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 .
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 1,9,11,13,18,19 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.
In claim 1, the limitation “ co-emulsifier” is vague and indefinite because it’s unclear what is intended. There is no parameter defining co-emulsifier from emulsifier. It’s unclear what is the difference between emulsifier and co-emulsifier.
In claim 9, the limitation “ ( e.g. high oleic)” is vague and indefinite; the "e.g. " renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). It’s also unclear what is intended by the parentheses. Limitation is parentheses is not considered part of the claim.
Claim 11 is vague and indefinite. It’s unclear what the modified plant flour particles the claim is referring to. Are they the particles depleted of polysaccharide or some other modified particles. It’s not clear what the modified plant flour particles encompass.
In claim 13, the limitation “ another composite plant flour” is vague and indefinite because it’s unclear what is encompassed in “ another composite plant flour”. What would qualify as another composite plant flour.
Claim 18 has the same problem as claim 1.
In claim 19, the limitation “ low carbohydrate seed, nut or vegetable flour” is vague and indefinite because it’s unclear what flour is excluded or included from such category.
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.
Claim(s) 1-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Van Lengerich ( WO 2010/141821).
For claims 1,18,21,8,,20, Van Lengerich discloses encapsulated polyunsaturated fatty acids. The encapsulated product comprises oil droplets of at least one polyunsaturated fatty acid, film-forming protein coating the oil droplets and matrix material encapsulating the coated oil droplets. The matrix material comprises a starch component , a protein component and emulsifier. The encapsulated oil droplets may be included in cakes mixes, cookies, bread mixed, baking flour. The starch includes raw or native starch. The while bread formular shown in table 3 comprises flour, vital wheat gluten which acts as dough strengthener. ( see paragraphs 0009, 0011,0012,0030,0035, table 3) The encapsulate oil is the same as the claimed complexed nutritional oil comprising of oil droplets at least partially encapsulate by wall structure. The matrix in Van Lengerich is the wall structure. The claims recite wall structure comprising polysaccharide obtained from the modified plant flour particles. The starch in Van Lengerich is the same as the claimed polysaccharide because starch is a polysaccharide. How the polysaccharide is obtained does not determine the patentability of the product. Van Lengerich discloses the encapsulated oil droplets are used in baking mixes and baking flour which includes the present of flour which is not modified. As shown in table 3, bread formulation includes flour.
For claims 2, 21, Van Lengerich discloses flour. ( see table 3)
For claims 5,19, 21, Van Lengerich discloses the protein can be soy protein, whey protein, wheat protein etc.. ( see paragraph 0026)
For claims 6,19, 21,Van Lengerich discloses the matrix which is the same as the claimed wall structure can includes starch, fibers, carrageenan, gums etc.. ( see paragraph 0043). The ingredients are the same as recited in the claim. Thus, it’s obviously inherent that the ingredients can function as emulsifier.
For claims 7,19,21, Van Lengerich also discloses the use of non-film forming emulsifier such monoglyceride, diglyceride and emulsifier to aid in stabilization of the emulsion. Conventional emulsifier can be used. In table 3, Van Lengerich discloses emulsifier such as sodium stearoyl lactylate. ( see paragraph 0058-0059)
For claim 9, Van Lengerich discloses the oil includes readily oxidizable oils such as castor oil, flax oil, fish oil, seed oil, sunflower oil, corn oil, animal fat etc.. ( see paragraph 0024)
For claims 12,13,14,15,16,17 Van Lengerich discloses the encapsulated oil droplets can be used in mixes such as bread, cookies, muffin to make baked product. The encapsulated oil droplets can also be used in baking flour. The products include bakes goods such as breads, biscuit, rolls, bun, cookies etc.. ( see paragraphs 0014,0011)
Van Lengerich does not specifically discloses modified plant flour particles depleted in polysaccharides as in claims 1,18,21, the types of flours as in claims 2-4,19 ,21, the triglyceride as in claim 10, the clusters as in claim 11, the property as in claims 12,16,, the blend as in claim 13.
Van Lengerich discloses the encapsulated oil droplets are used in mixes for bread, cookies, muffin and also for use as baking flours. It’s known in the mixes for bread, cookies contains flour. As shown in table 3 of Van Lengerich, the white bread formula comprises flour. Also shown in table 3, the bread formula also comprises vital wheat gluten which is equivalent to the claimed modified plant flour particles depleted in polysaccharide. Flour is known to contain protein and starch as main components. When the starch is depleted, the remaining is the protein. Van Lengerich discloses the mix for bread including wheat gluten. It would have been an obvious matter of choice for one skilled in the art to use any type of flour depending on the nutrition, flavor and taste desired. It would have been obvious to one skilled in the art to select triglyceride with varying carbon atoms depending on the nutrition desired. Such parameter can readily be determined by one skilled in the art. Van Lengerich discloses the encapsulated oils are in the form of pellets. Thus, when the oil pellets are added to bread mix containing flour and protein, the mix will contain cluster of encapsulated oil in form of pellet, protein and flour. Since the mix in Van Lengerich comprises the components as claimed, it’s obvious the property in claims 12, 16 are present. It would have been obvious to include another combination of different flour when desiring to obtain different taste and flavor. Such parameter would have been within the determination of one skilled in the art.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 11871773. Although the claims at issue are not identical, they are not patentably distinct from each other because both the patent and the application are directed to composite plant flour. The claims of the patent are fully encompassed in the claims of the instant application.
Conclusion
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May 13, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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