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 with traverse of Group I, ice cream beads, claims 1-13 in the reply filed on November 4, 2025 is acknowledged. The traversal is on the ground(s) that the groups of inventions are linked by a composition with 4-12% inulin which is not taught by Dea or Head. This is not found persuasive because the 4-12% inulin recited in claim 14 appears to be by weight of the ice cream product which is not recited in claim 14. Claim 14 recites a stabilizer which is capable of being used in an ice cream, providing inulin from 4-12%, thus the argued feature is not required in claim 14, only the ability to use the stabilizer of claim 14 in the claimed manner. Regardless, an ice cream containing inulin within the argued range was known over the prior art as seen in the rejection below.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 1, 3, 4, and 11 are objected to because of the following informalities:
Claims 1, 3, and 11 recite “the ice cream mass”, and claim 4 recites “ice cream mass”. As claim 1 only recites a finished ice cream mass, and no other ice cream masses, the terms are understood to mean “the finished ice cream mass”. Regardless, it is suggested applicant amend the claims accordingly for better antecedent basis.
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.
Claims 1-13 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.
Claim 1 recites ice cream beads with “natural stabilizer, wherein the natural stabilizer comprises inulin, sweeteners and egg yolk”, however the claim also recites “wherein sweeteners, including sugar are in the range of 0-9%, egg yolk is in the range of 0-2%”. Thus, it is unclear as to if the ice cream beads comprise, i.e. require in an amount greater than 0%, of the sweeteners and egg yolk, or as to if said components are optionally present, i.e. in an amount of 0% or more. For the purpose of prior art comparison the claims will be considered in the broadest reasonable sense, and thus, in an amount of 0-9% sweetener, and 0-2% egg yolk.
Claim 1 recites the limitation "the ice cream mixture" in line 7. There is insufficient antecedent basis for this limitation in the claim. It is unclear as to if the term is referring to “the finished ice cream mass” or to an ice cream mixture at some other point in time.
Claim 1 recites “the percentage of the natural stabilizer is up to 25% by total weight of the ice cream mixture, and wherein the natural stabilizer comprises inulin, sweeteners and egg yolk, wherein sweeteners, including sugar, are in the range of 0-9%, egg yolk is in the range of 0-2%, inulin is in the range of 4-12%, and wherein the fat content of the ice cream mass is between 0 and 16%”. It is unclear as to if the percentage of sweeteners, egg yolk, and inulin recited is by weight of the finished ice cream mass, the frozen food product, or the stabilizer composition.
Claim 2 recites “The frozen food product of claim 1… further comprises egg yolk”. It is unclear as to if this is in addition to the 0-2% egg yolk recited in claim 1, thus encompassing a product with more than 2% egg yolk, or as to if the egg yolk recited in claim 2, is simply requiring the egg yolk recited in claim 1 be included at an amount greater than 0% up to 2%.
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 0-9%, and the claim also recites 0-5% 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 5 recites “wherein the natural stabilizer further comprises sweeteners…” It is unclear as to if this is in addition to the 0-9% sweeteners recited in claim 1, thus encompassing a product with more than 9% sweeteners, or as to if the sweeteners recited in claim 5, are simply requiring the two or more sweeteners be included at an amount greater than 0% up to 9%.
Claim 7 recites the term “fruit batch”. It is unclear as to if the term simply requires fruit and “batch” is merely nomenclature, or if the term requires a batch, or group of fruits, i.e. fruit in multiple quantities, or in multiple varieties. For the purpose of prior art comparison, any fruit component will be considered to read on the claimed limitation.
Claim 8 recites “The frozen food product of claim 1, further comprising a cream selected from cow, goat, buffalo, sheep, camel and/or horse milk and/or dairy product from cow, goat, buffalo, sheep, camel, and/or horse milk, wherein the dairy product comprises lactose or not and/or vegetable drink and/or fruit juice and/or cocoa and/or coffee.” It is unclear as to if the vegetable drink and/or fruit juice and/or cocoa and/or coffee are being recited as part of the dairy product, or as one or more optional ingredients which may be in the frozen food product. The claim is further unclear for reciting a broad and narrow limitation, i.e. a cream and dairy product.
Claim 13 recites the limitation "the cryogenically frozen beads" in claim 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites “The frozen food product of claim 1, wherein the cryogenically frozen beads are embedded in a homogenous ice cream mass”. The claim is unclear as the preamble is directed to “The frozen food product of claim 1” which is ice cream beads, yet the body of the claim recites a method of using the product of claim 1 to form a second distinct product. Thus, the metes and bounds of what is being claimed is unclear as it appears to be both a method and a product. For the purpose of prior art comparison, the claim will be considered as recited in the preamble, as an ice cream bead, capable of use in the manner claimed, i.e. “The frozen food product of claim 1, wherein the cryogenically frozen beads are capable of being embedded in a homogenous ice cream mass”.
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.
Claims 4, 11, and 12 are 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 4 recites “The frozen food product of claim 1, wherein there is no more than 250g of natural stabilizer, including sweeteners, per kilogram of ice cream mass.” Claim 1 already recites that the percentage of the natural stabilizer is up to 25% of the total weight of the ice cream mixture, i.e. is no more than 250g per kg of the ice cream mass, and thus, claim 4 does not further limit the claim from which it depends.
Claim 11 recites “The frozen food product of claim 1, that is a vegan product…”. Claim 1 requires the frozen food product in the form of “ice cream” which is defined as made from milk, sugar, cream, fruit and/or juice (see instant specification page 2 line 10). Also see Arbuckle “Ice Cream 4th Edition” page 1. Thus, claim 1 fails to include all the limitations of the claim from which it depends as it would necessarily exclude milk and cream which are non-vegan food ingredients.
Similarly, claim 12 recites “The frozen food product of claim 1, that is a product which only contains fruit juice and a natural stabilizer”, and thus fails include all the limitations of the claim from which it depends as it would necessarily exclude milk and cream. Furthermore, it is noted that “a stabilizer” does not require “the stabilizer” required by claim 1. It is additionally noted that neither claim 11 or 12 are directed to the elected product of an ice cream bead.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-8 and 11-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cavallini et al (WO 2010/009419).
Regarding claims 1, Cavallini et al (Cavallini) teaches of frozen pellets made with cryogenic freezing, i.e. shock-frozen, with a diameter of 1-20mm, preferably 4-10mm (abstract and paragraph 22). The pellets of Cavallini encompass ice cream pellets, as Cavallini teaches the pellets are made with milk, cream, sugar, and fruit and/or juice (abstract, paragraphs 29, 34, 35, 43, 52, and 53). Cavallini teaches 1-2% milk fat in the ice cream mass (paragraph 35).
Regarding the product as stabilized with up to 25% of a natural stabilizer, wherein the stabilizer comprises inulin, sweeteners and egg yolk, wherein sweeteners, including sugar are in the range of 0-9%, egg yolk is in the range of 0-2%, and inulin is in the range of 4-12% as recited in claim 1, and the product as comprising no more than 250g of natural stabilizer per kg of ice cream mass as recited in claim 4, as discussed above, the claimed limitations are unclear. Regardless, the teachings of Cavallini appear to encompass the product as claimed. Cavallini teaches the product comprises about 0.2-2.0% stabilizers including carrageenan, locust bean gum, sodium alginate, and guar gum which are natural stabilizers (paragraph 45). Cavallini additionally teaches the product comprises about 1-5% inulin to improve stability of the pellets, decrease melting rate, and improve mouthfeel (paragraph 51). Thus, Cavallini teaches of about 1.2-7% stabilizer contributing about 1-5% inulin to the product which encompasses the claimed ranges. It is noted that the claims do not appear to limit the sweeteners within the product, but rather, the sweetener provided from the stabilizer.
Regarding the ice cream beads as shock frozen and formed by subjecting an ice cream mass to dripping droplets, and then shock freezing at a temperature range of -140C to -280C as recited in claim 1, the claimed limitation is a product by process limitation. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). See also MPEP § 2113. In the instant case, the process would result in a cryogenically frozen bead. Cavallini teaches of a cryogenically frozen bead (abstract and paragraph 22). Additionally, it is noted that Cavallini teaches the bead as formed by dripping the composition into a bed of liquid nitrogen, wherein cryogenic freezing occurs below 120K (about -153C) (paragraphs 66, 68, and 69).
Regarding the beaded food product as suitable for storage in cold chains with a temperature of -10C to -18C as recited in claim 1, the claimed limitation is intended use, and only requires that the product be capable of performing. As discussed above, Cavallini teaches a product with an overlapping stabilizer composition, and formed with overlapping process parameters. Thus, the resulting product of Cavallini would be expected to have overlapping properties to the product as claimed. The position is further supported as Cavallini teaches the pellets may be hardened for any period of time between about -10C and -50C (paragraph 69), and thus would be capable of storage in cold chains within the claimed temperatures.
Regarding claim 2, the claimed limitation is unclear as discussed above. Regardless, as the range of sweeteners recited in the stabilizer encompasses 0%, and as Cavallini does not require sweeteners within the stabilizer composition (all), the teachings of Cavallini encompass the product as claimed.
Regarding claim 3, the claimed limitation is a product by process limitation, and thus is only considered in as much as it affects the claimed product. Regardless, Cavallini teaches the various ingredients are mixed before cryogenic freezing (paragraphs 66-68), and thus encompasses the natural stabilizer as introduced before dripping of the ice cream mass as claimed.
Regarding claim 5 and the natural stabilizer as comprising sweeteners and/or thickeners, as discussed above, the claimed limitation is unclear. Regardless, Cavallini teaches the product comprises about 0.2-2.0% stabilizers including carrageenan, locust bean gum, sodium alginate, and guar gum (paragraph 45), which encompasses thickeners.
Regarding claim 6, Cavallini teaches the pellets including colorants (paragraph 57).
Regarding claims 7 and 8, as discussed above, the claimed limitations are unclear. Regardless, as Cavallini teaches the product comprises fruit juice (abstract), the product of Cavallini is considered to encompass a “fruit batch” and/or fruit juice as claimed.
Regarding claim 11, as discussed above, claim 11 does not included all the limitations of the claim from which it depends. Regardless, as Cavallini teaches a frozen confection, wherein milk/dairy is optional, and not required, and wherein other fats, including vegetable oils may be used to replace the milk fat, which may be from 1-2% (paragraphs 34, 35, and 60) and no other animal products are required (all), the teachings of Cavallini are considered to encompass a product as claimed.
Regarding claim 12, as discussed above, claim 12 does not included all the limitations of the claim from which it depends. Regardless, as Cavallini teaches a frozen confection comprising at least 50% juice and a stabilizer (paragraph 4), the teachings of Cavallini are considered to encompass a product as claimed.
Regarding claim 13, as discussed above the claimed limitations are unclear and have been considered as intended use. As discussed above, Cavallini teaches a product that is the same to that as claimed and disclosed. Thus, the product of Cavallini would be able to be used in the same manner as the claimed product.
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.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Cavallini et al (WO 2010/009419), further in view of Alamprese et al (“Survival of Lactobacillus johnsonii La1 and influence of its addition in retail-manufactured ice cream produced with different sugar and fat concentrations” pages 201-208 International Dairy Journal 2002).
As discussed above, Cavallini teaches of frozen ice cream pellets made with cryogenic freezing. Cavallini teaches optional ingredients, including known nutritive/health additives are further included in the product (paragraphs 64 and 65).
Cavallini is silent to the product as comprising live probiotic bacteria cultures as recited in claim 9.
Alamprese et al (Alamprese) teaches studies on probiotic bacteria have emphasized their important role in improving intestinal flora and protecting the host state of health (Introduction, lines 1-3). Alamprese teaches after several studies have proved the benefits from ingestion of probiotic bacteria, various dairy products, including ice creams, containing cultures have been formulated; and that ice creams seem suitable for such delivery (Abstract and introduction columns 1 and 2).
It would have been obvious for the ice cream product of Cavallini which contained additional nutritive/health additives to contain live probiotic cultures because studies on probiotic bacteria have emphasized their important role in improving intestinal flora and protecting the host state of health, and ice cream has been used as a source for delivery of live probiotic cultures as taught by Alamprese.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Cavallini et al (WO 2010/009419), further in view of Decker (“Singin’ the blues with spirulina extract” Dairy Foods September 6, 2014 pages 1-12).
As discussed above, Cavallini teaches of frozen ice cream pellets made with cryogenic freezing. Cavallini teaches optional ingredients, including natural colorants and synthetic colorants including blue #1 further included in the product (paragraph 57).
Cavallini is silent to the product as comprising spirulina as recited in claim 10.
Decker teaches that the natural colorant market has exceeded synthetic colorants (page 1), and that the allowance of spirulina extract in ice cream and frozen desserts provides a new colorant that was only previously available as a synthetic and not a natural ingredient (pages 1-3). Decker teaches synthetic colorants are not very consumer friendly in terms of supporting health and wellness (page 4). Decker teaches spirulina provides a natural and stable blue color (page 3, Changing the palette). Decker teaches spirula is very stable overall and easy to work with (page 4).
It would have been obvious for the ice cream product of Cavallini, which contained natural or synthetic blue colorants to include spirulina as Decker teaches it was very stable overall and easy to work with to provide for a natural blue color that had not been provided for before in a natural form. One would have been further motivated to use the spirulina in the ice cream product of Cavallini as Decker teaches that it was a natural colorant able to be used in ice cream and frozen desserts, and that synthetic colorants are not very consumer friendly in terms of supporting health and wellness.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Paul et al (Quality Characteristics of Ice Cream Enriched with Spirulina Powder IJFANS Vol 2 Issue 1, Jan-March 2013, pages 44-50) teaches spirulina is a source of nutrients and may be incorporated into ice creams.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792