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 with traverse of claims 1-7 in the reply filed on 10/28/2025 is acknowledged. The traversal is on the ground(s) that Zawistowski does not teach the claimed invention. Specifically, the applicant argues that Zawistowski does not teach plant sterol esters and that the claim 1 recites a lower amount of fat phase than is taught in Zawistowski. This is not found persuasive because Zawistowski teaches that the plant sterols can be esterified(para 49) and because Zawistowski renders obvious the claimed amount of fat phase(see 103 rejection below).
The requirement is still deemed proper and is therefore made FINAL.
Claims 9 and 10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected product, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 10/28/2025.
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 8 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 8 recites the broad recitation “4-11”, and the claim also recites “4-9” 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 8 also recites the limitation "the one or more scraped heat exchangers" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
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) 1-4, 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zawistowski(US 2005/0175745).
Regarding claims 1-4,6, Zawistowski teaches a method of preparing an edible fat-continuous emulsion product(example 2),
the method comprising the steps of: preparing a mixture comprising the aqueous phase and the fat phase; and
preparing the emulsion product by emulsifying of the mixture of the aqueous phase and the fat phase,
The emulsion comprises 50-80% vegetable oil, 0-5% structuring fat(hydrogenated vegetable fat), 9-15% plant sterols(Reducol), 0.2-1% emulsifier, 0-10% thickening agent, and the balance water. The plant sterols can be esterified(para 49). Therefore, the fat phase comprises 60-100% of the composition(vegetable, plant sterols, structuring fat) and the aqueous phase comprises 0-40% of the composition(balance of the fat phase). The emulsifier can be in the form of a natural emulsifier such as lecithin and does not require mono- or diglycerides(para 139).
Zawistowski teaches 60-100% fat phase and not 20-55% as claimed and 0-40% aqueous phase and not 45-80wt% as claimed. It is apparent, however, that the instantly claimed ranges and the ones taught by the prior art are so close to each other that the fact pattern is similar to the one in In re Woodruff, 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a "slight" difference in the ranges the court held that such a difference did not "render the claims patentable" or, alternatively, that "a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties".
Furthermore, it would have been obvious to adjust the amount of aqueous phase and fat phase depending on the nature of the spread product. The amounts of each phase would be considered routine experimentation.
Zawistowski teaches all ingredients are mixed together and emulsified. Therefore, the plant sterol ester is added to the mixture of the aqueous phase and the fat phase and is added during the emulsification step(example 2).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zawistowski in view of Segall(US 2010/0068370).
Regarding claim 5, Zawistowski does not specifically teach the presence of a plant protein. However, Segall teaches an emulsion for a spread product that comprises a plant protein such as canola protein as an emulsifier(para 63). It would have been obvious to use canola protein as the emulsifier in Zawistowski as taught in Segall since it is an effective and natural emulsifier for spread products.
Claim(s) 7 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zawistowski(US 2005/0175745) in view of Blijdenstein(US 2016/0007624).
Regarding claims 7 and 8, Zawistowski does not specifically teach that mixing is by a combination of one or more scraped heat exchangers and cooled pin stirrers. However, Blijdenstein teaches a method of making a water-in-oil emulsion for spread compositions comprising mixing hardstock fat, lecithin and a water-phase and further cooling the mixture under higher shear emulsification to create a water-in-oil emulsion(para 86-88). Blijdenstein teaches that the emulsification is preferably done through a combination of more scraped heat exchangers and cooled pin stirrers(para 91). It would have been obvious to use a combination of more scraped heat exchangers and cooled pin stirrers in the emulsification step of Zawistowski. It would have been obvious to adjust the temperature of mixing step, thus arriving at a temperature of 4-11 C, since Blijdenstein teaches cooling of the emulsion.
Conclusion
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/KATHERINE D LEBLANC/ Primary Examiner, Art Unit 1791