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 .
Claim status
The examiner acknowledges the amendment made to instant claims on 01/08/2026.
Claims 1-43 and 52 are pending in the application. Claims 6-14 are currently amended.. Claims 19-33 and 35-37 are withdrawn with traverse in response to the restriction requirement. Rest of claims are previously presented. Claims 1-18, 34, 38-43 and 52 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Claim Objections
Claims 3-5 are objected to because of the following informalities: “the interesterified blend of vegetable oil and fully hydrogenated vegetable oil” in line 3 should read “the interesterified blend of non-tropical vegetable oil and fully hydrogenated non-tropical vegetable oil”. Appropriate correction is required.
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.
Claims 1-12, 16-18, 34, 38-43 and 52 are rejected under 35 U.S.C. 103 as being unpatentable over Jones US Patent No. 5,336,514 (hereinafter referred to as Jones) in view of Lammers US Patent No. 5,352,474 (hereinafter referred to as Lammers) and Rodriguez US Patent Application Publication No. 2010/0196581 A1 (hereinafter referred to as Rodriguez).
Regarding claims 1-12, 18 and 34, Jones teaches a dairy analogue composition (e.g., a whippable non-dairy cream) comprising, inter alia, water at a proportion of 50.7% or 58.1% (Table 1), 15-60% fat (Abstract; col. 2, line 10) and an emulsifier system (col. 2, line 9), wherein the fat consists of 20-85% liquid vegetable oil (e.g., sunflower oil, safflower oil, rapeseed oil, maize oil, olive oil, etc.) (col. 2, line 10-12; col. 3, line 1-4), and 15-80% a hard fat such as (hardened) palm kernel oil, (hardened) coconut oil, hardened rapeseed oil, hardened soybean oil, butter fat, the mixture of above, and interesterified mixture of above (col. 2, line 20-26). Jones teaches a process of combining water, emulsifier, and fat to form a whipping cream (Example III and IV).
The amounts of water, fat and liquid blending vegetable oil as disclosed by Jones fall within or overlaps with the ranges as recited in claims 1-5 and/or 34. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Jones is silent regarding the whippable cream comprises an interesterified blend of non-tropical vegetable oil and fully hydrogenated non-tropical vegetable oil as recited in instant claims 1 and 34.
Lammers in the same field of endeavor teaches that a non-dairy whippable cream comprises 25-45% fat and the fat includes soybean oil, hardened soybean oil, palm kernel oil, hardened palm kernel oil, coconut oil, interesterified coconut oil, hardened coconut oil, palm oil, hardened palm oil, mixtures thereof, and interesterified (both chemically and enzymically) mixtures (abstract; col. 2, line 17-32).
Rodriguez teaches a fat blend (e.g., fat composition) for food use comprising interesterification of a fully (e.g., totally) hydrogenated vegetable oil with a liquid vegetable oil, and such a fat blend has low statured fat content (0015). Rodriguez further teaches that the fully hydrogenated vegetable oil can be fully hydrogenated rapeseed (e.g., canola) oil (0026) and the liquid vegetable used in the interesterification is rapeseed (e.g., canola) oil, sunflower oil, safflower oil, etc. (0031). Rodriguez teaches that the interesterification process can be enzymatic or chemical, and the interesterification mixture comprises 10-80% or narrowly 20-50% fully hydrogenated vegetable oil and 20-90% or narrowly 50-80% liquid vegetable oil (0037). Rodriguez additionally teaches that the interesterified fat is a hard fat (0047).
Both Jones and Rodriguez are directed to fat compositions for food use. Both Jones and Lammers are directed to non-dairy whippable creams. Further, where Jones teaches a vegetable fat that comprises high amount of saturated fat (e.g., butter fat, coconut oil and palm kernel oil, col. 2, line 20-26), Rodriguez teaches a fat blend that contains low amount of saturated fat (0018). Additionally, Lammers recognizes that the interesterified product of a liquid vegetable oil and a hydrogenated (e.g., hardened) vegetable oil can be used as the fat source for a non-dairy whippable cream.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Jones by either substituting the interesterified fat blend as disclosed by Rodriguez for the hard fat of Jones, or combining the interesterified fat blend as disclosed by Rodriguez with the hard fat of Jones with reasonable expectation of success, for the reason that prior art has established that interesterified fat blend as disclosed by Rodriguez possesses the benefit of having a low saturated fat, and that it is suitable to use an interesterified product of a liquid vegetable oil and a hardened vegetable oil in a non-dairy whippable cream. Further, as stated in MPEP 2144.06, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
The amount of fully hydrogenated vegetable oil and the amount of vegetable oil in the interesterified fat blend as disclosed by Rodriguez encompass the ranges as recited in claims 6-7. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Modification of Jones with Lammers and Rodriguez will result in fat composition that comprises an interesterified blend overlaps with the range as recited in claims 3-5. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 16, Rodriguez teaches that the interesterified fat blend has a total bound saturated fatty acid content of less than 45% or preferably lower than 36% (0038; 0032). Further, it is known that fatty acid of vegetable fat/or is predominantly C4-C24 fatty acid.
Regarding claim 17, Rodriguez teaches a fat composition comprising 7.3% bound palmitic acid (0045; 0032). Further, it is known that fatty acid of vegetable fat/or is predominantly C4-C24 fatty acid.
Regarding claim 38, Jones as recited above teaches a non-dairy whippable cream, but is silent regarding that the whippable cream further comprises an animal milk-derived protein.
Lammers in the field of non-dairy whippable cream teaches that it is suitable to include caseinate to achieve the desired whippability (abstract; col. 1, line 60-64).
Therefore, It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Jones by including caseinate for achieving the desired whippability.
Regarding claims 39-41, the disclosure of Jones does not mention an animal protein. Further, although Jones mentions butter milk or butter fat (col. 2, line 7-8 and 20-25), those are merely optional items. Therefore, claims 39-41 is met by the cited arts in combination.
Regarding claim 42, Jones teaches a maximum butter fat of 10 wt% or preferably less than 4 wt% by weight of the whippable cream (column 2, line 33-35). Further, one of ordinary skill in the art would have been motivated to manipulate the amount of interesterified fat blend and butter fat in the fat composition provided that the total amount of hard fat is 15-80% as required by Jones.
Regarding claims 43 and 52, Jones teaches the process of combining water, emulsifier and fat to form a whipping cream (Example III and IV). Further, the examiner takes official notice that since it is known to incorporate a non-dairy whipping/whipped cream in a food product, the limitation about a food product comprising the whipping cream of claim 1 is obvious.
Since applicant does not traverse the examiner’s assertion of official notice set forth in the office action issued on 11/05/2025, the common knowledge or well-known in the art statement is taken to be admitted prior art because applicant either failed to traverse the examiner’s assertion of official notice or that the traverse was inadequate. See Ahlert, 424 F.2d at 1091, 165 USPQ at 420. See also MPEP 2144.03 C.
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Jones in view of Lammers and Rodriguez as applied to claim 1 above, and further in view of Floter US Patent Application Publication No. 2003/0113427 A1 (hereinafter referred to as Floter).
Regarding claims 13-15, Jones in view of Lammers and Rodriguez teaches an fat blend obtained from the interesterification of a liquid vegetable oil such as rapeseed oil, and a fully hydrogenated vegetable oil such as fully hydrogenated rapeseed oil. Jones in view of Lammers and Rodriguez is silent regarding the fully hydrogenated vegetable oil comprising fully hydrogenated high erucic acid rapeseed oil.
Floter teaches that fully hydrogenated high erucic rapeseed oil can be interesterified to obtain a hard fat or structured fat (0020; claim 5).
All the arts as cited above are directed to fat compositions for food use. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Jones in view of Lammers and Rodriguez by combining fully hydrogenated high erucic rapeseed oil with fully hydrogenated rapeseed oil as the source of fully hydrogenated vegetable oil in an interesterification process because, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06. In the instant case, prior art has established that both fully hydrogenated high erucic rapeseed oil and fully hydrogenated rapeseed oil are suitable sources of fully hydrogenated vegetable oil in an interesterification process and thus it would have been obvious to combine the two.
On the limitation about 40-60% rapeseed oil in the interesterified fat blend as recited in claim 15, Rodriguez as recited above teaches that vegetable oil used for interesterification could be rapeseed (e.g., canola) oil, and the amount of which is 20-90% or narrowly 50-80% (0037; 0031). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
On the limitation about the proportions of fully hydrogenated high erucic rapeseed oil and fully hydrogenated rapeseed oil in the interesterified fat blend as recited in claim 15, one of ordinary skill in the art would have been motivated to manipulate the ratio of two in the interesterified reactants provided that the interesterified fat blend contains lower concentration of saturated fat, and the saturated fat are mainly composed of stearic acid and low percentage of palmitic acid as required by Rodriguez (see Rodriguez 0014; 0039). As such, the proportions of fully hydrogenated high erucic rapeseed oil and fully hydrogenated rapeseed oil in the interesterified fat blend as recited in claim 15 are merely obvious variants of the prior art.
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Jones in view of Lammers and Rodriguez as applied to claim 1 above, and further in view of Wheeler US Patent No. 5,378,490 (hereinafter referred to as Wheeler).
Regarding claims 13-14, Jones in view of Lammers and Rodriguez as described above teaches a whippable cream that renders obvious claim 1. Jones in view of Lammers and Rodriguez is silent regarding the use of high erucic rapeseed oil as the source of fully hydrogenated vegetable oil in the interesterified fat blend.
Wheeler teaches a low-calorie triglyceride compositions and food compositions comprising them (col. 5, line 36-39). Wheeler teaches that the triglycerides in the invention are made of long fatty acid residues, referred to as R, comprising an acyl group (col. 8, line 47-48) derived from any synthetic or natural organic acid, such as palmitic or stearic, or by hydrogenating an unsaturated acid, such as oleic or linoleic (col. 8, line 59-67). Wheeler teaches that the composition may contain R groups that are mixtures of fatty acids and can be derived from non-hydrogenated, partially hydrogenated, or fully hydrogenated oils, such as low erucic or high erucic rapeseed (col. 9, line 7-13) or hydrogenated fats, such as hydrogenated canola oil (col. 9, line 21-24).
Jones, Lammers, Rodriguez and Wheeler all exist within the same field of endeavor in that they teach fat compositions and food products that comprise them. Where Jones teaches a whippable cream comprising vegetable fats and Lammers teaches that an interesterified fat blend can be used as the fat source for whippable cream, Rodriguez teaches interesterification and hydrogenation of vegetable fats in order to produce a blend of low saturated fat, and Wheeler teaches fat compositions comprising randomly interesterified and hydrogenated canola oil. Wheeler would have been obvious to combine with Jones, Lammers and Rodriguez because Wheeler teaches fat compositions that can be used as substitutes for part or all of the fat in a dairy food product (col. 13, line 33-35).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have used the teachings of Jones, Lammers and Rodriguez in order to produce a whippable cream, and the teaching of Wheeler to create a whippable cream comprising a fat composition comprising fully hydrogenated rapeseed oil, fully hydrogenated high erucic rapeseed oil, and vegetable oil, thereby rendering obvious claims 13-14.
With respect to claim 15, Jones in view of Lammers and Rodriguez teaches a whippable cream that renders obvious claim 1, and in further view of Wheeler renders obvious claim 14, as described above. Rodriguez teaches the mixture of hydrogenated to non-hydrogenated can be 10-80% to 20- 90% ([0037). Wheeler teaches the use of mixtures of fatty acids that can be derived from non- hydrogenated, partially hydrogenated, or fully hydrogenated oils, such as low erucic or high erucic rapeseed, (col. 9, line 7-13) or hydrogenated fats, such as hydrogenated canola oil (col. 9, line 21-24).
According to MPEP 2144.05 II, “Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. The recitation of 40-60% rapeseed oil, 5-15% fully hydrogenated high erucic acid rapeseed oil, and 30- 50% fully hydrogenated rapeseed oil is simply the result of routine experimentation that would have been obvious to one of ordinary skill in the art in the process of blending the oils taught by Rodriguez and Wheeler.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have used the teaching of Jones as modified by Lammers and Rodriguez and further in view of Wheeler to produce a whippable cream with a fat composition comprising 40- 60% rapeseed oil, 5-15% fully hydrogenated high erucic acid rapeseed oil, and 30-50% fully hydrogenated rapeseed oil, thereby rendering obvious claim 15.
Response to Arguments
Applicant's arguments filed 01/08/2026 have been fully considered but they are not persuasive.
Regarding the 35 USC 103 rejection of at least claim 1 over Jones as modified by Lammers and Rodriguez, applicant argues on page 14 of the Remarks that where Jones specifically teaches the use of a hard fat, the fat of Rodriguez would have a low melting fat thus is not compatible with the fat of Jones.
The argument is considered but found unpersuasive because the interesterified fat blend of Rodriguez has a melting point ~40 °C (0047) which qualifies as a hard fat, thus can be used to replace the hard fat of Jones. Additionally, such an interesterified fat blend offers an additional benefit of having a lower amount of saturated fat, a good proportion of stearic acid and a low level of trans fatty acid (0018). Even if, in arguendo, that the interesterified fat blend as disclosed by Rodriguez is not a hard fat but a liquid vegetable oil, the office action issued 11/05/2025 (para. 25) also proposed combining the interesterified fat blend with the hard fat of Jones. In either case, it does not appear there is a compatibility issue between Jones and Rodriguez.
Further, applicant appears to have overlooked the teaching of Lammers that an interesterified product of a liquid vegetable oil and a hydrogenated (e.g., hardened) vegetable oil can be used as the fat source for a non-dairy whippable cream (column 2, line 17-23).
Applicant argues on page 14 of the Remarks that modification Jones’ fat by the interesterified fat blend would alter its critical functional properties, rendering it unable to impart the benefits in whip time, overrun, viscosity and firmness.
The argument is considered but found unpersuasive. Contrary to the assertion of the applicant that it is the (hard) fat per se that imparts the whippable cream the benefit in whipping time, overrun, viscosity, etc., it appears that, judging from column 1 line 63-column 2, line 30 of Jones, it is mainly liquid oil and the ratio liquid oil to the hard fat that impart the aforementioned features. One of ordinary skill in the art would have known that the function of a hard fat in a whippable cream is to provide structural stability (e.g., a hard fat is solid at room temperature, which will prevent the whipped cream from turning into liquid quickly). In the instant case, since the interesterified fat blend of Rodriguez is still a hard fat, one skilled in the art would reasonably expect that modification of Jones by Rodriguez will not forgo the aforementioned benefits. Further, such an interesterified fat blend offers an additional benefit of having a lower amount of saturated fat, a good proportion of stearic acid and a low level of trans fatty acid (0018). Alternatively, the office action issued 11/05/2025 (para. 25) also proposed combining the interesterified fat blend with the hard fat of Jones thus the hard fat of Jones is still there to provide the structural stability for the whippable cream. See In re Urbanski, 809 F.3d 1237, 1244, 117 USPQ2d 1499, 1504 (Fed. Cir. 2016) (The patent claims were directed to a method of enzymatic hydrolysis of soy fiber to reduce water holding capacity, requiring reacting the soy fiber and enzyme in water for about 60-120 minutes. The claims were rejected over two prior art references, wherein the primary reference taught using a longer reaction time of 5 to 72 hours and the secondary reference taught using a reaction time of 100 to 240 minutes, preferably 120 minutes. The applicant argued that modifying the primary reference in the manner suggested by the secondary reference would forego the benefits taught by the primary reference, thereby teaching away from the combination. The court held that both prior art references "suggest[ed] that hydrolysis time may be adjusted to achieve different fiber properties. Nothing in the prior art teaches that the proposed modification would have resulted in an ‘inoperable’ process or a dietary fiber product with undesirable properties." MPEP 2143.01 V.
Further, the examiner notes that where Lammers that an interesterified product of a liquid vegetable oil and a hydrogenated (e.g., hardened) vegetable oil can be used as the fat source for a non-dairy whippable cream, applicant has not provided any evidence indicating introducing the interesterified fat blend to the whippable cream will negatively impact the whipping, overrun and other properties of a whippable cream. See MPEP 716.01(c) II. Attorney arguments cannot take the place of evidence. MPEP 2145 I. Argument does not replace evidence where evidence is necessary.
Applicant argues on page 15 of the Remarks that Rodriguez does not teach that its interesterified fat blend is suitable for use as a fat component in the claimed dairy analogue composition.
The argument is considered but found unpersuasive. It is not required that Rodriguez needs to teach that the interesterified fat blend is suitable for use in a dairy dialogue such that it could be combined with Jones. Rather, as set forth in the office action issued 11/05/2025 (para. 21-25), where Jones teaches a vegetable fat that comprises high amount of saturated fat (e.g., butter fat, coconut oil and palm kernel oil), Lammers recognizes that the interesterified product of a liquid vegetable oil and a hydrogenated (e.g., hardened) vegetable oil can be used as the fat source for a non-dairy whippable cream, and Rodriguez teaches an interesterified fat blend that contains low amount of saturated fat, a skilled artisan would have been motivated to use the interesterified fat blend in the whippable cream of Jones and have reasonable expectation of success.
Applicant argues on page 15 of the Remarks that one of ordinary skill in the art would appreciate that Rodriguez’s fat must be altered to include high level of palmitic acid to achieve fat with β’ stability and is not suitable for use as the fat component of Jones’ dairy analogue, since combining the teaching of Jones and Rodriguez would negatively affect Jones’ composition.
It is unclear what applicant tries to convey here. Does applicant mean including higher level of palmitic acid will negatively affect Jones’ composition? How so? To this end, para. 0045 of Rodriguez teaches an interesterified fat composition that comprises 7.3% bound palmitic acid, and applicant is invited to clarify on how such a fat blend will negatively affect Jone’s composition.
Applicant argues on pages 15-16 of the Remarks that cited arts do not teach that the fat would provide the same benefits in cheese analogues.
Applicant is remined that the claims at issue are not drawn to a cheese analogue, rather, they are to a whipping cream composition as applicant has elected in response to the restriction requirement. Further, prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art. "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In the instant case, where prior art teaches the same interesterified fat blend in a whipping cream as the claimed invention, then whatever benefits applicant asserts, such benefits are within the teaching of the prior art.
For the reasons set forth above, applicant’s arguments on page 16 of the Remarks regarding other secondary references Floter and Wheeler are not persuasive, either.
Conclusion
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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/CHANGQING LI/Primary Examiner, Art Unit 1791