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 .
Response to Election/Restrictions and Status of Claims
Applicant’s election without traverse of the invention of Group I, Claims 1-23 and 37, drawn to an encapsulated oil particle comprising oat flour, and a food, food product, or dietary supplement comprising the said particle, in the reply filed 12/11/2025, is acknowledged by the Examiner.
Claims 24-36 are withdrawn pursuant to 37 C.F.R. 1.142(b) as being drawn to non-elected subject matter. The claims corresponding to the elected subject matter are Claims 1-23 and 37, and are herein acted on the merits.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 06/30/2023, 10/20/2023, 07/02/2025, and 10/23/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
Claim Objections
Claim 14 is objected to because of the following informalities:
Claim 14 misspells “stearic” as “staeric”.
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.
Claim 21 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 20 recites the limitation "wherein the emulsifier…". There is insufficient antecedent basis for this limitation in Claims 21, which depends from Claim 2, and Claim 1. For compact prosecution and search purpose, Claim 20 will be interpreted to depend from Claim 19.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 20 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 20 improperly depends from Claim 21 because claims cannot depend on a succeeding claim or itself, and therefore is rejected. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) 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, 19-23, and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Petaja et al. (WO 2018/206856 A1, cited in the IDS) hereinafter Petaja, in view Van Lengerich et al. (US 2010/0310728 A1; cited in the IDS), hereinafter Van Lengerich, as evidenced by Konuskan et al. (Saudi Journal of Biological Sciences 26.2 (2019): 340-344.), hereinafter Konuskan.
Petaja discloses a food fat component capable of preventing oxidation of fatty acids while also improving the nutritional profile and organoleptic properties of the product (Abstract). Petaja teaches that one method of protecting soluble fats is microencapsulation wherein capsules comprising carbohydrates and/or proteins form a protective layer that protects oils against oxidation (p. 2, lines 19-27).
Petaja teaches using deamidated oat bran for microencapsulation (p. 3, lines 4-13). Petaja relates that one method for improving the organoleptic properties of fish oil is through microencapsulation which improves the nutritional profile without the fish oil degrading the organoleptic properties of the product (p. 3, lines 29-35). Petaja renders obvious the claimed features as it specifically teaches compatibility of oat flour for microencapsulation (p. 4, lines 9-14)..
Regarding Claim 1, Petaja teaches food fat component preventing oxidation of fatty acids comprising oil fat, having protein and carbohydrate-based biomaterial added thereto (Claim 1). Petaja uses rapeseed oil in the example, and starch as the carbohydrate (Example 1).
Petaja does not expressly teach oat flour as the encapsulation carbohydrate.
Van Lengerich is in the same field as Petaja and discloses encapsulated polyunsaturated fatty acids (PUFA) which can be incorporated into a baked good dough or batter without smearing or dissolution of the encapsulated product (Abstract). Van Lengerich also recognizes the employment of oxidizable oils inter alia oil containing PUFA such as omega-3 fatty acids, eicosapentaenoic acid (EPA), docosahexaenoic acid (DHA), docosapentaenoic acid, and linolenic acid, alpha-linolenic acid, conjugated linolenic acid, gamma linolenic acid, and omega-6 fatty acids [0024]. Van Lengerich teaches its encapsulated product to comprise a matrix material comprising a starch component, wherein the starch component is oat flour etc., further making it compatible with Petaja (Claims 1, 5, and 35).
Petaja recognizes that the starch granules contained in oat flour forms a complex that protects lipids from oxidation (p. 4, lines 12-14). Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Van Lengerich with Petaja and use oat flour as the encapsulation carbohydrate for protecting the oil from oxidation.
Regarding Claim 2, Petaja teaches acid treatment of oats biomaterial, which reads on the hydrolyzed oat flour (p. 3, lines 4-13; Claim 5).
Regarding Claim 3, Petaja expressly teaches rapeseed oil, which is a plant-based oil (p. 12, Example 1).
Regarding Claim 4, Petaja teaches adding antioxidants or additives for preventing oxidation such as vitamins (Claim 7). Petaja relates that rapeseed oil, used in its Example 1, is high in vitamin E (α-tocopherol) and [Symbol font/0x67]-tocopherol, both acting as antioxidants (p. 3, lines 14-19; Claim 7).
Regarding Claims 5-6, Petaja expressly teaches rapeseed oil, which contains omega-3 fatty acid including [Symbol font/0x67]-linolenic acid (Example 1), as evidenced by Konuskan (Table 2).
Regarding Claim 7, Petaja comprehends that oxidation occurs in fatty acids contained in oils regardless of their form, i.e. triglycerides or free fatty acid (p. 1, lines 19-24). As such, it would be obvious to also encapsulate the triglyceride form to prevent oxidation.
Regarding Claim 8, Petaja expressly teaches rapeseed oil, which contains palmitic acid (Example 1), as evidenced by Konuskan (Table 2).
Regarding Claims 19-20, Petaja teaches emulsifiers including mono- and diglycerides, and soy lecithin, and egg white (p. 3, lines 8-13). Petaja expressly teaches using egg which provides the emulsifier (Example 1). The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143. In this case, one skilled in the art would substitute the egg emulsifier with any of the other emulsifiers taught by Petaja.
Regarding Claims 21-22, Petaja discloses embodiments wherein the typical food fat component, which the Examiner interprets to encompass the encapsulated oil particle, to comprise of 10-70 wt% oil fat, 10-70 wt% carbohydrate-based biomaterial, which includes the oat carbohydrate, and 1-40wt% protein (p. 7, lines 31-32; Claim 1).
Regarding Claim 23, Van Lengerich teaches when admixing an oil-in-water encapsulant emulsion component into a plasticizable matrix material, the droplet size is inversely proportional to stability, and have a diameter of less than about 2 microns, most preferably less than about 1 micron (Claims 30-31; [0063]). Reducing droplet size reduces coalescence and ensures protection of each individual encapsulant droplet within the particles [0066].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Van Lengerich with Petaja and create encapsulated oil particles at a small size, starting at the most preferable size of less than about 1 micron diameter, to ensure maximal protection of each individual encapsulant droplet. One skilled in the art would start at the size taught by Van Lengerich, aiming for uniform particle sizes throughout, and optimize accordingly.
Regarding Claim 37, Petaja teaches a product comprising the food fat component, and utility of the food fat component in the food industry (Claims 8 and 12; Examples 1-2).
Claims 9-14, 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Petaja in view of Van Lengerich, as applied to Claim 1 above, and in further view of Food and Agriculture Organization of the United Nations. (Standard for Fish Oil. Obtained on 01/21/2026 from Wayback Machine. URL: <https://web.archive.org/web/20191202175440/ https:/www.fao.org/fao-who-codexalimentarius/sh-proxy/es/?lnk=1&url=https%253A%252 F%252Fworkspace.fao.org%252Fsites%252Fcodex%252FStandards%252FCXS%2B329-2017% 252FCXS_329e.pdf>), Dec. 2, 2019.), hereinafter FAO.
The teachings of Petaja have been set forth supra. Petaja does not expressly teach the fatty acids in ethyl ester form. Petaja teaches encapsulated fish oil, but does not teach it in examples with the claimed components and amounts (p. 3, lines 21-35).
FAO describes the standards for fish oils for human consumption and describes processes to obtain fish oil for human consumption involves inter alia extraction of crude oil from raw material and refining (p. 2, 1st and 2nd paragraphs). Concentrated fish oils are derived from fish oils which have been subjected to hydrolysis, fractionation etc. to increase the concentration of specific fatty acids. FAO teaches that fish oils and concentrated fish oils are primarily composed of glycerides of fatty acids whereas concentrated fish oils ethyl esters are primarily composed of fatty acids ethyl esters (p. 2, 2nd paragraph; Section 2.6). FAO teaches that concentrated fish oil contains 35 to 50 w/w % fatty acids as sum of C20:5 (n-3) eicosapentaenoic acid (EPA) and C22:6 (n-3) docosahexaenoic acid (DHA); Highly concentrated fish oil contains more than 50 w/w % fatty acids as sum of EPA and DHA (Sections 2.5.1 and 2.5.2). Concentrated fish oils ethyl esters are primarily composed of fatty acids ethyl esters of 40 to 60 w/w % sum of EPA and DHA; Highly concentrated fish oil ethyl esters contain fatty acids of more than 60 w/w % are as sum of EPA and DHA (Sections 2.6.1 and 2.6.2).
Regarding Claim 9, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of FAO with that of Petaja and concentrate the fish oils comprising fatty acids ethyl esters to increase the concentration of desired fatty acids.
Regarding Claim 10, Table 1 of FAO gives different examples of fish oil and the fatty acid components expressed as percentage of total fatty acids. For example, tuna comprises 14-41.5% saturated fatty acids, up to 12.5% omega-7 fatty acids, and 21-42.5% DHA, which overlaps with the claimed ranges in Claim 10.
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Regarding Claim 11, Table 1 of FAO clearly indicates myristic and palmitic acids in fish oils.
Regarding Claim 12, Table 1 of FAO teaches myristic acid in Menhaden is from 8-11%, which is within the claimed range.
Regarding Claim 13, Table 1 of FAO teaches Menhaden palmitic acid is from 18-20%, which is within the claimed range.
Regarding Claim 14, Table 1 of FAO shows absence of lauric and margaric acids; and shows no amounts for pentadecanoic acid and stearic acid in Krill.
Regarding Claim 16, Table 1 of FAO shows does not show any lauric acid, behenic acid (C22:0), docosatetraenoic acid (C22:4), lignoceric acid (C24:0), and dihomo-y-linolenic acid (C20:3n-6), for anchovy; and less than 3% of pentadecylic acid (C15:0), margaric acid (C17:0), arachidic acid (C20:0), and arachidonic acid (C20:4n-6, ARA); and overlapping amounts of stearic acid (C18:0), vaccenic acid (C18:1n-7), oleic acid (C18:1n-9), [Symbol font/0x67]-linolenic acid (C18:3n-6), a-linolenic acid (C18:3n-3), stearidonic acid (C18:4), docosapentaenoic acid n3 (C22:5n-3, DPAn3) in the claimed range of less than 3% for each. Eicosapentaenoic acid (C20:5n-3, EPA) is present at a minimum of 5% for Anchovy; palmitoleic acid (C16:1) has a minimum of 4%, both of which are close to the 3% claimed. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05.
Regarding Claim 17, Table 1 of FAO does not indicate any short chain fatty acids.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use the fish oil from any of the fish sources described by FAO and encapsulate it to form the encapsulated oil according to Petaja, depending on the desired fatty acid content of the artisan. One would adjust, by combining or concentrating oils to adjust the amount of particular fatty acids. Therefore, the claimed invention of the instant application would have been obvious to one skilled in the art at the time of the invention.
Claims 15 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Petaja in view of Van Lengerich, as applied to Claims 1 and 7 above, and in further view of Cain et al. (EP0862369 B2), hereinafter Cain.
Petaja is silent on the components of the triglycerides.
Cain also teaches composition based on fish oil (Title; Claim 1).
Cain comprehends the significant benefits of fat compositions based on fish oils comprising triglycerides but also noted how the amount of PUFA tend to be rather low [0001]. While the oxidative stability of a triglyceride containing PUFA can be increased by incorporation of saturated fatty residues into the triglycerides, the levels of saturated fatty acids (SFA) were rather high in order to achieve acceptable stability [0001]. Cain discloses an invention of a fish-oil concentrate, comprising triglycerides with high levels of PUFA, with relatively low levels of SFA, resulting in a composition with a relatively low off-taste and relatively high oxidative stability [0002]. The fish-oil concentrate glycerides with:
at least 40 wt%, preferably 40-55 wt%, most preferably 42-52 wt% of [Symbol font/0x77]-3 long chain PUFA comprising at least DHA and EPA, and preferable also DPA;
less than 20 wt%, preferably 2-18 wt%, most preferably 5 - 15 wt% of total saturated fatty acid with 14 - 18 C – atoms;
less than 15 wt%, preferably< 12 wt% of C18:1-fatty acid;
less than 12 wt %, preferably < 7 wt % of C16:1-fatty acid;
while DHA and EPA are present in a weight-ratio of 0.5 - 3.0, preferably 0. 7 - 2.0;
and wherein the weight ratio triglycerides to diglycerides is 3-50 (Claim 1; [0002]).
As such, the compounds and amounts claimed in Claims 15 and 18 are rendered obvious by Cain.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Cain with that of Petaja and encapsulate a fish oil concentrate with glycerides with composition according to Cain. One would have been motivated to do so with a reasonable expectation of success that the composition would have a relatively low off-taste and relatively high oxidative stability.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792