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 .
This office action is in response to the application filed on May 24, 2023. The earliest effective filing date of the application is May 24, 2023.
Status of Application
Claims 1-20 are pending. Claims 1-20 are presented for examination.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains the implied phrase of “The disclosure provides” in line 1. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the specification does not provide proper antecedent basis for oil comprising “monosaturated” fatty acids as claimed in instant claim 8. In the specification, while [0015] recites “unsaturated or saturated” and [0092] recites “saturated, monounsaturated, polyunsaturated, or a combination thereof,” there is no basis in these paragraphs, or elsewhere, for specifically “monosaturated” fatty acids in an oil.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 step b recites “denaturing protein in the gel,” should read “denaturing the protein in the gel” since the protein has already been recited earlier in the claim (presuming that it is indeed the same protein being referred to).
Claim 1 step d recites “gradually adding an oil or mixture of oils gradually.” It is redundant to recite “gradually” twice; please select one or the other.
Claim 1 line 15 recites “oil dispersed in a protein microstructure,” should read “oil dispersed in the protein microstructure” since the microstructure of the protein has already been recited earlier in the claim.
Appropriate correction is required.
Claim Interpretation
Claim 1 recites “some but not all of the oil;” the instant specification defines “some” as at least 10% or 20% [0024]. For the purposes of examination, “some but not all” will be considered to be at least 10%.
Claim 8 recites “fatty acids that are mostly;” the instant specification defines “most” as more than 50% [0024]. For the purposes of examination, “mostly” will also be considered to be more than 50%.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation is: “a means for climate change mitigation in the agroalimentary industry” in claim 1.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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.
Claim 1 recites “CPC subclass Y02P” in the preamble. It is unclear why a CPC subclass in recited in the claim and how it is material to what the claim is claiming. Thus, the claim is rendered indefinite.
Claim 1 recites that the protein microstructure has “defined characteristics.” It is unclear how this limits the claim, since almost any and everything can have “defined characteristics.” The claim does not define what these “defined characteristics” are or how they contribute to the claimed invention.
Claims 1 and 3 recite “flash freezing and drying the protein from step (b)” and “the flash freezing and drying in step (c) is done by immersing the protein” respectively. These limitations recite that something is being done to the claimed protein, however, prior step (a) forms a gel as a product of processing plant proteins. It seems as if the freezing and drying steps should recite that they are done to “the gel” instead of to “the protein” since the protein has been transformed into a gel. The following step (b) recites “protein in the gel” indicating that there is a difference between just “protein” and the “gel,” they are not interchangeable terms. Step (b) also recites that the protein in the gel is denatured by heating at a certain pH and then cooling. Does this step collapse the gel so that only the denatured protein remains, and that is why the following steps only refer to “the protein”? The claims are unclear as to the relationship between the gel and the protein, and the steps to process one or the other, and thus, the claims are rendered indefinite.
Claim 2 recites a “clear stranded gel.” It is unclear what a “stranded” gel is and neither the claims nor the instant specification offer any meaning as to a “stranded” gel. While the instant specification recites a “clear stranded gel” on numerous occasions ([0030; [0065]; [0080]; [0086]), it does not actually define what a “stranded gel” is. At [0066], it’s recited that a “fine-stranded nano-structure” of the gel is an optimized condition. Is “stranded” the same as “fine-stranded.” Is it the proteins that are “stranded” in the gel, or is “stranded” the structure of the gel? Does “stranded” mean that the proteins are in a “fibril” form? Further clarification is needed for what can be considered to be a “stranded” gel.
Claim 7 recites that “the mixed isolate of plant proteins…is potato protein,” which renders the claim indefinite as it’s unclear how a “mixed” isolate can only comprise of one type of protein. A “mixed isolate of plant proteins” as recited in claim 1 is assumed to mean a mixture of various plant proteins, so it is not clear how a mixture can comprise of only one plant protein. Clarity could be improved by amending the claim to read something such as “the mixed isolate of plant proteins…comprises at least potato protein.”
Claim 8 recites “monosaturated,” which renders the claim indefinite as it’s unclear what “monosaturated” fatty acids are. The instant specification recites “saturated,” “unsaturated,” “monounsaturated,” and “polyunsaturated” fatty acids ([0015]; [0092]), but gives no definition or clarity as to “monosaturated” fatty acids. Does “monosaturated” fall within “saturated” or “unsaturated” fatty acids? For the purposes of examination, “monosaturated” will be interpreted as “monounsaturated.”
Claim 15 refers to a percentage without defining the base unit. The claim limitation is unclear as to whether the percentage is based on weight, volume, molar, etc., and as such, the claim fails to distinctly claim the subject matter of the invention and is therefore rendered indefinite. For the purposes of examination, the claim will be interpreted as percent by weight.
Claim 17 recites the term “plant-based,” which is unclear and thus renders the claim indefinite. It is unclear if a “plant-based” product can be made only from plant ingredients, or if the product could also include ingredients from animals and/or animal products. Neither the claims nor the instant specification define or specify the term “plant-based” and as such, the meaning is not clearly delineated. There is no requirement by the claims that the ingredients have to be plant-based (e.g., the claimed oil in step (d) of claim 1 could be fish oil), so what makes the food product be plant-based? Does a certain percent (e.g., 50 wt.%) if the ingredients have to be derived from plants? Do all of the ingredients have to be derived from plants? Therefore, the claim does not clearly define the scope of this limitation and is thereby rendered indefinite.
Claim 20 recites the limitation "the cosmetic or personal care product" in line 1. There is insufficient antecedent basis for this limitation in the claim. While claim 19 (the claim upon which claim 20 depends) recites a cosmetic product, claim 19 does not recite a personal care product.
Claims 4-6, 9-14, 16, 18, and 19 are also rejected as being dependent on a rejected base claim.
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 1, 2, and 7-19 are rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016/062685), herein after referred to as Scholten.
Regarding claims 1, 7, and 15, Scholten teaches a process for manufacturing a protein oleogel that is suitable as a replacement for animal fats in food products (p. 2 lines 19-33; p. 14 lines 13-32),
wherein the process comprises:
a) hydrating and solubilizing proteins in water (i.e., an aqueous solvent);
b) heating the solution to at least 80°C at a pH that is close to the isoelectric point of 0.2, 1, or 3 (i.e., the pH is around 0.2, 1, or 3), then cooling, thereby forming a gel (p. 10 lines 18-24);
c) undergoing a solvent exchange process then a separation stage that includes freeze-drying and drying (i.e., flash freezing and drying the protein) (p. 11 lines 9-24) to form a protein powder (p. 13 lines 23-26), the protein of which forms a structure in the micrometer range (i.e., a solid microstructure) that is a matrix (p. 31 lines 11-12); and
d) adding an oil to the dried protein (p. 13 lines 26-27), the percolating protein structure of which is substantially maintained (i.e., dispersion of the oil disperses but does not triturate the solid microstructure) (p. 14 lines 6-8), adding the oil is considered to take place until the desired amount of oil is added (i.e., until a desired protein-to-oil ratio);
thereby producing a protein oleogel comprising said oil dispersed in the protein microstructure that has defined characteristics (p. 8 line 32 to p. 9 line 5; p. 31 lines 11-12);
wherein the oleogel formed thereby is a paste at room temperature (Fig. 1 (C)), thus the oleogel is solid or semisolid at room temperature.
Scholten teaches that the protein is any suitable protein such as potato protein (p. 7 lines 16-23), thereby meeting the claim limitation of claim 7. Since Scholten teaches potato protein, this potato protein is considered to be the mixed isolate of plant proteins.
Steps (a) and (b) as taught by Scholten comprise forming protein aggregates from globular proteins (p. 10 lines 30-33). Thus, these steps as taught would denature the proteins.
The gel formation as taught by Scholten is slightly different than claimed with regard to the order of steps/formation. However, the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results (In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946)) and the selection of any order of mixing ingredients is prima facie obvious (In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930)). See MPEP 2144.04(IV)C.
Scholten teaches cookie dough made with the prepared oleogel that are then baked at 170°C. The cookies made with the oleogel are taught as looking very similar to cookies made with typical margarine (p. 32-35). Since cookie dough spreads during cooking, it is thus considered that the oleogel releases some but not all of the oil when heated to cooking temperature.
Scholten is silent as to that the protein oleogel has oil structuring and release properties that qualify the oleogel as suitable as a replacement for animal fats and tropical oils in food products, thereby constituting a means for climate change mitigation in the agroalimentary industry.
Scholten does teach that the oleogel is suitable as a fat/oil replacement in food products, as set forth above. Thus, the possession of this ability means that the protein oleogel has sufficient oil structuring and release properties as claimed and that a means is constituted for climate change mitigation in the agroalimentary industry.
Scholten is silent as to that the oil is gradually added to the powder with a calibrated shear. However, since Scholten teaches that the protein microstructure is maintained in this process, as set forth above, it is considered that the dispersion of the oil in the powder is gradual and has a calibrated shear such that the microstructure is not triturated.
Regarding claim 2, Scholten teaches that the gel is fine stranded (p. 9 line 3) and opaque (p. 10 lines 23-24). Opaque is not clear. However, since the clearness of the gel is not considered to offer utility to the invention, the clarity of the gel is considered to be an aesthetic design. Per MPEP 2144.04(I), matters relating to ornamentation which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.
Regarding claim 8, Scholten teaches that the oil added in step (d) is a vegetable oil such as sunflower oil (p. 6 lines 31-34), which is an oil that comprises fatty acids that are mostly unsaturated.
Regarding claim 9, Scholten teaches that the final protein-to-oil ratio in the oleogel is between 0.5:100 and 40:60 by weight (p. 7 lines 28-29), which encompasses the claimed range of 5:95 to 20:80 by weight. Where the claimed ranges 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). See MPEP 2144.05(I).
Regarding claim 10, Scholten teaches that the microstructure is in the form of particles (p. ). Scholten provides an image of the particles in the oil in Fig. 3; the figure does not show a network of particles and are thus considered to be free flowing at the claimed oil ratio.
Regarding claims 10, 11, and 12, Scholten teaches oleogel regions having length, width, height, and diameter dimensions of 1μm-10 mm (p. 14 lines 23-25).
Scholten is silent as to the measurement of the particles and the particles being fibrils or sheets.
However, per MPEP 2112.01(I), where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Given that the process as taught by Scholten of manufacturing a protein oleogel is substantially identical to the method as claimed, it is expected that the process of Scholten will also provide the particles as instantly claimed. This process is presumed to produce the same results as claimed with regard to the median aspect ratio of free-flowing particles, the fibrils and size thereof, and the sheets and size thereof of the instant claims 10-12. Therefore, a prima facie case of obviousness exists.
Regarding claim 13, Scholten is silent as to that the oleogel forms an emulsion when combined 1:1 with an aqueous liquid, wherein the emulsion is stable for at least four weeks at room temperature with no evidence of creaming or phase separation.
However, per MPEP 2112.01(I), where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Given that the process as taught by Scholten of manufacturing a protein oleogel is substantially identical to the method as claimed, it is expected that the process of Scholten will also necessarily possess the same properties and functions as claimed. The process is presumed to also form an emulsion and possess the stability as claimed. Therefore, a prima facie case of obviousness exists.
Regarding claim 14, Scholten teaches that the oleogel phase is a continuous phase in spreads (p. 14 lines 21-22). Thus the oleogel is considered to have a spreadable consistency at room temperature.
Regarding claim 16, Scholten teaches manufacturing butter using the oleogel (p. 14 lines 30-31). Thus, the oleogel replaces one or more animal derived fats or oils.
Regarding claim 17, Scholten teaches that the food product is hamburger meat (p. 14 lines 17-20).
Regarding claim 18, Scholten teaches that the food product is a baked good (p. 14 lines 17-18).
Regarding claim 19, Scholten teaches manufacturing a cosmetic product using the oleogel in place of one or more animal derived fats or oils (p. 2 line 34).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016/062685), as applied to claim 1 above, and further in view of de Vries et al. (“Controlling Agglomeration of Protein Aggregates for Structure Formation in Liquid Oil: A Sticky Business,” ACS Applies Materials & Interfaces, vol. 9 issue 11, 10136-10147, February 2017), herein after referred to as de Vries.
Scholten teaches the process for manufacturing a protein oleogel as set forth above with regard to claim 1.
Scholten teaches freeze-drying the gel but is silent as to that flash freezing and drying is done by immersing the protein in liquid nitrogen and drying in a vacuum.
De Vries, in the same field of invention, teaches preparing protein oleogels from protein aggregates where a protein solution is added dropwise into liquid nitrogen (i.e., immersing the protein in liquid nitrogen) and then freeze-dried (i.e., dried in a vacuum) (p. 10138, left column under “Freeze-Drying”). De Vries offers the motivation that freezing in liquid nitrogen prior to freeze-drying limits undesirable further agglomeration of protein aggregates (p. 10144, left column, “3.7 Effect of Freeze-Drying Conditions”). Therefore, it would have been obvious to one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to have modified the process of Scholten by incorporating the liquid nitrogen step of De Vries prior to freeze-drying, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of preventing undesirable agglomeration.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016/062685), as applied to claim 1 above, and further in view of Scott (“Olive Oil Powder (The Low-Tech Method),” Seattle Food Geek; January 2010).
Scholten teaches the process for manufacturing a protein oleogel as set forth above with regard to claim 1.
Scholten is silent as to that the oil is added to the protein powder in step (d) in at least four tranches with sheared mixing in between. Scholten does teach that the powder is dispersed in an oil but is silent as to how that is achieved.
Scott, in the same field of invention, teaches adding olive oil to a powder. Scott teaches that for 3 oz. of powder, 2.5 tablespoons of oil are added; all of the powder and one tablespoon of the oil are mixed first, then the rest of the oil is added ¼ teaspoon at a time with mixing in a food processor in between (i.e., sheared mixing). Since one tablespoon is equivalent to three teaspoons, adding 1.5 more tablespoons in additions of ¼ teaspoons, it would take 18 additions to add the rest of the oil (p. 2, “Shopping list”; p. 3, step 2). Thus, Scott teaches adding oil into the powder in at least four tranches with sheared mixing in between.
Scott teaches steps for dispersing oil in powder where Scholten is silent, thereby offering a guideline as to a suitable method for dispersion. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the process of Scholten to have the dispersion method steps of Scott, thereby arriving at the claimed invention, with the reasonable expectations that the dispersion steps are suitable for use in the claimed process.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016/062685), as applied to claim 1 above, and further in view of Jung et al. (“Oleogels from mesoporous whey and potato protein based aerogel microparticles: Influence of microstructural properties on oleogelation ability,” Food Hydrocolloids, vol. 142, pp. 1-10, September 2023; available online 19 April 2023), herein after referred to as Jung.
Scholten teaches the process for manufacturing a protein oleogel as set forth above with regard to claim 1.
Scholten is silent as to that the oil is added to the protein powder in step (d) by spraying or dripping the oil into the protein powder and mixing the oil with the powder on a continuing basis over a period of at least ten minutes. Scholten does teach that the powder is dispersed in an oil but is silent as to how that is achieved.
Jung, in the same field of invention, teaches potato protein oleogels made from potato protein isolate aerogels (i.e., protein powder) by gradually adding oil into the powder under continuous mixing until a desired amount of oil was obtained (p. 3, right column, “2.2. Oleogel preparation and characterization”). The gradually adding oil into the powder as taught is considered to read on the instant limitation of “dripping the oil into the protein powder.”
Jung is silent as to that the mixing is over a period of at least ten minutes. However, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Where mixing time is a known result-effective variable, one of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed mixing time through no more than routine optimization. It is well known within the art that a change in mixing time can affect the characteristics and/or properties of a final product. It would have been obvious to one of ordinary skill in the art to have adjusted the mixing time through no more than routine optimization until the desired characteristics were achieved.
Jung teaches steps for dispersing oil in powder where Scholten is silent, thereby offering a guideline as to a suitable method for dispersion. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the process of Scholten to have the dispersion method steps of Jung, thereby arriving at the claimed invention, with the reasonable expectations that the dispersion steps are suitable for use in the claimed process.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016/062685), as applied to claim 1 above, and further in view of Baumber (Baumber, Matt; “Add Liquid to Dry Powder Mixes During IBC Blending,” Matcon; June 2022).
Scholten teaches the process for manufacturing a protein oleogel as set forth above with regard to claim 1.
Scholten is silent as to that step (d) comprises stirring with a hydrofoil blade or mixing in a tumble mixer. Scholten does teach that the powder is dispersed in an oil but is silent as to how that is achieved.
Baumber, in the same field of invention, teaches a tumble blender (i.e., tumble mixer) with liquid addition system (p. 2, second paragraph) that stirs a powder mix and gradually adds an oil/liquid to the powder mix. Baumber offers the motivation that using the tumble blender system ensures even dispersion of liquids within the powder and prevents lumps from forming (p. 2, third paragraph). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the process step of Scholten by dispersing the oil in a powder by mixing in the tumble mixer of Baumber, thereby arriving at the claimed invention. One would have been motivated to make this modification for the benefit of ensuring an even dispersion of the oil and the prevention of lumps.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016/062685), as applied to claim 19 above, and further in view of Balasubramanian et al. (“Oleogel: A promising base for transdermal formulations,” Asian Journal of Pharmaceutics, 6(1): 1-9, pp. 15-23; 2012), herein after referred to as Balasubramanian.
Scholten teaches manufacturing a cosmetic product using the oleogel as set forth above with regard to claim 19.
Scholten is silent as to that the cosmetic product is in the form of a cream, ointment, or lotion.
Balasubramanian, in the same field of invention, teaches oleogels in cosmetic products such as lotions, creams, and ointments (p. 1, “Introduction”).
Balasubramanian teaches specific examples of oleogel-containing cosmetic products where Scholten is silent, thereby offering a guideline as to suitable specific cosmetic products. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have made the cosmetic product of Scholten as the lotion, cream, or ointment of Balasubramanian, thereby arriving at the claimed invention, with the reasonable expectation that the lotion, creams, and ointments are suitable as used as the claimed cosmetic products.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 9:00-6:00 EST.
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.
/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791