DETAILED ACTION
Amendments made May 18, 2026 have been entered.
Claims 1-29 are pending;
Claims 14-29 have been withdrawn.
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 .
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.
Claim Objections
The objection to claims 1, 3, 4, and 11 due to minor informalities have been withdrawn in light of applicant’s amendments made May 18, 2026.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 1-13 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 due to the phrase “ice cream mixture” in claim 1, “further comprises egg yolk” in claim 2, a broad and narrow limitation in claim 2, “further comprises sweeteners” in claim 5”, “fruit batch” in claim 7, and lack of antecedent basis in claim 13 has been withdrawn in light of applicant’s amendments made May 18, 2026.
The rejection of claims 4 and 12 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claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends has been withdrawn in light of applicant’s amendments made May 18, 2026
The remaining rejections remain and/or have been necessitated by applicant’s amendments.
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 inulin is in an amount of 4-12% by weight, sweeteners, including sugar are in an amount of 0-9% by weight, and egg yolk is in an amount of 0-2% by weight”. 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. Additionally, 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. It is noted that the claims are directed to a frozen food product, and never recite or require that the finished ice cream mass forms the frozen food product.
Similarly, claim 11 states the frozen food product comprises vegetable oil, but then also states the oil is between 0-16% by weight. It is noted that the term between can include the end points, and if it is intended that the amount of oil be greater than 0%, it is suggested that the claim be amended to replace “between” with “greater than 0% by weight and up to 16% by weight”.
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”.
Claim 11 is 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 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 requiring dairy components, i.e. components from an animal, Arbuckle “Ice Cream 4th Edition” page 1. Thus, claim 11 fails to include all the limitations of the claim from which it depends as it would necessarily exclude milk and/or cream which are non-vegan food ingredients. It is additionally noted that claim 11 is NOT 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
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-8 and 12-13 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, thus encompassing a total of 1-2% 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, preferably wherein the product comprises 4-14% of the natural stabilizer 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, i.e. stabilize, 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 of natural stabilizer. 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, it is noted that although the preamble recites shock frozen ice cream and the claim recites the product is in the form of ice cream beads, the claim never recites that the finished ice cream mass which is subject to dripping forms the frozen food product. Regardless, 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, it is noted that although the preamble recites shock frozen ice cream and the claim recites the product is in the form of ice cream beads, the claim never recites that the finished ice cream mass which is capable of being stored in the claimed conditions is the frozen food product. Regardless, 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, 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).
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 thickeners, 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, 8, and 12, Cavallini teaches the product comprises fruit juice (abstract and paragraph 4).
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
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Cavallini et al (WO 2010/009419).
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 selected from the group including sunflower, rice, and rapeseed oil may be used to replace the milk fat, which may be from 1-2% (paragraphs 34, 35, and 60), that proteins including rice and oat proteins may be used for nutrition, consistency, whipping, smoothness, and mouthfeel (paragraph 62), and no other animal products are required (all), the teachings of Cavallini are considered to encompass or at least make obvious a vegan product as claimed, wherein it would have been obvious to replace the dairy milk, i.e. fat component, with a non-dairy fat component, i.e. plant milk, including rice milk for its fat replacement and nutritional protein value.
Response to Arguments
Applicant's arguments filed May 18, 2026 have been fully considered but they are not persuasive.
The applicant argues in regards to the indefiniteness of claim 1 that the claimed terms have proper antecedent basis and thus are clear. This argument is not convincing as the issue is not antecedent basis, but rather, the fact that it is unclear as to what the weight of components are by claimed relative to, and as to what the term “comprising” means as written in the claims. Although the term typically means that the product would include the listed components, as the claims further identifies the “included” ingredients may be at 0% the claim conflicts with itself and therefore is unclear.
Applicant argues that the claims are neither anticipated by Cavallini, nor obvious over Cavallini, in view of the secondary references as Cavallini only discloses a multipart stabilizer with ingredients such as alginate, and carrageenan and is silent to egg yolk, and does not disclose any stabilizer comprising both egg yolk and inulin as claimed. This argument is not convincing as the argument is not commensurate in scope with the claims which recite a natural stabilizer comprising inulin, sweeteners, and egg yolk, wherein the egg yolk and sweetener may be included at 0%. The claims do not require a multi-component stabilizer as argued because two of the three disclosed components are claimed at 0% by weight, and thus are optional.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Neta et al (US 2011/0300264) teaches of shock frozen ice cream beads.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
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