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 .
DETAILED ACTION
Claim 8 is cancelled.
Claims 1-7 and 9-15 are pending in the current application.
Claim 15 has been withdrawn from consideration (see discussion, below).
Claims 1-7 and 9-14 are examined in the current application.
Election/Restrictions
Claim 15 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on January 26th 2026.
Applicant's election with traverse of claims 1-7 and 9-14 in the reply filed on January 26th 2026 is acknowledged. The traversal is on the grounds that unity of invention exists between the claims groups, as Van Kempen fails to meet the inventive concept, because Van Kempen only identifies coconut and safflower oils as possible combinations, among others, but fails to provide examples. This is not found persuasive because As set forth in MPEP §2131.02, when the claimed species are clearly named, the claim is met no matter how many other species are additionally named (see MPEP §2131.02).
The requirement is still deemed proper and is therefore made FINAL.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Van Kempen et al (USPat.Pub. 2013/0273231 A1). Evidenced by NPL Dubois et al., “Fatty acid profiles of 80 vegetable oils with regard to their nutritional potential” (from Eur. J. Lipid Sci. Technol. 109 (2007) 710-732).
Regarding claims 1, 3, 4, 6 and 9-14: Van Kempen discloses a fat-containing edible product (e.g., a fat spread) comprising a blend of aqueous phase and 40-95% fat phase, wherein the fat phase comprises a blend of structuring fat (i.e., hardfat) and 50-80wt% liquid oil. Furthermore, van Kempen discloses the structuring fat can be coconut fat, and the liquid oil can be safflower oil (see van Kempen paragraphs [0059]-[0061]) and that the fat-containing product is free from hydrogenation (see van Kempen paragraphs [0055] and [0069]). Given the fact coconut oil comprises about 8.7% palmitic acid and about 2.7% stearic acid, and since safflower oil comprise about 6.1% palmitic acid and 2.7% stearic acid (see Dubois tables 1 and 4), which overlaps the contents recited in claim 1. Thus, a prima facie case of obviousness exists (see MPEP §2144.05). Accordingly, the disclosure in van Kempen meets an edible fat-containing product comprising an aqueous phase and 30-99wt% fat phase, wherein the fat phase comprises liquid vegetable oil and 5-90wt% structuring fat, wherein the structuring fat contains 3-22wt% C16:0 and 5-25wt% C18:0, wherein the fat phase is not derived from palm oil and wherein the liquid oil and/or the structuring fat do not comprise hydrogenated oil or fat.
Regarding claims 2, 5 and 7: While Van Kempen discloses the XYX triglyceride configuration of the structuring fat (see Van Kempen paragraph [0044]) and using fats with known stearic acid and palmitic acid contents (see Van Kempen paragraphs [0059]-[0061]), Van Kempen fails to disclose the content of stearic acid in the 2-position of the triglyceride; However, given the fact Applicant contemplates attaining the hardfat (i.e, structuring fat) from the same source as Van Kempen (see Specification Example 1), it is examiner’s position the stearic acid content in the 2-position recited in the claims, is inherently present in Van Kempen. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ASSAF ZILBERING/Examiner, Art Unit 1792
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