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 .
The amendment filed 7/20/2026 has been entered. Claims 1-14, 16-21 are pending. Claims 12-14 are withdrawn from further consideration as being drawn to a non-elected invention. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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 1-11 and 16-21 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 a ratio of “starch to a total of the starch and water in the starch phase is 10.5 or below”. It is unclear how the ratio of the amount of starch to the amount of starch and water, which by definition must be below a value of 1, may have a value of 1-10.5. Portions of the range are physically impossible.
For the purposes of examination, the limitation is interpreted as described in the instant Specification (Page 6, Lines 22-23), which is wt% starch / (wt% starch + wt% water).
Claims 2-11, 16-21 depend from independent Claim 1 and are therefore also rejected.
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.
Claim 3 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 3 recites a ratio of starch to total water in the starch phase of 1:7 and 1:29. However, Claim 1 requires that amount of starch to starch and water be below 10.5%, i.e. for 100 grams of a starch water combination, at most 10.5 grams of starch be present for 89.5 grams of water. This is the same as a starch:water ratio of at least 1:8.5. Claim 1 therefore overlaps, but does not encompass Claim 3.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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.
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.
Claim(s) 1-11 and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Reaney (US 2021/0059284) taken with evidentiary reference of Gupta (“Nanoemulsions: formation, properties, and applications”, DOI: 10.1039/C5SM02958A, Feb 2016), and in view of Lenchin (US 4510166) and Xiong (“Modelling the pH of mayonnaise by the ratio of egg to vinegar”, DOI: 10.1016/S0956-7135(99)00064-X, May 1999.
Regarding Claim 1, Reaney teaches a method for an emulsified food composition [0137-0140]. The method comprises utilizing aquafaba as an emulsifier with oil/fat to make an emulsion.
Regarding part c), Reaney teaches a composition comprising 2 grams of aquafaba in 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 0.7% aquafaba in the overall food composition [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL. Reaney teaches that dry aquafaba is 27% protein [0026]. Reaney therefore teaches .19% of aquafaba based on the legume protein content of the aquafaba, which lies within the claimed range.
Regarding the protein limitation within the emulsifier phase, Reaney teaches the use of aquafaba in forms ranging from dry powder [0027] to liquid [0115]. Reaney additionally teaches aquafaba ranging from 1.5% protein [0123] to 27% protein [0026]. Where Reaney teaches the effect of different aquafaba compositions, e.g., foaming and emulsifying properties [0125], and additionally teaches that protein provides foaming and emulsifying properties [0031], one of ordinary skill would have been able to have adjusted the amount of legume protein within the emulsifying phase to have arrived at the amounts as claimed through no more than routine experimentation.
Regarding e), the method comprises the addition of 230 mL of canola oil (which is a vegetable oil) in a composition comprising 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 80% oil [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL.
Note that Reaney teaches than an aquafaba-oil mixture makes a “nanoemulsion” [0027], which has droplet sizes on the order of 100 nm (see evidentiary reference of Gupta, Abstract, Line 1), which lies within the claimed range of below 50 microns. The prepared food of Reaney is therefore interpreted to have droplet sizes that lie within the claimed range.
Reaney does not address the use of a heated mixture of starch, water, and an acidulant.
Lenchin teaches the use of starches to replace oil/fat (Column 3, Lines 4-5) in emulsified food applications such as mayonnaise (Column 8, Table I). Lenchin teaches that the starch is acidified and heated to gelatinization (Column 4, Lines 55-65 and Column 7, Example I. Note that the starch of Lenchin forms a “firm gel” (Column 7, Line 21) and is therefore gelatinized). Lenchin teaches that the starch is 10-50% solids, which overlaps the claimed range (Column 6, Lines 63-65). Lenchin teaches that these starches can be produced economically (Column 2, Lines 24-25).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize the method of Lenchin, and first provide a heated phase of water, acidulant, and starch, and utilize the heated phase to replace some of the oil/fat of Reaney. One would have been motivated to make such a modification to utilize an economical replacement for oil/fat.
Note that Lenchin teaches partial replacement of the oil/fat phase with a heated starch, e.g. 50% for a mayonnaise (Column 8, Table 1). It therefore would have been obvious to have replaced half of the 80% of the oil/fat of Reaney to yield a composition comprising 40% oil/fat, which lies within the claimed range.
Regarding the mixture of a starch phase with the emulsifier phase prior to a combination with an oil/fat, and a second addition of the starch phase, note that the selection of any order of performing process steps is prima facie obviousness, absent new or unexpected results. See MPEP 2144.04 IV C.
Regarding the pH of the final food composition, Reaney a mayonnaise (Page 10, Example 26). Xiong teaches that a mayonnaise should have a pH of about 4.0 for food safety (Conclusion, Paragraph 1), which lies within the claimed range. Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to formulate a food with claimed pH. One would have been motivated to make such a modification to formulate a safe product.
Regarding Claim 2, Lenchin teaches the use of potato, corn, tapioca, and rice starch (Column 3, Lines 7-8).
Regarding Claim 3, Lenchin teaches that the combination of water and starch has “at least 5% moisture” (Column 4, Line 8), which encompasses the claimed range. Note that Lenchin additionally teaches that the starch is “slurried” in water (Column 4, Lines 59-60).
Regarding Claim 4, Reaney teaches the use of aquafaba from chickpeas or other pulses [0003].
Regarding Claim 5, Reaney teaches the use of aquafaba ranging from 1.5% protein [0123] to 27% protein. Where Reaney teaches the effect of different aquafaba compositions, i.e. foaming and emulsifying properties [0125], one of ordinary skill would have been able to have adjusted the amount of legume protein within the emulsifying phase to have arrived at the amounts as claimed through no more than routine experimentation.
Regarding Claim 6, Reaney teaches a composition comprising 2 grams of aquafaba in 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 0.7% aquafaba in the overall food composition [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL. Reaney teaches that dry aquafaba is 27% protein [0026]. Reaney therefore teaches .19% of aquafaba based on the legume protein content of the aquafaba, which lies within the claimed range.
Regarding Claim 7, Reaney teaches a composition comprising 2 grams of aquafaba in 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 0.7% aquafaba and 80% vegetable oil in the overall food composition [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL. Reaney therefore teaches 0.8% of aquafaba as a ratio of aquafaba to vegetable oil.
Regarding Claim 8, Lenchin teaches the use of starches to replace oil/fat (Column 3, Lines 4-5) in emulsified food applications at up to 100% of the oil/fat (Column 8, Table I, “Ice Cream”), wherein the starch is incorporated as a 25 wt% starch/75 wt% water mixture (Column 8, Lines 5-6). The starch of Lenchin, used as a starch/water mixture to replace half of the oil/fat of Reaney, comprises 10% of the overall composition (0.5 * 80% * 25%).
Regarding Claim 9, note that the selection of any order of performing process steps is prima facie obviousness, absent new or unexpected results. See MPEP 2144.04 IV C. Note that it additionally would have been obvious to have mixed any amount of the starch phase into the emulsifier stage at any of the process steps, including in the amounts claimed.
Regarding Claim 10, Reaney teaches the addition of 230 mL of canola oil (which is a vegetable oil) in a composition comprising 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 80% oil [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL. Note that Lenchin teaches partial replacement of the oil/fat phase with a heated starch, e.g. 50% for a mayonnaise (Column 8, Table 1). It therefore would have been obvious to have replaced half of the oil/fat of Reaney to yield a composition comprising 40% oil/fat, which lies within the claimed range.
Regarding Claim 11, Reaney teaches a composition comprising 2 grams of aquafaba in 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 0.7% aquafaba in the overall food composition [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL. Reaney teaches that dry aquafaba is 27% protein [0026]. Reaney therefore teaches .19% of aquafaba based on the legume protein content of the aquafaba, which lies within the claimed range.
Regarding Claim 16, Reaney teaches the use of, e.g. 2 grams of dry aquafaba in 77 grams of an emulsifier mixture (45 grams of water, 30 grams of acid, 2 grams of dry aquafaba) [0137]. Reaney teaches that dry aquafaba is 27% protein [0026]. Reaney therefore teaches 0.7% aquafaba, based on the content of legume protein, in the emulsifier mixture.
Regarding Claim 17, Reaney teaches the use of aquafaba from chickpeas or other pulses [0003].
Regarding Claim 18, Reaney teaches the use of aquafaba in form ranging from dry powder [0027] to liquid [0115]. Reaney additionally teaches aquafaba ranging from 1.5% protein [0123] to 27% protein. Where Reaney teaches the effect of different aquafaba compositions, i.e. foaming and emulsifying properties [0125], one of ordinary skill would have been able to have adjusted the amount of legume protein within the emulsifying phase to have arrived at the amounts as claimed through no more than routine experimentation.
Regarding Claim 19, Reaney teaches a composition comprising 2 grams of aquafaba in 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 0.7% aquafaba in the overall food composition [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL.
Regarding Claim 20, Reaney teaches a composition comprising 2 grams of aquafaba in 284 grams of material (45 grams of water, ~15 grams of lemon juice, ~15 grams of white wine vinegar, 2.5 grams of salt, 207 grams of oil), which is 0.7% aquafaba and 80% vegetable oil in the overall food composition [0137-0140]. Note that the density of vegetable oil is ~0.9 grams/mL. Reaney therefore teaches 0.8% of aquafaba as a ratio of aquafaba to vegetable oil.
Regarding Claim 21, note that the selection of any order of performing process steps is prima facie obviousness, absent new or unexpected results. See MPEP 2144.04 IV C. Note that it additionally would have been obvious to have mixed any amount of the starch phase into the emulsifier stage at any of the process steps, including in the amounts claimed.
Response to Arguments
Applicant’s arguments filed 7/20/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that the use of concentrated aquafaba allows for a greater amount of water and a stable mayonnaise composition. Applicant additionally argues that the claimed amount of starch and water allows “stable and acceptable mayonnaise-type compositions”. Applicant additionally argues that one having ordinary skill would not have the motivation to combine references with any expectation of success.
This argument is not convincing. First, where the prior art teaches the limitations of the claim(s), the product of the prior art is expected to result in a composition according to the claim. Note that Reaney teaches a mayonnaise composition comprising aquafaba as set forth above. Second, the Claims are directed towards an oil in water emulsion. Applicant has not claimed that the claimed starch has any particular function or provides any specific properties, nor has Applicant provided criteria for what distinguishes a “stable and acceptable” vs. a “unstable and hard to process” composition. Third, sufficient motivation is provided to combine the references as set forth above. Note that the motivation to utilize e.g. starch and water in a mayonnaise composition is not required to be the same as that of the instant Application. See MPEP 2144 IV.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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