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 Group I, Claims 1-9 and 14 in the reply filed on 1/15/2026 is acknowledged.
Claims 10-13 and 15-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected groups, there being no allowable generic or linking claim.
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 2 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.
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 2 recites the broad recitation the lipid comprising coconut oil, and the claim also recites “preferably at an amount of 25-30 wt% of the aerated creamer”, which is the narrower statement of the range/limitation. The claim(s) 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.
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 1-9 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Pascual et al. (USPA 2005/0276898) in view of Ludvigsen, both made of record by Applicant, and Adden et al. (USPA 2015/0342242).
Regarding Claims 1, 2, and 5, Pascual teaches an aerated creamer with an overrun of from 25-200% or 50-150% (Paragraphs 11, 12, 16 and 29) comprising: a lipid selected from the claimed group, as Pascual teaches the creamer comprises a vegetable oil and teaches examples where the oil is coconut oil (Paragraphs 43-46), a first emulsifier selected from the claimed group, as Pascual teaches a combination of DATEM and distilled monoglycerides or mono diglyceride (Paragraphs 12 and 43). Pascual teaches a stabilizer blend of cellulose and carrageenan (Paragraph 26).
Pascual does not specifically teach the second emulsifier being selected from one of the claimed group, and also does not specifically teach kappa-carrageenan. Pascual teaches the creamer can be dairy or non-dairy-based (Paragraph 12).
Regarding the claimed second emulsifier, Ludvigsen teaches of whipped creams, either imitation or dairy-based, and teaches that the choice of emulsifier and stabilizer has greater importance for the quality of the cream, as emulsifiers and stabilizers are important in the formation of a stable liquid emulsion and in the whipping process for formation of a stable foam with high overrun (Page 1, Column 3). Ludvigsen teaches that emulsifiers are important for the stability of the formed air cells, i.e. the strength of the air cell walls (Page 2, Column 1). Ludvigsen teaches that in the production of imitation whipping cream, several types of emulsifiers are used in combination: LACTEM improves the whippability and overrun of the product and that it is often used in combination with mono and diglycerides (Page 2, Column 2). Ludvigsen teaches the combination of a high fat content in the cream and the fat destabilizing effect of the added mono and diglycerides leads to an increased viscosity in the cream, sometimes to an extent that the liquid cream is becoming a paste which isn’t attractive for the consumer, and that the viscosity increase may be inhibited by adding an anionic emulsifier like DATEM (Page 2, Column 3). Ludvigsen teaches that an anionic emulsifier results in an increase in the negative net charge of the fat globules, thereby increasing the emulsion stability, and that the increased emulsion stability counteracts the whipping properties, which is why a balance in the use of different emulsifiers is important (Page 2, Column 3). Therefore, given the teachings of Ludvigsen, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have added an anionic emulsifier such as DATEM to mitigate any viscosity increases that may occur with the use of the mono and diglycerides taught by Pascual. Given the guidelines taught by Ludvigsen, it would have been well within the skill of one of ordinary skill in the art to glance the effects of the different known emulsifiers in an aerated imitation cream or creamer, in order to balance viscosity, foam and whipping stability in the final product.
Regarding the claimed kappa-carrageenan, Adden teaches of stabilizer composition comprising cellulose and carrageenan which can be used in products having high overrun and provides good organoleptic properties, and teaches for the carrageenan, which is an essential part of the stabilizer composition, kappa carrageenan is the preferred carrageenan because it forms strong, rigid gels in the presence of potassium ions and reacts with dairy proteins (Paragraphs 9-11 and 19). Therefore, the particular use of kappa-carrageenan as the carrageenan in the stabilizer blend of Pascual would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of Adden.
Regarding Claims 3 and 4, Pascual in view of Ludvigsen and Adden teach where the first emulsifier comprises DATEM and monoglycerides, therefore meeting the limitation of the alternative claim language. Since Claims 3 and 4 do not require polysorbate 80, the ratios of Claim 4 are also not claim limiting, and therefore the cited prior art meets the claimed limitations by teaching DATEM and monoglycerides, as set forth above.
Regarding Claim 6, Pascual in view of Ludvigsen and Adden teach the aerated creamer also comprises other components including water, sweeteners, etc. (Pascual, Paragraph 28).
Regarding Claims 7-9, Pascual in view of Ludvigsen and Adden does not teach a frozen creamer, is not a powder and further comprises a protein (Pascual, Paragraphs 26, 29, 35), as Pascual in view of Ludvigsen and Adden teaches the shelf life of the gas-containing liquid creamer is at least about 60 days at refrigerated temperatures (Paragraph 35).
Regarding Claim 14, Pascual in view of Ludvigsen and Adden teach a packaged product comprising a container and an aerated creamer sealed in the container (Pascual, Paragraph 12), where the prior art teaches and renders obvious the claimed creamer composition, as set forth above in the rejection of Claim 1
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 2/18/2026