23[Symbol font/0xB0]C, which falls within the claimed range of “2[Symbol font/0xB0]C and 30[Symbol font/0xB0]C”.
Regarding claim 30, Bergamini modified by Fiberstar FAQ and Struffert teaches all elements of claim 1 as described above.
Bergamini does not teach wherein the water is present in a quantity of at least 48% by weight of the total weight of said formulation.
However, in the same field of endeavor, Struffert teaches that edible oil-in-water emulsions comprise from 5% to 75% of water ([0026], bullet 3), which overlaps with the claimed range of “at least 48% by weight”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Bergamini with the amount of water as taught by Struffert. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
With respect to the overlapping range, MPEP §2144.05(I) states in the case 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).
Claims 2 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Bergamini (WO 2020/002345 A1) (IDS Reference filed 07/07/2022) in view of Fiberstar FAQ, (“Top Frequently Asked Questions (FAQ)”, Fiberstar Inc., Published October 14, 2019 [accessed online Nov 8, 2024], https://www.fiberstar.net/2019/10/14/citrus-fiber-top-frequently-asked-questions-faq/#:~:text=This%20natural%20fiber%20is%20made,and%2036%25%20is%20soluble%20fiber) and Struffert (EP 2484218 A1) as applied to claim 1 above, and further in view of Fiberstar 150 (Citri-Fi 150, Fiberstar, Published March 2018, [accessed online Nov. 13, 2024], chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.fiberstar.net/wp-content/uploads/2018/11/Citri-Fi-150-Overview-MAR-2018.pdf).
Regarding claim 2, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above.
The cited prior art does not teach wherein said vegetable fiber in a finely divided form has a humidity content less than 10%.
As stated above, Fiberstar FAQ discloses that Citri-Fi can be labeled as a citrus flour (page 1, paragraph 4). However, Fiberstar FAQ does not disclosure the humidity content of the citrus flour.
However, in the same field of endeavor, by the same company as Fiberstar FAQ, Fiberstar 150 discloses a citrus fiber (slide 4, bullet 9) with a moisture content of <10% (slide 4, second bullet). The examiner is interpreting humidity content as claimed to have the same meaning as moisture content rather than the plain meaning of humidity, which refers to water content in air rather than in a solid product.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the food formulation of Bergamini with the citrus fiber of Fiberstar FAQ added to use specifically the Citri-Fi 150 product taught by Fiberstar 150. One would be motivated to make this modification because a lower moisture content for powder ingredients improves the shelf life of the ingredient, meaning that dry goods for the food formulation will last longer before use.
Regarding claim 6, Bergamini modified by Fiberstar FAQ and Struffert teach all elements of claim 1 as described above. Bergamini modified by Fiberstar FAQ above discloses wherein said vegetable fiber is citrus fiber as described above.
The cited prior art does not teach the particle size of the citrus fiber.
However, in the same field of endeavor by the same company, Fiberstar 150 discloses a citrus fiber product where 87% of particles pass through a 425 micron screen (slide 4, bullet 3 – 4). Therefore, it logically follows that the average particle size of the fiber is less than or equal to 425 µm, which falls within the claimed range of “equal to or less than 1500 µm”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the food formulation of Bergamini modified by Fiberstar FAQ by using the Citri-Fi 150 as taught by Fiberstar 150. One would be motivated to make this modification because, as taught by Bergamini, having vegetables in the size of between 0.1 mm and 15 mm (100 µm and 15000 µm) provides for a high texture performance and improved separation resistance and shelf-stability (p. 8, lines 1 – 6).
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claim 1, 3-5, 7, 8, 10, 12, 14-19, and 21-28 over Bergamini and Fiberstar FAQ; claims 2 and 6 over Bergamini, Fiberstar FAQ, and Fiberstar 150; and claims 9, 11, and 13 over Bergamini, Fiberstar FAQ, and Struffert: Applicant’s arguments filed 09/02/2025 have been fully considered but they are not persuasive.
Applicant argued that the seeds of claim 1 would not be the same as the protein concentrate derived from oleaginous seeds as described in Bergamini (Remarks, p. 7, ¶ 4).
This argument has been considered. However, Bergamini does not state that the protein concentrate derived from oleaginous seeds was derived from seeds that still had the husk and pericarp. Furthermore, as described above, Bergamini teaches that any shell fruit used in the invention is used without the husk and pericarp (p. 13, lines 10-11). Shell fruits are known in the art to also be oleaginous seeds. Evidence to support that shell fruits are oleaginous seeds is provided by the instant specification. The instant specification states that the terms oleaginous seeds and shell fruits are used interchangeably (p. 4, lines 23-24). Therefore, one of ordinary skill would recognize that if the shell fruits used in Bergamini did not have the husk or pericarp, the oleaginous seeds of Bergamini should also not have the husk or pericarp. MPEP §2111 states that during patent examination, the pending claims must be given their broadest reasonable interpretation consistent with the specification. Under broadest reasonable interpretation, the protein concentrate derived from oleaginous seeds would thus read on the oleaginous seed of claim 1. MPEP §2111 states that during patent examination, the pending claims must be given their broadest reasonable interpretation consistent with the specification.
Applicant also argued that Bergamini does not teach the water content of claim 30 in conjunction with vegetable oil content of claim 1. Applicant further argued that Struffert does not cure the shortcomings of Bergamini because the section of Struffert relied upon by the examiner is not the final product. Applicant further argued that the examples of Struffert all comprise higher amount of oil than the claimed range (Remarks, p. 8, ¶ 2).
This argument has been considered. However, following amendment to claim 1, the rejection of the limitation regarding the amount of vegetable oil in the composition has been amended. As stated above, Struffert still discloses an amount of vegetable oil and an amount of water that meets the limitations of claims 1 and 30 respectively. Additionally, MPEP §2123(I) states “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments.” Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). Although the examples of Struffert teach an oil content that is higher than the claimed range, there are still embodiments present in Struffert that meet the claimed range.
The rejections of claims 1-12, 14-19, and 21-28 have been maintained herein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached M-Th 7:30a-5:00p, F 8:00a-12:00p.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793