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 the Application
Receipt of the Response and Amendment after Non-Final Office Action filed May 4, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-5, 8, 10-23
Withdrawn claims:
14-16
Previously canceled claims:
None
Newly canceled claims:
6-7, 9
Amended claims:
1-2, 4-5, 8, 10-14, 16
New claims:
17-23
Claims currently under consideration:
1-5, 8, 10-13, 17-23
Currently rejected claims:
1-5, 8, 10-13, 17-23
Allowed claims:
None
Claim Objections
Claim 22 is objected to because of the following informalities: add “wherein” prior to “the tara gum”. Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-5, 8, 10, 12, 13, 18, 19, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over 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, guar, and locust bean gum (p. 9, line 24, p. 10, lines 1-2). Bourke teaches that the locust bean gum is present in an amount of 5-80% of the gelling agent (p. 6, l. 27) and that the gelling agent may be present in a food product in an amount not more than 5% by weight and at least 0.01% by weight (p. 7, l. 2-5). Thus, the locust bean gum can be included in an amount of 0.0005% to 0.4% by weight, which overlaps with the claimed range of “0.15 to 0.5 wt%”. 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 presence 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]).
With respect to the overlapping ranges, MPEP §2144.05 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 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%”.
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 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).
Regarding claims 18 and 19, Bourke teaches that the locust bean gum is present in an amount of 5-80% of the gelling agent (p. 6, l. 27) and that the gelling agent may be present in a food product in an amount not more than 5% by weight and at least 0.01% by weight (p. 7, l. 2-5). Thus, the locust bean gum can be included in an amount of 0.0005% to 0.4% by weight, which overlaps with the claimed range of “0.15 to 0.5 wt%” (claim 18) and “0.2 to 0.5 wt%” (claim 19).
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 22, Bourke teaches that tara gum falls within the scope of the term locust bean gum (p. 6, l. 19-23) and that the locust bean gum is present in an amount of 5-80% of the gelling agent (p. 6, l. 27) and that the gelling agent may be present in a food product in an amount not more than 5% by weight and at least 0.01% by weight (p. 7, l. 2-5). Thus, the tara gum can be included in an amount of 0.0005% to 0.4% by weight, which overlaps with the claimed range of “0.1 to 0.5 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).
Claims 1, 17, 20, 21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Takaichi (US 20050260322 A1).
Regarding claims 1 and 23, Takaichi teaches a gel beverage composition (i.e., a gelled food) comprising fat, an emulsifier, and agar (Abstract). Takaichi also teaches that the fats can be selected from vegetable oils ([0037]). Takaichi also teaches that in addition to the agar, the composition may comprise a thickening agent such as guar gum and a gelling agent such as gelatin ([0062]) and that each gelling agent and thickening agent is added in an amount ranging from 0.05-0.3% ([0063]), which overlaps with the claimed range of “0.1 to 0.5 wt%”. Additionally, Takaichi teaches embodiments of the invention that are free from locust bean gum ([0085], Table 2, Examples 1, 2, and 4).
Although Takaichi does not teach that the vegetable fat is a vegetable cream, Takaichi does teach that the composition comprises an emulsifier (Abstract). The presence 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 17, Takaichi also teaches that in addition to the agar, the composition may comprise a gelling agent such as gelatin ([0062]).
Regarding claims 20 and 21, Takaichi also teaches that in addition to the agar, the composition may comprise a gelling agent such as gelatin ([0062]) and that each gelling agent agent is added in an amount ranging from 0.05-0.3% ([0063]), which overlaps with the claimed range of “0.1 to 0.5 wt%” (claim 20) and “0.1 to 0.4 wt%” (claim 21).
Response to Arguments
Specification: Applicant has overcome the objections to the specification based on amendments to the Specification. Accordingly, the objections have been withdrawn.
Claim Rejections – 35 U.S.C. §102 of claims 1, 6-10, 12 and 13 over Bourke: Applicant’s arguments filed May 4, 2026 have been fully considered but they are not persuasive.
Applicant argued that the claimed range of 0.15 wt% to 0.5 wt% falls outside of the value disclosed by Bourke and failed to establish a prima facie case of obviousness (Remarks, p. 7, ¶ 6- p. 8, ¶ 2).
This argument has been considered. However, following amendment to the claimed range, the Examiner now relies upon a different passage of Bourke to teaches the claimed range. As described above, Bourke teaches that the locust bean gum is present in an amount of 5-80% of the gelling agent (p. 6, l. 27) and that the gelling agent may be present in a food product in an amount not more than 5% by weight and at least 0.01% by weight (p. 7, l. 2-5). Thus, the locust bean gum can be included in an amount of 0.0005% to 0.4% by weight, which overlaps with the claimed range of “0.15 to 0.5 wt%”. Thus, the claimed range is obvious.
Applicant further argues that Bourke is silent regarding the amount of gelatin or tara gum (Remarks, p. 8, ¶ 3).
This argument has been considered. However, claim 1 current recites locust bean gum, tara gum, and gelatin as alternatives and does not require the presence of all three compounds. Regardless, Bourke teaches that tara gum falls within the scope of the term locust bean gum (p. 6, l. 19-23). Thus, the amount of locust bean gum taught by Bourke is also the amount of tara gum that can be included in the composition. The Examiner maintains that Bourke is sufficient for all that is relied upon.
Claim Rejections – 35 U.S.C. §103 of claims 2-5 over Bourke: Applicant’s arguments filed May 4, 2026 have been fully considered but they are not persuasive.
Applicant reiterated the argument that Bourke does not teach the claimed amount of locust bean gum (Remarks, p. 8, ¶ 8).
This argument has been considered. However, as stated above, Bourke teaches that the locust bean gum is present in an amount of 5-80% of the gelling agent (p. 6, l. 27) and that the gelling agent may be present in a food product in an amount not more than 5% by weight and at least 0.01% by weight (p. 7, l. 2-5). Thus, the locust bean gum can be included in an amount of 0.0005% to 0.4% by weight, which overlaps with the claimed range of “0.15 to 0.5 wt%”. Thus, the claimed range is obvious.
Applicant also argued that the amount of locust bean gum is critical (Remarks, p. 8, ¶ 9- p. 9, ¶ 2).
This argument has been considered. However, the data provided in insufficient to demonstrate the criticality of the locust bean gum. Applicant relies upon the results of Example 7 to demonstrate that an amount of locust bean gum below 0.15 wt% leads to oil separation. However, Example 7 also comprises the least amount of guar gum. Absent addition data, there is no evidence showing that the oil separation is cause solely by the amount of locust bean gum and is unrelated to the low amount of guar gum. Additionally, the rejection of claim 1 has been amended to include a different portion of Bourke that discloses that the amount of locust bean gum can be 0.0005% to 0.4% by weight, which overlaps with the claimed range of “0.15 to 0.5 wt%”. Thus, Bourke teaches a part of the claimed range.
Applicant further argued that the claimed invention has unexpectedly superior properties compared to Bourke (Remarks, p. 9, ¶ 4- p. 10, ¶ 4).
This argument has been considered. However, the data provided is insufficient for a showing of unexpected results. MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).”
The data provided in the examples of the specification is not commensurate in scope with the claimed invention. The examples only test one type of vegetable cream at 14% by weight of the food product and use varying amounts of agar and guar gum that are not presently claimed in claim 1. Thus, the examples have not provided evidence that the results would occur over the entire claimed range.
New claim 17: Applicant’s arguments filed May 4, 2026 have been fully considered but they are not persuasive.
Applicant argued that Bourke teaches or suggests a process for replacing gelatin, and one of ordinary skill would have no reason to include gelatin (Remarks, p. 10, ¶ 5).
This argument has been considered. However, as described in the 35 USC §103 rejections above, Bourke is not relied upon to teach the invention of claim 17. Takaichi is sufficient to render the invention of claim 17 obvious.
The rejections of claims 1-5, 8, 10-13, 17-23 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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