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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 31 December 2025 has been entered.
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.
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 21, 23, 25, 27-30 and 32-36 are rejected under 35 U.S.C. 103 as being unpatentable over Tsuji WO2018186328 (USPGPub 20200113216 relied on herein for translation and reference) and Loganathan “Health-promoting effects of red palm oil: evidence from animal and human studies” Nutrition Reviews, Vol. 75, Issue 2, Feb. 2017, Pages 98–113.
Regarding claims 21-23, Tsuji teaches incorporating an oxidized palm oil in a food product comprising high intensity sweetener. [0031,0034,0043] Oxidized palm oil inherently comprises carotenoid degradation products. The carotenoid degradation products are produced by heating and oxidation treatment of the carotenoid that is inherently present in palm oil. [0015] The oxidized palm oil of Tsuji comprises up to 100% of the taste improver disclosed and can be incorporated into a food product comprising high intensity sweetener in proportions of 0.001% by mass to less than 100% by mass. [0047]
Tsuji is silent regarding the carotenoid content of the palm oil disclosed.
Loganathan teaches “Red palm oil has been known for its versatility as both a food and a health remedy for centuries. It was valued as a sacred food by the pharaohs of ancient Egypt.” (Pg. 99) Loganathan details a variety of health benefits attributed to red palm oil. (see all) “Its nutritional properties are conferred mainly via its constituent phytonutrients.” (Pg. 99) Red palm oil comprises 600-750 ppm carotenoids of which 41.0% are β-carotene (246-307.5 ppm) and 41.3% are α-carotene (247.8-309.75 ppm).(Table 1) As such, red palm oil has a total content of β-carotene and α-carotene of 493.8-617.25 ppm.
Tsuji and Loganathan are both directed to compositions comprising palm oil. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have used red palm oil as the palm oil in Tsuji in order to impart the health benefits of the phytonutrients contained in red palm oil to the composition disclosed.
For the embodiment where oxidized palm oil comprises 100% of the taste improver of Tsuji, the concentration of carotenoids in the taste improver prior to oxidation would be 600-750 ppm. When the taste improver is added to a food product in a proportion of 0.001% or more the carotenoid degradation content in terms of carotenoid prior to oxidation would be 0.6 ppm or more. This proportion overlaps with the proportions recited in claims 21 and 23. 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Therefore, the modification of Tsuji with Loganathan would have produced a method as recited in claims 21 and 23.
Regarding claims 25, 27, 30 and 32, the modification of Tsuji with Loganathan comprises heating and oxidation of red palm oil which would necessarily degrade the beta carotene present in red palm oil. [0036]
Regarding claims 28 and 33, Tsuji teaches the oxidized palm oil may be powdered. [0052]
Regarding claims 29 and 34, Tsuji teaches that the composition disclosed can be included in fruit juice drinks, soft drinks and alcoholic beverages.[0042] It would have been obvious to one of ordinary skill in the art at the time the application was filed to have mixed the aqueous fruit juice drinks, soft drinks or alcoholic beverages containing carotenoid degradation products disclosed by Tsuji with other alcoholic beverages because fruit juice, soft drinks and alcoholic beverages were universally known in the food art to be suitable mixers for alcoholic beverages. Therefore, the method of claim 29 is rendered obvious by Tsuji.
Regarding claim 35, Loganathan teaches red palm oil comprises 600-750 ppm carotenoids of which 41.0% are β-carotene (246-307.5 ppm) and 41.3% are α-carotene (247.8-309.75 ppm).(Table 1) As such, red palm oil has a total content of β-carotene and α-carotene of 493.8-617.25 ppm.
Regarding claim 36, Tsuji teaches processing the oil to a peroxide value of 15-180 which encompasses the proportion recited in claim 36. 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990)
Response to Arguments
Applicant’s arguments with respect to the claims 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Michele L Jacobson whose telephone number is (571)272-8905. The examiner can normally be reached Monday through Friday from 10-6.
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/Michele L Jacobson/Primary Examiner, Art Unit 1793