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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/15/26 has been entered.
Claims 8, 16 are amended and claims 1-7,9-10 are cancelled. Claims 8,11-16 are pending.
The previous 112 second paragraph is withdrawn.
Claim Rejections - 35 USC § 112
Claim 16 is 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.
Claim 16 is vague and indefinite because it’s not clear what is intended. The claim recites “ the mayonnaise further comprises an oil-soluble antioxidant”; however, claim 15 already recites that oil-soluble antioxidant is added to the mixture. The mixture is used to make the mayonnaise. Thus, it’s not clear if the oil-soluble antioxidant in claim 16 is additional antioxidant.
Claim Rejections - 35 USC § 103
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 cyclodextrin, Katcher ( 4469712), Bialek ( 2013/0260008) and Jp 6656456).
For claim 8, 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 the sequence and properties as in claim 8 and the alpha cyclodextrin as in claim 12.
The article teaches to prepare mayonnaise using alpha cyclodextrin and show that emulsification is form by mixing oil and water and then adding emulsifier.
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)
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 an obvious matter of using a known variation of mixing to produce the same end result of obtaining mayonnaise. 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. ,As to the properties, 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 as taught in Katcher to obtain any 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) 15,16 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, Bialek, Katcher and Jp 456 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 5/15/26 have been fully considered but they are not persuasive.
In the response, applicant argues that Bae does not disclose the sequence of step. The examiner maintains her position that switching of steps is obvious without showing of criticality or unexpected result. . 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.) Both the claimed and Bae method produce the same end product of mayonnaise even if different sequence is used. Furthermore, it’s known to not add the emulsifier as the same time as the water and fat as shown in the article. Applicant argues the article merely describes formation of an emulsion by mixing water, oil and alpha cyclodextrin together in a single emulsification step. The examiner respectfully disagrees. The diagram in the article shows that emulsifier is added to a container already containing oil and water. The emulsifier is not in the container with the oil and water. The article also states “ if water, oil and alpha cyclodextrin are mixed with certain ratio, very stable emulsion known as pickering emulsion is formed. This disclosure clearly suggests to one skilled in the art that the mixture of oil and water is mixed before adding the emulsifier. The claimed method is also a one step emulsification because the emulsifier is added to a mixture containing the water, oil, cyclodextrin and gelling agent. Furthermore, Bae teaches to mix the ingredients at different points of adding the ingredients. The difference only resides in the fact that the oil is added after emulsifier in the Bae process.
References are added to address the new limitations added in claim 8. The Tomotake declaration was already addressed previously.
Conclusion
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June 26, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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