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
Claims 1-15 filed in a preliminary amendment on 7/17/2023 are pending in the application.
Claim Objections
Claims 2,3 objected to because of the following informalities:
Claim 2 has “0,2” in line 2, claim 3 has “25,4 mm” in line 7. Appropriate correction of the comma to a decimal point is needed.
Claim 3 recites “above 75 g/CM2” as applied to a method wherein results are typically recorded as maximum force, not stress. For purposes of examination, 75g is considered. Appropriate correction is needed.
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.
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.
Claim(s) 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Madsen et al. (WO 2019/042994 Al).
Regarding claims 1 and 4 Madsen (Table 7) discloses a protein free vegetable whipping cream (therefore containing less than 0.3% protein).
comprising:
a) 15-35% by weight of vegetable fat; (Akotop 70 which is a hydrogenated oil composition present in all compositions except 108)
b) 0.1-0.7% by weight of an anionic emulsifier (Grinsted® SSL);
c) 0.05-1% by weight of hydroxypropylmethyl cellulose (HPMC, Anyaddy®);
d) 0.01-2% by weight of a monodiglyceride (Dimodan®);
e) 7% by weight of high melting point triglyceride having a drop point of minimum 50°C (Kristal -a commercial trade name typically associated with fully hydrogenated fats composed predominantly of high melting triglycerides, Kokoneutrex has lower melting triglycerides, the listing is interpreted as either, or, or a defined combination to obtain a desired structure and texture in a whipping cream);
(f) 0.03-0.25% by weight of an ortho-, pyro-, and/or polyphosphate, a citrate salt or a blend thereof (disodium phosphate (orthophosphate 0.1%) and sodium citrate (0.1%) are listed) ; (pyro- and polyphosphates as claimed are not specifically listed, selection of suitable phosphates or combinations thereof for stabilizing whipping cream, buffering action or multifunctional known benefits, is within the technical capability of one of ordinary skill in the art)
(h) 0.005-0.5% by weight of a hydrocolloid (gellan 0.025%,) optionally a sweetener and/or salts, (sweetener, salts) and water.
Sample 108 is characterized as a low fat product. The other samples have added vegetable oil in the range of 20-25% by weight falling within the claimed range, for a regular fat version. Madsen further discloses that the oil can be selected from vegetable oils selected from the group consisting of coconut oil, palm kernel oil, palm oil, peanut oil, soybean oil, rapeseed oil, sunflower seed oil, cotton seed oil , olive oil, corn oil or grape seed oil, including fractionated, partially hydrogenated or fully hydrogenated versions of these oils (page 7 lines 23-27), thereby suggesting oil base options other than palm oil as well. It would have been obvious to one of ordinary skill in the art to select oils other than palm oil to make compositions with no palm oil, to meet regulatory or nutritional standards, with a reasonable expectation of success.
The whipping cream in Madsen may comprise between 10% and 35% by weight of fat, preferably between 15% and 30% by weight of fat and more preferably between 20 % and 25% by weight of fat. In a specific embodiment, the whipping cream comprises a low amount of fat such as between 4% and 15% by weight of fat. (page 7 lines 16-21). Table 7 of Madsen shows the use of 7% in Sample 108 which is above the claimed range of 0.05-5% weight. Sample 108 is a low fat, soft serve product with no further added vegetable oil. It would have been obvious to one of ordinary skill in the art to use sufficient amount of structuring fat to obtain desired texture in a cream product based on the desired fat content and texture in the final product.
One would suitably select fat blends to optimize stability and texture of a whipping cream based on its end use, with a reasonable expectation of success. Madsen discloses that stability of the cream with keeping low viscosity of the cream and whipping performance is surprisingly still achieved even after temperature fluctuations (heat shock), vibrations, filling at varying temperatures and using fats with considerable variation in melting/crystallization profile, by using low viscosity HPMC in compositions as claimed (page 4 lines 10-14).
Regarding claim 2 the HPMC in Madsen has a viscosity of 0.02-1 Pa.s (20-1000 cP, 1 Pa.s=1000cP) in a 2% aqueous solution at 20°C (page 5 lines 31-33). Based on the successfully produced stable whipped cream compositions in Madsen, it would have been obvious to one of ordinary skill in the art to have used a low viscosity HPMC as in Madsen with a reasonable expectation of success.
Regarding claim 3, the whipping cream in Madsen a rheology at 5°C in the linear viscoelastic region by a complex modulus below 25 Pa (claim 6) and/or a firmness above 75 g as measured at 5°C on a Texture Analyzer wherein a 25.4mm (I inch) plunger is pressed 10 mm into the whipped cream at speed 1 mm/second, and maximum force is detected (method on page 11 lines 12-18; Table 2 shows texture/firmness as measured in the range of 125-186g for the samples).
Regarding claim 5 and 6, Madsen discloses a whipping cream composition having one or more oils or blends of these as claimed, (page 7 lines 23-27)and a whipping cream as claimed (Examples in Table 7).
Regarding claim 7, Madsen discloses that DATEM and sodium steroyl lactylate (SSL) bind to the oil droplet and stabilize the emulsion by ionic repulsion and furthermore also contribute to whipping. DATEM and SSL are used in many whipping cream formulas, including protein free whipping cream (page 3 lines 8-11). It would have been obvious to one of ordinary skill in the art to use DATEM in a whipping cream composition with less than 0.3% protein to obtain a stable whipping cream with a reasonable expectation of success. .
Regarding claim 8, Madsen discloses that the whipping cream has 0.2% to 0.5% of the emulsifier overlapping the claimed range (page 6 lines 33-34).
Regarding claim 9 Madsen discloses exemplary 0.5% of monodiglyceride (Table 7) overlapping the claimed range.
Regarding claim 10 Madsen discloses (Example 2) that whipping creams are very sensitive to variation in fat type/variation in SFC profile, and that high melting point triglyceride at (Ecolad®) increases firmness and difficulty in use. It would have been obvious to one of ordinary skill in the art to have experimentally optimized content of various fat types and blends to achieve a desired texture in the whipping cream with a reasonable expectation of success
Regarding claim 11 and 12, Madsen (Table 7) discloses phosphates and citrate in the claimed ranges.
Regarding claim 13, as discussed with reference to claim 1, Madsen discloses a composition as claimed. Madsen discloses gellan gum in the composition (Table 7, “gellan”).
It would have been obvious to one of ordinary skill in the art to suitably select fat blends to optimize stability and texture of a whipping cream based on its end use, with a reasonable expectation of success, based on the guidelines provided in Madsen to improve stability and firmness of foam in whipped cream. Madsen discloses that stability of the cream with keeping low viscosity of the cream and whipping performance is surprisingly still achieved even after temperature fluctuations (heat shock), vibrations, filling at varying temperatures and using fats with considerable variation in melting/crystallization profile, by using low viscosity HPMC in compositions as claimed (page 4 lines 10-14).
Regarding claim 14 and 15, Madsen discloses whipping agent additive composition comprising the ingredients as defined in claim 1. Regarding the limitation of “except for water and the vegetable fat” such a composition would be a convenience mix to which water and fat can be added to produce a whipping cream at a later time, and is an obvious modification.
Claims 1-15 are therefore prima facie obvious in view of the art.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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, Emily Le can be reached at (571) 272-0903. 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.
/SUBBALAKSHMI PRAKASH/ Primary Examiner, Art Unit 1793
Prosecution Insights