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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-13 in the reply filed on September 9, 2025 is acknowledged.
Claims 14 and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on September 9, 2025.
Claim Objections
Claim 5 is objected to because of the following informalities:
Claim 5 recites “wherein the oat-derived material has been obtained from treatment of oats comprising treatment with amylase, optionally followed by fermentation.” The phrase should be modified to read “wherein the oat-derived material has been obtained from treatment of oats with amylase, optionally fermentation” or “wherein the oat-derived material is obtained by treating oats with amylase, optionally followed by fermentation.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4, 11 and 12 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance:
-claim 4 recites the broad recitation “wherein the pH of the composition is between 6.5 and 8”, and the claim also recites “such as between 7 and 7.5” which is the narrower statement of the range/limitation.
-claim 11 recites “wherein the stabilizer further comprises a vegetable protein”, and the claim also recites “such as chickpea protein” which is the narrower statement of the range/limitation.
The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 12, the recitation “wherein the vegetable fat further comprises rapeseed oil and/or shea butter” renders the claim indefinite. Given claim 1, from which claim 12 depends, does not define what is in the vegetable fat, it is not clear how the vegetable fat could “further comprise” rapeseed oil. Does the vegetable fat comprises rapeseed oil and/or shea butter?
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Lingerud et al. (WO 2005/006887).
Regarding claims 1, 5 and 6, Lingerud et al. disclose a low fat whippable non-dairy cream having a vegetable fat content of from about 10 to about 25% (w/w), an oat base (i.e., oat-derived material) in an amount from about 50 to 90% (w/w) and an emulsifier (i.e., stabilizer) in an amount below 1.2% (w/w) (Abstract, page 2/L18-33).
Lingerud et al. disclose the fat may be selected from a group consisting of non-hydrogenated vegetable fats including soybean oil, rapeseed oil, sunflower oil and coconut fat (i.e., coconut oil-page 3/L13-17). Lingerud et al. disclose one suitable fat is Akomic 2000 produced by Karlshamns AB, Sweden (i.e., non-hydrogenated vegetable fat and oil blend-page 3/L16-17).
Lingerud et al. disclose the oat base (i.e., oat-derived material) is prepared by: (a) milling oats and suspending the milled oats with a liquid, for example water; (b) treating the suspension with a-amylase at a temperature of 55°-70°C for about 45 to about 90 minutes under constant stirring; and (c) inactivating the a-amylases by increasing the temperature to at least 80°C to produce an oat base (page 5/L1-page 6/L14). Lingerud et al. disclose the oat base comprises about 5 to 30 wt% dry solids. Therefore when the composition comprises 50% (w/w) oat base and the oat base comprises, for example 10 wt% dry solids, the composition would comprise 5 wt% dry solids (i.e., dry matter). While Lingerud et al. does not disclose an oat-derived material in the precisely claimed range, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Lingerud et al. disclose the emulsifier can be selected from the group consisting of polyglycerol esters, mono and/or diglycerides, lactic acid esters of mono and/or diglycerides, citric acid esters of mono and/or diglycerides, lecithin or mixtures thereof (page 3/L31-35). Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have selected any of the emulsifiers disclosed by Lingerud et al., including monoglycerides and/or diglycerides, and arrive at the present invention with a reasonable expectation of success.
Regarding claims 2 and 13, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. disclose wherein the vegetable fat may be selected from the group consisting of palm kernel, palm kernel stearin, palm oil, palm stearin, palm mid fraction, coconut fat (i.e., coconut oil), soybean oil, rapeseed oil and sunflower oil or mixtures thereof (page 3/L13-17). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have selected any of the disclosed fats or combinations thereof and in any ratio, including at least 50% or at least 70% coconut fat (i.e., coconut oil) by weight of the vegetable fat and arrive at the present invention with a reasonable expectation of success.
Regarding claim 3, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. disclose an oat base comprising water and milled oat wherein the oat base has a dry solids content of about 5-30 wt% (page 5/L37-39). When the dry solids content of the oat base is 10 wt% , the amount of water would be 90 wt%. Therefore, when the composition comprises, for example, 50% of the oat base, the composition would comprise 45 wt% water.
Regarding claim 4, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. disclose the oat base exhibits a pH ranging from 5 to 8 (page 6/L1).
Regarding claim 11, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. disclose the oat base comprises protein (i.e., vegetable protein – page 3/L22-24).
Regarding claim 12, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. disclose wherein the vegetable fat may be selected from the group consisting of palm kernel, palm kernel stearin, palm oil, palm stearin, palm mid fraction, coconut fat (i.e., coconut oil), soybean oil, rapeseed oil and sunflower oil or mixtures thereof (page 3/L13-17). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have selected any of the disclosed fats or combinations thereof including wherein the vegetable fat comprises rapeseed oil and arrive at the present invention with a reasonable expectation of success.
Claims 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Lingerud et al. (WO 2005/006887) as applied to claim 1, and further in view Durbin et al. (WO 2016/049577).
Regarding claim 7, Lingerud et al. disclose all of the claim limitations as set forth above. While Lingerud et al. disclose the low fat whippable non-dairy cream may comprise sugar (page 4/L19-22), the reference is silent with respect to maltodextrin.
Durbin et al. teach whippable food products comprising low amount of fat, water, protein, emulsifier and hydrocolloid (Abstract, [0007]-[0008]). Durbin et al. teach the whippable food products may comprise sweeteners including maltodextrin ([0065]). Durbin et al. teach the sweeteners provide structure to the whippable food product by binding to liquid ingredients, such as water ([0065]).
Lingerud et al. and Durbin et al. are combinable because they are concerned with the same field of endeavor, namely, non-dairy whippable compositions comprising fat and protein. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have added a sweetener, including maltodextrin, to the low fat whippable non-dairy cream composition of Lingerud et al. to provide structure to the whipped product.
Regarding claim 9, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. disclose the low fat whippable non-dairy cream may comprise a thickener (page 4/L16-18). However, Lingerud et al. is silent with respect to gellan gum.
Durbin et al. teach whippable food products comprising low amounts of fat, water, protein, emulsifier and hydrocolloid (Abstract, [0007]-[0008]). Durbin et al. teach lower-fat non-dairy whipped creams utilize emulsifiers and hydrocolloids to help aid the development and stabilization of air cells in combination with the fat that is present ([0005], [0016]).
Lingerud et al. and Durbin et al. are combinable because they are concerned with the same field of endeavor, namely, non-dairy whippable compositions comprising fat and protein. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added a hydrocolloid, including gellan gum, as taught by Durbin et al., to the whippable non-dairy composition of Lingerud et al. to help develop and stabilize the air cells of the whipped composition having low-fat content.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Lingerud et al. (WO 2005/006887) as applied to claim 1, and further in view of Campbell et al. (EP 0 509 579 A1).
Regarding claim 8, Lingerud et al. disclose all of the claim limitations as set forth above. Lingerud et al. is silent with respect to hydroxypropylmethyl cellulose.
Campbell et al. teach a non-dairy whippable cream comprising 15-60% of fat, one or more protein components and thickeners wherein the thickeners are chosen from the group consisting of guar gum, locust bean gum carrageenan, xanthan gum, alginates, cellulose ethers or mixtures hereof (page 3/L20-22). Campbell et al. teach that depending on the desired outcome, expressed in terms of overrun of the whipped product, the amount and type of thickener may vary (page 3/L23-26).
Lingerud et al. and Campbell et al. are combinable because they are concerned with the same field of endeavor, namely, non-dairy whippable compositions comprising vegetable fat and protein. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added a thickener, including any cellulose ether (e.g., hydroxypropylmethyl cellulose) as taught by Campbell et al., to the whippable non-dairy composition of Lingerud et al. to obtain a whippable non-dairy property with desired overrun properties.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Lingerud et al. (WO 2005/006887) as applied to claim 1, and further in view Klingenberg (US 2013/0142909).
Regarding claim 10, Lingerud et al. disclose all of the claim limitations as set forth above. While Lingerud et al. disclose a low fat whippable non-dairy cream comprising an emulsifier selected from the group consisting of polyglycerol esters, mono and/or diglycerides, lactic acid esters of mono and/or diglycerides, citric acid esters of mono and/or diglycerides, lecithin or mixtures thereof (page 3/L31-35), the reference is silent with respect to Quillaia extract.
Klingenberg teaches an emulsion comprising an aqueous phase, an oil phase and an emulsifier (Abstract, [0061]-[0079]). Klingenberg teaches the emulsifier is selected from a group of saponins, including quillaia extract (Abstract, [0024]). Klingenberg teaches using lecithin as a co-emulsifier (Abstract, [0037]). In some cases, Klingenberg teaches replacing lecithin with a saponin emulsifier ([0037], [0039]).
Lingerud et al. and Klingenberg are combinable because they are concerned with the same field of endeavor, namely emulsion compositions comprising emulsifiers. Given Klingenberg teaches the use of saponins, including quillaia extract, to replace lecithin as an emulsifier in an emulsion, it would have been obvious to one of ordinary skill in the art to have fully or partially replaced the emulsifier in the low fat whippable non-dairy cream composition of Lingerud et al. with quillaia extract, as taught by Klingenberg, with a reasonable expectation of success.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759