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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/6/2026 has been entered.
Claims 1-20 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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 1-20 are 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.
Claims 1 and 18 recites the limitation of “a flavor of the flavored oil and fat is extracted from a seasoning liquid…using plant oil and fat”. It is unclear if the limitation is intended to mean that (1) the flavor of the flavored oil and fat is extract from the mixed and emulsified mixture, or if (2) the flavored oil and fat is flavored through a process which comprises extraction from a seasoning liquid.
Additionally, with a view towards compact prosecution, Examiner requests that Applicant provide specific examples or additional method details regarding the flavored oil and fat. Examiner notes that the instant Claim requires that “a flavor of the flavored oil and fat is extracted from a seasoning liquid…using plant oil and fat”. Any flavored oil, wherein the flavor is derived from a process comprising plant oil and the seasoning liquid, would therefore meet the limitations of the Claim.
Claims 2-17, 19, and 29 depend from independent Claim 1 and are therefore also rejected.
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.
Claims 1, 3, 5-7, 9, 11, 17, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Mulder (US 2010/0330228 A1) in view of Fenske (US 2003/0035879).
Regarding Claim 1, Mulder teaches a soup (Abstract) comprising cream and oils/fats [0020]. The soup is emulsified [0042]. Mulder teaches that the soup comprises 3-40% of added fat on a dry basis [0029], which overlaps the claimed range. Mulder teaches that the soup may comprise additional fat, in the form of e.g. cream [0020]. Note that Mulder teaches that the additional fat is not included in the “added fat”. Mulder teaches that the amount of additional fat (e.g. cream) may be added in a 1:1 ratio to the added fat [0020]. Mulder therefore additionally teaches 3-40% of cream, on a dry basis.
Mulder teaches the addition of flavors [0034] but does not specifically teach that the oil and fat are flavored. However, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Regarding the limitation of animal-based raw materials, Mulder teaches an iteration of the soup comprising 3.5% animal-derived ingredients on a dry basis (butter and skimmed milk powder), which lies within the claimed range [0056].
Regarding the limitation that a “a flavor of the flavored oil and fat is extracted from a seasoning liquid containing an amino acid, sugars, and a lipid by using plant oil and fat”, note that the “flavored oil” limitation is directed towards a flavored oil product produced via an extraction step, and is therefore considered a product-by-process limitation. If the product produced by the process is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP 2133 I. A product comprising the “flavored oil and fat” of the claim is indistinguishable from a product utilizing any flavored oil and fat used in the claimed method. The limitation is therefore unpatentable over the prior art of Mulder, which teaches the use of flavors and oils/fats in a soup composition.
Mulder does not teach a plant milk cream.
Fenske teaches a soybean-based substitute for cream [0012]. Fenske teaches that the cream product can be used as a dairy substitute in food [0046].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the soy cream as a dairy substitute. One would have been motivated to make such a modification since Fenske teaches that the soy-based cream is appropriate as a dairy substitute in foods.
Regarding Claim 3, Mulder teaches that the protein is 0.5-10 wt% protein [0018], which overlaps the claimed range. Mulder teaches at least 60% water [0024]. Mulder therefore teaches 1.25-25% protein on a dry basis, which lies within the claimed range.
Regarding Claim 5, Fenske teaches a soybean-based substitute for cream [0012].
Regarding Claims 6, 7, 9, and 11, Mulder teaches 1-10% carbohydrates, including fibers [0025-0026], which overlaps the claimed range.
Regarding Claim 17, Mulder teaches that the soup may be blended with water [0029], which meets the limitation of “blending, as a raw material”.
Regarding Claims 18 and 20, Mulder teaches a soup that is emulsified [0042], contains oil/fats [0020], and contains a majority water (that is, greater than 60% [0024]). Mulder is therefore interpreted to teach an “oil in water emulsion”, as claimed. Additionally, note that any soup that is prepared can be broadly interpreted to contain a “soup base”. Since Mulder teaches, e.g. a process for producing a soup which comprises preparing an ingredient mixture followed by multiple process steps (Page 4, Claim 16), the soup of Mulder is interpreted to be a soup containing a “soup base”.
Mulder teaches that the soup comprises 3-40% of added fat on a dry basis [0029], which overlaps the claimed range. Mulder teaches that the soup may comprise additional fat, in the form of e.g. cream [0020]. Note that Mulder teaches that the additional fat is not included in the “added fat”. Mulder teaches that the amount of additional fat (e.g. cream) may be added in a 1:1 ratio to the added fat [0020]. Mulder therefore additionally teaches 3-40% of cream, on a dry basis.
Mulder teaches the addition of flavors [0034] but does not specifically teach that the oil and fat are flavored. However, selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Regarding the limitation that a “a flavor of the flavored oil and fat is extracted from a seasoning liquid containing an amino acid, sugars, and a lipid by using plant oil and fat”, note that the “flavored oil” limitation is directed towards a flavored oil product produced via an extraction step, and is therefore considered a product-by-process limitation. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP 2133 I. A product comprising the “flavored oil and fat” of the claim is indistinguishable from a product utilizing any flavored oil and fat used in the claimed method. The limitation is therefore unpatentable over the prior art of Mulder, which teaches the use of flavors and oils/fats in a soup composition.
Regarding the limitation of animal-based raw materials, Mulder teaches an iteration of the soup comprising 3.5% animal-derived ingredients on a dry basis (butter and skimmed milk powder), which lies within the claimed range [0056].
Mulder does not teach a plant milk cream.
Fenske teaches a soybean-based substitute for cream [0012]. Fenske teaches that the cream product can be used as a dairy substitute in food [0046].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize the cream substitute of Fenske in a food product, including in soup. One would have been motivated to make such a modification since Fenske teaches that the soy-based cream product can be used as a dairy substitute.
Claims 2, 4, 8, 10, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Mulder in view of Fenske as applied to Claims 1 and 18, above, and further in view of tastefullyvegetarian.com (https://www.yeastextract.info/2018/08/29/tastefully-vegetarian-food-cultures-and-their-seasonings/, August 2018)
Regarding Claim 2, modified Mulder teaches the soup as discussed in regards to Claim 1 and teaches the addition of flavors [0034] but does not specifically discuss the addition of yeast extract.
Tastefullyvegetarian.com teaches that yeast extract adds a “savoury, tasty, and meaty flavour” to foods (Page 1, Paragraph 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 in a savoury food. One would have been motivated to make such a modification to impart a savoury and tasty flavor to the food.
Regarding Claim 4, Mulder teaches that the protein is 0.5-10 wt% protein [0018], which overlaps the claimed range. Mulder teaches at least 60% water [0024]. Mulder therefore teaches 1.25-25% protein on a dry basis, which lies within the claimed range.
Regarding Claim 8 and 10, Mulder teaches 1-10% carbohydrates [0026], including fibers [0025, lines 7-13], which overlaps the claimed range.
Regarding Claim 19, modified Mulder teaches the soup as discussed in regards to Claim 18 and teaches the addition of flavors [0034] but does not specifically discuss the addition of yeast extract.
Tastefullyvegetarian.com teaches that yeast extract adds a “savoury, tasty, and meaty flavour” to foods (Page 1, Paragraph 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 in a savoury food such as soup. One would have been motivated to make such a modification to impart a savoury and tasty flavor to the food.
Claims 12, 14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Mulder in view of Fenske as applied to Claims 1, 3, and 5, above, and further in view of Bourne (“EFFECT OF SODIUM ALKALIS AND SALTS ON pH AND FLAVOR OF SOYMILK”, DOI: 10.1111/j.1365-2621.1976.tb01101.x)
Regarding Claims 12, 14, and 16, modified Mulder teaches a soup with soy cream as discussed above in regards to Claims 1, 3 and 5, but does not discuss the pH of the soy cream.
Bourne teaches that adjusting the pH of soy milk to 7.0-7.5, which overlaps the claimed range, improves the flavor of soymilk compared to untreated soy milk (Abstract and Page 64, Column 2, Paragraph 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the pH of the soy milk of Fenske to the pH as claimed. One would have been motivated to make such a modification since Bourne teaches that such a pH improves the flavor of the soy milk.
Claims 13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Mulder in view of Fenske and tastefullyvegetarian.com (https://www.yeastextract.info/2018/08/29/tastefully-vegetarian-food-cultures-and-their-seasonings/) as applied to Claims 2 and 4, above, and further in view of Bourne (“EFFECT OF SODIUM ALKALIS AND SALTS ON pH AND FLAVOR OF SOYMILK”, DOI: 10.1111/j.1365-2621.1976.tb01101.x)
Regarding Claims 13 and 15, modified Mulder teaches a soup with soy cream as discussed above in regards to Claims 2 and 4, but does not discuss the pH of the soy cream.
Bourne teaches that adjusting the pH of soy milk to 7.0-7.5, which overlaps the claimed range, improves the flavor of soymilk compared to untreated soy milk (Abstract and Page 64, Column 2, Paragraph 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the pH of the soy milk of Fenske to the pH as claimed. One would have been motivated to make such a modification since Bourne teaches that such a pH improves the flavor of the soy milk.
Response to Arguments
Applicant’s arguments filed 2/26/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that the “flavored oil and fat” of the amended Claim are extracted from a seasoning liquid containing amino acid, sugars, and a lipid” and therefore cannot be compared to the conjugated linoleic acid of Mulder, which comprises the “added fat”.
This argument is not convincing. First, note that the rejection has been amended to address the amended Claims. Second, note that the “further fat” of Mulder (i.e. fat B of [0020]) is sufficient to provide for both the oil/fat and cream of the claim. Mulder teaches, e.g. <0.5-20% of “added fat” (conjugated linoleic acid) [0017] and a ratio of 1:10 of Fat A to Fat B (Page 2, Line 1). Mulder therefore teaches, e.g. 6% conjugated linoleic acid and 60% “further fat”, which may include a mixture of cream and palm oil [0020], which meets the composition limitations of the Claim. Additionally, where Mulder teaches the addition of flavors [0034], and where selection of any order of mixing ingredients is prima facie obvious (See MPEP 2144.04 IV C), it would be obvious to combine a flavor with the oil/fat of Mulder to provide a flavored oil and fat as claimed.
Conclusion
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791