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 .
This office action is in response to the application filed on April 24, 2023. The earliest effective filing date of the application is April 27, 2022.
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in Japan on April 27, 2022. It is noted, however, that applicant has not filed a certified copy of Japanese Patent Application No. 2022-073255 as required by 37 CFR 1.55. An attempt to electronically retrieve Japanese Patent Application No. 2022-073255 under the priority document exchange program failed on October 4, 2023.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 27, 2025 has been entered.
Status of Application
The amendment filed November 27, 2025 with the Request for Continued Examination has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 8
Withdrawn claims: None
New claims: 8
Claims currently under consideration: 1 – 8
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: A new objection of claims 2 – 8 are presented in light of Applicant’s amendments.
35 U.S.C. § 103 Rejections: The previous rejections under 35 U.S.C. § 103 of claims 1 – 4, 6 and 7 over Dow are expounded upon in light of Applicant’s amendments. A new rejection under 35 U.S.C. § 103 of claim 5 over Dow is made after reevaluating the Dow reference. A new rejection under 35 U.S.C. § 103 of claim 8 over Dow is made in light of Applicant’s amendments.
Claim Objections
Claim 2 – 8 are objected to because of the following informalities:
Claims 2 – 8 recite “the emulsion composition” which should be shortened to “the emulsion” for consistency, and to avoid misinterpretation.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 – 8 are rejected under 35 U.S.C. 103 as being unpatentable over Dow (A Food Technologist's Guide to METHOCEL Food Gums. Dow Chemical Company. pp. 1 - 20. (2002) - IDS filed October 22, 2023).
Regarding claim 1, Dow teaches various compositions of methylcellulose (MC) gums that are intended for use in food products (p. 5, Table 1). Dow teaches each MC gum has its own viscosity, and that to achieve an intermediate viscosity, two MC gums may be combined with consistent results (p. 12, Blending for intermediate viscosity, paragraph 1; Figure 11). Figure 11 details the various viscosity and relative concentration relationships between different MC gums, teaching how to blend MC gums to produce intermediate viscosities of 0 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass, including information to produce blends of intermediate viscosities between 300 and 10,000 mPa at 20°C for solutions with 2% methylcellulose by mass.
The range of blended MC gum intermediate viscosity, 0 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass, as disclosed by Dow, overlaps with the claimed range of between 300 and 10,000 mPa at 20°C for solutions with 2% methylcellulose by mass. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding the limitation “the methylcellulose mixture has a loss tangent equal to or less than 2.5 when measured with a rheometer at 60°C under the condition of being a frequency of 1 Hz and a strain of 1% using a 2% by mass aqueous solution”, Dow teaches the MC gums described therein have a thermal gel structure that is resistant to frying and provides dimensional stability and cohesion to structured foods during processing and reheating (p. 5, A Guide to Thermal Gelation). The firm gel structure contributes to the firm texture and mouthfeel of heated products. Applicant’s specification describes the claimed loss tangent value as necessary to prevent loss of shape retention which causes oil droplets to coalesce leading to demulsification and poor heat resistance ([0030]). While Dow is silent regarding the claimed values of loss tangent, the claimed property is necessarily present in the compounds of Dow given that heat resistance is a defining characteristic of the materials disclosed.
With respect to the precisely claimed amount of oil present in the emulsion composition, Dow teaches an oil-in-water emulsion comprising 25 wt% liquid soybean oil, 24.25 wt% deionized water, and 0.75 wt% METHOCEL K4M food gum (p. 10, Figure 8). While Dow does not explicitly disclose the METHOCEL K4M food gum may be replaced with the blended MC gum described above, one of ordinary skill in the art would have been motivated to replace the METHOCEL K4M food gum of the oil-in-water emulsion to achieve an emulsion with the desired viscosity. Additionally, MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). One of ordinary skill in the art would have substituted METHOCEL K4M food gum with the blended MC gum as described above before the effective filing date of the application because the blended MC gum as described above, like the METHOCEL K4M food gum is reasonably suggested within the disclosure of Dow as a suitable food gum for use in emulsions such as the oil-in-water emulsion described in Figure 8. Replacing the METHOCEL K4M food gum with the blended MC gum described above produces an emulsion comprising: (a) 25 wt% soybean oil; and (b) two MC gums with a combined viscosity between 300 and 10,000 mPa at 20°C for solutions with 2% methylcellulose by mass and a loss tangent equal to or less than 2.5 when measured with a rheometer at 60°C under the condition of being a frequency of 1 Hz and a strain of 1% using a 2% by mass aqueous solution.
Given that Dow teaches one of ordinary skill in the art to produce a combination of MC gums having a desired viscosity as claimed and the values of loss tangent necessarily are present therein, as well as emulsions comprising the precisely claimed oil content and MC gums described therein, Dow renders obvious the compositions recited in claim 1.
Regarding claim 2, Dow teaches how to combine two methylcellulose gums, wherein the first a second methylcellulose may have viscosities from 0 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass. Dow therefore teaches how to combine a first methylcellulose with a viscosity of 4 – 500 mPa and a second methylcellulose with a viscosity of 4,000 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass to obtain a composition having a final desired viscosity (p. 12, Blending for intermediate viscosity, paragraph 3).
The range of first methylcellulose viscosities, 0 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass, as disclosed by Dow, overlaps with the claimed range of 4 – 500 mPa at 20°C for solutions with 2% methylcellulose by mass. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The range of second methylcellulose viscosities, 0 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass, as disclosed by Dow, overlaps with the claimed range of 4,000 – 100,000 mPa at 20°C for solutions with 2% methylcellulose by mass. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 3, Dow teaches a blending chart that allows one to control the viscosity of a mixture of two MCs by adjusting the concentration of the two selected MCs in the mixture (Figure 11). The blending chart allows for any ratio between the first and second methylcellulose (Figure 11). As an exemplary scenario, Dow teaches blending 40 wt% of a 400 mPa-s MC (i.e., first methylcellulose) and 60 wt% of a 15,000 mPa-s MC (i.e., second methylcellulose) at 20°C to achieve an intermediate viscosity of 4,000 mPa-s, wherein the weight percentages are of the total MC mixture (Figure 11). The mass ratio between the 400 mPa-s MC and the 15,000 mPa-s MC is 2:3. By increasing the relative weight percent of the 15,000 mPa-s MC, the intermediate viscosity would increase and vice versa. Between the mass ratios of 1.5:8.5 and 8.5:1.5 of the 400 mPa-s MC and 15,000 mPa-s MC, the intermediate viscosity remains between about 600 mPa-s and about 10,000 mPa-s (Figure 11).
The range of mass ratio of the first methylcellulose relative to the second methylcellulose, any ratio, as disclosed by Dow, overlaps with the claimed range of 1.5:8.5 and 8.5:1.5. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 4, Dow teaches that the concentration of MCs in a solution affect the viscosity (Figure 10). Dow teaches the viscosity of the solutions of the MC compositions are a linear function of the 8th root (p. 12, Effect of concentration on viscosity, paragraph 2). Dow teaches the impact of concentrations from 0 to 7wt% on MC gums with viscosities from 5 – 100,000 mPa-s at a standard 2% grade (Figure 10).
One of ordinary skill in the art would have adjusted the concentration of MCs in solution during routine optimization to find the MC gum with the desired viscosity. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed concentration of MCs in a solution by mass, 0.1% to 5% by mass, would thus be obvious.
Regarding claim 5, Dow teaches the gel temperature of MC gums may be lowered by the addition of certain sweeteners (i.e., seasoning agents) such as sucrose and sorbitol (p. 8, Table 3). It would have been obvious to one of ordinary skill in the art to include sucrose or sorbitol (i.e., seasoning agents) in the emulsion of Dow to lower the gel temperature of the MCs contained therein.
Regarding claim 6, Dow does not teach the MC products require egg.
Regarding claim 7, Dow teaches MC emulsions, such as the oil-in-water emulsion of Figure 8, without additional emulsifying agents.
Regarding claim 8, Dow teaches the MC gums described therein have a thermal gel structure that is resistant to frying and provides dimensional stability and cohesion to structured foods during processing and reheating (p. 5, A Guide to Thermal Gelation). Additionally, Dow teaches solutions of the MC gums described therein do not undergo separation into phases upon freezing (p. 15, paragraph 3). Therefore, the disclosure of Dow teaches emulsions comprising MC gums that are freezing and heat resistant.
Response to Arguments
Applicant's arguments filed November 27, 2025 have been fully considered but they are not persuasive.
Applicant argues nowhere does Dow suggest the particular claimed composition having the particular amount of oil by mass (p. 4, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. See the rejection of claim 1 above.
Applicant argues nowhere does Dow suggest the particular claimed composition having the claimed features will result in “an emulsion composition with excellent freezing resistance and heat resistance so that it can be used as a seasoning agent for frozen foods even when not containing an egg or an allergenic substance (p. 4, paragraph 4).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., an emulsion composition with excellent freezing resistance and heat resistance so that it can be used as a seasoning agent for frozen foods even when not containing an egg or an allergenic substance) are not recited in the rejected claim(s). Claim 8 recites “the emulsion composition is freezing resistant and/or heat resistant”. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Furthermore, the teachings of Dow suggest the limitations of claim 8 (see rejection of claim 8 above).
Conclusion
No claims are allowed.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793