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 amendment filed on 2/9/26. Claims 68,69,72,73-75,77-79,82-86 are amended and claims 96-100 are added. Claims 68-80,82-86 and 96-100 are pending.
The previous 112 second paragraph and 102 rejections are withdrawn due to the amendment. The amendment necessitates the following new ground of rejection.
Claim Rejections - 35 USC § 112
Claims 68-80, 82-86 and 96-100 are 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.
In claim 68, the limitations “ through a fixed-geometry homogenization channel and microfluidized paste that does not adhere to walls of glass container” are not supported by the original disclosure. Applicant point to page 31. But the page does not disclose “ fixed-geometry homogenization channel”. The page discloses homogenization channel indicates a straight channel”. The page also discloses “ the microfluidized crude tahini left only a thin film on the glass”. The presence of thin film on the glass indicates adhesion to the glass. Figure 10 clearly shows some adhesion to the glass. Thus, it does not support the limitation “ that does not adhere to walls of a glass container”. In claim 98, the dispersant “ non-aqueous isoparaffinic hydrocarbon fluid” is not disclosed on page 5 as pointed out by applicant.
Claims 79,82,97,99 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.
In claim 79, the limitation “ which is optionally microfluidized” is vague and indefinite. It’s unclear what is intended because the paste is microfluidized in both emulsions.
Claim 82 has the same problem as claim 79 with the limitation “ which is optionally microfluidized”.
In claim 97, the limitation of “ not sticky or not grabbing a mouth even after mixing with saliva” is vague and indefinite because it’s relative. It’s unclear what would quality would be considered as not sticky or grabbing a mouth.
Claim 99 is vague and indefinite. The claim contains the trademark/trade name Malvern-Masterisizer 3000 Wet Dispersion and Isopar G. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe laser diffraction analysis and the dispersant and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 103
Claim(s)68-71,74-78,82,83,96,97 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp 6471273 in view of the article “ Microfluidizer Processor User Guide”.
For claim 68, Jp 273 discloses a method for producing fine particle-containing paste. The paste contains oil seeds. The method comprises the step of subjecting the paste to high-pressure homogenizer at a pressure of 50 MPa or more to pulverizing the paste. ( see pages 13-14). The claimed pressure of at least 5000PSI is at least 34.47MPa and Jp273 discloses pressure of 50MPa or more. At least 34.47 means 34.47 and above.
For claim 69, Jp273 that the oily seeds are selected from almonds, sesame, pistachios, corn, macadamia nuts, pistachios etc.. ( see page 3)
For claim 70, Jp273 discloses crude tahini because crude tahini is sesame paste and Jp 273 discloses sesame and paste made from sesame (see page 3)
For claim 74, Jp273 discloses performing the miniaturizing process in presence of fats and oils and water. The paste is mixed with water which would form an emulsion and the emulsion is subjected to high pressure homogenizer at a pressure of 50 MPa or more. ( see pages 6-7, 13-14)
For claim 82, Jp273 discloses crude tahini because crude tahini is sesame paste and Jp 273 discloses sesame and paste made from sesame (see page 3)
Jp273 does not disclose passing through a fixed geometry homogenization channel to obtain a microfluidized paste as in claim 68, whole crude tahini as in claim 71, mixing microfluidized paste with water as in claim 75, dissolving the emulsifier as in claim 76, the sequence and passing through a fixed-geometry homogenization channel as in claim 83, the step in claim 96 and the property as in claim 97.
The microfluidizer guide teaches that microfluidizer processor excels at particle size reduction, cell disruption and emulsion. The chamber for the Microfluidizer processor is essentially a continuous micro reaction that uses turbulent mixing, localized energy dissipation and a fixed geometry to create uniform pressure profile for accurate and repeatable size distribution. The pressure profile can be up to 275 MPa( 40,000 psi) and thus a uniform application of shear. The microfluidizer processors are the gold standard in the industry for application that require high shear. ( see pages 2-3)
Jp273 discloses on page 13 that any homogenizer can be used as long as it has the ability to make particles fine and uniformed and can be uniformly emulsifier and dispersed. High pressure is used in the homogenizer. It would have been obvious to one of ordinary skill in the art before the effective filing of the claimed invention to use the microfluidizer processor as taught in the Microfluidizer guideline as an obvious matter of using a known alternative device to carry out the same function forming fine and uniform particles in the emulsion. One skilled in the art would have been motivated to use the microfluidizer processor because it’s a gold standard device for application requiring high shearing and the device excels at particle size reduction and emulsion which is the objective in Jp273. Page 3 shows that the microfluidizer out performs other devices such as the one disclosed in Jp273. Jp273 in view of the Microfluidizer guideline discloses the same processing step of microfluidizing a paste; thus, it is obviously inherent the property of the paste not adhering to walls of a glass container is present.
For claim 71, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention use whole sesame without removing the outside covering to form whole crude sesame paste as an obvious matter of choice when desiring the nutritional health benefit provided by the hulls. For claims 75,83, Jp273 discloses to mix paste with water and subjecting to high pressure homogenizing, it would have been obvious to one of ordinary skill in the art to reverse the step by homogenizing the paste first and then mixing with water as an obvious matter of preference in carrying out the step without any change in the functionality of the obtained product.In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) . It would have been obvious to use the microfluidizer processor for the same reason as in claim 68 For claim 77, Jp273 discloses adding emulsifiers such as monoglyceride to the paste. It would have been obvious to one of ordinary skill in the art to dissolve the emulsifier in water to form a uniform dispersion before mixing the paste to facilitate the mixing process. Claim 78 is not limiting because rice bran extract is not required to be selected as emulsifier because claim 77 provides the alternative of Markush grouping of emulsifier or rice bran extract. For claim 96, Jp 273 discloses the pressure can be 200 Mpa or less. The microfluidizer processor can have pressure up to 275 Mpa ( 40,000psi). It would have been obvious to use the microfluidizer processor for the same reason as in claim 68. For claim 97, the limitation is vague as explained in the 112 rejection above. In any event, Jp273 in view of the Microfluidizer guideline discloses the same processing step of microfluidizing a paste; thus, whatever property is obtained from such step, it’s obvious inherent the same property is present in the prior art.
Claim(s) 79,80,86,100 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp 6471273 in view of the Microfluidizer Processor User Guide as applied to claims 68-71,74-78,83,96,97 above, and further in view of Nagao (Jp 2004000212)
Jp 273 does not disclose drying to obtain powder as in claims 79,80,86, 100.
Nagao discloses a method of making powder sesame having excellent fluidity and stability. The method comprises the steps of forming sesame paste, adding emulsifier to the paste to form emulsion and spray-drying the emulsion to obtain powdered sesame. ( see paragraphs 0007-0008,0011)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to subject the emulsion in Jp273 to the spray-drying step taught in Nagao when desiring to obtain a powder which would facilitate storage and having a powder with excellent fluidity and stability as disclosed in Nagao.
Claim(s) 84,85 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp6471273 in view of the Microfluidizer Processor User Guide as applied to claims 68-71,74-78,83,96-97 above, and further in view of Jung ( KR 20180011493)
Jp 273 does not disclose rice bran extract as in claim 84 and microfluidizing the rice bran extract as in claim 85.
Jung discloses a method for preparing milk substitute from rice. Jung teaches to use rice bran extract powder as a natural emulsifier. The rice bran extract powder is subjected to high pressure homogenization in an emulsion under a pressure of 10-50 MPa. ( see page 3 under the heading Description of Embodiments)
Jp 273 discloses to add emulsifier to the paste. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use rice bran extract powder as taught in Jung when desiring to have a natural emulsifier versus chemical emulsifier as disclosed in Jp273. Since the bran extract powder is a solid, it would have been obvious to one of ordinary skill in the art to subject it to microfluidizer processor as taught in the Microfluidizer Processor guide to ensure the extract is of particle size that is appropriate to be homogenous with the paste. The motivation to use the microfluidizer is the same as for claim 68.
Claim(s) 98,99 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp 6471273 in view of the Microfluidizer Processor User Guide as applied to claims 68-71,74-78,83,96,97 above, and further in view of Shamayeli ( WO 0246351) and Wong ( 5508057)
Jp 6471273 does not disclose the viscosity measured by SC4-21 and the particle size distribution measurement as in claims 98-99
Shamayeli discloses to measure viscosity of paste by Brookfield rotation viscometer at 5 RPM ( see abstract)
Wong discloses method for preparing nut paste. Wong discloses to measure the particle size using marvern 2600 D Laser Particle size Analyzer. ( see col. 10 lines 59-60)
Jp 273 discloses on page 16 the maximum particle size before sonication is granter than 100 micron which means after sonication the particle size is smaller. It would have been obvious to one of ordinary skill in the art to determine the particle size depending on the textural feel desired in the paste. Jp 273 discloses using laser diffraction analysis for size distribution. It would have been obvious to one skill in the art to use device disclosed in Wong as an obvious matter of using an alternative device to carry out the same function. It would have been obvious to select different model to determine the appropriate dispersant with such model. Such parameter can readily be determined by one skilled in the art through routine experimentation. It would have been obvious to one of ordinary skill in the art to determine the specific viscosity depending on the fluidity desired. Jp 273 discloses using Bostwick viscometer. It would have been obvious to one skill in the art to use device disclosed Shamayeli as an obvious matter of using an alternative device to carry out the same function. It would have been obvious to one skilled in the art to determine the appropriate spindle for the measurement. Such parameter can readily be determined by one skilled in the art through routine experimentation.
Claim(s) 68,69,70,71,96,97 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wong in view of Microfluidizer Processor User Guide.
For claim 68, Wong discloses a method for preparing nut paste. The method comprises the step of subjecting the paste of oil seeds to homogenization at a pressure ranging from 8000-14500 psig. ( see col. 3 lines 1-46, col. 4 line 63 through col. 5 line 11)
For claim 69, Wong discloses seeds including sesame, pecan, almonds, peanut, cashew etc.. ( see col. 3 lines 35-45)
For claim 70, Wong discloses crude tahini because crude tahini is sesame paste and Wong discloses paste made from sesame. ( see col. 3 lines 35-45)
Wong does not disclose microfluidizing by passing the paste through a fixed geometry homogenization channel as in claim 68, whole crude tahini as in claim 71, the fixed geometry homogenization channel and pressure as in claim 96 and the property as in claim 97.
The microfluidizer guide teaches that microfluidizer processor excels at particle size reduction, cell disruption and emulsion. The chamber for the Microfluidizer processor is essentially a continuous micro reaction that uses turbulent mixing, localized energy dissipation and a fixed geometry to create uniform pressure profile for accurate and repeatable size distribution. The pressure profile can be up to 275 MPa( 40,000 psi) and thus a uniform application of shear. The microfluidizer processors are the gold standard in the industry for application that require high shear. ( see pages 2-3)
Wong discloses on column 5 that particle size reduction is achieved as a result of turbulence induced into the paste. It would have been obvious to one of ordinary skill in the art before the effective filing of the claimed invention to use the microfluidizer processor as taught in the Microfluidizer guideline as an obvious matter of using a known alternative device to carry out the same function forming particle size reduction. One skilled in the art would have been motivated to use the microfluidizer processor because it’s a gold standard device for application requiring high shearing and the device excels at particle size reduction that uses turbulent mixing. Page 3 shows that the microfluidizer out performs other devices such as the one disclosed in Wong. Wong in view of the Microfluidizer guideline discloses the same processing step of microfluidizing a paste; thus, it is obviously inherent the property of the paste not adhering to walls of a glass container is present.
For claim 71, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention use whole sesame without removing the outside covering to form whole crude sesame paste as an obvious matter of choice when desiring the nutritional health benefit provided by the hulls. . For claim 96, the microfluidizer processor can have pressure up to 275 Mpa ( 40,000psi). It would have been obvious to use the microfluidizer processor for the same reason as in claim 68. For claim 97, the limitation is vague as explained in the 112 rejection above. In any event, Wong in view of the Microfluidizer guideline discloses the same processing step of microfluidizing a paste; thus, whatever property is obtained from such step, it’s obvious inherent the same property is present in the prior art.
Claim(s) 72-73 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wong in view of Microfluidizer Processor User Guide as applied to claims 68-71,96-97 above, and further in view of Franklin ( 5302409).
Wong does not disclose removing oil from the homogenized paste as in claim 72 and removing oil by centrifuging or percent of oil remove as in claim 73.
Franklin discloses a method of making reduced fat peanut butter. Franklin teaches to remove oil from ground peanut by placing the ground peanuts in a centrifuge and centrifuging the ground peanuts to separate the oil layer from the peanut paste. The percent of oil removed ranges from 6-18%. ( see col. 3 lines 5-45)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to subject the homogenized nut paste in the Wong process to a centrifuging step disclosed in Franklin when desiring to remove oil from the nut paste to reduce the oil content of the paste. One skilled in the art would have been motivated to perform the step when desiring to obtain a reduced fat nut paste as taught in Franklin.
Claim(s) 98,99 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wong in view of the Microfluidizer Processor User Guide as applied to claims 68-71, 96-97 above, and further in view of Shamayeli ( WO 0246351)
Wong discloses method for preparing nut paste. Wong discloses to measure the particle size using marvern 2600 D Laser Particle size Analyzer. Wong discloses the final nut paste has a Casson plastic viscosity of less than about 17 poise ( 1700 cP) and particle size distribution of less than 16.7 micron ( see col. 10 lines 59-60, col. 9 lines 20-35)
Wong does not disclose the viscosity measured by SC4-21 as in claim 98 and the particle size distribution measurement Malvern Mastersizer3000 as in claim 99
Shamayeli discloses to measure viscosity of paste by Brookfield rotation viscometer at 5 RPM ( see abstract)
It would have been an obvious matter of choice for one skilled in the art to select different model of the laser analyzer and determine the appropriate dispersant with such model. Such parameter can readily be determined by one skilled in the art through routine experimentation. Wong discloses Casson viscosity. It would have been obvious to one skill in the art to use device disclosed Shamayeli as an obvious matter of using an alternative device to carry out the same function. It would have been obvious to one skilled in the art to determine the appropriate spindle for the measurement. Such parameter can readily be determined by one skilled in the art through routine experimentation.
Response to Arguments
Applicant’s arguments with respect to claim(s) 2/9/26 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. New references are applied to address the limitation on fixed-geometry homogenization channel and new claims.
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.
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May 8, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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