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 .
Information Disclosure Statement
The submitted information disclosure statements (IDS) was/were filed on 03/17/2026 and 03/20/2026. The submissions is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements is/are being considered by the examiner.
Status of Application
Applicants' arguments/remarks filed 03/30/2026 are acknowledged. Claims 1-4, 16-17 and 35 are currently amended. Claims 9-10 are newly canceled. Claims 24-28, 31-33 and 36 were previously canceled. Claim 23, 29-30 and 34 are currently withdrawn. Claim 23 is currently amended. Claims 1-8, 11-22 and 35 are examined on the merits within and are currently pending.
Withdrawn Rejections
With applicants' amendment, filed 12-17-2024:
the 35 U.S.C. § 102(a)(1) rejection of Claim 9 by Nesterenko has been withdrawn in view of the cancelation of the claim;
the 35 U.S.C. § 102(a)(1) rejection of Claims 10 by Perrier et al. has been withdrawn in view of the cancelation of the claim;
the 35 U.S.C. § 102(a)(1) rejection of Claim(s) 1-5, 8-9, 18-19 and 35 by Nesterenko has been withdrawn in view of the amendments;
the 35 U.S.C. § 102(a)(1) rejection of Claim(s) 1-5, 8-10, 18-19 and 35 by Perrier et al. has been withdrawn in view of the amendments;
the 35 U.S.C. § 103 rejection of Claim(s) 1, 10 and 11-12 has been withdrawn in view of the amendments;
the 35 U.S.C. § 103 rejection of Claim(s) 1 and 13 has been withdrawn in view of the amendments;
the 35 U.S.C. § 103 rejection of Claim(s) 1, 18 and 20-22 has been withdrawn in view of the amendments.
Modified Rejections
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-5, 8, 18-19 and 35 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nik et al. (US 20220095659 A1).
Claims 1 and 4-5,
Nik et al. teach an emulsion and encapsulation particle containing an active material and an unhydrolyzed potato protein, as an emulsifier, are provided as is a method of producing the encapsulation particle. (Abs). Potato proteins are of use as natural and functional wall materials for the encapsulation of volatile compounds. This invention provides an emulsion composed of an oil-based active material, e.g., flavor, and an emulsifier or emulsifying system including an unhydrolyzed potato protein alone or in combination with other surface-active ingredients and also provides microcapsules having a plurality of oil droplets composed of an active material to be encapsulated and a solid matrix composed of a potato protein alone or in combination with a carrier, e.g., a low molecular weight carbohydrate carrier. (0013). The core oil dispersed within the aqueous phase of the emulsion. (0003). The aqueous phase is the hydrophilic phase. Oil droplets are lipophilic phase. Potato protein on a shell/wall is a plant-based protein shell. The solubility of a protein provides functional properties such as emulsification, foaming, and gelation. (0056). Depending on the active material and application, the compositions herein (i.e., emulsions and encapsulation particles) may include additional components such as a second emulsifier and/or an antioxidant as described herein. The emulsifiers or surfactants may be anionic, cationic, amphoteric, non-ionic or neutral, which have lower HLB values will favor the water-in-oil emulsion formation. (0038). Nik et al. does not teach crosslinking in this invention.
With regard to Claims 2 and 8,
An “emulsion” refers to a mixture of two immiscible (unblendable) liquids. One liquid (the dispersed phase) is dispersed in the other (the continuous phase). An “aqueous phase” refers to a water-based composition which is substantially immiscible with the oil phase when present as the continuous component of an emulsion of the invention. (0014).
With regard to Claims 3 and 18-19,
In one embodiment, the carrier is present in an amount of 1% to 99% by weight of the encapsulation particle. In another embodiment, the carrier is inulin, maltodextrin, glycose syrup solid, maltose, sucrose, vegetable fiber, polyol or a combination thereof. In a further embodiment, the active material is selected from the group consisting of a fragrance, pro-fragrance, flavor, malodor counteractive agent, vitamin or derivative thereof, anti-inflammatory agent, fungicide, anesthetic, analgesic, antimicrobial active, anti-viral agent, anti-infectious agent, anti-acne agent, skin lightening agent, insect repellant, animal repellent, vermin repellent, emollient, skin moisturizing agent, wrinkle control agent, UV protection agent, fabric softener active, hard surface cleaning active, skin or hair conditioning agent, flame retardant, antistatic agent, taste modulator, cell, probiotic, colorant, vegetable oil, and combinations thereof. In certain embodiments, the active material is present in an amount of 0.1% to 60% by weight of the encapsulation particle. In other embodiments, the unhydrolyzed potato protein is present in an amount of 0.1% to 60% by weight of the encapsulation particle. (0007). Vitamins include any vitamin, a derivative thereof and a salt thereof. Examples include vitamin A and its analogs and derivatives (e.g., retinol, retinal, retinyl palmitate, retinoic acid, tretinoin, and iso-tretinoin, known collectively as retinoids), vitamin E (tocopherol and its derivatives), vitamin C (L-ascorbic acid and its esters and other derivatives), vitamin B3 (niacinamide and its derivatives). (0018).
With regard to Claim 35,
Flavors have been used extensively in almost all food products in the market to provide desirable sensorial experience. However, the majority of flavoring compounds are volatile and unstable under conventional food processing conditions. Encapsulation techniques can be used to overcome these issues by protecting the core flavoring compounds during manufacturing and storage. Encapsulation is a process in which an active ingredient is embedded within carrier matrices, which results in protection of core active compounds from the surrounding environment. Spray drying is the most commonly used encapsulation process in the food industry due to its continuous nature and adaptability to industrialization. (0002).
Claim(s) 1-4, 8, 20 and 35 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hu (CN 106387967 A)
Claim 1-4,
Hu teaches is to design provides a polyunsaturated fatty acid composition containing probiotic, (pg. 2nd, 4th par.), as core liquid, single or mixed solution with the protein, polysaccharide and a synthetic polymer as wall/shell material liquid (pg. 2nd, 3rd last par.).
Example 1: the concentration is 15w % of the Soybean protein solution as wall material solution, freeze-dried powder of lactobacillus delbrueckii subsp. bulgaricus added arachidonic acid, using homogeneous dispersion method, preparing probiotic bacteria concentration is 1013CFU/mL of the core liquid. Micro-capsule obtained with intact core/shell structure to Lactobacillus delbrueckii subspecies bulgaricus and arachidonic acid composition as core, taking soybean protein as shell. the composition has nobad smell of unsaturated fatty acid, normal temperature for 12 months, 90% Lactobacillus delbrueckiikeeps active, arachidonic acid is substantially not oxidized, (pg. 4, 2nd last par.), where probiotics are dispersed in the oil phase to prepare a water-in-oil emulsion (pg. 2nd, 1st par.). This microcapsule comprises a water-in-oil emulsion of a hydrophilic water phase of probiotic lactobacillus, a lipophilic phase of arachidonic acid, a fatty acid, in the core, and soybean protein as shell, and it does not comprise a cross-linking agent.
Claim Rejections - 35 USC § 103
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 non-obviousness.
Claim(s) 1-5, 8, 11-12, 18-19 and 35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nesterenko et al. (Nesterenko et al., Review. Vegetable proteins in microencapsulation: A review of recent interventions and their effectiveness. Industrial Crops and Products 42 (2013) 469– 479) in view of Joye et al. (Joye et al., Biopolymer-based nanoparticles and microparticles: Fabrication, characterization, and application. Current Opinion in Colloid & Interface Science 19, 417–427, 2014).
Claims 1-5, 8, 18, 19,
Nesterenko et al., teach microparticles from vegetable proteins, extracted from soy bean, pea, rice, oat and wheat, to be suitable shell. (Abs). Pea proteins alone or in association with polysaccharides are totally appropriate for the microencapsulation of hydrophilic (ascorbic acid/vitamin C, which is water soluble active compound), hydrophobic (α-tocopherol/vitamin E); and triglyceride/lipophilic phase), active core materials. (pg. 474, left col., 2nd par.). Microencapsulation allows the creation of a physical barrier between the core and wall materials and the protection of sensitive ingredients (polyunsaturated oils, vitamins, drugs, etc.) from the external medium, particularly, moisture, pH and oxidation. (pg. 470, left col. 1st par.). The initial liquid (solution, emulsion or suspension) containing wall and core materials almost always water. (pg. 471, left col. 4th par.). Microparticles with core and wall (shell are microcapsules).
Isolated and purified soy proteins show interesting physico-chemical and functional attributes in particular gel-forming. (pg. 471, right col., 4th par.). Wheat gluten is the cereal protein in the microencapsulation has physico-chemical characteristics, such as gel- and film-forming properties. (pg. 475, left col., 3rd par.). The structure of microparticles is generally classified
into microcapsules with a single core surrounded by a layer of wall material; microspheres with the core dispersed in a continuous matrix network and more complex structures such as multilayer microcapsules or multishell microspheres (Fig. 1). Vegetable proteins used as a wall material in microencapsulation including soy protein isolate, pea protein isolate and cereal proteins. Soybean proteins have functional properties suitable for microencapsulation, such as solubility, water and fat absorption, emulsion stabilization, gelation, foaming, plus good film-forming and organoleptic properties. (pg. 470, right col., last par.). The core is dispersed in a continuous matrix network. (pg. 470, left col., 1st par.). The active core materials contain hydrophilic, hydrophobic (α-tocopherol/vitamin E); and triglyceride/lipophilic phase, (pg. 474, left col., 2nd par.) and water. (pg. 471, left col. 4th par.).
Nesterenko et al. do not teach a microcapsule wherein hydrophilic phase and the lipophilic phase form a water-in-oil emulsion.
Joye et al. teach microparticles and nanoparticles are fabricated from food-grade biopolymers such as proteins. (Abs). Some of these proteins are plant-derived proteins like sein, pea, soy protein. (pg. 419, left col., 2nd-3rd par.). Whey protein is one of the most commonly used food ingredients for forming biopolymer particles. It can be gelled by heat-set gelation (heating above the thermal denaturation temperature under appropriate pH and ionic strength conditions) or by cold-set gelation. (pg. 418, right col., last par.). Cold-set gelation, (pg. 418, right col., 2nd par.), has been used to form hydrogel particles from heat-denatured whey protein solutions using both extrusion and phase separation methods. Whey protein particles have been produced for encapsulation of probiotics using extrusion methods. (pg. 420, left col., 1st par.). Various approaches for producing biopolymer particles include homogenization methods involving forming an emulsion by blending two immiscible liquids together using a mechanical device. One of several options of emulsions can be water-in-oil emulsions, which are formed by blending an oil phase with an aqueous phase containing water-soluble biopolymers. After producing a W/O emulsion, the biopolymers in the water droplets are prepared. A variety of methods can be used to gel the biopolymers depending on their gelation mechanism, including temperature treatments, or addition of ions, acids, bases, or cross-linking agents. (pg. 420, right col., 2nd last to last par.).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to prepare microcapsules comprising microparticles from vegetable proteins, extracted from soy bean, pea, rice, oat and wheat, to be suitable shell for the microencapsulation of hydrophilic compounds/hydrophilic phase, hydrophobic compounds/lipophilic phase in core, taught by Nesterenko et al. and Joye et al. and to have water in oil emulsion in the core, and particles can be form by temperature, or ions, acids, bases a without crosslinking agent taught by Joye et al., and the core can be a single core or multicore, taught by Nesterenko et al. since they have proven it is feasible to do so.
With regard to claims 11-12,
Nesterenko et al. teach the structure of microparticles is generally classified into microcapsules with a single core surrounded by a layer of wall material, (pg. 470, left col., 1st par.), or multishell and multicore microspheres (pg. 470, Fig. 1.d).
With regard to claim 21,
Nesterenko et al. teach microencapsulation allows the creation of a physical barrier between the core and wall materials and the protection of sensitive ingredients (flavors, antioxidants, polyunsaturated oils, vitamins, drugs, etc.) from the external medium, particularly, moisture, pH and oxidation. The structure of microparticles is generally classified into microcapsules with a single core surrounded by a layer of wall material; microspheres with the core dispersed in a continuous matrix network and more complex structures such as multilayer microcapsules or multishell microspheres (Fig. 1). Various processes may be used to produce encapsulated ingredients (pg. 470, left col., 1st par.).
With regard to claims 21-22,
Joye et al. teach physically entrapped molecules are often already present in the biopolymer solution before the particles are formed. Postproduction loading is also possible when the particles are dispersed and incubated into a solution containing the bioactive compound. (pg. 424, left col., 1st par.). The biopolymer solution is the external medium and microcapsules are formed by dispersing ingredients in the external phase.
With regard to claim 35,
Nesterenko et al., teach vegetable proteins are used as wall-forming materials in microencapsulation, reflects the present “green” trend in the pharmaceutical, cosmetics and food industries. (pg. 470, right col., 2nd par.).
Joye et al. teach some of these nanoparticles are for pharmaceutical, good industry purposes. (pg. 423, right col., last par.).
Claim(s) 1 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nesterenko et al. (Nesterenko et al., Review. Vegetable proteins in microencapsulation: A review of recent interventions and their effectiveness. Industrial Crops and Products 42 (2013) 469– 479) or Perrier et al. (US 5912016 A), in view of Joye et al. (Joye et al., Biopolymer-based nanoparticles and microparticles: Fabrication, characterization, and application. Current Opinion in Colloid & Interface Science 19, 417–427, 2014) and further in view of Cochereau et al. (Cochereau et al., Mechanism of the spontaneous formation of plant protein microcapsules in aqueous solution. Colloids and Surfaces A 562 (2019) 213–219).
The teachings of Nesterenko et al. and Joye et al. are described in claim 1 above.
Nesterenko et al. and Joye et al. do not teach the plant-based protein hydrogel shell has a thickness in the range 10 nm to 50,000 µm.
Cochereau et al. teach formation of plant protein microcapsules in aqueous solution. (Title). Heating microphase separated systems induces both dispersion of the dense protein phase and formation of permanent crosslinks between the proteins, (Abs), which to form hydrogel. When instead of heating rapidly to 60 °C the sample was heated first to 40 °C subsequently to 50 °C and only then to temperatures above 60 °C the microcapsules remained stable at high temperatures. Thus once a microcapsule was formed the bonds between the proteins in the wall were sufficiently strong to resist further heating, cooling and dilution. (pg. 217, left col., 2nd par.). The diameter of the microcapsules shown in Fig. 6b–d (7.2 ± 1.9 µm). (pg. 217, left col., 3rd par.). Depending on the conditions, the wall thickness of the microcapsules varied between about 1 µm to several µm. (pg. 217, left col., 4th par.). The microcapsules had diameters between 5 µm and 30 µm depending on protein concentration and a wall thickness of about 1 µm. (pg. 213, left col., 1st par.).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to prepare microcapsules comprising microparticles from vegetable proteins, extracted from soy bean, pea, rice, oat and wheat, to be suitable shell for the microencapsulation of hydrophilic compounds/hydrophilic phase, hydrophobic compounds/lipophilic phase in core, taught by Nesterenko et al. and Joye et al. and to have water in oil emulsion in the core, and particles can be form by temperature, or ions, acids, bases a without crosslinking agent taught by Joye et al., and the core can be a single core or multicore, taught by Nesterenko et al. and to have microcapsule wall thickness of several micrometers, taught by Cochereau et al. since they have proven it is feasible to do so.
Response to Arguments
Rejections Under 35 U.S.C. § 102
Applicant argues that Nesterenko does not disclose a plant-based protein hydrogel shell as claimed. A hydrogel is a distinct material structure characterized by a water-swollen polymer network with gel-like mechanical properties, whereas Nesterenko describes protein "wall materials," "matrices," or coacervates without identifying or requiring formation of a hydrogel network. The Office states that Nesterenko discloses that "[w]heat gluten is the cereal protein in the microencapsulation has physico-chemical characteristics, such as gel- and film-forming properties. (pg. 475, left col., 3rd par.)." Office Action at 3. However, this teaching does not anticipate the claimed plant-based protein hydrogel shell. The mere ability of a protein to gel under certain conditions is not equivalent to forming a hydrogel shell structure encapsulating an emulsion, as not all gels are hydrogels. Therefore, Nesterenko does not anticipate the present claims.
Applicant's arguments have been fully considered but they are not persuasive because Nesterenko teach microparticles with core and wall (shell are microcapsules). Isolated and purified soy proteins show interesting physico-chemical and functional attributes in particular gel-forming and soybean proteins have functional properties suitable for microencapsulation, such as gelation, and hydrogel is a special type of gel, so Nesterenko teach gel, which covers the option of hydrogel. Also, this modified office action has included Joye’s teachings in the 103 rejection that “It can be gelled by heat-set gelation (heating above the thermal denaturation temperature under appropriate pH and ionic strength conditions) or by cold-set gelation. (pg. 418, right col., last par.). Cold-set gelation, (pg. 418, right col., 2nd par.), has been used to form hydrogel particles from heat-denatured whey protein solution”, which added hydrogel the specific option of gel.
Applicant argues that Applicant amends claim 1 to recite, in part, the hydrophilic phase and the lipophilic phase are encapsulated by the plant-based protein hydrogel shell, and wherein the hydrophilic phase and the lipophilic phase form a water-in-oil emulsion. Applicant submits that Nesterenko does not disclose at least these limitations.
Applicant's arguments have been fully considered but they are persuasive according to the previous office action. However, this office action is modified with Joye’s teachings in the 103 rejection of claim 1 and also new 102 rejection of claim 1 is also added above. Please see the modified rejection above.
Applicant argues that Claims 1-5, 8-10, 18-19 and 35 are rejected under 35 U.S.C. § 102(a)(l) as being anticipated by Perrier (US 5912016 A). Applicant traverses the rejection. Without conceding to the rejection and solely to expedite prosecution, Applicant amends claim 1 to recite, in part, that the plant-based protein hydrogel shell does not comprise a crosslinking agent. Applicant submits that Perrier does not disclose at least this limitation. Perrier discloses particles comprising "a wall formed of plant proteins crosslinked particularly by means of interfacial crosslinking between the plant proteins and an acylating polyfunctional crosslinking agent." Perrier at Abstract. Each embodiment described in Perrier requires crosslinking of the plant proteins. Therefore, Perrier does not disclose each and every limitation of the present claims as required for a 35 U.S.C. § 102 rejection. Applicant respectfully requests withdrawal of the rejections.
Applicant's arguments have been fully considered but they are persuasive according to previous office action, so this new office action is modified that prior art Perrier is removed. Please see new rejections above.
Rejections Under 35 U.S.C. § 103
Applicant argues that As described above, Perrier requires particles compnsmg crosslinked plant proteins. Perrier at Abstract. Further, there is no motivation to remove the crosslinking from Perrier as Perrier attributes unexpected beneficial results to the crosslinking. Perrier at 2:41-58. One would not look to Perrier when making a microcapsule shell where the plant-based protein is not crosslinked, as in the present claims. Particularly, as described in the present disclosure,
crosslinking agents are specifically avoided to prevent the presence of harmful unreacted crosslinking agents in the final product. Published Application (US 2023/0338298Al) at [0003].
As described above, Nesterenko does not describe a hydrogel or a water-in-oil emulsion.
Therefore, one would not look to Nesterenko when forming the microcapsules of the present
claims. Cochereau does not rectify the deficiencies of either Perrier or Nesterenko. Cochereau
relates to pea protein microcapsules, however, Cochereau does not discuss hydrogels or water-in-oil emulsions. Therefore, Perrier, Nesterenko, and Cochereau, alone or combined, do not teach or
suggest the microcapsules of the present claims. Applicant respectfully requests withdrawal of the rejections.
Applicant's arguments have been fully considered but they are persuasive according to previous office action, however this office action is modified, that prior art Perrier is removed and new prior art is added. Please see new rejection above.
Conclusion
Applicants' 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 extension fee 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 date of this final action.
Correspondence
Claims 1-5, 8-13, 18-22 and 35 are not allowed. Claims 6-7 and 14-17 are not rejected by prior art(s), but they are dependent on rejected claim 1, so they are not cured to be rejected also.
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/NGOC-ANH THI NGUYEN/Examiner, Art Unit 1615
/Robert A Wax/Supervisory Patent Examiner, Art Unit 1615
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