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 .
The amendment filed 8/20/2025 has been entered. Claims 1-22 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Claim Objections
Claim 22 is objected to because of the following informalities: Claim 22 recites the limitation of “preparing the processed with the roux” and should properly read “preparing the processed food with the roux”. Appropriate correction is required.
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 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, 7-9, and 11-22 are rejected under 35 U.S.C. 103 as being unpatentable over Uehara (JP 2012217408 A, reference is made to the provided machine translation), taken with evidentiary reference of Terry Laboratories (https://www.ulprospector.com/en/na/PersonalCare/Detail/106783/224051/Shea-Butter).
Regarding Claim 1 and 7, Uehara teaches an oil and fat composition for roux (Abstract). The composition comprises up to 49.99% of an edible oil and fat such as shea fat (Page 3, Paragraph 15). Note that Uehara teaches .01-10% by mass of roasted rapeseed oil, and 50-99.99% mass of palm oil/fat, with the balance comprised of other edible oils and fats. Uehara therefore teaches up to (100-50-.01)% of other edible oils and fats.
The disclosed composition is so close in value to the claimed composition that there is an expectation is will provide an identical product. No material difference is expected between a composition comprising 50% shea fat, as claimed, and 49.99% of shea fat as taught by Uehara. The Applicant’s claimed range is thus obvious over the prior art range. Note that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 I.
It would have been obvious to have utilized shea fat in the composition of Uehara, since Uehara specifically discloses shea fat for inclusion in oil and fat compositions for roux.
Shea fat (which is the same as shea butter) has an iodine value of 40-70 (see evidentiary reference of Terry Laboratories, Page 1, “Documents”).
It additionally would have been obvious to have utilized shea fat with the iodine value, as claimed, since shea fat is known to have iodine values that overlap with the claimed range.
Note that the limitation “for roux” in line 1 is directed towards an intended use. Since the stated intended use does not result in structural differences between the claimed invention and the product of the prior art, and because Applicant has not differentiated between the shea fat of the instant Claim, intended for roux, from any other shea fat, the stated intended use does not further limit the claim. See MPEP 2111.02 II.
Regarding Claims 2, 3, 8, and 9, Uehara teaches the addition of rice bran oil (Page 3, Paragraph 15). Since the addition of an oil provides the flavor of the oil, the teaching of Uehara is considered to meet the limitation of “flavored with rice bran”.
Regarding Claim 11 and 12, Uehara teaches that the composition additionally comprises spices (Page 1, Claim 3) and wheat flour, which is a cereal flour (Page 3, second to last paragraph).
Regarding Claims 13 and 14, Uehara teaches that the composition is for use in curry (Page 1, Description, Paragraph 1).
Regarding Claims 15-18, Uehara teaches that the composition can be used in a processed food (Page 4, Paragraph 6).
Regarding Claims 19-22, Uehara teaches that the composition imparts a “good flavor and richness” to a food (Abstract), which is interpreted to meet the limitation of a “full-bodied taste”. Uehara additionally teaches that the composition is used in a processed food (Page 4, Paragraph 6), which is the same as preparing a processed food with the roux.
Claims 4-6 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Uehara, taken with evidentiary reference of Terry Laboratories as applied to Claim 1, above, and further in view of yeastextract.info (https://www.yeastextract.info/2018/08/29/tastefully-vegetarian-food-cultures-and-their-seasonings/)
Regarding Claims 4-6 and 10, Uehara teaches the addition of sugar and seasonings (Page 3, second to last paragraph) in a roux intended for curry (Abstract and Description, Paragraph 1) but does not specifically discuss the addition of yeast extract as a seasoning.
Yeastextract.info teaches that yeast extract lends an “extremely savoury, tasty, and meaty” flavor to curry (Page 1, Paragraphs 3-4).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize yeast extract as the seasoning in the composition of Uehara. One would have been motivated to make such a modification since yeastextract.info teaches that yeast extract adds a desirable flavor to curry.
Uehara additionally does not teach the specific amounts of sugar or yeast extract. However, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding the limitation that the oil and fat composition contains an “aqueous phase”, given that modified Uehara teaches the addition of yeast and sugar, as discussed above, the oil and fat composition of Uehara is interpreted to contain an aqueous phase as claimed.
Response to Arguments
Applicant’s arguments filed 8/20/2025 with respect to Claim(s) 1-22 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues (Page 7) that Uehara fails to teach or suggest using shea fat as the main component of the fat composition, and that the primary technical solution of Uehara is a mixture of roasted rapeseed oil and palm fat. Applicant additionally argues that one having ordinary skill would have no reason to elevate a minor component (i.e. shea fat) to a major component, since this would deviate from the essential features of Uehara.
This argument is not convincing. Where Uehara teaches the inclusion of shea fat, and additionally teaches an oi/fat composition which comprises up to the amount of shea fat claimed, it would have been obvious to one of ordinary skill to include a shea fat in an oil/fat composition intended for roux in the amounts claimed. See above in regards to Claim 1.
Applicant additionally argues that the claims are directed towards a specific content of shea fat, which provides a full-bodied taste as described in the Specification.
This argument is not convincing. Applicant has not demonstrated the criticality of the claimed range. The comparative examples of the instant Specification (e.g. Page 14) provide a comparison to other fats, but do not provide a comparison to e.g., shea fat amounts that lie outside the claimed range.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ueda (US 7897160) – Teaches the use of a shea butter in a composition for roux, which may be up to 99.9% shea butter (Example 1)
Sato (JP 2001029050AA) – Teaches the use of an oil and fat composition for roux comprising 1-50% of an aqueous phase (Abstract)
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 DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791