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 .
DETAILED ACTION
Claims 1-17 are pending in the current application.
Claims 14-17 are withdrawn from consideration (see discussion, below).
Claims 1-13 are examined in the current application.
Election/Restrictions
Applicant’s election without traverse of claims 1-13 in the reply filed on September 30th 2025 is acknowledged.
Claims 14-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction requirement in the reply filed on September 30th 2025.
Applicant's election with traverse of claims 1-13 in the reply filed on September 30th 2025 is acknowledged. The traversal is on the grounds that (a) claims 1-13 drawn to a product and to the product in an assembly for its delivery are not independent and distinct from the method of using the assembly for its delivery to apply the product to foods recited in claims 14-17; and (b) the examiner failed to meet the burden requirement.
This is not found persuasive, because (a) the claimed method of using the sprayable and pourable animal liquid cooking oil in the spray can to flavor savory foods, can be practiced by with sprayable and pourable herb flavored liquid vegetable oil that is sprayed onto the savory foods, which is materially different from the claimed method; and (b) the burden requirement is met by at least the fact that the inventions require different field of search, as searching the two inventions, require employing different search queries.
The requirement is still deemed proper and is therefore made FINAL.
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 of this title, 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 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 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over NPL Ryan, “The derivation stability and functionality of a pourable frying oil from beef tallow” (from https://d.lib.msu.edu/etd/46158) and NPL Bussey et al., “Fractionation and Characterization of Edible Tallow” (from Journal of Food Science Volume 46 (1981)) in view of NPL “Wagyu 101: How To Make an Epic Beef Tallow” (‘Browsey’) (from https://browseyacres.com/blogs/cattle-chronicles/wagyu-101-how-to-make-epic-beef-tallow).
Note: The claims are drawn to a cooking composition that reads on an olein (i.e., liquid) fraction of fractionated Wagyu beef tallow that is pourable and sprayable.
Regarding claims 1-5 and 7: Ryan and Bussey disclose fractioning beef tallow to attain an olein fraction that is pourable to be used in cooking (see Ryan abstract; page 3; see Bussey Abstract and Introduction) and olein fractions that are liquid at room temperatures with melting points below 18°C (see Ryan pages 80-81; see Bussey page 527), but fails to disclose the high oleic acid content recited in claim 1; However, Browsey discloses that Wagyu beef tallow provides flavor, high oleic acid content and associated cardiac health benefits (see Browsey page 1). Accordingly, it would have been obvious to a skilled artisan at the time the application was filed to have modified Ryan and Bussey and fractionate Wagyu beef tallow to attain the olein fractions with room temperature melting point, in order to provide the consumer with the health benefits associated with Wagyu beef tallow intake, and thus arrive at the claimed limitations.
As to the iodine value and monounsaturated fatty acids, saturated fatty acids and fatty acid contents recited in claims 1-5: Modified Ryan and Bussey teach an oleic fractions of Wagyu beef that are liquid at room temperature, but fail to disclose the fatty acid profile and iodine values of the liquid oleic fractions; However, given the fact the Wagyu beef liquid oleic fractions in modified Ryan and Bussey are attained from the same source through similar fractionation process contemplated by Applicants, it is examiner’s position the iodine value and monounsaturated fatty acids, saturated fatty acids and fatty acid contents recited in claims 1-5 are inherently present in Modified Ryan and Bussey. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 6: Modified Ryan and Bussey teach an oleic fractions of Wagyu beef that are liquid at room temperature, but fail to disclose the tallow is attained from grass fed cattle; However, given the fact that the health benefit of consuming products from grass-fed cattle are known, it would have been obvious to a skilled artisan to use tallow from grass-fed cattle to attain the health benefits associated with intake of products from grass-fed cattle, and thus arrive at the claimed invention.
Claims 8-13 are rejected under 35 U.S.C. 103 as being unpatentable over NPLs Ryan, Bussey and Browsey as applied to claims 1-7 above, and further in view of NPL “How Bag on Valve Spray is Changing the World of Food Packaging” (‘SFC’) (from https://signaturefillingcompany.com/how-bag-on-valve-spray-is-changing-the-world-of-food-packaging/).
Regarding claims 8-13: Modified Ryan and Bussey teach an oleic fractions of Wagyu beef tallow that are liquid at room temperature, but fails to disclose the spray can with spray nozzle and bag-on-valve; However, SFC discloses on page 1-2 that spray cans with bag-on-valve spray provide a continuous spray at any angle, eliminate waste and efficient, as the oil to be delivered is filled in a bag and the propellant (i.e., nitrogen) is pressurized outside the bag without direct contact with the oil. Therefore, it would have been obvious to a skilled artisan to have modified Ryan and Bussey and to have used bag-on-valve apparatus to deliver the Wagyu beef tallow olein, in order to eliminate waste and increase efficiency, and thus arrive at the claimed limitations.
https://signaturefillingcompany.com/how-bag-on-valve-spray-is-changing-the-world-of-food-packaging/
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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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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/ASSAF ZILBERING/Examiner, Art Unit 1792