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 11/14/25. Claims 1,3,4-9 are amended and claims 2 and 10 are cancelled. Claims 11-16 are added. Claims 1,3,4-9 and 11-16 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The previous 112 second paragraph and 102 rejections are withdrawn due to the amendment.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 1,9 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 1, the limitation “ glossiness of 30% or more” is vague and indefinite because it’s unclear what the 30% indicates as a measurement; there is no frame of reference. 30% or more in relative to what. Glossiness is a measurement of the shininess of the product; it’s unclear how the shine is given a percent. The specification discloses the measurement as : O meaning 30% or more without explaining how the percent is obtained.
Claim 9 has the same problem as claim 1.
Claim Rejections - 35 USC § 103
Claim(s) 1,3,5-7,9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bae ( KR 20110040263) in view of Katcher ( 4469712), Jp 6656456) and Bialek ( 20130260008).
For claims 1,3, 5, Bae discloses a mayonnaise composition comprising water, oil, a cyclodextrin, a water soluble gelling agent and an emulsifying agent. The mayonnaise does not contain protein. The oil is rapeseed. The gelling agent is xanthan gum ( see page 3 the paragraph under “tech-solution)
For claims 6-7, Bae discloses the emulsifier is glycerol fatty acid ester having an HLB of 2.8 to 3.5. ( see page 4 under the heading emulsifier)
For claim 9, Bae discloses a mayonnaise as described for claims 1-3,5. Claim 9 is a product by process claim. How the product is made does not determine its patentability. "[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)
Bae does not disclose the properties as in claims 1, 9.
Bialek discloses oil-in water emulsion such as mayonnaise. The mayonnaise has a creamy, smooth glossy appearance. ( see paragraph 0136)
Katcher discloses a pudding mix. Katcher teaches to measure the glossiness of the pudding by using a Gardner Glossgard II a Gloss meter with a 60 degree angle. The pudding is placed under the meter and the Gloss-meter is lower as closed as possible without actually touching the pudding. Readings are taken on the pudding surface after 30 and 60 minutes. The gloss meter operates by shining a light on an object surface and measuring the amount of reflected light received at a detector. Higher readings indicate glossier surface. ( see col. 4 line 59 through col. 5 line 10)
Jp 456 discloses mayonnaise having low adhesion so that it can be scooped. The mayonnaise has an adherence of 300 J/m3 or more to 1500 J/ m 3. . The lower limit value is preferably 400 J/m3. ( see page 2)
The limitation on the glossiness of 30% is indefinite as explained in the 112 rejection above. In any event, glossiness is a known and desirable property in mayonnaise for appearance as shown in Bialek. It’s also known to measure glossiness as taught in Katcher. It would have been obvious to one of ordinary skill in the art to have glossiness in the Bae mayonnaise to give proper appearance. It would have been obvious to one of skilled in the art to measure the glossiness in Katcher to obtain the desirable degree of glossiness to obtain the most optimum appearance. It would have been an obvious matter of choice to assign any desirable value as indicator as long as the desired glossiness is obtained. It would have been obvious to one of ordinary skill in the art to follow the guideline of the adherence value as taught in Jp456 to form mayonnaise that is easily scooped. As to the adhesion, the instant specification discloses adhesion as the maximum load. Since Jp 456 discloses adherence value within the range claimed, it’s obvious the load value is similar. Furthermore, it would have been within the skill of one in the art to determine the proper load for measurement.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bae ( KR 20110040263) in view of Katcher ( 4469712), Jp 6656456) and Bialek ( 20130260008) as applied to claims 1,3,5-7,9 above, and further in view of Yokomizo ( Jp 2007185138).
Bae does not disclose adding oil-soluble antioxidant.
Yokomizo discloses adding lipophilic antioxidant to prevent oxidative deterioration of oil and fat and oil and fat containing food. ( see abstract)
It would have been obvious to one of ordinary skill in the art to add oil-soluble antioxidant as taught in Yokomizo in the Bae mayonnaise to prevent oxidative deterioration. Adding an art-recognized additive for its known function would have been within the skill of one in the art.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bae ( KR 20110040263) in view of Katcher ( 4469712), Jp 6656456) and Bialek ( 20130260008) as applied to claims 1,3,5-7,9 above, and further in view of the article on “ preparation of a new vegan mayonnaise by using alpha cyclodextrin.
The article teaches to prepare mayonnaise using alpha cyclodextrin and show that emulsification is form by mixing oil and water and then adding emulsifier.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use alpha cyclodextrin because it’s a known alternative cyclodextrin for mayonnaise as shown in the article.
Claim(s) 8,11-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bae ( KR 20110040263) in view of the article on “ preparation of a new vegan mayonnaise by using alpha cyclodextin.
Bae discloses a method of making a mayonnaise by mixing cyclodextrin and xanthan gum, mixing emulsifier, mixing vinegar and mixing canola oil. ( see page 5)
For claims 11-14, Bae discloses a mayonnaise composition comprising water, oil, a cyclodextrin, a water soluble gelling agent and an emulsifying agent. The mayonnaise does not contain protein. The oil is rapeseed. The gelling agent is xanthan gum ( see page 3 the paragraph under “tech-solution)
Bae discloses the emulsifier is glycerol fatty acid ester having an HLB of 2.8 to 3.5. ( see page 4 under the heading emulsifier)
Bae does not disclose alpha cyclodextrin as in claim 12 and the sequence as in claim 8.
The article teaches to prepare mayonnaise using alpha cyclodextrin and show that emulsification is form by mixing oil and water and then adding emulsifier.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use alpha cyclodextrin because it’s a known alternative cyclodextrin for mayonnaise as shown in the article. It would have been obvious to add emulsifier after adding of oil as shown in the article as using different sequence of mixing. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also 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) (Selection of any order of mixing ingredients is prima facie obvious.) Bae discloses the mayonnaise contains water. It would have been obvious to add the water with the ingredients for the mayonnaise.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bae ( KR 20110040263) in view of the article on “ preparation of a new vegan mayonnaise by using alpha cyclodextrin as applied to claims 8, 11-14 and further in view of Yokomizo ( Jp 2007185138).
Bae does not disclose adding oil-soluble antioxidant.
Yokomizo discloses adding lipophilic antioxidant to prevent oxidative deterioration of oil and fat and oil and fat containing food. ( see abstract)
It would have been obvious to one of ordinary skill in the art to add oil-soluble antioxidant as taught in Yokomizo in the Bae mayonnaise to prevent oxidative deterioration. Adding an art-recognized additive for its known function would have been within the skill of one in the art. When the emulsifier is added after mixing oil and water as taught in the article, it would have been obvious to add oil-soluble anti-oxidant with the oil and water mixture because an oil-soluble antioxidant dissolves in oil to form uniform mixture.
Response to Arguments
Applicant's arguments filed 11/14/25 have been fully considered but they are not persuasive.
In the response, applicant argues the combination of references does not teach or suggest the mayonnaise having the properties as cited in claim 1 and 9. New references are added to address the limitations. Applicant submits an affidavit to support the argument. The affidavit is not persuasive.
The showing in the affidavit does not commensurate in scope of the claims and does not show against the prior art. The sample given on page 4 is a specific formulation containing certain amounts of ingredients. The affidavit states that the formulation and processing as shown in Bae. While part of the showing in found in Bae, there are features that are not disclosed. For instance, there is no showing in Bae to use 70% sorbitol. While Bae discloses adding sweetener, there is no disclosure of adding 70% sorbitol. The sample shows adding 55% canola oil while Bae discloses using 65-75% oil. The emulsifier in Bae is not lecithin. The sequence is also not disclosed in Bae because Bae does not disclose mixing water with the vinegar. Also, Bae does not disclose adding antioxidant. Thus, it cannot be concluded that the sample shown in the affidavit is that of Bae. It’s not clear what the sample formulation represents because it also does not represent the claimed product and method because there is no parameter defining any amount of ingredient in the claimed product and method. The affidavit states figure 1 shows comparative samples of commercial, Bae and example 1 of the instant specification. Example 1 shown on page 21 contains specific ingredients in specified amounts. It’s not the formulation being claimed. There is no evidence to suggest that the same end result is obtained in the claimed product that does not define any amount of the ingredients and does not contain all the same ingredients shown in example 1. The showing is not commensurate in scope with the claims. Furthermore, the exhibit shown in figures 1-7 is by way of pictures taken which do show clearly the differences among the samples. For instance, it’s not known what is showing in figures 7,6, 4,5; the pictures are just blobs of white. There is no distinguishable difference among the samples. The affidavit does not have showing of any objective measurement to show different properties among the samples.
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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January 14, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793