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 Application
Claim 1-4, 7, 9-17, 22-24 are pending and consideration.
Claims 18-19 remain withdrawn.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.
Claim(s) 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent No. 4,208,445 (COTTIER).
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As to claims 23-24, COTTIER discloses a shortening/fat comprising a stearin fraction from winterized cottonseed oil (i.e., cottonseed stearin). The fraction has an IV of 73. 2 with 49.8% palmitic acid, 11.7% oleic acid and 36.5% linoleic acid. These all fall within the claimed range (col. 7, lines 1-10). The fraction contains C16:0 (i.e., palmitic acid), C:18:1 (i.e., oleic acid), and C18:2 (i.e., linoleic acid) (col. 7, lines 1-10).
The fractions of COTTTIER “may” be interesterified (col. 2, lines 45-50). Thus, it would have been obvious to provide interesterified cottonseed op to 100% (i.e., this includes at least 35%).
Suitable oils from which the stearine fractions may be obtained include sunflower, safflower, groundnut and soyabean oils (col. 3, lines 42-46). Thus, it would have been obvious that a portion of the fat be soybean oil. Given soy oil can be added (col. 3, lines 42-46) and the oils can be interesterified (col. 2, lines 45-50), it would have been obvious to one skilled in the art to also interesterify the soy fraction.
The fraction is free of palm oil (i.e., palm oil is optional – col. 3, lines 25-28) and fully hydrogenated oils having an iodine value equal to or less than 4.
A lauric fat component can be added (col. 3, lines 45-55).
COTTIER teaches that the cottonseed fraction can be used in a shortening for icing and mixed with sugar (i.e., a carbohydrate) (col. 4, lines 45-50).
The composition may be optionally hydrogenated (col. 3, lines 40-45).
As to the transitional phrase consisting essentially of, there is no indication as to what basic and novel characteristics are excluded. For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355 ("PPG could have defined the scope of the phrase ‘consisting essentially of’ for purposes of its patent by making clear in its specification what it regarded as constituting a material change in the basic and novel characteristics of the invention.").
Claim(s) 1-2, 7, 9-11, 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent No. 4,208,445 (COTTIER) in view of United States Patent No. 6,229,033 (KNOWLTON).
As to claims 1-2, COTTIER discloses a shortening/fat comprising a stearin fraction from winterized cottonseed oil (i.e., cottonseed stearin). The fraction (i.e., a winterized fraction) has an IV of 73. 2 with 49.8% palmitic acid, 11.7% oleic acid and 36.5% linoleic acid. These all fall within the claimed range (col. 7, lines 1-10). The fraction contains C16:0 (i.e., palmitic acid), C:18:1 (i.e., oleic acid), and C18:2 (i.e., linoleic acid) (col. 7, lines 1-10). The fraction “may” be interesterified (col. 1, lines 47-50 and col. 4, lines 31-44). Thus, as interesterification is optional, it would have been obvious to provide an interesterified cottonseed fraction. The interesterified fraction contains 100% of cottonseed stearin (col. 7, lines 1-10).
The fraction is free of palm oil (i.e., palm oil is optional – col. 3, lines 25-28) and fully hydrogenated oils having an iodine value equal to or less than 4.
COTTIER is silent as to adding interesterified soybean oil in the claimed amounts.
KNOWLTON teaches a fat composition having a high stearic soy oil that makes up at least 15% of the fatty acid moieties in the oil exhibits a high oxidative stability and makes for a good fat to be used in confectionery products (col. 7, lines 50-55). It would have been obvious to vary the overall amount of KNOWLTON based on the amount of oxidative stability needed. The soy oil can be interesterified (col. 4, lines 20-55).
Thus, it would have been obvious to one skilled in the art to use the interesterified soy oil of KNOWLTON in COTTIER, as KNOWLTON teaches a fat composition having a high stearic soy oil that makes up at least 15% of the fatty acid moieties in the oil exhibits a high oxidative stability and makes for a good fat to be used in confectionery products.
As to claim 7, COTTIER discloses a shortening/fat comprising a stearin fraction from winterized cottonseed oil (i.e., cottonseed stearin). The fraction is free of additional materials such as cellulose (col. 7, lines 1-10).
As to claim 9, COTTIER discloses a shortening/fat comprising a stearin fraction from winterized cottonseed oil (i.e., cottonseed stearin). The fraction “may” be interesterified (col. 2, lines 45-50). Thus, in this regard, interesterification is optional. that it would have been obvious to include non-interesterified cottonseed oil.
As to claims 10-17, COTTIER teaches that the cottonseed fraction can be used in a shortening for icing and mixed with sugar (i.e., a carbohydrate) (col. 4, lines 45-50).
Claim(s) 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over COTTIER and KNOWLTON as applied to claim 1 above, and in further view of United States Patent Application Publication No. 2012/0070558 (HOLLANDER).
As to claims 3-4, COTTIER teaches a cottonseed stearin as established above but silent as to the type of interesterification.
HOLLANDER teaches that interesterification can be performed on shortening/fat to change the properties of the fat. The method of the interesterification is not particularly limited, and chemical interesterification using a synthetic catalyst or enzymatic interesterification using lipase as a catalyst can be used [0071]-[0072].
Thus, it would have been obvious to one skilled in the art to use chemical or enzymatic interesterification, as the prior art teaches that fats can be treated by either process.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over COTTIER and KNOWLTON as applied to claim 1 above, and further in view of United States Patent Application Publication No. 2007/0009643 (BASEETH).
COTTIER teaches a cottonseed stearin as established above but silent as to adding an emulsifier.
BASEETH teaches that emulsifier compositions can be added to fats/shortenings to improve products such as icings. The emulsifiers provide volume, texture and foam stability, and protection against syneresis in freeze-thaw cycles [0123]. The interesterified fraction contains 100% of cottonseed stearin (col. 7, lines 1-10).
It would have been obvious to one skilled in the art to add emulsifiers to a shortening/fat as the emulsifier can aid in provide volume, texture and foam stability, and protection against syneresis in freeze-thaw cycles.
Relevant Prior Art
United States Patent No. 3,099,564 (GOODING) teaches a fat comprising cottonseed stearin blended with hydrogenated soybean oil.
Response to Arguments
Applicant's arguments filed 5/11/2026 have been fully considered but they are not persuasive.
It is argued that COTTIER does not disclose all the elements recited in the present claims. In particular, it is alleged that the cited reference fails to teach or suggest a fat composition for use in a food item, the composition comprising one or more fats, wherein the one or more fats comprise a mixture of: 55 wt-% or more, by weight of the one or more fats, of interesterified cottonseed stearin comprising 20 wt% to 50 wt% of C16:0 fatty acids, 5 wt% to 25 wt% of C18:1 fatty acids, and 30 wt% to 60 wt% of C18:2 fatty acids, as proportion of total fatty acids on glycerol units, and at least 20 wt-% of interesterified soybean oil, wherein the composition is substantially free of palm oil and fully hydrogenated oils having an iodine value of equal to or less than 4.
However, the claimed invention is directed to a fat composition for use with other fats and food products. COTTIER discloses a shortening/fat comprising a stearin fraction from winterized cottonseed oil (i.e., cottonseed stearin). The fraction has an IV of 73. 2 with 49.8% palmitic acid, 11.7% oleic acid and 36.5% linoleic acid. These all fall within the claimed range (col. 7, lines 1-10). The fraction contains C16:0 (i.e., palmitic acid), C:18:1 (i.e., oleic acid), and C18:2 (i.e., linoleic acid) (col. 7, lines 1-10).
The fractions of COTTTIER “may” be interesterified (col. 2, lines 45-50). Thus, it would have been obvious to provide interesterified cottonseed up to 100% (i.e., this includes at least 35%). Additionally, suitable oils from which the stearine fractions may be obtained include sunflower, safflower, groundnut and soyabean oils (col. 3, lines 42-46). Thus, it would have been obvious that a portion of the fat be soybean oil. Given soy oil can be added (col. 3, lines 42-46) and the oils can be interesterified (col. 2, lines 45-50), it would have been obvious to one skilled in the art to also interesterify the soy fraction. COTTIER teaches that these fractions can be blended coconut and other fats (col. 3, lines 47-50), which in turn can be used in icing sugar, chocolate and other types of confectionery products (col. 4, lines 44-50).
KNOWLTON is now cited to teach at least 20 wt-% of interesterified soybean oil.
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 PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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