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
Status of the application
2. Claims 1-18 are pending in this office action.
Claims 1-18 have been rejected.
Claim Objections
3. Claim 1 objected to because of the following informalities: Claim 1 (h) recites the phrase “particle size” twice. Appropriate correction is required.
Claim Rejections - 35 USC § 112
4. 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.
5. Claim 5 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.
6. Claim 5 recites “the vegetable base”. Claim 5 depends on claim 1. There is no such phrase “ vegetable base” in claim 1 . There is insufficient antecedent basis for this limitation in the claim 5. It is also unclear if this list is for all or just some, there is no alternative language (i.e. or) but at the end it says and combinations thereof, if all are supposed to be there then the and combinations thereof is redundant and if all are not supposed to be there then it should read something like the vegetable bases comprises at least one of legumes nuts seeds cereals and combinations thereof.
Claim 17 recites “particle size of the emulsion”. Claim 17 depends on claim 1. Claim 1 does not recite “emulsion”. There is insufficient antecedent basis for this limitation in the claim 5.
Claim Rejections - 35 USC § 112
7. 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.
8. Claims 16, 17 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 16 recites “wherein the sugar beet pectin is present in about 0.001 percent to about 2 percent of the total weight of the composition” which claim range is identical to the sugar beet pectin claim range of claim 1 from which claim 16 depends. Similar is the situation for D[3,2] value of claim 17 which has identical claim range value as claimed in claim 1 from which claim 17 depends. This renders claims 16, 17 having 112 fourth paragraph rejection because claims 16, 17 failing to further limit the subject matter of the claim 1 upon which it depends. 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
9. 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.
10a. 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.
10b. 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.
11. Claim(s) 1-4 and 11, 12, 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Zitny WO 2021/045695 (March 11, 2021) in view of Sayama et al. (JP H10183500 A) in view of McCready US 2011/0064862 and in view of Alba et al. (in Colloids and Surface B: Biointerfaces Vol 145, 301-308, 2016).
12. Regarding claims 1, 12, for claim 1, claim 1 recites “at least one or more of” after claim 1 (c ). Therefore, it is interpreted as at least one of the ingredients from claim 1 (d)-(h) should be present in the concentrations listed. This would mean that no sweetening agent or no nut-based composition present would read on (e) and (f ) of claim 1.
Regarding claim 1, Zitny discloses a method of processing sugar beet with the inactivation of the material against degradation having a significant improved sensory profile and a reduced proportion of negative sensory substances that is suitable and applicable in the food industry (Abstract, and page 3, lines 28-32). Zitny also discloses a sugar beet root contains (a) approximately 75% ± 5% by weight of water (Page 10, Line 17);
Regarding claim 1 (a) , claim 1 (a) claims “ 40-95 wt.% water”. Zitny et al. discloses a sugar beet root contains (a) approximately 75% ± 5% by weight of water (Page 10, Line 17). Zitny et al. has processed sugar beet by treating with alcohol which removes water and having a solid phase product contained in particular pectin substances (Page 26, lines 27-29). Zitney et al. also discloses that the method provides a significant improved sensory profile and a reduced proportion of negative sensory substances that is suitable and applicable in the food industry (Abstract, and page 3, lines 28-32). Therefore, the solid dry matter is good quality stable product from beet root .
Zitney et al. also discloses that the solid dry matter can be dissolved in water (at least in Page. 40, lines 13-14) for further use. One of ordinary skill in the art, at the time of the claimed invention, would have been motivated to make solid dry matter composition containing sugar beet pectin as disclosed by Zitny with a reasonable expectation of success to apply said composition to the processing of an entire root of sugar beet, to produce thereby products that are a nutritionally valuable and functional food sweetener and to provide an alternative to processing sugar beet as a source of sugar (in Zitney et al., Page. 2, Lines. 4-6) which can be further used with desired dilution with water ((at least in Zitney et al., Page. 40, lines 13-14) for further use.
Regarding claim 1 (b), claim 1 (b) recites “0.001-40% w/w of a vegetable oil or vegetable fat”, Zitny et al. discloses the finished dry product will have a vegetable oil or vegetable fat (vegetable fats in liquid form, oils, Page 24, Lines 26-27) and the amount depends on the type of application with respect to its use in food (page 25 first paragraph). Zitney et al. also discloses that the ratio from 1:2 to 1:50 by weight (oil: Product) (page 24, lines 26-27). It can be interpreted as Therefore, the range amount of vegetable oil with respect to total weight of the product ranges from 50% by weight (w/w) (i.e. 1:2) to 2% by weight (w/w) (i.e. 1:50) which overlaps the claimed range amount as claimed in claim 1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 1 (c), claim 1 (c) recites “0.001-2% sugar beet pectin”. Zitny discloses the dried “dry matter substance” which contains fiber components cellulose, hemicellulose in combination with sugar beet pectin substance containing fibers (in Zitny et al., page 26 lines 28-32).
However, Zitny is specifically silent about the amount of sugar beet pectin, plant proteins in the dried solid phase as claimed in claim 1(c ) and (d).
It is to be noted that the claimed amount of sugar beet pectin, plant proteins can be very little (lower amount) as claimed in claim 1.
Sayama et al. discloses that fiber from sugar beet contains 23% of cellulose, 36% of hemicellulose, 19% of pectin, and 9% of protein and a trace amount. It is a strip-shaped fine fiber ( Under Summary of the invention, Under [0007], fifth paragraph under [0007]). Therefore, it is approximately half the amount of plant protein is carried over with the sugar beet pectin when Zitney’s dry matter substance” is considered as a source of fiber including sugar beet pectin as taught by Sayama et al.
It is also to be noted that the disclosed 9% protein in fiber i.e. sugar beet pectin fiber composition meets the claim limitation of “8-20% by weight of protein as claimed in claim 12. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) . Therefore, when Zitney’s dry matter substance” is considered as a source of fiber including sugar beet pectin as taught by Sayama et al., it will have both the sugar beet pectin, plant proteins as discussed above.
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify the solid phase of Zitney et al. as fiber having the fiber composition comprising “sugar beet pectin” with protein as taught by Sayama et al. can be used as combined fiber source as the source of “sugar beet pectin” and protein.
Zitney et al. also discloses that the solid dry matter can be dissolved in water (at least in Page. 40, lines 13-14) for further use.
It is within the skill of one of ordinary skill in the art to optimize the amount of sugar beet from the teachings of Sayama et al. in the composition which will have desired amount of pectin along with protein as claimed in claim 1. Therefore, it will contain plant protein also.
Even if Zitny and Sayama et al. do not specifically disclose the claimed range amount of these ingredients, however, it is also optimizable.
As discussed above, Zitney et al. also discloses that the solid dry matter can be dissolved in water (at least in Page. 40, lines 13-14) for further use. One of ordinary skill in the art can consider the teaching of Sayama et al. to optimize the dilution with the desired amount of solid dry matter which can bring the amount of pectin with protein by diluting with the amount of water through optimization which will meet claimed range amount of water, sugar beet and protein as claimed in claim 1 (a), (c ) and (d).
Absent showing of unexpected results, the specific amount of water, pectin and protein are not considered to confer patentability to the claims. As the sugar beet pectin containing fiber in the composition and dilution with water are variables that can be modified, among others, by adjusting the amount of water , the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of water in Zitney et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired fiber which includes sugar beet pectin and plant protein of claimed composition (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
As discussed above, as because claim 1 (d) is addressed above, therefore, according to the claim limitation with the phrase “ at least one or more of : steps of claim 1(d)-(h)”, need not be addressed.
However, additionally, examiner addressed claim 1 (e ), and particle size.
Zitny et al. is silent about claim 1 (e ), and particle size as claimed in claim 1.
Zitny et al. does not disclose
(a) “wherein said composition further comprises e) 0-7% w/w a nut base composition; and
(b) does not to explicitly disclose wherein the particle size particle size distribution of the composition has a surface weighted mean diameter D [3,2) of 10 µm or less”.
With respect to (a), claim 1 (e ) can be considered as optional as claimed lower range value is zero for claim 1 ( e ).
(Alternatively), as claim5 has nut, examiner used McCready to address this. McCready et al. discloses methods of producing beverage containing almond nut butter in an amount of 2% by weight (at least in [0036] and in [0002], [0013]) which meets up to 7% by weight of nut base composition of claim 1.
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify the solid phase of Zitney et al. with the teaching of McCready discloses methods of producing beverage containing almond nut butter in an amount of 2% by weight (at least in [0036] and in [0002], [0013]) in order to make beverage that include nut butter having nut flavor base beverage food product.
With respect to ( b), regarding d3,2 value as claimed in claim 1, this is addressed using Alba et al.
Alba is in the field of emulsions that are increasingly being utilized for encapsulating and delivering bioactives at targeted locations in the gastrointestinal tract (Pg. 301, Col. 1, Para. 1), and teaches wherein a particle size distribution of a composition has a surface weighted mean diameter D [3,2) of 10 µm or less (comprising emulsions ... that are incorporated into the hydrophobic core of lipid droplets, Pg. 301, Col. 1, Para. 1; wherein droplet size was described using the surface-weighted mean diameter [d3,2) Pg. 302, Col. 1, Para. 4; wherein pectin type and ageing on the average droplet influences diameters [d3,2], Pg. 303, Table 1; said droplet size comprising a surface weighted mean diameter D [3,2) of 10 µm or less, Pg. 303, col 1 3.1, mid paragraph e.g. good emulsification capacity at d3.2 1.7-3.2 and Table 1).
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify Zitney et al. to include the teaching of Alba et al. who discloses that the emulsion containing the small comparable amount of pectin ( in page 302, col 2 last two lines) in the composition, droplet size d [3,2] provides a stable product with good emulsification capacity (e.g. surface-weighted mean diameter [d3,2) Pg. 302, Col. 1, Para. 4; wherein pectin type and ageing on the average droplet influences diameters [d3,2], Pg. 303, Table 1; said droplet size comprising a surface weighted mean diameter D [3,2) of 10 µm or less, Pg. 303, col 1 3.1, mid paragraph e.g. good emulsification capacity at d3.2 1.7-3.2 and Table 1).
13. Regarding claims 2, 3, modified Zitny et al. does not teach any other hydrocolloid and/or emulsifier in the composition of claim 1.
14. Regarding claim 3, modified Zitny discloses the composition according to claim 1, and Zitny further discloses wherein the composition does not include an additional emulsifier other than beet pectin (wherein structural changes in the sugar beet material during sonication led to changes in the rheological properties of the sugar beet concentrates obtained, as manifested in particular by a change in viscosity and solubility in the mixtures with water, as well as the formation of more stable suspensions and emulsions in the mixture with water and/or fats, Pg. 41, Ln. 20-24).
15. Regarding claim 4, modified Zitny do not disclose any buffering agent. In particular, Zitney‘s solid phase dried product ( page 26, lines 30-32) and disclosed oil which are used to address the composition of claim 1 does not contain any buffering agent.
16. Regarding claim 11, Zitny et al. discloses wherein the vegetable oil or vegetable fat comprises palm oil, rapeseed oil etc. (the products were mixed with palm oil, Page 47, lines18-19).
17. Regarding claim 14, modified Zitny discloses the composition according to claim 1. Zitny does not explicitly disclose wherein a 2% solution of sugar beet pectin has a viscosity of about 1 to 300 cps. However, it would have been obvious to one of ordinary skill in the art, at the time of the claimed invention, for said composition to further comprise wherein a 2% solution of sugar beet pectin has a viscosity of about 1 to 300 cps, since where the general conditions of the claim are disclosed in the prior art (wherein structural changes in the sugar beet material during sonication led to changes in the rheological properties of the sugar beet concentrates obtained, as manifested in particular by a change in viscosity and solubility in the mixtures with water, as well as the formation of more stable suspensions and emulsions in the mixture with water and/or fats, Pg. 41, Ln. 20-24), the determination of workable or optimal ranges that can be defined by application of ordinary skill in the art, is therefore not inventive. The motivation would have been to apply said composition to a method of processing sugar beet under which there is no degradation of the sugar beet material in the tissues after their disruption in the course of processing, or where degradation changes take place only to a minimal extent with no manifestation of the negative changes in taste, aroma, colour and nutritional value in the final products under such method (Pg. 3, Ln. 17-21).
18. Regarding claim 15, modified Zitny discloses the composition according to any of claim 1, but Zitny fails to explicitly disclose wherein the sugar beet pectin has a degree of acetate minimum of 10%.
Alba is in the field of emulsions that are increasingly being utilized for encapsulating and delivering bioactives at targeted locations in the gastrointestinal tract (Pg. 301, Col. 1, Para. 1), and teaches wherein a sugar beet pectin has a degree of acetate minimum of 10% (interfacial composition analysis was performed by determining protein, pectin and acetyl contents ... acetyl concentration difference between the pectin solutions, Pg. 302, Col. 2, Para. 2; Table 3 shows the interfacial composition of OP2 and OP6-stabilized
n-hexadecane-in-water emulsions revealing that comparable amount of acetyl was adsorbed at the interface in both systems, Pg. 305, Col. 2, Para. 3; Adsorbed acetyl 9.7% ± 0.4, Table 3, Pg. 305). It would have been obvious to one of ordinary skill in the art, at the time of the claimed invention, to modify the composition of Zitny to further comprise the acetate degree of Alba. The motivation would have been to obtain thereby a composition as characterized by preliminary data that have shown that an increase of pectin concentration beyond 1.5% w/v does not result in further reduction of droplet diameter, which indicates saturation of the n-alkane-water interface (Pg. 303, Col. 2, Para. 3).
19. Regarding claim 16, modified Zitny discloses the composition according to any of claim 1, but Zitny fails to explicitly disclose wherein the sugar beet pectin is present in about 0.001 percent to about 2 percent of the total weight of the composition. However, it would have been obvious to one of ordinary skill in the art, at the time of the claimed invention, to modify the composition of Zitny to further comprise • wherein the said sugar beet pectin is present in about 0.001 percent to about 2 percent of the total weight of the composition, since where the general conditions of the claim are disclosed in the prior art, the determination of workable or optimal ranges that can be defined by application of ordinary skills, commonly known in the art. is therefore not inventive. The motivation would have been to apply said composition to a method of processing sugar beet under which there is no degradation of the sugar beet material in the tissues after their disruption in the course of processing, or where degradation changes take place only to a minimal extent with no manifestation of the negative changes in taste, aroma, colour and nutritional value in the final products under such method (Pg. 3, Ln. 17-21).
20. Regarding claim 17, modified Zitny discloses the composition according to any of claim 1, but Zitny does not explicitly disclose wherein the particle size of the emulsion has a surface weighted mean diameter of D [3,2] under 1O microns.
Alba is in the field of emulsions that are increasingly being utilized for encapsulating and delivering bioactives at targeted locations in the gastrointestinal tract (Pg. 301, Col. 1, Para. 1), and teaches wherein a particle size of an emulsion has a surface weighted mean diameter of D [3,2) under 10 microns (comprising emulsions ... that are incorporated into the hydrophobic core of lipid droplets, Pg. 301, Col. 1, Para. 1; wherein droplet size was described using the surface-weighted mean diameter [d3,2] Page 302, Col. 1, Para. 4; wherein pectin type and ageing on the average droplet influences diameters [d3,2), Page 303, Table 1; said droplet size comprising a surface weighted mean diameter D [3,2] of 10 µm or less, Pg. 303, Table 1). It would have been obvious to one of ordinary skill in the art, at the time of the claimed invention, to modify the composition of Zitny to further comprise an emulsion particle size having the surface weighted mean diameter of Alba. The motivation would have been to obtain thereby a composition as characterized by preliminary data that have shown that an increase of pectin concentration beyond 1.5% w/v does not result in further reduction of droplet diameter, which indicates saturation of the n-alkane-water interface (Page 303, Col. 2, Paragraph 3).
21. Claims 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over over Zitny WO 2021/045695 (March 11, 2021) in view of Sayama et al. (JP H10183500 A) in view of McCready US 2011/0064862 and in view of Alba et al. as applied to claim 1 and further in view of Ciudad-Mulero et al. (in Advance Food Nutrition Research, vol 90, pages 83-134, 2019).
22. Regarding claims 5-7 modified Zitny does not to explicitly disclose wherein the vegetable base comprises legumes, nuts, seeds, cereals and combination thereof.
Ciudad-Mulero discloses that cereals, legumes and fruits and/or one third in vegetables and nuts can be considered to be included as vegetable base in order to provide insoluble dietary fiber which is partially fermented by microbiota in the large intestine in turn producing short chain fatty acid (SCFA) and cellulose has also a key role to protects from colon cancer and overall cellulose has a key role to maintain colon health (Page 87, Paragraph 2), and combination thereof.
It is to be noted that Ciudad-Mulero further teaches wherein the legume comprises a pulse (currently, the main sources of dietary fiber are whole grain cereals, pulses, fruits and vegetables, e.g. Pg. 123, Paragraph 2. It is known that legume comprises pulse to meet claim 5.
It is to be noted that Ciudad-Mulero further teaches that the pulse is a source of fiber which includes soybean, lentils, peas etc. (Page 110, lines 7-15, Paragraph 2, e.g. in lines 10-11, “Pulses as soybean, lentils, peas”). This meets claim 7.
One of ordinary skills in the art before the effective filling date of the claimed invention, would have been motivated to modify further the composition of Zitny to further include one or more vegetable legumes, nuts in order to provide insoluble dietary fiber which is partially fermented by microbiota in the large intestine in turn producing short chain fatty acid (SCFA) and cellulose has also a key role to protects from colon cancer and overall cellulose has a key role to maintain colon health (Page 87, Paragraph 2), and combination thereof.
23. Regarding claim 8, claim 8 depends on claim 5. It is to be noted that modified Zitny discloses the composition according to claim 5, but Zitny does not explicitly disclose wherein the nut comprises almonds, cashews, pecans, macadamias, hazelnuts, pistachio, walnuts and combinations thereof.
Mccready discloses a composition comprising nut wherein a nut comprises almonds, pistachios; hazelnuts, cashews, walnuts, pecans, Macadamia nuts (Paragraph [0002] and (0016]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify the solid phase of Zitney et al. with the teaching of McCready discloses methods of producing beverage containing almond nut butter (at least in [0036] and in [0002], [0013]) in order to make beverage that include nut butter having nut flavor base beverage food product.
24. Regarding claim 9, modified Zitny discloses the composition according to claim 5, but Zitny does not explicitly disclose wherein the seeds comprise quinoa, chia.
Ciudad-Mulero teaches wherein seeds comprise quinoa, chia (wherein dietary fiber content in pseudocereals comprise grains pseudocereals quinoa, chia, Pg. 113, Paragraph 2 ).
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify the solid phase of Zitney et al. with the teaching of McCready who discloses seeds containing quinoa, chia etc. can be included as a source of dietary fiber (Page 113, Paragraph 2 ) to supplement thereby dietary fiber in a food composition.
25. Regarding claim 10, modified Zitny discloses the composition according to claim 5, but Zitny does not explicitly disclose wherein the cereal comprise quinoa, chia.
Ciudad-Mulero teaches wherein cereal comprise wheat, rice, corn, oat, barley, rye (Page 113, Paragraph 2 ).
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify the solid phase of Zitny et al. with the teaching of McCready who discloses cereals containing oat, barley, wheat, quinoa can be included as a source of dietary fiber (Page 113, Paragraph 2 ) to supplement thereby dietary fiber in a food composition.
26. Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Zitny WO 2021/045695 (March 11, 2021) in view of Sayama et al. (JP H10183500 A) in view of McCready US 2011/0064862 and in view of Alba et al. (in Colloids and Surface B: Biointerfaces Vol 145, 301-308, 2016) as applied to claim 1 and further as evidenced by Belalcazar et al. WO 2014/083032.
27. Regarding claim 13, modified Zitny discloses the composition according to any of claim 1, but Zitny does not explicitly disclose wherein the sugar beet pectin comprises a molecular weight of not less than 50,000 daltons.
It is to be noted that this MW is considered as the physical property. Therefore, as the disclosed prior arts of record teach sugar beet pectin which meets claimed sugar beet pectin, therefore, it will have same physical parameter including the MW at least 50,000 daltons. In addition, it is evidenced by Belalcazar et al. WO 2014/083032 that sugar beet pectin has MW range from 50,000 Da to 80,000 Da (in page 25, lines 10-12),
28. Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Zitny WO 2021/045695 (March 11, 2021) in view of Sayama et al. (JP H10183500 A) in view of McCready US 2011/0064862 and in view of Alba et al. (in Colloids and Surface B: Biointerfaces Vol 145, 301-308, 2016) as applied to claim 1 and further in view of Kobayashi et al. US 2005/0123655 A1.
29. Regarding claim 18, Zitny et al. is silent about claim limitation of claim 18.
It is to be noted that and as discussed for claim 1 above, McCready discloses methods of producing beverage containing almond nut butter in an amount of 2% by weight (at least in [0036] and in [0002], [0013]) which meets up to 7% by weight of nut base composition of claim 1.
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to modify the solid phase of Zitney et al. with the teaching of McCready discloses methods of producing beverage containing almond nut butter in an amount of 2% by weight (at least in [0036] and in [0002], [0013]) in order to make beverage that include nut butter having nut flavor base beverage food product. Therefore, it also meets claim limitation of “wherein the composition is included in a product comprising butter” as claimed in claim 18.
However, ( additionally), Kobayashi et al. is used to address claim 18.
Modified Zitny et al. discloses that the emulsion composition of comprising modified vegetable oil with MCT containing sugar beet pectin emulsifier composition. Modified Zitny et al. also discloses the emulsified emulsion having sugar beet pectin emulsifier and vegetable oil
Modified Zitny et al. is silent about its inclusion in salad dressings as claimed in claim 18.
Kobayashi et al. discloses that the oil-in-water type emulsified food in accordance with the present invention comprises edible oils and fats, vinegar, and egg yolk ([0021]). Kobayashi et al. also discloses that no limitation is placed on the edible oils and fats and any oils and fats that can be generally used as starting materials for oil-in-water type emulsified foods can be employed. Specific examples include vegetable oils such as rapeseed oil, corn oil, cotton seed oil, safflower oil, olive oil, benibana (in Japanese) oil, soybean oil, rice oil, and palm oil, animal oils such as fish oil, oils and fats that are obtained by chemical treatment or fermentation such as MCT (medium-chain fatty acid triglycerides) and diglycerides. In [0065], the water-phase starting materials and vegetable oil were emulsified and a salad dressing was obtained.
One of ordinary skill in the art before the effective filling date of the claimed invention would have consider to further modify the emulsion composition of modified Zitney et al. with the teaching of Kobayashi et al. to include the emulsified emulsion having sugar beet pectin into a salad preparation in order to obtain salad dressings food for use.
Pertinent Note(s)
30. Mohlenkamp, Jr USPN 5120563 A: Related prior art having “ Other examples of fat-containing and sugar-containing food compositions of the present invention include, but are not limited to: emulsified oil products such as margarines, salad dressings and mayonnaise-like products, ice cream and other frozen desserts, whipped toppings, frostings and icings”.
NPL Funami et al. ( Food Hydrocolloids vol 21, 1319-1329, 2007).
NPL Funami et al. discloses that in O/W emulsion, the amount of sugar beet pectin 1.5 gm can be mixed with water 80 g (at least on page 1322 in section 2.5).
Conclusion
31. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, 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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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792