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 September 19, 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the objection to claim 1 has been withdrawn; (2) the 112(b) rejections of the claims have been withdrawn.
It is noted that the claim identifier for claim 16 incorrectly identifies the claim as “Previously Presented”. Claim 16 is currently withdrawn from consideration. Appropriate correction is required.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-2, 5-6, 8-18
Withdrawn claims:
15-18
Previously canceled claims:
7
Newly canceled claims:
3-4
Amended claims:
1, 8, 12, 13
New claims:
None
Claims currently under consideration:
1-2, 5-6, 8-14
Currently rejected claims:
1-2, 5-6, 8-14
Allowed claims:
None
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, 2, 8, 14 are rejected under 35 U.S.C. 103 as being unpatentable over Hamaguchi (KR 20040004085 A) in view of ‘649 (JP 6638649 B2), Fukumoto (US PGPub 2019/0382337 A1), and Ohsumi (US 2013/0251883 A1).
Regarding claim 1, Hamaguchi teaches of a granular fat ([1]) comprising:
A polyol ([13]);
A fat ([13]);
An edible composition such as food materials ([29]);
An angle of repose of 34[Symbol font/0xB0] ([98]);
And that the polyol used includes glycerin ([34]).
Hamaguchi does not teach the composition comprising at least one fatty acid ester selected from the group consisting of a (poly)glycerin fatty acid ester having an average degree of polymerization of glycerin moieties of 1 to 8 and having a hydrophilic-lipophilic balance (HLB) of 6 or less and a sucrose fatty acid ester having an HLB of 6 or less, the granular food having a sum of an angle of repose and an angle of rupture of 87 degrees or less and a compressibility of 15% or less, or wherein the (poly)glycerin fatty acid ester has a fatty acid moiety of 16 to 22 carbon atoms and wherein the (poly)glycerin fatty acid ester contains a mixture of a monoglycerin fatty acid ester and a polyglycerin fatty acid ester.
Regarding the composition comprising at least one fatty acid ester selected from the group consisting of a (poly)glycerin fatty acid ester having an average degree of polymerization of glycerin moieties of 1 to 8 and having a hydrophilic-lipophilic balance (HLB) of 6 or less and a sucrose fatty acid ester having an HLB of 6 or less and wherein the (poly)glycerin fatty acid ester has a fatty acid moiety of 16 to 22 carbon atoms and wherein the (poly)glycerin fatty acid ester contains a mixture of a monoglycerin fatty acid ester and a polyglycerin fatty acid ester, ‘649 teaches of a method to prevent caking of powdered foods ([0001]) comprising incorporating polyglycerol (i.e., polyglycerin) fatty acid ester into powdered food ([0008]) with an HLB of 5 or less ([0009]) and average degree of polymerization (i.e., average degree of polymerization of glycerin moieties) of 1.5 or more to 20 or less ([0017]), which overlaps with the claimed range of “1 to 8”. ‘649 also teaches examples of fatty acids include fatty acids having 8 to 24 carbon atoms (i.e., a fatty acid moiety of 8 to 24 carbon atoms; [0020]), which encompasses the claimed range of “16 to 22”. ‘649 also teaches wherein the (poly)glycerin fatty acid ester contains a mixture of a monoglycerin fatty acid ester and a polyglycerin fatty acid ester.
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 Hamaguchi with the addition of polyglycerin fatty acid ester as taught by ‘649. One of ordinary skill would be motivated to make this modification because ‘649 teaches that inclusion of polyglycerin fatty acid ester into powdered good prevent them from absorbing moisture and solidifying while minimizing adverse effects on sensory ([0008]).
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 the granular food having an angle of repose and an angle of rupture of 87 degrees or less, Fukumoto teaches of a crystal (i.e., granular) product for use in foods ([0001]) where the difference between the angle of rupture and angle of repose is small ([0059]).
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 Hamaguchi with the use of an angle of rupture that is close to the angle of repose as taught by Fukumoto. One would be motivated to make this modification because Fukumoto teaches that because crystals with a large difference between the angle of rupture and angle of repose is high flowability and difficult to control ([0059]). Because, as stated above, Hamaguchi teaches that the angle of repose is 34[Symbol font/0xB0], one of ordinary skill would make the angle of rupture of the composition 34[Symbol font/0xB0] so that there is no difference between the two. Therefore, the sum of the angle of repose and angle of rupture would be 68[Symbol font/0xB0], which falls within the claimed range of “87 degrees or less”.
Regarding the granular food product having a compressibility of 15% or less, Ohsumi teaches of a lipid-containing granule (Abstract) and that compressibility of a powder less than or equal to 10% results in extremely good fluidity ([0055], Table 1), which falls within the claimed range of “15% or less”.
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 Hamaguchi to have a compressibility of less than or equal to 10% as taught by Ohsumi. One would be motivated to make this modification because Ohsumi teaches that compressibility of a powder less than or equal to 10% results in extremely good fluidity.
Regarding claim 2, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach the granular food product having a sum of an angle of repose and an angle of rupture of 82 degrees or less and a compressibility of 12% or less.
Regarding the sum of an angle of repose and an angle of rupture of 82 degrees or less, Fukumoto teaches of a crystal (i.e., granular) product for use in foods ([0001]) where the difference between the angle of rupture and angle of repose is small ([0059]).
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 Hamaguchi with the use of an angle of rupture that is close to the angle of repose as taught by Fukumoto. One would be motivated to make this modification because Fukumoto teaches that because crystals with a large difference between the angle of rupture and angle of repose is high flowability and difficult to control ([0059]). Because, as stated above, Hamaguchi teaches that the angle of repose is 34[Symbol font/0xB0], one of ordinary skill would make the angle of rupture of the composition 34[Symbol font/0xB0] so that there is no difference between the two. Therefore, the sum of the angle of repose and angle of rupture would be 68[Symbol font/0xB0], which falls within the claimed range of “82 degrees or less”.
Regarding the granular food product having a compressibility of 12% or less, Ohsumi teaches of a lipid-containing granule (Abstract) and that compressibility of a powder less than or equal to 10% results in extremely good fluidity ([0055], Table 1), which falls within the claimed range of “12% or less”.
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 Hamaguchi to have a compressibility of less than or equal to 10% as taught by Ohsumi. One would be motivated to make this modification because Ohsumi teaches that compressibility of a powder less than or equal to 10% results in extremely good fluidity.
Regarding claim 8, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein the content of the one or more fatty acid esters is 0.2 mass% to 1.6 mass%.
However, in the same field of endeavor, ‘649 teaches that the powdered food beverage comprises the polyglycerol fatty acid ester at a concentration of 0.01% (w/w) to 5% (w/w) ([0009]), which encompasses the claimed range of “0.2 mass% to 1.6 mass%”.
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 Hamaguchi with the use of polyglycerol fatty acid ester at the concentration taught by ‘649. One of ordinary skill would have been motivated to make this modification because ‘649 teaches that inclusion of polyglycerin fatty acid ester into powdered good prevent them from absorbing moisture and solidifying while minimizing adverse effects on sensory ([0008]).
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 14, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1. Hamaguchi also teaches that the granular fats are suitable for use in soups ([51]).
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Hamaguchi (KR 20040004085 A) in view of ‘649 (JP 6638649 B2), Fukumoto (US PGPub 2019/0382337 A1), and Ohsumi (US 2013/0251883 A1) as applied to claim 1 above, and further in view of Nagira (US PGPub 2008/0102131 A1).
Regarding claim 5, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein the sucrose fatty acid ester has a fatty acid moiety of 16 to 22 carbon atoms.
However, in the same field of endeavor, Nagira teaches of a particulate composition that can be used as a food in a granular shape ([0122]) and comprises a surfactant with sucrose fatty acid ester with an HLB of not more than 10 (which overlaps with the claimed range of “6 or less”, [0018]) and a fatty acid moiety of 6 to 18 (which overlaps with the claimed range of “16 to 22”; [0045]).
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 Hamaguchi with the use of a sucrose fatty acid ester as described by Nagira. Because sucrose fatty acid ester is known in the art in food granules, one of ordinary skill would have combined the elements into a food granule with no change in their function and yield predictable results. 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).
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 6, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein the sucrose fatty acid ester contains at least one selected from the group consisting of sucrose palmitate and sucrose stearate.
However, in the same field of endeavor, Nagira teaches of a particulate composition that can be used as a food in a granular shape ([0122]) and comprises a surfactant with sucrose fatty acid ester with an HLB of not more than 10 (which overlaps with the claimed range of “6 or less”, [0018]). Nagira also teaches that the surfactant includes sucrose palmitate and sucrose stearate ([0050]).
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 Hamaguchi with the use of a sucrose palmitate or sucrose stearate as described by Nagira. Because sucrose fatty acid ester is known in the art in food granules, one of ordinary skill would have combined the elements into a food granule with no change in their function and yield predictable results. 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).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hamaguchi (KR 20040004085 A) in view of ‘649 (JP 6638649 B2), Fukumoto (US PGPub 2019/0382337 A1), and Ohsumi (US 2013/0251883 A1) as applied to claim 1 above, and further in view of Kobayashi (JP 5206379B2).
Regarding claim 9, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein a content of the fat is 1 mass% to 20 mass%.
However, in the same field of endeavor, Kobayashi teaches of a food composition ([0001]) comprising 0.1 to 50% by weight of fat ([0022]), which overlaps with the claimed range of “1 mass% to 20 mass%”.
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 Hamaguchi with the use of the range of fat taught by Kobayashi. One would be motivated to make this modification because Kobayashi teaches that is the fat or oil is less than the range, the richness or flavor decreased, but if the content is above that range, it is difficult to maintain its form ([0022]).
Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Hamaguchi (KR 20040004085 A) in view of ‘649 (JP 6638649 B2), Fukumoto (US PGPub 2019/0382337 A1), and Ohsumi (US 2013/0251883 A1) as applied to claim 1 above, and further in view of Suzuki (US PGPub 2011/0236557 A1).
Regarding claim 10, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein a content of a dextrin compound is 10 mass% or less.
However, in the same field of endeavor of food particles, Suzuki teaches of a flavor-containing particle (Abstract) comprising 68 g of dextrin ([0059]) for a total of 6.8% of the composition, which falls within the claimed range of “10 mass% or less”.
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 Hamaguchi with the addition of dextrin as taught by Suzuki. One of ordinary skill would have found it obvious to use dextrin, which is known in the art of food particles, in the particle of Hamaguchi using known methods and would have achieved predictable results. 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).
Regarding claim 11, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein a content of a starch and modified starch is 10 mass% or less.
However, in the same field of endeavor of food particles, Suzuki teaches a flavor-containing particle (Abstract) comprising 51g of modified starch ([0059]) for a total of 5.1% of the composition, which falls within the claimed range of “10 mass% or less”.
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 Hamaguchi with the addition of modified starch as taught by Suzuki. One of ordinary skill would have found it obvious to use starch, which is known in the art of food particles, in the particle of Hamaguchi using known methods and would have achieved predictable results. 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).
Regarding claim 12, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Hamaguchi does not teach wherein a melting point of the fatty acid ester is 50[Symbol font/0xB0]C or higher.
However, in the same field of endeavor of food particles, Suzuki teaches that the flavor particle has an oily substant with softening point (i.e., melting point) of 55 to 90[Symbol font/0xB0]C (which falls within the claimed range of “50[Symbol font/0xB0]C or higher”) and is a glycerin fatty acid ester ([0018]).
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 Hamaguchi with the use of a fatty acid with a melting point as taught by Suzuki. One of ordinary skill would have been motivated to make this modification because Suzuki teaches that is the softening point is lower than the range, the oily substance remains in a melted state, which makes the surface sticky ([0034]).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Hamaguchi (KR 20040004085 A) in view of ‘649 (JP 6638649 B2), Fukumoto (US PGPub 2019/0382337 A1), and Ohsumi (US PGPub 2013/0251883 A1) as applied to claim 1 above, and further in view of Dalziel (US PGPub 2005/0255202 A1).
Regarding claim 13, Hamaguchi in view of ‘649, Fukumoto, and Ohsumi teaches all elements of claim 1.
Claim 13 is product-by-process claims. MPEP §2113 states “[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). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
Although claim 13 includes the process of coating the particles, the patentability will depend on the product itself. The structure imparted by the process of claim 13 is a granular food particle that is coated with a mixture containing the polyol and the fat.
Hamaguchi does not teach a granular food particle that is coated with a mixture containing the polyol and the fat.
However, in the same field of endeavor of food particles, Dalziel teaches a solid food particle (Abstract) where the particle is coated in combinations of fat and other sweeteners ([0050]), where polyol is a known sweetener.
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 food product of Hamaguchi by coating the fatty acid ester and food material with the polyol and the fat as taught by Dalziel. One would be motivated to make this modification because Dalziel teaches that the coating can be used to achieve desired colors, tastes, or aromas in preserved food particle products ([0050]).
Response to Arguments
Claim Objections: Applicant has overcome the objections to the claims based on amendments in the Claims. Accordingly, the objections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 8, 12, and 13 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-4, 8, and 14 over Hamaguchi, ‘649, Fukumoto, and Ohsumi; claims 5 and 6 over Hamaguchi, ‘649, Fukumoto, Ohsumi, and Nagira; claim 9 over Hamaguchi, ‘649, Fukumoto, Ohsumi, and Kobayashi; claims 10-12 over Hamaguchi, ‘649, Fukumoto, Ohsumi, and Suzuki; claim 13 over Hamaguchi, ‘649, Fukumoto, Ohsumi, and Dalziel: Applicant’s arguments filed November 24, 2025 have been fully considered but they are not persuasive.
Applicant argued that a prima facie case of obviousness has not been established. Applicant states that lower HLB values correspond to hydrophobic or lipophilic behavior, whereas Hamaguchi discloses that the fat holding substrate is hydrophilic (Remarks, p. 6, ¶ 10- p. 10, ¶ 7).
This argument has been considered. However, Hamaguchi teaches that the composition comprises a fat, a fat holding substrate, and a polyol ([13]) and that the fat holding substrate may be hydrophilic ([29]). Hamaguchi does not state anywhere that the polyol should be a hydrophilic material, just that the fat holding substrate my be a hydrophilic material. Therefore, Hamaguchi does not teach away from using polyglycerin (i.e., a polyol) that is hydrophobic. The Examiner maintains that one of ordinary skill would have found it obvious to modify Hamaguchi with the addition of polyglycerin fatty acid ester into the powdered good in order prevent them from absorbing moisture and solidifying while minimizing adverse effects on sensory as stated above.
Applicant stated that for the reasons set forth with respect to claim 1, the dependent claims recite subject matter not disclosed by the cited prior art (Remarks, p. 10, ¶ 8- p. 11, ¶ 1).
Applicant's arguments as related to claim 1 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 1-13 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