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 .
This Office Action is in response to applicant’s submission dated February 23, 2026. Any objections and/or rejections made in the previous action and not repeated below are hereby withdrawn.
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 (i.e., changing from AIA to pre-AIA ) 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, 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 1, 3-13, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Gaud et al. (WO2008/047012A2) in view of Jeyarani et al. (Trans-free plastic shortening from coconut stearin and palm stearin blends, Food Chemistry Ed. 114) and Cain (WO 02/100183 A2).
Citations in the rejection are to Espacenet translations of WO2008/047012A2, which is provided with this application.
With respect to Claim 1, Gaud et al. teaches an animal fat substitute with good nutritional qualities that can be easily incorporated into multiple food preparations, [Pg. 2, Par. 6] such as food preparations based on meat and/or fish. [Pg. 5, Par. 3] The process of creating the animal fat comprises heating the solid palm oil, [Pg. 4, Step A] mixing the solid palm oil with another vegetable oil, [Pg. 4, Step B] cooling the fat composition while stirring, [Pg. 5, Step C] and storing the fat composition. [Pg. 5, Step D] The animal fat may also comprise additional ingredients such as coloring agents, preservatives, antioxidants, sweeteners, flavor enhancers, and more. [Pg. 2, Par. 7]
Gaud et al. is silent to the particle size of the fat composition, the use of coconut oil in the fat composition, and chopping the fat composition.
Jeyarani et al. teaches a method of blending fractionated coconut oil with palm oil in order to modify a melting profile of the fat blend, wherein the fat blend is 60-70% coconut oil. [Abstract] Jeyarani et al. teaches heating the coconut oil to about 60°C, cooling to 14°C in order to produce a solid fraction, [Pg. 271, 2.3.2] then blending with palm stearin. [Pg. 271, 2.4] Jeyarani et al. teaches that the blends comprising 60-70% coconut oil has a wider melting range desirable in plastic fats. [Pg. 273, Par. 1]
Jeyarani et al. is silent to chopping the fat under chilling conditions and the particle size of the fat composition.
Cain teaches a micronized fat continuous particle composition comprising fat and non-fat ingredients, wherein the mean diameter of the particles of 700-4000 microns, [Pg. 1, Ln. 22-25] and a method for producing said micronized fat particles. [Pg. 3, Ln. 16-17] The process taught by Cain comprises making a fat melt, making a slurry with non-fat ingredients, making flakes by cooling in a drum flaker, then subjecting the resulting composition to cryo-milling by cooling and reducing in size. [Pg. 3, Ln. 17-29] Cain teaches that fat compositions with a broad particle size distribution have a number of drawbacks in their implementation. [Pg. 1, Ln. 6-17] Additionally, Cain teaches that this method of producing a micronized fat composition works best with fats that display a melting point between 15 and 45°C, [Pg. 2, Ln. 13-15] a range which would include a solid composition at the 20°C recited. Additionally, in a specific embodiment, Cain teaches a composition wherein the micronized fat particles comprise a range of size from 1mm to 3.35mm, wherein 94.9% of the fat particles are within 1.55mm to 3.35 mm. [Pg. 37, Table 1]
Gaud et al., Jeyarani et al., and Cain exist within the same the same field of endeavor in that they all teach fat compositions and methods of preparing them. Where Gaud et al. teaches an animal fat substitute comprising a method of melting, mixing, and cooling while stirring, Jeyarani et al. teaches and mix of coconut and palm, and Cain teaches cutting the fat composition under cooling conditions by cryo-milling and sorting by and measuring particle size. One would have been motivated to use the teaching of Jeyarani et al. in order to produce a fat blend with desirable organoleptic properties, and one would have been motivated to use the teaching of Cain in order to produce a micronized fat structure with desirable particle size distribution.
The ranges of coconut oil in the teaching of Jeyarani et al. and the ranges of particle size in the teaching of Cain lie within the claimed ranges. Additionally, the method described by the combination of the teachings reads on the limitations recited in claim 1, except for “wherein the substantially uniform particulate solid fat composition is substantially compositionally uniform, or is substantially visually uniform, and/or is substantially uniform in color”.
According to MPEP 2112.01 I, “Where the claimed and prior art product are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness exists”. The method taught by the combination of Gaud et al., Jeyarani et al., and Cain teach a process that is substantially identical to the one recited and comprises a composition that is substantially identical to the fat composition recited. Therefore, the method taught by the combination of Gaud et al., Jeyarani et al., and Cain would produce a composition that reads on the limitation of “wherein the substantially uniform particulate solid fat composition is substantially compositionally uniform, or is substantially visually uniform, and/or is substantially uniform in color”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the methods taught by Jeyarani et al. and Cain to create a compositionally uniform fat composition comprising 50% or more coconut oil with a particle size distribution of at least 90% within 1.5mm to 26mm, in order to create an animal fat substitute as taught by Gaud et al., thereby rendering obvious claim 1.
With respect to Claim 3, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Cain teaches a specific embodiment of the invention wherein the particle size distribution comprises particles between 4.05mm and 5.175mm at 68.4%. [Pg. 42, Table 1] The embodiment by Cain comprised fish oil, and it was determined that the fat composition micronized according to the invention was more stable and showed less oxidation during storage. [Pg. 44, Ln. 11-16] Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have utilized the particle size distribution taught by Cain to provide a micronized fat composition as taught by Gaud et al. in view of Jeyarani et al. and Cain with greater storage stability, thereby rendering claim 3 obvious.
With respect to Claim 4, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Jeyarani et al. teaches that the blends comprising 60-70% coconut oil has a wider melting range desirable in plastic fats. [Pg. 274, Par. 5] Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the composition, to have used the teachings of Gaud et al. in view of Jeyarani et al. and Cain in order to produce the invention recited in claim 4, thereby rendering claim 4 obvious.
With respect to Claim 5-7, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Gaud et al. teaches the use of palm oil [Pg. 2, Par. 5] and that the animal fat may also comprise additional ingredients such as coloring agents, preservatives, antioxidants, sweeteners, flavor enhancers, and more. [Pg. 2, Par. 7] Therefore, Gaud et al. in view of Jeyarani et al. and Cain render obvious the claims 5-7.
With respect to Claim 8, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Jeyarani et al. teaches that the melting point of the fat composition comprising 60% coconut oil is between 41.5 +/- 0.4 and 39.5 +/- 1.3°C. [Table 1] Therefore it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the teaching of Gaud et al. in view of Jeyarani et al. and Cain to produce a fat composition that renders obvious claim 8.
With respect to Claim 9, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Gaud et al. teaches heating the fat composition to a temperature between 38 and 60°C. [Pg. 4, Step A] Therefore, Gaud et al. in view of Jeyarani et al. and Cain render obvious claim 9.
With respect to Claim 10, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Gaud et al. teaches cooling the fat composition while stirring [Pg. 5, Step C] and that the fat composition can be cooled to as low as -8°C, [Pg. 5, Step D] and Jeyarani et al. teaches cooling to 14°C in order to produce a solid fraction. [Pg. 271, 2.3.2] Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the teachings of Gaud et al. in view of Jeyarani et al. and Cain in order to produce a solid fat composition that renders obvious Claim 10.
With respect to Claim 11-13 and 27, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, Cain teaches reducing the particulate composition through the process of cryo-milling by cooling the composition with liquid nitrogen or solid carbon dioxide while cutting, specifically at a temperature between -20 to 10°C. [Pg. 3, Ln. 25-29] Cain teaches that this process allows for the production of particles of a desired size. [Pg. 3, Ln. 30-34] The cryo-miller reads on a food cutting device that is a food chopper and the temperature range taught by Cain reads on the limitation less than 10°C.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the teaching of Gaud et al. in view of Jeyarani et al. and Cain to produce a solid fat particulate composition wherein the chopping step reads on the limitations recited in claims 11-13 and 27.
With respect to Claim 32, Gaud et al. in view of Jeyarani et al. and Cain read on the limitations recited in claim 1, as detailed above. Additionally, the rejection of claim 1 teaches the limitation of a fat composition that is substantially visually uniform.
According to MPEP 2112.01 I, “Where the claimed and prior art product are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness exists”. The composition as taught by Gaud et al. in view of Jeyarani et al. and Cain teach the visually uniform fat composition recited in claim 1.
Therefore, the fat composition taught by Gaud et al. in view of Jeyarani et al. and Cain read on the limitation of the particulate fat composition wherein at least 85% of the visually inspected particles do not contain a visible discontinuity in the particle, thereby rendering obvious claim 32.
Claims 14, 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Gaud et al. (WO2008047012A2) in view of Jeyarani et al. (Trans-free plastic shortening from coconut stearin and palm stearin blends, Food Chemistry Ed. 114) and Cain (WO 02100183 A2) as applied to claim 1 above, and further view of Fellows (Food Processing Technology - Principles and Practice, Chapter 4).
With respect to Claims 14, 28, and 29, Gaud et al. in view of Jeyarani et al. and Cain teaches a process the renders obvious the process recited in claim 1 as described above. All references are silent to a food processor, an impeller blade, and a bowl chopper.
Fellows teaches a variety of techniques and instruments for size reduction in food processing. [Pg. 295, Par. 3-5] Of the equipment taught by Fellows for reducing the size of foods, include bowl choppers [Table 4.1] and a processor comprising impeller and blades. [Pg. 304, Par. 3] This reads on the limitations “a stirring impeller that comprises blades that also perform a cutting function” in claim 14, “wherein the food cutting device is a bowl chopper” in claim 28, and “wherein the food cutting device is a food processor” in claim 29.
Additionally, MPEP 2144.06 II, “In order to rely on equivalence as a rationale supporting an obviousness rejection, the equivalency must be recognized in the prior art,”. The equipment taught by Fellows for the size reduction of food products share an equivalent purpose of reduction in fat particle size as taught by Gaud et al.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the size reduction equipment taught in Fellows in the method taught by Gaud et al. in view of Jeyarani et al. and Cain, to have developed a method for creating a fat particulate composition that would have rendered obvious the claims 14, 28, and 29.
Claims 30 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Gaud et al. (WO2008047012A2) in view of Jeyarani et al. (Trans-free plastic shortening from coconut stearin and palm stearin blends, Food Chemistry Ed. 114) and Cain (WO 02100183 A2) as applied to claim 1 above, and further view of Nollet et al. (Handbook of Dairy Foods Analysis, Chapter 27).
With respect to Claim 30, Gaud et al. in view of Jeyarani et al. and Cain teaches a process the renders obvious the process recited in claim 1 as described above. All references are silent to a method of testing the visual appearance of the fat compositions produced by the process.
Nollet et al. teaches a study of the importance of color in the quality of food products. [Pg. 582, Par. 2] Nollet et al. teaches human vision is common along with an instrumental system to determine the quality of a food product, and the most popular numerical color-space system is the L*a*b*, or CIELAB, method. [Pg. 582, Par. 3] Additionally, Nollet et al. teaches that color is a criteria that can be used to determine reproducibility. [Pg. 595, Par. 2] through the coefficient represented by “ΔE”. [Pg. 584, Par. 2]
Gaud et al., Jeyarani et al., and Cain and Nollet et al. exist within the same field of endeavor in that they are all related to food production. Where Gaud et al., Jeyarani et al., and Cain teach a method of producing a particulate fat composition, Nollet et al. teaches a method for determining the quality and reproducibility of food products. It would have been obvious to one of ordinary skill in the art to desire a food product that is consistent in quality.
According to the MPEP 2144.05 II, “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”. The recitation of “wherein the Delta-E 2000 of at least eight of the ten sample are equal to or less than 1.0 from the average L*a*b* colorspace values of the ten samples” reflects the results of routine optimization with respect to the consistency of the product.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the teachings of Gaud et al., Jeyarani et al., and Cain to have produced a particulate fat composition as recited in claim 1, and the teaching of Nollet et al. to determine the quality and reproducibility of the product, thereby rendering obvious claim 30.
With respect to Claim 31, Gaud et al., Jeyarani et al., and Cain in view of Nollet et al. render obvious claim 30, as detailed above. Additionally, according to the MPEP 2144.05 II, “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”. The recitation of “wherein at least 9 of the ten samples are equal to or less than 1.0 from the average L*a*b* colorspace values of the ten samples.” reflects the results of routine optimization with respect to the consistency of the product.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the application, to have used the teachings of Gaud et al., Jeyarani et al., and Cain and Nollet et al. to have produced a fat particulate composition by the process recited in claim 1, wherein the consistency of the product is such that claim 31 would have been rendered obvious.
Response to Arguments
Applicant's arguments filed February 23, 2026 have been fully considered but they are not persuasive.
Applicant asserts on Page 5, Lines 30-31, that, “The cited art fails to teach or suggest the claim-required ‘chopping … by a food cutting device,’ and the Office Action’s equivalency theory is unsupported”. Applicant supports this assertion on Page 6, lines 26-29, that, “the Office Action asserts that ‘[t]he cryo-miller reads on a food cutting device that is a food chopper’ (OA ¶26) and characterizes Cain as reducing size ‘while cutting’ (OA ¶26). Those assertions do not identify a teaching in Cain of ‘chopping,’ do not reconcile the claim language”. Applicant concludes on Page 7, lines 1-2, that, “[the] Office Action is relying on an equivalency substitution but doesn’t cite any evidence that a PHOSITA would recognize cryomilling as equivalent to a food cutting device”.
Applicant’s assertion that it would not be reasonable to interpret the recitation “chopping…by a food cutting device” to include cutting, milling, and size reduction is restated on Page 7, Lines 13-14, “the Office Action cites no evidence that the prior art recognized a cryomiller (milling through screens) as equivalent to a food cutting device that performs chopping as recited”, lines 15-16, “the Office Action’s reliance on Fellows for other claims highlights that the cited references do not supply the claimed chopping/cutting devices”, lines 20-22, “Fellows to supply ‘bowl choppers’ and ‘processor’ equipment (OA ¶ 33). Fellows itself distinguishes cutting/chopping equipment from milling equipment as separate classes of size reduction machinery”, Page 9, lines 17-18, “the cited references do not provide such an expectation because they teach materially different feeds, equipment, and particleization regimes directed to different end products”, Page 10, line 19, “a materially different particleization step (chopping vs. cryomilling)”, multiple instances on Page 11 with respect to applicant’s assertion regarding claims 4, 5-7, 8, 9, 11 and 12, with specific attention drawn to lines 13-14, “The specification uses ‘food chopper’ and ‘bowl chopper’ to denote food cutters with cutting blades (¶¶ [0033]-[0034]), not cryo-mills”, Page 12, lines 6-7, “the claimed chilled chopping step ‘by a food cutting device’ as described in the specification”, and on Page 13, lines 9-10, “a PHOSITA would understand cryomilling as milling, not as chopping by a food cutting device”.
With respect to all assertions by applicant that the milling taught in Cain would not have been covered by the broadest reasonable interpretation of the recitation of “chopping … by a food cutting device”, applicant is directed to MPEP 2145 VI, which states, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims”. For this reason, applicant’s repeated clarification of the definition of the pertinent limitation as defined in the specification is not persuasive. Additionally, despite applicant’s assertion that milling does not belong to the same category as chopping in the instant claims, applicant admits to Fellows teaching that both are size reduction techniques.
The recitation “chopping the substantially uniform fat composition by a food cutting device”, when taken in light of the full limitation, “under chilling conditions at a temperature low enough to form a substantially uniform particulate solid fat composition”, given that the claims are process claims, and the process of Cain provides a particle size as claimed, the teaching in Cain of a cryomill reads on the limitations recited in the claim.
Additionally, in support of the equivalence in the above rejection, MPEP 2183 states, “Factors that will support a conclusion that the prior art element is an equivalent are: (A) The prior art element performs the identical function specified in the claim in substantially the same way, and produces substantially the same results as the corresponding element … (B) A person of ordinary skill in the art would have recognized the interchangeability of the element shown in the prior art for the corresponding element … (C) There are insubstantial differences between the prior art element and the corresponding element disclosed”.
The above rejection supports all three indicia that the cryomilling taught in Cain would be equivalent to the limitation recited in claim 1 in that Cain teaches reducing the size of the particles of the composition under chilling conditions and to an average size recited in the claim and the interchangeability of the means of size reduction. The disclosure of the instant specification that “[t]he use of a bowl chopper in the present process is particularly advantageous, because it efficiently cuts the solid fat composition into particles with less generation of heat and less agglomeration of particles than would result from other devices that tend to lead to particle agglomeration, such as by grinding”, [0034] supports the equivalency due to the chilled condition of grinding in Cain providing a solution to the heat and agglomeration.
For these reasons, applicant’s assertions are found to be unpersuasive.
The prior support of equivalence additionally supports the ground of rejection’s reliance on inherency, which applicant refutes in section II, Page 8. Applicant asserts, on lines 14-15, with respect to the substantially uniform properties of the composition, that, “The specification defines and quantifies these performance characteristics”, and concludes on lines 18-19, that, “These are not generic outcomes; they are measured, objective thresholds achieved by the particular melt-cool-stir-chop process disclosed”.
Applicant is directed to MPEP 2112 II, which states, “There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference”. The inherency, as supported by the equivalency above, would support that the composition taught by the combination of Gaud et al., Jeyarani et al., and Cain would possess the same properties of the instant invention, regardless of whether or not those characteristics were recognized at the time.
Additionally, the properties defined and characterized in the specification are not reflected in the claim by the recitation of substantially uniform. MPEP 2145 VI states, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims”.
For these reasons, applicant’s assertions are found to be unpersuasive.
Applicant asserts in Section III, on Pages 9 and 10, that there would have been no reasonable expectation of success, concluding on Page 10, lines 17-21, that, “the asserted combination is not a straightforward substitution with predictable results; rather, it requires rebuilding the cited methods around a materially different particleization step (chopping vs. cryomilling) and a materially different particle-size objective (coarse 1.5-26mm population vs. micronized/MWD-based distributions), without any showing that the cited art would make success likely”.
Examiner respectfully disagrees with applicant’s primary premise that the references “teach materially different feeds, equipment, and particleization regimes directed to different end product” (Pg. 9, Ln. 17-18) as all references teach fat compositions, methods for producing and using said compositions, and beneficial characteristics of the compositions taught, without presenting mutually exclusive results. Additionally, despite applicant’s multiple references to MPEP 2143, they conveniently fail to disclose the excerpt from section I, which states, “Conclusive proof of efficacy is not required to show a reasonable expectation of success” and “the expectation of success need only be reasonable, not absolute”.
For these reasons, applicant’s assertions are found to be unpersuasive.
The deficiencies asserted by applicant with respect to the dependent claims on Pages 10-13 are refuted in the above responses. With respect to applicant’s assertion on Page 14, lines 4-6, that, “Nollet nor the other cited references teaches or suggests the specific claimed protocol – ten randomly selected sample, averaging, and requiring ΔE 2000 ≤ 1.0 for at least 8/10 (Claim 30) or 9/10 (Claim 31) samples”; Examiner respectfully disagrees. The knowledge of the test claimed, and its well-known implementation in the field of study as a method of ensuring reproducibility, naturally leads to the desire within the field of the art to determine the optimum number of tests required to ensure the most consistent product for the least expense. Additionally, wherein consistency is the primary motivation, as is commonly understood to be valuable to the quality assurance testing, it would have been obvious to have the least amount of variance between sampling.
For this reason, and those enumerated above, assertions made by the applicant are found to be unpersuasive, and the rejections of claims 1, 3-14, and 27-32 are maintained.
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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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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