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 .
DETAILED ACTION
Status of Claims
Note: The amendment of August 14th 2025 has been considered.
Claims 2 and 4 have been amended.
Claims 1, 3, 6 and 7 are cancelled.
Claims 2, 4, 5 and 8-29 are pending in the current application.
Claims 18-28 are withdrawn from consideration.
Claims 2, 4, 5, 8-17 and 29 are examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
In view of the clarification filed on August 14th 2025, the rejection of claims 2 and 17 under 35 USC §112(b) had been withdrawn.
Claim 29 is rejected under 35 U.S.C. 112(b), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, regards as the invention.
Regarding claim 29: The phrase “the plant-based milk is from about 35wt% to about 50wt%” renders the claims indefinite, because it is unclear what is 35wt% to 50wt% of the milk means. Since the claim does not recite what 35wt% to 50wt% of milk is, a skilled artisan would not be reasonably appraised of the meaning of the phrase. Applicants are urged to correct and/or clarify the metes and bounds of the phrase and the claim as recited.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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, 4, 5 and 8-12, 15-17 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Kinkelaar et al., (US 2019/0116852 A2).
Regarding claims 2, 4, 8, 9, 11 and 17: Kinkelaar discloses a culinary crème comprising 1-20wt% powdered oat milk (i.e., dairy-free milk) (see Kinkelaar abstract; paragraph [0008]; claim 4), 5-40wt% vegetable oil (see Kinkelaar paragraph [0007]; claim 3), 0.1-2wt% surfactant (e.g., sucrose fatty acid esters, sodium stearoyl lactylate (SSL), or combination thereof) (see Kinkelaar paragraph [0012]), 0.01-10wt% cellulose gum (CMC), locus bean gum, gellan gum, aginate gum, xanthan gum, native starches and/or modified starches (i.e., stabilizers and thickeners) (see Kinkelaar paragraph [0009]), 0.05-30wt% sweeteners (see Kinkelaar paragraph [0011]) and 0.001-2wt% flavoring agent (see Kinkelaar paragraph [0014]). Given the fact the relative contents of the constituents recited in claims 2, 4 and 9 overlap the relative contents in Kinkelaar, a prima facie case of obviousness exists. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Moreover, Kinkelaar discloses the culinary crème forms an unstable foam when whipped, which reverts back to its liquid form within about 0.05-5 minutes after being whipped (see Kinkelaar paragraph [0049]), which reads on the limitation “whippable topping”.
As to the droplet size recited in claims 2 and 4: Kinkelaar discloses forming the crème (i.e., emulsion) by homogenization under high pressure and temperature (see Kinkelaar paragraphs [0023], [0024], [0033], [0034], [0072], [0074], [0077], [0079]; claims 19, 26 and 27), but fails to disclose the median droplet size of the emulsion formed; However, given the fact the emulsion in Kinkelaar is formed by homogenizing the same constituents and similar contents and conditions contemplated by applicant (see current specification paragraph [0012]), it is examiner position the claimed droplet size range recited in claims 2 and 4 is inherently present in the crème in Kinkelaar. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 5: Kinkelaar discloses the vegetable oil comprises palm kernel oil, coconut oil, palm oil, soy oil, or combination thereof (see Kinkelaar paragraph [0007]).
Regarding claim 10: Kinkelaar discloses the sweetener comprises, sugar, rice syrup, corn syrup, high fructose corn syrup, dextrose or combination thereof (see Kinkelaar paragraph [0011]).
Regarding claim 12: Kinkelaar discloses the flavoring agent comprises cream flavoring, maple flavoring coffee flavoring, chocolate flavoring, spice flavoring, mint flavoring, butter flavoring and/or caramel flavoring (see Kinkelaar paragraph [0014]).
Regarding claims 13 and 14: Kinkelaar disclose the crème comprises 1-20wt% powdered oat milk (i.e., dairy-free milk) (see Kinkelaar paragraph [0008]) and water wherein the ratio of water to dairy-free milk powder is 4-30:1 (see Kinkelaar paragraph [0006]). Since the contents of solid and water in claims 13 and 14 overlap the solids and water contents in Kinkelaar, a prima facie case of obviousness exists. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 15: Kinkelaar discloses the crème comprises surfactants, such as sodium stearoyl lactylate (SSL) (see Kinkelaar paragraph [0012]), which has an HLB (Hydrophilic-Lipophilic Balance) value is 10-12, which means the crème is an oil-in-water emulsion.
Regarding claim 16: Kinkelaar discloses the crème does not comprise milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, or soybean (see Kinkelaar paragraph [0003]).
Regarding claim 29: Kinkelaar discloses a culinary crème comprising 1-20wt% powdered oat milk (i.e., dairy-free milk) (see Kinkelaar abstract; paragraph [0008]; claim 4), 5-40wt% vegetable oil (see Kinkelaar paragraph [0007]; claim 3), 0.1-2wt% surfactant (e.g., sucrose fatty acid esters, sodium stearoyl lactylate (SSL), or combination thereof) (see Kinkelaar paragraph [0012]), 0.01-10wt% cellulose gum (CMC), locus bean gum, gellan gum, aginate gum, xanthan gum, native starches and/or modified starches (i.e., stabilizers and thickeners) (see Kinkelaar paragraph [0009]), 0.05-30wt% sweeteners (see Kinkelaar paragraph [0011]) and 0.001-2wt% flavoring agent (see Kinkelaar paragraph [0014]), which encompasses the language of claim 29 (see 35 USC §112(b) rejection, above).
Response to Arguments
In view of the clarification filed on August 14th 2025, the rejection of claims 2 and 17 under 35 USC §112(b) had been withdrawn.
With regards to the prior art rejections, Applicant's arguments filed August 14th 2025 have been fully considered but they are not persuasive.
Applicant argues on pages 7-8 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because Kinkelaar discloses the culinary crème remains whipped for only 0.05-5 minutes, whereas the current specification discloses the whippable plant-based crème that has an overrun of 280% to 300% and 45-minute rosette time. The examiner respectfully disagrees.
While the specification discloses the whippable plant-based crème that has an overrun of 280% to 300% and 45-minute rosette time, said stability values are not recited in the claims. Accordingly, the 0.05-5minutes of whipped state in Kinkelaar, meets the claimed limitations, as broadly interpreted.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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/ASSAF ZILBERING/Examiner, Art Unit 1792