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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 claimed amendment submission filed on November 19, 2025 and subsequent Request for Continued Examination filed on November 25, 2025 have been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on November 25, 2025 was filed after the mailing date of the Office Action mailed on August 19, 2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-7, 9, 11-12, 17-18, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Trueck et al. US 5,958,498 as further evidenced by Benjamin et al. US 2017/0251708 (herein referred to as “Benjamin et al. ‘708”) in view of Benjamin et al. WO 2014/001016 (herein referred to as “Benjamin et al. ‘016”).
Regarding Claim 1, Trueck et al. discloses a food composition (mayonnaise like product) comprising 65 to 85 wt% of vegetable oil (‘498, Column 2, lines 55-67), which falls within the claimed vegetable oil concentration of 65 to 85 wt% vegetable oil. The food composition (mayonnaise like product) also comprises water and a plant protein (vegetable proteins) (‘498, Column 2, lines 1-6) in an amount of from 1 to 5% wt% based on the weight of the food composition (‘498, Column 2, lines 55-57), which overlaps the claimed concentration of plant protein of 0.3 to 5 wt% based on the weight of the food composition. The food composition (mayonnaise like product) is free from starch or gum (‘498, Column 4, lines 20-22). The pH of the food composition is between 2 and 5 (‘498, Column 2, lines 1-6), which overlaps the claimed pH of the food composition of between 2 and 5. The food composition is an oil in water emulsion (high viscosity emulsion) (‘498, Column 1, lines 17-22) (‘498, Column 2, lines 7-16) and is free from egg derived ingredient (free from egg yolk) (‘498, Column 2, lines 7-16). It would have been obvious to one of ordinary skill in the art to adjust the amount of vegetable oil, plant protein, and pH of the food composition to fall within the claimed amounts of vegetable oil, plant protein, and pH respectively as taught by Trueck et al. since where the claimed amounts of vegetable oil, plant protein, and pH overlaps amounts of vegetable oil, plant protein, and pH ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of vegetable oil, plant protein, and pH of the food composition will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of vegetable oil, plant protein, and pH of the food composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Trueck et al. discloses the food composition being a mayonnaise like product emulsion (‘498, Column 2, lines 1-16). Benjamin et al. ‘708 provides evidence that mayonnaise is a type of oil in water emulsion (‘708, Paragraph [0093]).
Trueck et al. is silent regarding 80 to 100 wt% of the plant protein based on the weight of the plant protein being plant albumin.
Benjamin et al. ‘016 discloses a food composition comprising an oil in water emulsion comprising 3-60 wt% of a dispersed oil phase, water (continuous aqueous phase), and a plant protein in an amount of 0.05-2 wt% pulse seed plant albumin (‘016, Page 5, lines 2-8), which overlaps the claimed plant protein amount of from 0.3 to 5 wt%. Benjamin et al. ‘016 also discloses the emulsion containing pulse seed albumin (‘016, Page 10, lines 24-25) and another embodiment that optionally may contain other seed proteins (‘016, Page 10, lines 27-29). In the embodiment wherein no other seed proteins are present in the emulsion, the emulsion contains 100 wt% of plant albumin based on the weight of the plant protein.
Both Trueck et al. and Benjamin et al. ‘016 are directed towards the same field of endeavor of food compositions of oil in water emulsions comprising oil, water, and a plant protein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil in water emulsion food composition of Trueck et al. and incorporate plant albumin as taught by Benjamin et al. ‘016 since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Benjamin et al. ‘016 teaches that there was known utility in the food art to incorporate plant albumin as the plant protein in an oil in water emulsion. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil in water emulsion food composition of Trueck et al. and incorporate 100 wt% of plant albumin as the plant protein as taught by the relied upon embodiment of Benjamin et al. ‘016 since Benjamin et al. ‘016 teaches that it was known and conventional to utilize plant albumin as the only plant protein in an oil in water emulsion.
Regarding Claims 2-5, Trueck et al. discloses the plant protein being a pulse protein of a pea protein specifically (‘498, Column 2, lines 34-39).
Regarding Claims 6 and 17, Trueck et al. discloses the plant protein derived from a pulse (pea protein) being between 1 to 5% of the mayonnaise food composition (‘498, Column 2, lines 62-67), which overlaps the claimed plant protein amount based on the weight of the food composition of between 0.7 and 2.5 wt% or between 0.9 and 1.5 wt%. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the amount of plant protein in the mayonnaise like food product oil in water emulsion of Trueck et al. to fall within the claimed amount of plant protein as taught by the overlapping plant protein amount of Trueck et al. since where the claimed amount of plant protein within the mayonnaise like food product oil in water emulsion ranges overlaps the claimed amount of plant protein within the mayonnaise like food product in oil in water emulsion ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of plant protein amount based on the weight of the food composition will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of plant protein amount based on the weight of the food composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). It is noted that the claim does not specify any particular food composition. One of ordinary skill in the art would adjust the amount of plant protein of Trueck et al. of the unknown food composition containing vegetable oil, water, and plant protein based upon the desired flavor profile and intensity of plant protein of the food composition.
Regarding Claims 7 and 18, Trueck et al. discloses the pH of the food composition (mayonnaise like food product) being between 2 and 5 (‘498, Column 2, lines 1-6), which encompasses the claimed pH range of the food composition of between 2.5 and 4.5 or being between 3.0 and 4.5. It would have been obvious to one of ordinary skill in the art to adjust the pH of the food composition to fall within the claimed pH a since where the claimed pH overlaps pH ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the pH of the food composition will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pH of the food composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 9, Trueck et al. is silent regarding any particular Stevens Value. However, it is noted that the claims do not specify any particular type of food composition. Differences in the Stevens value of an unknown food composition type will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such Stevens value of an unknown food composition type is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 11, Trueck et al. discloses the food composition being free from animal derived ingredients (does not contain egg yolk) (‘498, Column 2, lines 7-16).
Regarding Claim 12, Trueck et al. discloses the food composition being a mayonnaise or a salad dressing (‘498, Column 3, lines 26-27).
Regarding Claim 21, Benjamin et al. ‘016 discloses the emulsion containing pulse seed albumin (‘016, Page 10, lines 24-25) and another embodiment that optionally may contain other seed proteins (‘016, Page 10, lines 27-29). In the embodiment wherein no other seed proteins are present in the emulsion, the emulsion contains 100 wt% of plant albumin based on the weight of the plant protein, i.e. the plant protein is substantially free of globulins.
Both Trueck et al. and Benjamin et al. ‘016 are directed towards the same field of endeavor of food compositions of oil in water emulsions comprising oil, water, and a plant protein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil in water emulsion food composition of Trueck et al. and incorporate plant protein that is substantially free of globulins by only using plant albumin as the plant protein as taught by Benjamin et al. ‘016 since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Benjamin et al. ‘016 teaches that there was known utility in the food art to incorporate plant albumin as the only plant protein in an oil in water emulsion, which would entail the plant protein being substantially free of globulins.
Regarding Claim 22, Trueck et al. discloses a food composition (mayonnaise like product) comprising 65 to 85 wt% of vegetable oil (‘498, Column 2, lines 55-67), which falls within the claimed vegetable oil concentration of 65 to 85 wt% vegetable oil. The vegetable oil is sunflower oil and/or soybean oil (soya oil) (‘498, Column 2, lines 58-61). The food composition (mayonnaise like product) also comprises water and a plant protein (vegetable proteins) (‘498, Column 2, lines 1-6) in an amount of from 1 to 5% wt% based on the weight of the food composition (‘498, Column 2, lines 55-57), which overlaps the claimed concentration of plant protein of 0.3 to 5 wt% based on the weight of the food composition. The food composition (mayonnaise like product) is free from starch and gum (‘498, Column 4, lines 20-22). The pH of the food composition is between 2 and 5 (‘498, Column 2, lines 1-6), which overlaps the claimed pH of the food composition of between 2 and 5. The food composition is an oil in water emulsion (high viscosity emulsion) (‘498, Column 1, lines 17-22) (‘498, Column 2, lines 7-16) and is free from egg derived ingredient (free from egg yolk) (‘498, Column 2, lines 7-16). It would have been obvious to one of ordinary skill in the art to adjust the amount of vegetable oil, plant protein, and pH of the food composition to fall within the claimed amounts of vegetable oil, plant protein, and pH respectively as taught by Trueck et al. since where the claimed amounts of vegetable oil, plant protein, and pH overlaps amounts of vegetable oil, plant protein, and pH ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of vegetable oil, plant protein, and pH of the food composition will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of vegetable oil, plant protein, and pH of the food composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Trueck et al. discloses the food composition being a mayonnaise like product emulsion (‘498, Column 2, lines 1-16). Benjamin et al. ‘708 provides evidence that mayonnaise is a type of oil in water emulsion (‘708, Paragraph [0093]).
Trueck et al. is silent regarding 80 to 100 wt% of the plant protein based on the weight of the plant protein being plant albumin.
Benjamin et al. ‘016 discloses a food composition comprising an oil in water emulsion comprising 3-60 wt% of a dispersed oil phase, water (continuous aqueous phase), and a plant protein in an amount of 0.05-2 wt% pulse seed plant albumin (‘016, Page 5, lines 2-8), which overlaps the claimed plant protein amount of from 0.3 to 5 wt%. Benjamin et al. ‘016 also discloses the emulsion containing pulse seed albumin (‘016, Page 10, lines 24-25) and another embodiment that optionally may contain other seed proteins (‘016, Page 10, lines 27-29). In the embodiment wherein no other seed proteins are present in the emulsion, the emulsion contains 100 wt% of plant albumin based on the weight of the plant protein.
Both Trueck et al. and Benjamin et al. ‘016 are directed towards the same field of endeavor of food compositions of oil in water emulsions comprising oil, water, and a plant protein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil in water emulsion food composition of Trueck et al. and incorporate plant albumin as taught by Benjamin et al. ‘016 since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Benjamin et al. ‘016 teaches that there was known utility in the food art to incorporate plant albumin as the plant protein in an oil in water emulsion. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the oil in water emulsion food composition of Trueck et al. and incorporate 100 wt% of plant albumin as the plant protein as taught by the relied upon embodiment of Benjamin et al. ‘016 since Benjamin et al. ‘016 teaches that it was known and conventional to utilize plant albumin as the only plant protein in an oil in water emulsion.
Claims 8 and 19-20 rejected under 35 U.S.C. 103 as being unpatentable over Trueck et al. US 5,958,498 as further evidenced by Benjamin et al. US 2017/0251708 (herein referred to as “Benjamin et al. ‘708”) in view of Benjamin et al. WO 2014/001016 (herein referred to as “Benjamin et al. ‘016”) as applied to claim 1 above in further view of Campbell US 2004/0047974.
Regarding Claims 8 and 19-20, Trueck et al. modified with Benjamin et al. ‘016 is silent regarding the plant albumin being present in an amount of from 0.2 to 5 wt%, or from 0.4 to 2.5 wt%, or from 0.6 to 1.5 wt% based on the weight of the food composition.
Campbell discloses a food composition (mayonnaise) comprising vegetable oil (‘974, Paragraph [0034]), water (‘974, Paragraph [0016]), and a plant protein (pea protein) derived from plant albumin (‘974, Paragraph [0035]) wherein the food composition (mayonnaise) has fat replacement materials having excellent emulsifying capacity that replaces egg yolk in emulsions to lower cholesterol content (‘974, Paragraph [0039]) wherein the degree of denaturation of the albumin makes it suitable for use in fat replacement while avoiding the risk of coagulation and/or hydrolysis (‘974, Paragraph [0011]).
Both modified Trueck et al. and Campbell are directed towards the same field of endeavor of oil in water emulsion food compositions in the form of mayonnaise like food products having no or reduced levels of egg derived ingredients wherein the mayonnaise contains plant protein. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of plant albumin used in the food composition of modified Trueck et al. since Campbell teaches that the degree of denaturation of albumin in combination with the amount of stabilizer avoids the risk of coagulation and/or hydrolysis (‘974, Paragraph [0011]). Differences in the concentration of plant albumin used in the food composition will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of plant albumin used in the food composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). The claim does not specify the particular oil in water food composition. One of ordinary skill in the art would adjust the concentration of plant albumin in the generic oil in water food composition emulsion based upon the desired degree of risk of coagulation and/or hydrolysis as suggested by Campbell.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Trueck et al. US 5,958,498 as further evidenced by Benjamin et al. US 2017/0251708 (herein referred to as “Benjamin et al. ‘708”) in view of Benjamin et al. WO 2014/001016 (herein referred to as “Benjamin et al. ‘016”) as applied to claim 1 above in further view of Benjamin et al. ‘708 (herein referred to as “Benjamin et al. ‘708”).
Regarding Claim 9, Trueck et al. renders obvious the limitations regarding the Stevens Value of the food composition obvious as enumerated in the rejections above. However, in the event that it can be shown with objective evidence that the claimed Stevens Value of a food composition of unknown type is critical, Benjamin et al. ‘708 discloses the Stevens value in grams of a food composition being between 80 gram to 300 gram at 20°C using a Stevens texture analyzer using a grid comprising 3x3 sized openings (‘708, Paragraph [0137]), which falls within the claimed Stevens value range of between 50 g and 400 g. Although Benjamin et al. ‘708 arrives at the claimed Stevens value without using the claimed testing parameters of the Stevens value using a speed of 1 mm/s and a depth of 20 mm, the limitations with respect to the testing speed, testing depth, and grid diameter are product by process limitations. Even 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 test conditions. 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 view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.). Additionally, where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness exists in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Benjamin et al. ‘708 teaches a Stevens value that falls entirely within the claimed Stevens value using the same temperature and 3x3 sized openings. One of ordinary skill in the art would expect the Stevens value of Benjamin et al. ‘708 to also fall within the claimed Stevens value using the claimed speed, depth, and grid diameter measurement parameters. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food composition of Trueck et al. to have a Stevens value that falls within the claimed Stevens Value as taught by Benjamin et al. ‘708 since where the claimed Stevens value ranges encompasses Stevens value ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the Stevens value will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such Stevens value is critical. Where the general conditions of a claimed are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Benjamin et al. ‘708 teaches that the type of flour and starch strongly influences the Stevens value and that post firming was stronger for emulsions containing lentil flour or mung bean flour (‘708, Paragraph [0229]).
Response to Arguments
Applicant's arguments filed November 19, 2025 with respect to the previous obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Page 7 of the Remarks that it would not be obvious to combine Trueck and Benjamin ‘016 in the manner suggested by the Office. Applicant contends that both starch and gums are essential elements of the composition of Benjamin ‘016 and points to Page 5, lines 13-21 of Benjamin ‘016 as stating that a non-starch polysaccharide flow charge density is thermodynamically incompatible with the legume protein resulting in an increase of the adsorbed albumin at the oil water interface and the stability may be enhanced by a network structure built by the non-starch polysaccharide in the bulk phase. Applicant contends that a person of ordinary skill in the art would not simply incorporate plant albumin but also starch and gum as they are essential for water structuring and emulsifying properties and that the claimed composition is free of starch and/or gum.
Examiner argues the obviousness rejection is based on the primary reference of Trueck et al. modified with the secondary reference of Benjamin et al. ‘016. The primary reference of Trueck et al. already teaches the oil in water emulsion (‘498, Column 4, lines 8-12) being free of starch and gum (‘498, Column 4, lines 20-22). The secondary reference of Benjamin et al. ‘016 is not being relied upon to teach the limitations regarding the food composition being free of starch and/or gum. Rather, Benjamin et al. ‘016 is being relied upon to teach the limitations regarding incorporating 100 wt% of plant albumin as the plant protein. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Applicant argues on Pages 7-8 of the Remarks that Benjamin ‘016 is directed to an oil in water composition having a neutral pH as disclosed on Page 14 of Benjamin ‘016 that the emulsion typically has a pH in the range of 5.7 to 7.8 whereas the emulsion of Trueck has a pH of 2 to 5. Applicant contends that there would be no expectation of success in the combination and no hint that it would be possible to obtain the stable high oil composition with homogeneous texture and appearance as claimed.
Examiner argues the obviousness rejection is based on the primary reference of Trueck et al. modified with the secondary reference of Benjamin et al. ‘016. The primary reference of Trueck et al. already teaches the oil in water emulsion (‘498, Column 4, lines 8-12) being acidified to a pH of between 2 and 5 using any food grade acid (‘498, Column 4, lines 5-7). The secondary reference of Benjamin et al. ‘016 is not being relied upon to teach the limitations regarding the claimed pH range. Rather, Benjamin et al. ‘016 is being relied upon to teach the limitations regarding incorporating 100 wt% of plant albumin as the plant protein. in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, Benjamin et al. ‘016 discloses incorporating acidulants into the emulsion (‘016, Page 13, lines 5-12) (‘016, Page 16, lines 18-23), which indicates that the pH of Benjamin et al. ‘016 is capable of being adjusted to more acidic levels. With respect to applicant’s comments regarding that there is no hint it would be possible to obtain the stable high oil composition with homogeneous texture and appearance as claimed, it is noted that independent Claims 1 and 22 do not recite any particular viscosity levels relating to homogeneity of the oil in water emulsion. Claims 1 and 22 also do not recite any particular appearance. Applicant argues limitations that are not commensurate in scope with the claimed invention. Therefore, these arguments are not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Bodor et al. US 2009/0258133 discloses an egg free mayonnaise product (‘133, Paragraph [0001]) comprising 50-85 wt% vegetable oil (‘133, Paragraph [0021]) wherein the product does not contain starch (‘133, Paragraph [0024]) wherein the mayonnaise product has a pH of between 3.0 and 5.0 (‘133, Paragraph [0025]).
Dartey et al. US 4,948,617 discloses a low cholesterol mayonnaise substitute comprising water, vegetable oil, a food grade acidulent, flavoring, preservatives and a texturization and emulsification system comprising an egg white material, an edible emulsifier and at least one gum wherein the emulsification system enables the mayonnaise substitute to stably employ high levels of oil of between 65% and 85% which texturization and emulsification system obviates the need to resort to starch pastes or protein emulsifiers (‘617, Column 2, lines 23-45).
Tetrick et al. US 2014/0356507 discloses an eggless mayonnaise composition comprising yellow pea flour, modified starch (‘507, Paragraph [0015]) wherein eggs in standard full fat mayonnaises are replaced by a blend of pea protein isolate and modified starch (‘507, Paragraph [0139]).
Wolf “Egg Free Mayo” <https://thedizzycook.com/vegan-aquafaba-mayo/> (published September 13, 2019 discloses an egg free vegan MSG free mayo comprising aquafaba/chickpea starchy juice, chickpeas for enhancing the emulsifying process and adding bulk and texture to the mixture, distilled white vinegar, and vegetable oil like canola or sunflower to keep the flavor similar to store bought mayo or olive oil or avocado oil that has a stronger flavor
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/ERICSON M LACHICA/Examiner, Art Unit 1792