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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 23 October 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment or cancellation of the claims: (1) the objection to claim 5 has been withdrawn; (2) the 112(b) rejection of claims 1-5, 7-8, 15-16, and 18-23 has been withdrawn; (3) the 112(d) rejection of claim 21 has been withdrawn. However, Applicant’s amendments have introduced new issues under 35 U.S.C. § 112(b) and (d) as presented hereinbelow.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-5 and 15-16
Withdrawn claims: None
Previously canceled claims: 6, 9-14, and 17
Newly canceled claims: 7-8 and 18-23
Amended claims: 1
New claims: None
Claims currently under consideration: 1-5 and 15-16
Currently rejected claims: 1-5 and 15-16
Allowed claims: None
Information Disclosure Statement
The information disclosure statement filed 23 October 2025 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
Claim Objections
Claims 1 and 5 are objected to because of the following informalities:
In claim 1, lines 4-5, “(iv) at least one thickener is selected from” should read, “(iv) at least one thickener selected from”.
In claim 5, line 1, “…claim 1, the at least…” should read, “…claim 1, wherein the at least…”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 1-5 and 15-16 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 recites the limitation, “wherein the weight ratio of pectin to at least one thickener is about 0.75 to about 0.85”. Claim 1 also recites the limitation, “at least one thickener selected from a combination of xanthan gum and gum arabic”. The claim is indefinite because it is unclear whether the claimed ratio is the ratio of pectin to the total of xanthan gum and gum arabic, the ratio of pectin to one of xanthan gum or gum arabic, or the ratio of pectin to at least one of any thickener. For purposes of examination, “wherein the weight ratio of pectin to at least one thickener is about 0.75 to about 0.85” is construed broadly to be the ratio of pectin to one or more of any thickener. Applicant may overcome this rejection by amending the claim to specify the “at least one thickener” recited in reference to the claimed ratio.
Claims 2-5 and 15-16 are rejected due to their dependency from claim 1.
Claim 5 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
The at least one thickener in claim 1 (iv) is a combination of xanthan gum and gum arabic. Claim 5 does not further limit the at least one thickener of claim 1, nor does claim 5 include all limitations of claim 1 in that claim 5 does not include a combination of xanthan gum and gum arabic.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Wade et al. (US 4609561 A, cited on the IDS filed on 14 June 2024) in view of Baccus (US 4986994 A, cited on the IDS filed on 14 June 2024) and Whitney (Whitney, C. (2020, February 10). Non-Dairy Ice Cream Stabilizers. Modernist Pantry. https://blog.modernistpantry.com/advice/non-dairy-ice-cream-stabilizers/).
Regarding claims 1 and 5, Wade teaches a fat free, non-dairy, liquid soft serve premix – “a fruit juice mix for whipped and/or frozen applications…wherein water is used to regulate the brix level and adjust solids to proper freezing and sweetness levels…” (col. 2, lines 59-64). “The fruit juice mixture generally may be frozen and edible as such, that is either as a soft serve, hard frozen, or novelty form such as frozen on a stick” (col. 3, lines 20-30). The mixture does not contain fat or dairy products as indicated in Example 1 (col. 6, lines 34-47). The mixture in the unfrozen state is considered to be a liquid premix as indicated in Example 3 (col. 7, line 66 – col. 8, line 4). The premix comprises:
(i) about 15% to about 50% by weight at least one fruit juice concentrate, fruit puree concentrate or combination thereof – “Specific types of juices which can be utilized in the present invention include fruit juice, concentrated fruit juice, fruit puree, fruit puree concentrated…” (col. 3, lines 39-43). In Example 1, Wade discloses fruit concentrates in a total amount of 1606.77 g/gallon present in an overall formulation constituting 4174.06 g/gallon (col. 6, lines 34-47). This equates to 38.5% by weight of fruit concentrates in the liquid premix.
(iii) about 0.3% to about 1% by weight pectin – “The total amount of all stabilizers utilized is generally from about 0.05 percent to about 1.5 percent by weight based upon the weight of the entire juice mix…A more desirable range is from about 0.2 to about 1.0 percent by weight…Generally, the amount of each individual stabilizer utilized is approximately the same.” (col. 4, lines 33-42). Wade further teaches that the various individual stabilizers/thickeners are present in amounts ranging from about 0.10 percent to about 0.29 percent, and pectin is used in similar amounts (col. 4, lines 46-55). The claimed range of “about 0.3% to about 1%” overlaps the disclosed range of about 0.10% to about 0.29% due to the variance encompassed by the term “about”. In a 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).
and (v) about 50% to about 80% by weight water – In Example 1, Wade discloses water in an amount of 2539.09 g/gallon present in an overall formulation constituting 4174.06 g/gallon (col. 6, lines 34-47). This equates to 60.8% by weight of water in the liquid premix.
Wade does not specifically discuss (ii) about 0.01% to about 1% by weight at least one plant extract rich in saponins, (iv) at least one thickener selected from a combination of xanthan gum and gum arabic, or that the weight ratio of pectin to at least one thickener is about 0.75 to 0.85.
Instead, regarding the plant extract rich in saponins, Wade discloses, “Another ingredient which is utilized is vegetable protein, such as soy protein. Generally, any modified type of soy protein can be utilized. The purpose of the soy protein is to improve and control the whipability of the fruit juice mix for whipped and/or frozen applications to make it creamier. It thus enhances the overrun upon whipping of the frozen material to take up air such that a creamier, ice cream like or whipped cream type consistency is achieved. The amount of soy protein is generally from about 0.05 percent to about 0.5 percent…” (col. 4, lines 56-65). While soybeans are known to be rich in saponins, as evidenced by the instant claim 3, the protein disclosed by Wade does not necessarily comprise saponins.
However, Baccus discloses a low-calorie slush beverage (col. 1, lines 5-10) in which saponins from yucca extract and quillaia extract are used as a foaming agent (i.e., help to take up air) (col. 1, lines 57-60).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the soy protein disclosed by Wade with the yucca and quillaia extract comprising saponins as disclosed by Baccus in an amount of from about 0.05 percent to about 0.5 percent to provide the foaming/whipability aspect to the frozen fruit juice composition. First, Wade teaches that the purpose of the soy protein is to improve and control whipability, thus enhancing the overrun upon whipping of the frozen material to take up air (col. 4, lines 58-65). Since Baccus discloses that saponins from yucca extract and quillaia extract are used as a foaming agent (col. 1, lines 57-60), and foaming involves taking up air as in whipping, one of ordinary skill in the art would have recognized that the simple substitution of the saponins for the soy protein would yield the predictable result of providing air to the frozen fruit juice composition. See MPEP § 3243(I)(B).
Regarding the combination of xanthan gum and gum arabic, Wade discloses, “Examples of stabilizers which are utilized and generally preferred in the present invention include guar gum, locust bean gum, and carrageenan. In addition to these basic types of stabilizers, other types can be utilized such as various alginates which are generally made from seaweed, various cellulose gums, xanthan gum, various pectins, and the like” (col. 4, lines 21-27). Therefore, Wade discloses several thickeners including xanthan gum “and the like”, but does not disclose gum arabic specifically.
However, Whitney teaches, “The common thickeners in non-dairy ice creams are guar gum, xanthan gum, acacia gum [i.e., gum arabic], carrageenan, and locust bean gum. These ingredients are added to enhance the texture of liquid to mimic the viscosity of a rich creamy ice cream. Guar, acacia, and xanthan gum can all be added to a recipe while cold…These ingredients are all similar in that they are thickener but they all have slightly different thickening properties. Guar creates a smooth creamy texture. Xanthan gum has a slick, mouth coating effect but if used in too high of a ratio the ice cream can become chewy. Acacia gum is a low viscosity thickener and is best used for minor adjustments in texture and mouthfeel. Locust bean gum and carrageenan are thickeners/gelling agents.” (pp. 2-3, bridging ¶). Whitney further teaches, “All of these thickeners can be combined to create the perfect gelato or ice cream texture.” (Id.).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the invention of Wade with the teachings of Whitney use a combination of xanthan gum and gum arabic (i.e., acacia gum) as a thickener. First, Wade teaches that several stabilizers/thickeners are used, including xanthan gum and the like, to obtain a creamy consistency (col. 4, lines 12-32). Whitney teaches that common non-dairy ice cream thickeners, including xanthan gum and acacia gum, can be combined to create the perfect gelato or ice cream texture, and that acacia gum is used for minor adjustments in texture and mouthfeel (pp. 2-3, bridging ¶). One of ordinary skill in the art would have been motivated to add acacia gum/gum arabic to the composition of Wade to fine tune the texture and mouthfeel of the composition. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Whitney teaches that acacia gum/gum arabic is a common thickener used in non-dairy ice creams for making minor adjustments in texture and mouthfeel, and that several common thickeners can be combined to create the perfect gelato or ice cream texture. Furthermore, where Wade and Whitney both teach guar gum, xanthan gum, locust bean gum, and carrageenan, these thickeners, as well as acacia gum/gum arabic are suitable for adjusting the texture of ice cream, gelato, and soft-serve.
Regarding the weight ratio of pectin to at least one thickener, Wade teaches is about 0.75 to 0.85 – “The total amount of all stabilizers utilized is generally from about 0.05 percent to about 1.5 percent by weight based upon the weight of the entire juice mix…A more desirable range is from about 0.2 to about 1.0 percent by weight…Generally, the amount of each individual stabilizer utilized is approximately the same.” (col. 4, lines 33-42). Wade further teaches that the various individual stabilizers/thickeners are present in amounts ranging from about 0.10 percent to about 0.29 percent, and pectin is used in similar amounts (col. 4, lines 46-55). Whitney teaches that common non-dairy ice cream thickeners, including xanthan gum and acacia gum, can be combined to create the perfect gelato or ice cream texture, and that acacia gum is used for minor adjustments in texture and mouthfeel (pp. 2-3, bridging ¶). Where Wade teaches that individual stabilizers/thickeners, including pectin, xanthan gum, and the like are present in amounts ranging from about 0.10 percent to about 0.29 percent, one of ordinary skill in the art would have arrived at the claimed ratio of pectin to at least one thickener in the range of about 0.75 to about 0.85 by no more than routine experimentation within the disclosed ranges. For example, 0.29 percent pectin + 0.38 percent of other thickeners (each in amounts ranging from about 0.10 to about 0.29 percent) = a ratio of 0.75.
Claims 1 and 5 are therefore rendered obvious.
Regarding claim 2, Wade also teaches that the at least one fruit in (i) is apple, blackberry, cranberry, grape, orange, peach, pear, (col. 3, lines 45-49) and combinations thereof (col. 3, lines 30-33). Many other types of juices can be utilized, depending upon the desired end flavor (col. 3, lines50-52).
Claim 2 is therefore rendered obvious.
Regarding claim 3, Wade, Whitney, and Baccus teach the fat free, non-dairy, liquid soft-serve premix of claim 1.
Wade as modified by Baccus regarding claim 1 also teaches that the at least one plant extract rich in saponins is selected from quillaja bark (Quillaja saponaria), and yucca (Yucca schidigera) (see Baccus, col. 1, lines 57-60).
Therefore, claim 3 is rendered obvious for the same reasons and with the same expectation of success as described regarding claim 1.
Regarding claim 15, Wade also teaches that the premix further comprises one or more sweeteners – The fruit juice mix contains “on a dry basis, a fructose content of 25 to 45 percent, a glucose content of 10 to 30 percent, and no more than about 10 percent of other sweeteners of the saccharide class…” (col. 2, lines 31-41).
Claim 15 is therefore rendered obvious.
Regarding claim 16, Wade also teaches that the premix further comprises one or more flavor agents (col. 5, lines 13-15), color agents (e.g., juices or fruits providing color such as red, orange or yellow) (col. 2, line 68 – col. 3, line 1) or fruit acids (e.g., citric acid, malic acid, ascorbic acid) (col. 5, lines 25-39).
Claim 16 is therefore rendered obvious.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Wade et al. in view of Baccus and Whitney as applied to claim 1 above, and further in view of Melbourne (The Melbourne Food Ingredient Depot. (2016, February 22). Pectin a brief selection guide. Accessed on 15 April 2025 from https://web.archive.org/web/ 20160222102704/https://www.melbournefooddepot.com/buying/pectin-powders/pectin-a-brief-selection-guide./3).
Regarding claim 4, Wade, Whitney, and Baccus teach the fat free, non-dairy, liquid soft-serve premix of claim 1.
The cited prior art does not teach that the pectin is high methoxyl pectin.
However, Melbourne teaches that high methoxyl pectin is useful in the production of fruit jams, jellies, and marmalades, as well as stabilizing fruit concentrates (p. 1, ¶ 3).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the premix of Wade to include high methoxyl pectin as the pectin in the premix. First, Wade discloses the use of various pectins as suitable stabilizers in the premix (col. 4, lines 22-26), but does not discriminate between high and low methoxyl pectins. Since Melbourne teaches that high methoxyl pectins are suitable for stabilizing fruit concentrates (p. 1, ¶ 3), and the premix of wade comprises fruit concentrates (col. 1, lines 39-41), one of ordinary skill in the art would have been motivated to select a high methoxyl pectin with a reasonable expectation of success in stabilizing the fruit concentrate as indicated by Melbourne.
Claim 4 is therefore rendered obvious.
Response to Arguments
Claim Objections:
Applicant has overcome the objection to claim 5 by amendment. Accordingly, the objection has been withdrawn.
Claim Rejections – 35 U.S.C. § 112:
Applicant has overcome the previous 35 U.S.C. § 112(b) rejection of claims 1-5, 7-8, 15-16, and 18-23 based on amendment to or cancellation of the claims. Accordingly, the 35 U.S.C. § 112(b) rejection has been withdrawn.
Applicant has overcome the 35 U.S.C. § 112(d) rejection of claim 21 based on cancellation of the claim. Accordingly, the 35 U.S.C. § 112(d) rejection has been withdrawn.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 23 October 2025 have been fully considered, but they are not persuasive.
Applicant first asserted that they discovered the surprising result that premixes having a weight ratio of pectin to thickener of about 0.75 to about 00.85 provides superior overrun when the premix is formed into the product (p. 7, last ¶).
Applicant’s assertion of unexpected technical results is acknowledged. Applicant’s argument has been considered, but it is not found to be persuasive. MPEP § 2145 states, “If a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc)”, and “[r]ebuttal evidence may include evidence of ‘secondary considerations,’ such as ‘commercial success, long felt but unsolved needs, [and] failure of others.’ Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 4459, 467. See also, e.g., In re Piasecki, 745 F.2d 1468, 1473, 223 USPQ 785, 788 (Fed. Cir. 1984) (commercial success). Rebuttal evidence may also include evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art. Rebuttal evidence may consist of a showing that the claimed compound possesses unexpected properties. Dillon, 919 F.2d at 692-93, 16 USPQ2d at 1901. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997)”. However, as provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.’ Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Furthermore, “[e]vidence of unexpected results must be weighed against evidence supporting prima facie obviousness in making a final determination of the obviousness of the claimed invention. In re May, 574 F.2d 1082, 197 USPQ 601 (CCPA 1978).” See MPEP § 716.02(c)(I). “‘Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof.; In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967)”. See MPEP § 716.02(c)(II).
“Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. See MPEP § 716.02(d).
In the present case, Applicant’s evidence is not commensurate in scope with the claimed invention. The examples are not commensurate in scope with the claimed invention because it cannot be ascertained whether the alleged unexpected result occurs over the entire claimed ranges and combinations of the claimed ingredients from the examples provided, and none of the claims are directed toward the specific embodiment provided by any of the examples. The ranges of (i) about 15% to about 50% by weight at least one fruit juice concentrate, fruit puree concentrate or combination thereof; (ii) about 0.01% to about 1% by weight at least one plant extract rich in saponins, (iii) about 0.3% to about 1% by weight pectin, and (v) about 50% to about 80 by weight water, and the weight ratio of pectin to at least one thickener is at least about 0.75 to about 0.85 as recited in claim 1 are not sufficiently represented by the examples provided.
Applicant next asserted that the amount of pectin is critical (p. 8, ¶ 1). Applicant argued that a formula comprising 0.26% by weight pectin had much lower overrun than formulas comprising 0.29% pectin (Id.)
Applicant’s assertion of criticality is acknowledged. Applicant’s argument has been considered, but it is not found to be persuasive.
MPEP § 716.02(d)(II) states, “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).”
Applicant’s data in Example 2 (p. 31, Table) provides only one test outside the claimed range and 2 tests inside the claimed range. This is not deemed to be sufficient to demonstrate criticality of the claimed range. Furthermore, while it appears from the data provided that the amount of pectin can affect the %OR, it also appears that the amount of GA+Xanthan affects the %OR (Formula# 1575-066 vs. 1575-078). Therefore, it is unclear whether the lower %OR of Formula# 1575-065 is due to the lower % pectin or not. Moreoever, there is no indication of the proportion of GA and Xanthan in the GA+Xanthan mix and whether that proportion is the same across all formulas presented. Since both GA and Xanthan are known thickeners with different properties, the proportion of each is relevant. For at least these reasons, Applicant’s assertion of criticality of the amount of pectin is not sufficiently supported by evidence, and therefore is not persuasive.
Applicant next argued that Wade does not disclose the premixes or products of the amended claims for at least the reason that Wade does not disclose or suggest the feature of the thickener being a combination of xanthan gum and gum arabic (p. 8, ¶ 3). Applicant asserted that Baccus does not remedy the deficiencies of Wade (p. 8, ¶ 4). Applicant also argued that neither Wade nor Bacchus provide any guidance on the effect of overrun on the properties of a fat-free, non-dairy, soft-serve product (Id.).
Applicant’s arguments have been considered, but they are moot in view of the present rejections of the claims, which also cite Whitney, which renders obvious the combination of xanthan gum and gum arabic. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the effect of overrun on the properties of a fat-free, non-dairy, soft-serve product) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Regarding claim 4, Applicant argued that Melbourne does not remedy the deficiencies of Wade regarding the feature of the thickener which is a “combination of xanthan gum and gum arabic.” (p. 8, last ¶). Applicant also argued that neither Wade nor Bacchus provide any guidance on the effect of overrun on the properties of a fat-free, non-dairy, soft-serve product (Id.).
Applicant’s arguments have been considered, but they are moot in view of the present rejections of the claims, which also cite Whitney, which renders obvious the combination of xanthan gum and gum arabic.. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the effect of overrun on the properties of a fat-free, non-dairy, soft-serve product) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793