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
Claims 1-16 are pending in the current application.
Claim 16 is withdrawn from consideration (see discussion, below).
Claims 1-15 are examined in the current application.
Election/Restrictions
Applicant’s election without traverse of claims 1-15 in the reply filed on June 29th 2026 is acknowledged.
Claim 16 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on June 29th 2026.
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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Hui et al. (CN 113115821 A – Machine translation).
Regarding claims 1-3: Hui discloses an emulsion comprising OPO triglyceride (i.e., OPO structural fat) and a plant-based phospholipid composition, wherein the phospholipid composition comprises 15-30wt% phosphatidylethanolamine (PE) and 10-30wt% phosphatidylinositol (PI) based on the total weight of the phospholipids (see Hui abstract; claims 7 and 8). Since the ratio of phosphatidylethanolamine to phosphatidylinositol recited in claims 1-3 overlap or lie inside the ratio of phosphatidylethanolamine to phosphatidylinositol disclosed in Hui, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claim 4: Hui discloses the phospholipid composition comprises 25-40wt% phosphatidylcholine based on the total weight of the phospholipids (see Hui claims 7 and 8), which reads on the claimed limitations.
Regarding claim 5: Hui discloses the phospholipid composition 15-30wt% phosphatidylethanolamine based on the total weight of the phospholipids (see Hui claims 7 and 8). Since the phosphatidylethanolamine content range recited in claim 5 overlap the phosphatidylethanolamine content range in Hui, a prima facie case of obviousness exists (see MPEP §2144.05).
Regarding claims 6, 8 and 9: Hui discloses a plant-based phospholipid composition, but fails to disclose the presence of phosphatidylserine, phosphatidic acid and/or sphingomyelin (see Hui whole document), which meets the claimed limitations.
Regarding claim 7: Hui discloses the phospholipid composition comprises 10-30wt% phosphatidylinositol (PI) based on the total weight of the phospholipids (see Hui abstract; claims 7 and 8). Since the phosphatidylinositol content range in claim 7 overlaps the phosphatidylinositol content range disclosed in Hui, a prima facie case of obviousness (see MPEP §2144.05).
Regarding claim 10: Hui discloses the plant-derived phospholipid is a sunflower phospholipid (see Hui claim 8), which meets the claimed limitations.
Regarding claim 11: Hui disclose the emulsion comprises 0.4-12wt% of the plant-based phospholipid (see Hui claim 7). Since the plant-based phospholipid content range recited in claim 11 overlaps the plant-based phospholipid content range in Hui, a prima facie case of obviousness exists.
Regarding claim 12: Hui discloses the emulsion comprises 3-10wt% fat/oil (see Hui claim 6; 8th paragraph on page 6), which reads on the claimed limitations.
Regarding claim 13: Hui discloses the emulsion comprises 73-90wt% water (see Hui claim 6; 8th paragraph on page 6), which reads on the claimed limitations.
Regarding claim 14: Hui discloses using 28wt% OPO oil (see Hui claim 8), which comprise 52 carbons (i.e., oleic acid has 18 carbons and palmitic acid has 16 carbons), where 30-45wt% of the palmitic acid is at the sn-2 position based on the total weight of the palmitic acid (see Hui 2nd paragraph on page 11).
Regarding claim 15: Hui discloses the emulsion comprises 0.4-12wt% of the plant-based phospholipid and 10-50wt% protein (see Hui claims 7-8; 2nd paragraph on page 5), which meets the claimed limitations.
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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