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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-13 in the reply filed on October 6, 2025 is acknowledged.
Although claim 14 has been amended to include “the method of preparing the composition of claim 1”, a restriction between Groups I and II is still required. The inventive groups and shared technical feature remain the same. The shared technical feature of the composition of claim 1 is not a special technical feature for the reasons stated below in the 35 USC 103 rejection of claim 1.
Claims 14-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on October 6, 2025.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-16
Withdrawn claims:
14-16
Previously canceled claims:
None
Newly canceled claims:
None
Amended claims:
14
New claims:
None
Claims currently under consideration:
1-13
Currently rejected claims:
1-13
Allowed claims:
None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Specification
The disclosure is objected to because of the following informalities: Tables 2, 3, 4, 6, and 7 are cut off by the edges of the paper.
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 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.
Claims 1, 6-10, 12 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bourke (WO 98/34499).
Regarding claim 1, Bourke teaches food products comprising a gelled aqueous phase (Abstract) comprising vegetable fat (p. 9, line 15) and a gelling agent mixture comprising agar and guar gum (p. 9, line 24, p. 10, lines 1-2). Although Bourke does not teach that the vegetable fat is a vegetable cream, Bourke does teach that the composition comprises Hymono 8903, an emulsifier (p. 9, line 16, 27). The present of an emulsifier with vegetable fat will necessarily form a vegetable cream. Evidence to support that vegetable fat mixed with an emulsifier forms a vegetable cream is provided by the instant specification ([0013]).
Regarding claim 6, Bourke teaches wherein the gelling agent further comprises locust bean gum (p. 10, lines 1-2).
Regarding claim 7, Bourke teaches that the locust bean gum is present in an amount of 18% of the gelling agent (p. 10, lines 1-2), which equates to 0.108% of the total food composition, which falls within the claimed range of “0.1 to 0.5 wt%”.
Regarding claim 8, Bourke also teaches the composition comprising lactic acid (i.e., an acidulant), salt (i.e., a flavoring), a colorant, and lecithin (i.e., an antioxidant) (p. 9, Example 3, Ingredients).
Regarding claim 9, Bourke teaches composition for a gelled food of claim 1 as described above. Bourke also teaches food products comprising a gelled aqueous phase (Abstract).
Regarding claim 10, although Bourke does not teach the compressive strength of the gelled food, compressive strength is a necessary property of the product as claimed. Evidence to support that compressive strength is a necessary property is provided by the instant specification. The instant specification discloses that when agar and guar gum are used in combination, it is possible to control the compression strength ([0036]) and that the compression strength is within a range of 0.6N to 2.5N ([0081]).
Regarding claim 12, Bourke teaches that the food spread is an oil in water emulsion that did not exhibit water separation (p. 10, line 7, 10-11). Although Bourke does not teach the difference in brightness between an upper layer portion and a lower layer portion, it logically follows that because the spread had no water separation, the color at the top and the bottom of the spread would be the same. Thus, the color difference would be 0, which falls within the claimed range of “0.8 or less”.
Regarding claim 13, Bourke teaches the composition of a low-fat spread (p. 9, line 9).
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 2-5 are rejected under 35 U.S.C. 103 as being unpatentable over Bourke (WO 98/34499).
Regarding claim 2, Bourke teaches that the lipid phase (i.e., the vegetable cream) in the food product may comprise at least 0.1% of the food product to no more than 80% by weight of the food product (p. 5, lines 12-14), which encompasses the claimed range of “7 to 14 wt%”. Bourke also teaches that the lipid phase comprises fats and/or fatty oils (p. 5, lines 14-15).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 3, Bourke teaches that the lipid phase comprises fats and/or fatty oils, but may also comprise, or even consist entirely of, emulsifier (p. 5, lines 14-16). Bourke also teaches that the lipid or fat phase may comprise vegetable fat (p. 9, line 15). Therefore, one of ordinary skill in the art would recognize that the lipid phase (i.e., the vegetable cream) may comprise between 0% and 100% fat and/or fatty oils, which encompasses the claimed range of “25 to 35 wt%”.
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 4, Bourke teaches that the gelling composition may comprise 10-90% agar and 5-80% guar gum (p. 6, lines 24-26) and that the gelling mixture is used in the food spread at an amount of 0.6% by weight (p. 9, line 24). Therefore, the gelling agent in the food spread could comprise between 0.06-0.54% agar (which overlaps with the claimed range of “0.25 to 0.7 wt%”) and 0.03-0.48% guar gum (which overlaps with the claimed range of “0.1 to 0.8 wt%”).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 5, Bourke teaches that the composition the gelling agent in a total amount of 0.6% of the total weight of the food composition (p. 9, line 24), which falls within the claimed range of “0.5 to 1.2 wt%”.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Bourke (WO 98/34499) in view of Masaro (US 2005/0106254 A1).
Regarding claim 11, Bourke does not teach the hardness of the gelled food.
However, in the same field of endeavor, Masaro teaches a method of preparing gels for food applications ([0001]) where the gel has a hardness between 0.1 and 100 Newtons ([0072]), which encompasses the claimed range of “8.2 to 11.5 N”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the composition of Bourke with the hardness taught by Masaro. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached M-Th 7:30a-5:00p, F 8:00a-12:00p.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793