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 .
Claim status
Claims 1-16 are currently pending. Claims 11-16 are withdrawn from consideration.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With regard to Claim 1, the claim states the composition comprises 0.3 to 1.75% of an alginate salt, and 0.7 to 5% of a hydrocolloid selected from the group consisting of locust bean gum, xanthan gum, guar gum and glucomannan, or 5 to 8% of a hydrocolloid that is an alginate salt. The two ranges of alginate salt presented renders the claim indefinite because it is unclear what amount of alginate salt is present in the final composition. One with ordinary skill in the art would not reasonably be able to create the product as claimed with the two ranges presented in the instant claim.
Claims 2-10 are rejected on the basis of depending from a rejected claim above.
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, 3-4, 6, and 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Popp et al. (herein referred to as Popp, US 20130280405 A1).
With regard to Claim 1, Popp teaches a composition comprising water in an amount of from 20 wt % to 91.5 wt % ([0020]), oil in an amount of less than 30 wt % ([0090]), and high mannuronate alginate (i.e., alginate salt) in an amount higher than 0.1 wt % ([0067]-[0069]). Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be xanthan gum ([0096]-[0099], [0104]). Popp teaches the composition comprises magnesium ions in an amount higher than 0.25 wt % ([0066]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. The weight percentages taught by Popp are expressed by mass relative to the total mass of the composition ([0016], [0063] Whole document). The composition taught by Popp does not comprise cellulose ether (whole document).
With regard to Claim 3, Popp teaches a composition, in gel form, comprising water in an amount of from 20 wt % to 91.5 wt % (Title, [0020]) and oil in an amount of less than 30 wt % ([0090]). Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be xanthan gum ([0096]-[0099], [0104]). Popp teaches the composition comprises magnesium ions in an amount higher than 0.25 wt % ([0066]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. The weight percentages taught by Popp are expressed by mass relative to the total mass of the composition ([0016], [0063] Whole document).
With regard to Claim 4, Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be xanthan gum ([0096]-[0099], [0104]).
With regard to Claim 6, Popp teaches a composition comprising water in an amount of from 20 wt % to 91.5 wt % ([0020]), oil in an amount of less than 30 wt % ([0090]), and high mannuronate alginate (i.e., alginate salt) in an amount higher than 0.1 wt % ([0067]-[0069]). Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be glucomannan ([0096]-[0099], [0104]). Popp teaches the composition comprises magnesium ions in an amount higher than 0.25 wt % ([0066]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. The weight percentages taught by Popp are expressed by mass relative to the total mass of the composition ([0016], [0063] Whole document).
With regard to Claim 8, Popp teaches a composition, in gel form, comprising water in an amount of from 20 wt % to 91.5 wt % (title, [0020]) and oil in an amount of less than 30 wt % ([0090]). Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be glucomannan ([0096]-[0099], [0104]). Popp teaches the composition comprises magnesium ions in an amount higher than 0.25 wt % ([0066]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. The weight percentages taught by Popp are expressed by mass relative to the total mass of the composition ([0016], [0063] Whole document).
With regard to Claim 9, Popp teaches the composition comprises a relatively low amount of non-gelatinised starch. Higher amounts of starch result in complications like high viscosity during production of the semi-solid food concentrate, less formulation flexibility, an opaque appearance of the product and/or a starchy taste in the ready-to-eat end product. Therefore, preferably, the semi-solid food concentrate comprises less than 30 wt % of non-gelatinised starch ([0089]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions
Claims 2 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Popp (herein US 20130280405 A1) in view of Vanacker (EP 0812545 A1)
With regard to Claim 2, Popp teaches a composition, in liquid form, comprising water in an amount of from 20 wt % to 91.5 wt % ([0002], [0020]) and oil in an amount of less than 30 wt % ([0090]) Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be xanthan gum ([0096]-[0099], [0104]). Popp teaches the composition comprises magnesium ions in an amount higher than 0.25 wt % ([0066]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. The weight percentages taught by Popp are expressed by mass relative to the total mass of the composition ([0016], [0063] Whole document).
Popp teaches the composition comprises high mannuronate alginate in an amount higher than 0.1 wt % ([0067]-[0069]) but is silent to the alginate being a monovalent salt.
Vanacker teaches a food product for human or animal consumption (page 2 line 1) which comprises a hydrocolloid between 0.1 and 3% by weight (page 2 line 18) Vanacker teaches the hydrocolloid allows a control of the density of the product, further can decrease or increase the water absorption and gives to the naked eye a uniform visual appearance (page 2 lines 20-25). Vanacker teaches the hydrocolloid can be selected from a group including sodium alginate (page 2 lines 52-58).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Popp in view of Vanacker to include sodium alginate in an amount of 0.1 and 3% by weight to control the density of the product, decrease or increase the water absorption, and give a uniform visual appearance.
With regard to Claim 7, Popp teaches a composition, in liquid form, comprising water in an amount of from 20 wt % to 91.5 wt % ([0002], [0020]) and oil in an amount of less than 30 wt % ([0090 Popp teaches the composition comprises a structuring material (i.e., hydrocolloid) in an amount of 0.1 to 30 wt % wherein the structuring material can be glucomannan ([0096]-[0099], [0104]). Popp teaches the composition comprises magnesium ions in an amount higher than 0.25 wt % ([0066]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. The weight percentages taught by Popp are expressed by mass relative to the total mass of the composition ([0016], [0063] Whole document).
Popp teaches the composition comprises high mannuronate alginate in an amount higher than 0.1 wt % ([0067]-[0069]) but is silent to the alginate being a monovalent salt.
Vanacker teaches a food product for human or animal consumption (page 2 line 1) which comprises a hydrocolloid between 0.1 and 3% by weight (page 2 line 18) Vanacker teaches the hydrocolloid allows a control of the density of the product, further can decrease or increase the water absorption and gives to the naked eye a uniform visual appearance (page 2 lines 20-25). Vanacker teaches the hydrocolloid can be selected from a group including sodium alginate (page 2 lines 52-58).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Popp in view of Vanacker to include sodium alginate in an amount of 0.1 and 3% by weight to control the density of the product, decrease or increase the water absorption, and give a uniform visual appearance.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Popp (herein US 20130280405 A1) in view of Groven et al. (herein referred to as Groven, WO 2005051095 A2).
With regard to Claim 5, Popp teaches the composition comprises high mannuronate alginate in an amount higher than 0.1 wt % ([0067]-[0069]) but is silent to the hydrocolloid being an alginate salt at a content of 5 to 8%.
Groven teaches a method for stabilizing a food product (abstract). Groven teaches preferred stabilizer in the use according to the present invention is selected from the group consisting of alginate, xanthan, guar, pectin, carboxy methyl cellulose, carrageenan, starch, LBG and combinations thereof (page 2 paragraph 5). Groven teaches uses a premixed blend of the stabilizer and emulsifier which contains 5 to 30% alginate (page 8, paragraph 4). Groven teaches The stabilizers and emulsifiers are used in proportions which are necessary in the product in question in order to provide cold prepared heat stable meat product (page 8 paragraph 3) Groven teaches the alginate as a stabilizer provides heat stability to the product (page 4, paragraph 4).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Popp in view of Groven to use alginate as a stabilizer in an amount necessary to achieve the desired heat stability because alginate is an advantageous hydrocolloid stabilizer that provides heat stability.
It is also important to note that Groven teaches Xanthan and Alginate can be used interchangeably (claim 5, page 3 paragraph 1). Therefore, it would have be obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Popp in view of Groven to substitute xanthan for alginate because they are known to be equivalent hydrocolloid stabilizers. See MPEP 2144.06(I) "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art."
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Popp (US 20130280405 A1) in view of Morgan et al (herein referred to as Morgan, US 20030044503 A1).
With regard to Claim 10, Popp is silent to the composition comprising sugars.
Morgan teaches a gel-based products that can be used to enhance the flavor and/or texture of consumable food items ([0001]). Morgan teaches the composition comprises 0.1-60% (w/w) of at least one flavoring component selected from the group which includes sugars ([0015], [0033]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Popp in view of Morgan to include sugar from 0.1-60% (w/w) to achieve the enhance flavor profile of the product.
Response to Arguments
Applicant's arguments filed 23 October 2025 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to claim(s) 1-10 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.
Applicant amended Claim 1 to recite “wherein said composition does not comprise cellulose ether”. The examiner notes that Yun does require the use of a cellulose ether. Thus the rejection was changed as necessitated by the amendment. Claim 1 is now rejection in view of Popp (US 20130280405 A1) which teaches the claimed limitations of Claim 1 and does not comprise cellulose ether.
Any further arguments regarding Yun are moot in light of the new grounds of rejection.
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 KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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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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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792