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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 5, 2026 has been entered. Claims 1-16 and 18-20 are pending. Claims 1and 15 have been amended. Claims 16 and 18-20 are withdrawn as being directed to a nonelected method.
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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Deckers et al. (US Patent No. 6,183,762 B1; Feb. 6, 2001) in view of Andersen (US Patent No. 5,707,668; Jan. 13, 1998).
Regarding claim 1, Deckers discloses a spread composition (col 13 lines 40-45, See Examples) comprising:
an oil phase comprising a plant-based oil (col 13, lines 40-45, See Examples), and
plant-based oil bodies emulsified in the oil phase (col 3 lines 25-55, See Examples),
wherein the plant-based oil bodies can be derived from a different plant than the plant-based oil (See Examples wherein the plant-based oil is sunflower oil and the oil bodies are derived from rapeseed),
wherein the spread composition comprises a continuous phase comprises the oil phase (See Examples), and
at least some of the plant-based oil in the oil phase is not naturally present in the oil bodies (See Examples wherein the plant-based oil is sunflower oil and the oil bodies are derived from rapeseed).
With respect to the plant-based oil phase being meltable at a temperature of 30-90 C, Deckers teaches that the plant-based oil can be sunflower oil, which is known in the art to be melted at temperatures between 30 and 90 C. Therefore, Deckers teaches an oil phase that is meltable at a temperature of 30-90 C.
Deckers teaches a spread as described above, but fails to further teach that the spread is a crystallized composition.
Andersen discloses a process of preparing a spread and further teaches that the spread composition is crystallized. Andersen teaches that crystallization stabilizes the emulsion against changes that would take place during handling and storage (col 2 lines 5-11).
It would have been obvious to one of ordinary skill in the art to further crystallize the spread of Deckers in order to stabilize the spread against changes during handling and storage as taught by Andersen.
Regarding claims 2-3, Deckers teaches that the spread composition can be free of added emulsifiers and added protein other than those naturally present from the oil bodies (see Examples, Ex. 7 has no added emulsifiers or added protein).
Regarding claim 4, Deckers teaches that the spread composition can have water in an amount of at least 1% and up to 99% (col 11 lines 35-45), thus overlapping the claimed range of 0.1 % to 60%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Regarding claim 5, Deckers teaches that the oil phase can be present in an amount of 60.6 % by weight of the spread composition (Ex. 7: 200 g oil in 330 g total), thus falling within the claimed range of 30% to 98% by weight.
Regarding claim 6, Deckers teaches that the plant-based oil not naturally found in the oil bodies comprises sunflower oil (Ex 7).
Regarding claim 7, Deckers teaches that the plant-based oil bodies can be present in an amount of 30.3 % by weight of the spread composition (Ex. 7: 100 g oil bodies in 330 g total), thus falling within the claimed range of 0.1 % to 60 % by weight.
Regarding claim 8, Deckers teaches that the oil bodies are from rapeseeds (Ex. 7).
Regarding claim 9, Deckers teaches that the spread composition comprises 60.6 % by weight the plant-based oil and further comprises no animal-based oil (Ex. 7: 200 g sunflower oil in 330 g total), thus meeting the claimed range of 10% to 95% by weight of the spread composition being the plant-based oil and any animal-based oil.
Regarding claim 10, Deckers teaches that the oil bodies in the spread composition are intact (col 3 lines 30-35).
Regarding claim 11, Deckers teaches that the oil bodies can be derived from sunflower (Example 2), which is the same plant-based oil used in the oil phase of the spread compositions (See Examples). Therefore, Deckers teaches that the oil phase can have one or more plant-based oils naturally present in the oil bodies.
Regarding claim 12, Deckers teaches that the washed oil bodies have enhanced stability (col 6 lines 65-67). Deckers further teaches that the stability of the emulsion, or spread, can be enhanced due to the addition of an emulsifier (col 12 lines 30-35) and/or additional ingredients (col 14 lines 5-15).
Decker further evaluates the stability of the oil bodies at 4 C, showing no separation at 25 days (col 30 Table 1).
Therefore, it would have been obvious to one of ordinary skill in the art that the spread composition of Deckers would be a stable emulsion at 1-10 C for one month as Deckers teaches that it is stable at 4 C for 25 days, which is only slightly shorter than one month.
Further, Deckers teaches how one of ordinary skill in the art could increase the stability, by adding specific ingredients in desired amounts, and therefore it would have been obvious to one of ordinary skill in the art to formulate the spread composition of Decker such that it has a desired stability. This is merely routine experimentation that is well understood, routine and conventional in the art.
Regarding claim 13, Deckers teaches that the spread composition can be a plant-based spread (See Examples, Ex. 7).
Regarding claim 14, Deckers teaches a food product comprising the emulsion, or spread of claim 1 (col 13 lines 33-45).
Regarding claim 15, as stated above Deckers discloses an emulsion that can be a margarine or spread composition (col 13 lines 40-45, See Examples) comprising:
An oil phase comprising a plant-based oil (col 13, lines 40-45, See Examples), and
Plant-based oil bodies emulsified in the oil phase (col 3 lines 25-55, See Examples),
Wherein the plant-based oil bodies can be derived from a different plant than the plant-based oil (See Examples wherein the plant-based oil is sunflower oil and the oil bodies are derived from rapeseed),
Wherein the composition comprises a continuous phase comprises the oil phase (See Examples), and
At least some of the plant-based oil in the oil phase is not naturally present in the oil bodies (See Examples wherein the plant-based oil is sunflower oil and the oil bodies are derived from rapeseed).
Deckers teaches that the composition can be free of added emulsifiers other than those naturally present from the oil bodies (see Examples, Ex. 7 has no added emulsifiers).
Deckers teaches that the emulsion composition can have water in an amount of at least 1% and up to 99% (col 11 lines 35-45), thus overlapping the claimed range of 5 % to 40%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
While Deckers teaches that the emulsion can be a margarine, Deckers fails to specifically teach margarine examples and the amount of ingredients therein.
However, Deckers teaches a spread composition comprising the oil phase in an amount of 60.6 % by weight of the spread composition (Ex. 7: 200 g oil in 330 g total), thus falling within the claimed range of 50% to 95% by weight, and the plant-based oil bodies in an amount of 30.3 % by weight of the spread composition (Ex. 7: 100 g oil bodies in 330 g total), thus falling within the claimed range of 5 % to 50 % by weight.
As Deckers teaches that the emulsion can be a margarine and further teaches that it is known in the art to comprise a spread, which is similar to a margarine, comprising the same ingredients in similar amounts as claimed, it would have been obvious to one of ordinary skill in the art to formulate a margarine comprising the oil phase and oil bodies in similar amounts as such amounts are suitable to create a plant-based spread composition. This is merely routine experimentation that is well within the ordinary skill in the art.
With respect to the plant-based oil phase being meltable at a temperature of 30-90 C, Deckers teaches that the plant-based oil can be sunflower oil, which is known in the art to be melted at temperatures between 30 and 90 C. Therefore, Deckers teaches an oil phase that is meltable at a temperature of 30-90 C.
Deckers teaches a spread as described above, but fails to further teach that the spread is a crystallized composition.
Andersen discloses a process of preparing a spread and further teaches that the spread composition is crystallized. Andersen teaches that crystallization stabilizes the emulsion against changes that would take place during handling and storage (col 2 lines 5-11).
It would have been obvious to one of ordinary skill in the art to further crystallize the spread of Deckers in order to stabilize the spread against changes during handling and storage as taught by Andersen.
Response to Arguments
Applicant’s amendment has overcome the 112(a) and 112(b) rejections from the previous Office Action and therefore they have been withdrawn.
Applicant’s arguments with respect to the 103 rejection have been fully considered but were not found persuasive.
Applicant states that sunflower oil is known to have a melting point below 30 C and therefore Deckers does not teach an oil phase that is meltable at a temperature 30-90 C.
This is not found persuasive as sunflower oil is known to have a melting point below 30 C, as stated by applicant. Therefore, sunflower oil is melted at temperatures between 30 and 90 C, therefore meeting the claimed “meltable at a temperature 30-90 C”. The claims do not require that the oil phase is a solid at a specific temperature before being melted and therefore, as Deckers teaches sunflower oil, which is meltable between temperatures of 30-90 C, Deckers teaches the claimed limitations.
Applicant further argues that it would be well understood that the combination of Deckers with Andersen would not render a composition that crystallizes at the conditions described by Andersen.
This is not found persuasive as Anderson is not being relied upon to teach certain crystallization conditions, nor do the claims require any crystallization conditions. Andersen teaches that crystallization stabilizes the emulsion against changes that would take place during handling and storage (col 2 lines 5-11). Therefore, it would have been obvious to one of ordinary skill in the art to further crystallize the spread of Deckers in order to stabilize the spread against changes during handling and storage as taught by Andersen. One of ordinary skill in the art would be able to optimize the processing conditions to arrive at a crystallized composition if desired.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Andersen teaches that crystallization stabilizes the emulsion against changes that would take place during handling and storage (col 2 lines 5-11) and therefore would predictably provide the same benefits to the composition of Deckers.
For the reasons stated above, a 103 rejection is maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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