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 .
Claim status
The examiner acknowledged the amendment made to the claims on 01/19/2026.
Claims 1-20 and 24-27 are pending in the application. Claims 1-16 are withdrawn without traverse in response to the restriction requirement. Claims 17 and 19-20 are currently amended. Claim 18 is previously presented. Claims 21-23 remain cancelled. Claims 24-27 are newly presented. Claims 17-20 and 24-27 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 27 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 27 recites that the aqueous fibre dispersion has a viscosity of at least 20 mPa.s. The examiner does not find the support for such a limitation in the disclosure as originally filed. The examiner notes that Table 1 of the instant specification lists a variety of viscosities for the fibre dispersions ranging from 13 to 400 mPa.s at a temperature of 23 °C, however, such a list is not sufficient in supporting a much broader range of at least 20 mPa.s and without a temperature.
Claim Rejections - 35 USC § 102/103
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.
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.
Claims 17 and 24-27 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Alexandre WO 2010/093864 A2 (cited in the IDS filed 03/21/2023, hereinafter referred to as Alexandre).
Regarding claims 17 and 24-27, Alexandre teaches a method of preparing a dry blend system comprising mixing a nature food fiber (e.g., citrus pulp fiber) in water using a mechanical mixer to form an aqueous fiber dispersion (e.g., till no lumps are visible), adding a liquid edible oil to the dispersion (e.g., the mixture of the food fiber and water) while mixing till the combination of food fiber, water and oil reaches a smooth consistency, homogenizing the combination with a high-pressure valve homogenizer to obtain a water-in-oil emulsion, and freeze drying the emulsion to form the dry blend system (0006; 0022; 0026; 0034; 0086-0087). Further, Alexandre teaches that the process to obtain the emulsion is inherently performed at the room temperature (0087).
Further, Alexandre teaches that the oil is rapeseed oil, soybean oil, sunflower oil, safflower oil, corn oil, cottonseed oil, and peanut oil (0034), and the weight ratio of oil to the citrus pulp fiber is 0.5-20: 1 (0065).
Further, Alexandre teaches the combination of citrus pulp fiber, water and oil without other ingredients such as an emulsifier and polysaccharide (0086; 0036; 0070; 0039).
The limitation about shearing-activating a crude fiber dispersion a plurality of times to form an aqueous fiber dispersion having reticulated fiber network and increased activity such as 20 mPa.s, shearing mixing the aqueous fiber dispersion with liquid edible oil at a minimum of 6000 rpm for at least 5 min to form an emulsion such as a jammed emulsion that has closely packed aqueous phases within a continuous oil phase, and freeze drying the emulsion to remove water describes how the oleogel is obtained, thus is product-by-process limitation. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. 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.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir, 1985). See MPEP 2113.
In the instant case, although Alexandre differs from the steps as recited in claim 17 in that the homogenization step in Alexandre is conducted after adding the oi to the aqueous fiber dispersion, the process of Alexandre results in a homogenous water-in-oil emulsion which appears to be materially indistinguishable from or essentially the same as the emulsion obtained from shearing-activating a crude fiber dispersion a plurality of times to form an aqueous fiber dispersion having reticulated fiber network and increased activity such as 20 mPa.s, shearing mixing the aqueous fiber dispersion with liquid edible oil at a minimum of 6000 rpm for at least 5 min to form an emulsion such as a jammed emulsion that has closely packed aqueous phases within a continuous oil phase, and freeze drying the emulsion to remove water, since both processes result in a final oleogel comprising oil trapped within a three-dimensional gel-network formed by a fiber. There is no evidence showing that shear-activation of the fiber dispersion has imparted a different physical property to the final oleogel, rather, the final oleogel is a composition that contains only oil, the fiber in gel form and a negligible amount of water. There is no evidence showing that a jammed emulsion has imparted a different physical property to the final oleogel, rather, the final oleogel is a composition that only contains oil, gel and negligible amount of water thus hardly is an emulsion. Note that Alexandre uses the same types of crude fiber (e.g., citrus pulp fiber) as the claimed invention. Further, given that Alexandre teaches essentially the same step of dispersing a food fiber in water followed by shearing mixing the dispersion with an oil to form an emulsion and freeze drying the emulsion to form a dry blend system, it logically follows that dry blend system as obtained by Alexandre is an oleogel. Note that the dry blend system as disclosed by Alexandre contains a high concentration of liquid oil and a low concentration of a gelling agent (e.g., citrus pulp fiber).
Therefore, Alexandre anticipates or renders obvious claims 17 and 24-27.
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.
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Alexandre as applied to claim 17 above, and further evidenced by Passarelli US Patent Application Publication No. 2006/0115564 A1 (hereinafter referred to as Passarelli).
Regarding claim 18, Alexandre as recited above teaches an edible oleogel (e.g., a dry blend system) comprising citrus pulp fiber and oil. Further, Alexandre teaches that the dry blend system comprises about 90-100% dry ingredient and 0-10% moisture, and the weight ratio of oil to the citrus pulp fiber is 0.5-20: 1 (0065). Further, Alexandre teaches the combination of citrus pulp fiber, water and oil without other ingredients such as an emulsifier and polysaccharide (0086; 0036; 0070; 0039). Therefore, Alexandre renders obvious the limitation that the oleogel contains up to 96 wt% oil.
Additionally, Alexandre teaches that the citrus fiber can be extracted by the process of Passarelli US Patent Application Publication No. 2006/0115564 A1. According to Passarelli, the process results in a citrus pulp fiber that comprises both insoluble fiber component and soluble fiber component (0034, Table 1).
Regarding claim 19, Alexandre teaches that the weight ratio of oil to the citrus pulp fiber is 0.5-20: 1 (0065). Further, Alexandre teaches that the citrus fiber can be extracted by the process of Passarelli US Patent Application Publication No. 2006/0115564 A1. According to Passarelli, the process results in a citrus pulp fiber that comprises both insoluble fiber component and soluble fiber component at amount of 34.4% and 37.1%, respectively (0034, Table 1). Therefore, in the case that the oleogel comprises a citrus pulp fiber: oil ratio of 1:20, then the ratio of insoluble fiber component to oil is 0.344: 20 (or 1.7%). Such a ratio is very close to the 1:61 (1/61 is ~1.6%) as recited in claim 19 that one skilled in the art would have expected them to have the same properties, given that both the claimed invention and Alexandre are directed to an oleogel that comprises a low amount of an oleogelator (e.g., fiber) and high amount of oil. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Additionally, Alexandre teaches that the oil and the citrus pulp fiber can be mixed in any desired ratios that yield the desired functionality in the blend system, and the ratios of oil/citrus pulp fiber at 0.5-20:1 are merely exemplary embodiments (0065), therefore, the ratio of insoluble fiber component to oil as recited in claim 19 is considered obvious over Alexandre.
Regarding claim 20, Alexandre as recited above teaches an aqueous fiber dispersion that comprises citrus pulp fiber, and that the weight ratio of water to citrus fiber is 40-99: 1 (0068). Further, Alexandre teaches that the citrus fiber can be extracted by the process of Passarelli US Patent Application Publication No. 2006/0115564 A1. According to Passarelli, the process results in a citrus pulp fiber that comprises both insoluble fiber component and soluble fiber component at amount of 34.4% and 37.1%, respectively (0034, Table 1). Therefore, the ratio of water to insoluble fiber is 40-99: 0.344 (or 0.35-0.86 ) and the ratio of water to soluble fiber is 40-99: 0.371 (or 0.38-0.92). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Response to Arguments
Applicant's arguments filed 01/19/2026 have been fully considered but they are not persuasive.
Regarding the 35 USC 102/103 or 103 rejection of pending claims over Alexandre, applicant argues on pages 9-12 and 16 of the Remarks that Alexandre differs from the claimed invention in that Alexandre does not teach shear-activation fiber to form an aqueous fiber dispersion comprising a reticulated network with increased viscosity (applicant asserts that the shear-activation step is a critical feature of the present invention, since it will form a reticulated fiber network which results in an increased viscosity in the aqueous dispersion), or the jammed emulsion (applicant argues on page 11 of the Remarks that in a jammed emulsion, almost every droplet is touched by neighboring droplet, and such a feature is critical in obtaining an oleogel with maximal strength and oil retention). Applicant further argues that the simultaneous homogenization of a crude mixture of oil, fiber and water as disclosed by Alexandre does not guarantee an emulsion microstructure with functional properties claimed in the present invention.
The arguments are considered. They are not persuasive. Applicant is reminded that the instant claims are directed to a final oleogel as opposed to a process of making the oleogel comprising the steps of shear-activating fiber dispersion and forming a jammed emulsion. To this end, applicant does not shed light on what different physical or other properties the reticulated network or the increased viscosity as a result of shear-activation or the formation of jammed emulsion has imparted to the final oleogel. Rather, there is no evidence showing that shear-activation of the fiber dispersion has imparted a different physical property to the final oleogel, rather, the final oleogel is a composition that only contains oil, the fiber in gel form and a negligible amount of water. There is no evidence showing that a jammed emulsion has imparted a different physical property to the final oleogel, rather, the final oleogel is a composition that only contains oil, gel and negligible amount of water thus hardly is an emulsion.
Further, the examiner notes that although the applicant asserts that the shear-activation step or the step of forming a jammed emulsion is a critical feature of the present invention, the limitation about either is not even present in the claims as previously filed.
Applicant argues on page 11 of the Remarks that the oleogel as disclosed by Alexandre has a different microstructure. Applicant goes on to argue that in a jammed emulsion, almost every droplet is touched by neighboring droplet, and such a feature is critical in obtaining an oleogel with maximal strength and oil retention.
The argument is considered but found is essentially conclusive remarks that lacks evidentiary support, thus is accorded little weight. See MPEP 716.01(c) II. Attorney arguments cannot take the place of evidence. MPEP 2145 I. Argument does not replace evidence where evidence is necessary.
Applicant argues on page 12 of the Remarks that the oleogel as claimed can contain up to 96% oil and can effectively hold the oil in its solid oleogel form. Applicant also asserts on page 13 of the Remarks that the oleogel as claimed does not oil off and provides superior technical quantities such as similar rheological properties as the target products. As a comparison, the oleogel as disclosed by Alexandre shows oiling off and phase separation upon drying.
The arguments are considered. However, the examiner submits that since there is no side-by-side comparison of the oleogel from prior art and that from the claimed invention to show that the latter has superior oil containing property or other technical properties, the arguments are accorded little weight. See MPEP 716.01(c) II. Attorney arguments cannot take the place of evidence. MPEP 2145 I. Argument does not replace evidence where evidence is necessary.
Further, as set forth in the office action issued 09/19/2025 (para. 23), Alexandre teaches that the dry blend system comprises about 90-100% dry ingredient and 0-10% moisture, and the weight ratio of oil to the citrus pulp fiber is 0.5-20: 1 (0065). Further, Alexandre teaches the combination of citrus pulp fiber, water and oil without other ingredients such as an emulsifier and polysaccharide (0086; 0036; 0070; 0039). Therefore, Alexandre renders obvious the limitation that the oleogel contains up to 96 wt% oil.
Applicant argues on page 17 of the Remarks that Passarelli does not disclose shear-activation step or emulsion step thus nothing in Passarelli would have motivated a skilled artisan to modify Alexandre’s method by introducing the two steps.
The argument is considered. However, Passarelli is cited as an evidentiary reference to show the amounts of insoluble fiber component and soluble fiber component in the citrus pulp fiber used by Alexandre, not one that modifies the primary reference.
In summary, applicant has mostly focused on arguing about the differences in the process of making oleogels between prior art and the claimed invention but has not sufficiently show that the prior art oleogel and the oleogel as claimed have different physical or other properties. Therefore, pending claims are continuously rejected over Alexandre.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791