DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed October 24, 2025 has been entered. Claims 23 has been cancelled. Claims 16-22, 24 and 25 are pending examination.
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.
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 16-22, 24 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (US 2018/0310599).
Regarding claims 16 and 20-22, Ajami et al. disclose an agent release system wherein the agent release system is a water-in-oil emulsion (i.e., wherein the water is the dispersed phase and the oil is the continuous phase -[0006], [0045], [0095], [0157]-[0187]). Ajami et al. also disclose the emulsion can be dehydrated (i.e., fat powder – [0242]).
Ajami et al. disclose the emulsion comprises at least about 45% by weight of lipid, water and a coloring agent ([0025], [0035], [0131], [0141]-[0142], [0185]). Here, at least about 45% by weight lipid encompasses the claimed range of 80 to 90 wt% of a continuous fat phase and 1 to 20 wt% of a dispersible aqueous phase. 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).
Ajami et al. disclose the emulsion are acidified to a pH of between about 2.75 and about 5.5 to inhibit microbiological growth ([0239]).
Ajami et al. disclose the emulsion has a melting temperature of at least between about 30°C and about 100°C ([0131]).
While Ajami et al. disclose the emulsion comprises a coloring agent, the reference is silent with respect to a dispersible aqueous phase comprising a food colorant. However, given the emulsion is made by homogenizing the aqueous dispersible phase and the continuous fat phase together, along with a coloring agent, one of ordinary skill in the art would expect that any water-soluble coloring agent, e.g., anthocyanin based coloring agent, would be partitioned in the dispersible aqueous phase after the emulsifying step.
Regarding claims 17-19, Ajami et al. disclose all of the claim limitations as set forth above. Ajami et al. disclose the coloring agents include (a) natural extracts (e.g., beet root extract, pomegranate fruit extract, cherry extract, carrot extract, red cabbage extract, red seaweed extract); and (b) anthocyanins ([0035]). Here, “carrot extract” is interpreted as including any type of carrot, including black and purple.
Given Ajami et al. disclose anthocyanin based coloring agents, i.e., natural extracts and anthocyanins, inherently the coloring agents are pH dependent food colorants.
Regarding claims 24 and 25, Ajami et al. disclose all of the claim limitations as set forth above. Ajami et al. disclose the emulsions have an average droplet size between about 10 and 50 µm ([0170]). 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).
Response to Arguments
Applicant's arguments filed October 24, 2025 have been fully considered but they are not persuasive.
Applicant explains “[i]n essence the amended claim 16 provides a fat-based powder product that incorporates a small amount of acidic, colored water dispersed in a solidifiable fat matrix.” Applicants submits “the claimed narrow range amended to 80-90 wt%) at the high end of Ajami’s broad range is not prima facie obvious.” Applicant submits “Ajami and claim 16 are directed to different products.” Applicant argues “Ajami’s broad range conflicts with its working examples and therefore undermines any teaching toward the high end of the disclosed range.”
Here, Ajami et al. disclose amounts of a continuous fat phase and dispersible aqueous phase overlapping the claimed ranges. Ajami et al. disclose the emulsion comprises at least about 45% by weight of lipid, water and a coloring agent ([0025], [0035], [0131], [0141]-[0142], [0185], claims 106 and 108). In preferred embodiments, Ajami et al. disclose the lipid is present in an amount ranging from about 5% to about 60% ([0237], [0282]/Example 3, Table 4); A range overlapping the amount of continuous fat phase disclosed in the present specification (page 10/L12-24).
Ajami et al. disclose those of skill in the art should, in light of the present disclosure, appreciate that many changes can be made in the specific embodiments that are disclosed and still obtain a like or similar results without departing from the spirit and scope of the inventions ([0270]). Ajami et al. clearly allows for optimization of the lipid content within its disclosed range of “at least about 45% by weight.” Ajami et al. does not disclose against an emulsion comprising lipid in amounts of 80 to 90 wt% as claimed. A reference may be relied upon for all that it would have reasonable suggested to one having ordinary skill in the art, including nonpreferred embodiments (MPEP §2123 I.).
Applicant submit “nowhere in Ajami is a product powder mentioned or formed.”
In this case, Ajami et al. disclose the emulsions can be dehydrated ([0242]). Ajami et al. disclose the emulsions can be dehydrated by spray drying, freeze drying, drying with ethanol and evaporation. Spray drying the emulsion of Ajami et al. would convert the liquid emulsion in to a powder emulsion.
Applicant submits “Ajami discloses melting point values for the emulsions as a whole”
Here, claim 16 only requires the continuous fat comprise a fat having a melting point of from 40° to 80°C. There is nothing that requires the “fat” be an individual fat versus a blend of fats.
Applicant argues there is an unexpected advantage of the high claimed fat content in the powder form product. Applicant submits the fat powder “is surprisingly very stable at this high fat content.” Applicant submits “if the fat content is too low the particles become unstable and rupture during mixing of the particles of the powder into the burger.” Applicants submit they have “tried increasing the disperse (color) phase viscosity by additives and found that a fat content of at least 80% and preferably at least 85% was needed to produce a stable powder.
Arguments presented by the applicant cannot take the place of evidence in the record. Examples of statements which are not evidence and which must be supported by an appropriate affidavit or declaration include statements of unexpected results (MPEP §716.01 (c) II).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759