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 .
DETAILED ACTION
Status of Claims
Note: The amendment of June 18th, 2025 has been considered.
Claims 1-14, 17 and 19-27 are cancelled.
Claims 15, 16 and 28-34 are pending and examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
Claims 15, 16 and 28-34 stand rejected under 35 U.S.C. 103 as being unpatentable over NPL “Maxapal-DSM” (‘DSM’) (from http://www.dsm.com/markets/foodandbeverages/en_US/products/enzymes/egg-processing/maxapal.html) and NPL “Maxapal A2” (‘Sanovoegg’) (from http://www.sanovoegg.com).
Regarding claims 15, 18 and 28-31: DSM and Sanovoegg disclose enzyme-modified liquid or powdered egg yolk that is modified with a phospholipidase A2 (Maxapal® A2) and can be used as an emulsifier to prepare mayonnaise (see DSM pages 1-4; Sanovoegg page 1). Wherein the enzyme modification provides liquid or powder egg yolk with improved heat-stability, better emulsification properties, longer shelf life and increased viscosity, compared to standard egg yolk, which allows for the removal of additional emulsifiers from foods comprising the phospholipidase modified egg yolk (see DSM pages 1-3; Sanovoegg page 1). Moreover, DSM discloses modifying egg yolk by adjusting the pH level of the egg yolk to about 8.0 prior to the enzymatic hydrolysis (i.e., addition of the phospholipidase A2 to the liquid egg yolk), and hydrolyzing the liquid egg yolk with about 1-2ml of the phospholipidase A2 per kg of egg yolk for 3-5 hours at 40°C-50°C (see DSM pages 3-4), but fail to disclose the content of free fatty acids in the enzymatically modified egg yolk; However, given the fact Applicant contemplates modifying egg yolk with the same enzyme as the phospholipidase A2 in DSM and Sanovoegg (see Specification paragraph [0031]) at the same or similar reaction parameters as in DSM (see Specification paragraphs [0016] and [0041]), and since the content of free fatty acids is typically expressed in the art as the percentage of oleic acid (see Specification, paragraph [0047], it is Examiner’s position the free fatty acid content of the enzymatically modified liquid egg yolk recited in claim 28, is inherently present in the enzymatically modified egg yolk in DSM. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 16: DSM and Sanovoegg disclose enzyme-modified liquid or powdered egg yolk that is modified with a phospholipidase A2 (Maxapal® A2) and can be used as an emulsifier to prepare mayonnaise (see DSM pages 1-4; Sanovoegg page 1), but fails to disclose the heat stability, or the dynamic viscosity of the mayonnaise prepared with the enzyme modified egg yolk recited in claim 16; However, given the fact Applicant contemplates preparing mayonnaise with an enzyme modified egg yolk modified with the same enzyme as the phospholipidase A2 in DSM and Sanovoegg (see Specification paragraph [0031]) at the same or similar reaction parameters as in DSM (see Specification paragraphs [0016] and [0041]), it is Examiner’s position the heat stability and the dynamic viscosity recited in claim 16 are inherently present in the mayonnaise prepared with the modified egg yolk in DSM and Sanovoegg. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 33: DSM and Sanovoegg disclose enzyme-modified liquid or powdered egg yolk that is modified with a phospholipidase A2 (Maxapal® A2) (see DSM page 1; Sanovoegg page 1), but fail to disclose the pH of the enzyme modified liquid egg yolk at temperatures between 49°C and 51°C; However, given the fact Applicant contemplates modifying egg yolk with the same enzyme as the phospholipidase A2 in DSM and Sanovoegg (see Specification paragraph [0031]) at the same or similar reaction parameters as in DSM (see Specification paragraphs [0016] and [0041]), it is Examiner’s position the pH of the enzyme modified liquid egg yolk at temperatures between 49°C and 51°C recited in claim 33 is inherently present in DSM. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 32: DSM and Sanovoegg disclose enzyme-modified liquid or powdered egg yolk that is modified with a phospholipidase A2 (Maxapal® A2) (see DSM page 1; Sanovoegg page 1). Wherein the enzyme modification provides a liquid egg yolk with increased viscosity, compared to standard egg yolk (see DSM pages 1-3; Sanovoegg page 1), but fails to disclose the viscosity of the enzyme modified liquid egg yolk recited in claim 32; However, given the fact Applicant contemplates modifying egg yolk with the same enzyme as the phospholipidase A2 in DSM and Sanovoegg (see Specification paragraph [0031]) at the same or similar reaction parameters as in DSM (see Specification paragraphs [0016] and [0041]), it is Examiner’s position the viscosity of the enzyme modified liquid egg yolk recited in claim 32 is inherently present in the enzyme modified liquid egg yolk in DSM. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 34: DSM and Sanovoegg disclose enzyme-modified liquid or powdered egg yolk that is modified with a phospholipidase A2 (Maxapal® A2) (see DSM page 1; Sanovoegg page 1), but fail to disclose the endothermic peak and/or the exothermic peak disclosed in claim 34; However, given the fact Applicant contemplates modifying egg yolk with the same enzyme as the phospholipidase A2 in DSM and Sanovoegg (see Specification paragraph [0031]) at the same or similar reaction parameters as in DSM (see Specification paragraphs [0016] and [0041]), it is Examiner’s position the endothermic peak and/or the exothermic peak disclosed in claim 34 are inherently present in the enzyme modified egg yolk in DSM and/or Sanovoegg. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Response to Arguments
Applicant's arguments filed on June 18th, 2025 have been fully considered but they are not persuasive.
Applicant argues on page 4 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because DSM discloses a suggestion on page 4 for egg yolk modification by treating egg yolk with Maxpal A2 enzyme for 3-5 hours at 40°C to 50°C, whereas the current specification discloses a process of treating egg yolk for 5-7.5 hours at 46°C to 52°C, which will provide a mayonnaise with different viscosity than the mayonnaise prepared with the egg yolk treated for a shorter time disclosed in DSM. The examiner respectfully disagrees.
DSM discloses on page 4 “[t]he optimum working condition for Maxapal A2 will vary depending on the given application and conditions” followed by a suggestion for modification of egg yolk with Maxapal A2 for 3-5 hours, which is shorter than the treatment time disclosed in the specification. DSM also discloses on page 3 that Maxapal A2 “converts most of the lecithin in the egg into lysolecithin, which is a more effective o/w emulsifier”. Given the fact that the extent of enzymatic treatment depends on the length of time of treatment, it would have been obvious to a skilled artisan who desires to attain more lysolecithin, to increase the enzymatic treatment time as done by applicant.
Applicant argues on pages 4-7 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because applicant had discovered that Maxapal A2 treated egg yolk provided mayonnaise with lower viscosity than mayonnaise prepared with untreated egg yolk. The examiner respectfully disagrees.
DSM discloses on page 3 that Maxapal A2 “converts most of the lecithin in the egg into lysolecithin, which is a more effective o/w emulsifier”. Given the fact that lysolecithin (i.e., the better o/w emulsifier) will stabilize smaller oil droplets in the o/w emulsion better than lecithin (i.e., the worse o/w emulsifier), the stabilized smaller oil droplets will lead to a more stable and less viscous o/w emulsion. Accordingly, the lower viscosity of mayonnaise prepared with Maxapal A2 treated egg yolk observed by Applicant is clearly expected.
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 ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792