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 .
Election/Restrictions
Applicants’ election with traverse of Group I (claims 1-10) in the reply filed on 06 August 2026 is acknowledged. The traversal is on the ground(s) that the office failed to show that a serious burden exists. This is not found persuasive because the application is filed under 371 wherein a serious search and/or examination burden is not a requirement for the restriction. Regardless, a serious search burden exists because Groups I-IV would be in different fields of search.
The requirement is still deemed proper and is therefore made FINAL.
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 7-10 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.
Claims 7-10 recite the limitation "the vegetable fat oil blend". There is insufficient antecedent basis for this limitation in the claim.
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.
Claims 1-2 and 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over Manson et al. (herein referred to as Manson, WO 2017055102 A1).
With regard to Claim 1, Manson teaches a vegetable fat composition for a confectionary spread (abstract, Claim 1, Manson specifies a chocolate spread or chocolate filling composition). Manson teaches wherein the vegetable fat composition comprises at least 40% by weight of a vegetable fat blend (Claim 1, Manson reads such that the composition comprises 2% to 40% by weight of a fat composition). See MPEP 2144.05(I) 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). Continuing, Manson teaches wherein the vegetable fat blend is an interesterified composition of at least a first vegetable fat component and a second vegetable fat component, wherein the first vegetable fat component is selected from a liquid vegetable oil and the second vegetable fat component is shea olein (claim 1), and wherein the first vegetable fat component is in a concentration from 5% to 65% by weight (claim 1, Manson reads such that fat component comprises up to 60% by weight of a liquid vegetable oil) and the second vegetable fat component is in a concentration from 15% to 95% by weight (claim 1, Manson read such that the fat composition comprises at least 40 % by weight of interesterified shea olein).
With regard to Claim 2, Manson teaches the fat vegetable fat blend comprising triglycerides (page 4, Table 1). Manson teaches the fat blend comprises 15.6 wt.% StOO and 5.4 wt.% POO which equates to 21 wt.% (Page 6, table 1 Fat blend B). Thus, Manson reads such that the vegetable fat blend, in one embodiment, comprises triglycerides of which 21% by weight are selected from OSatO, SatOO, or combinations thereof. See MPEP 2144.05(I) 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).
Further, Manson teaches the fat blend comprises 0.1 wt.% POP (i.e., SatOSat), 9.2 wt.% StOSt, and 2.1 wt.% POSt which equates to a total of 11.4 wt.% (Page 6, table 1 Fat blend B). Thus, Manson reads such that the vegetable fat blend, in one embodiment, comprises triglycerides of which 11.4% by weight are selected from OSatO, SatOO, or combinations thereof. See MPEP 2144.05(I) 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)
Continuing, Manson teaches the fat blend comprises 14.8 wt.% OLO, 24.7 wt.% OOO, and 6.1 wt.% OLL which equates to a total of 45.6 wt.% (Page 6, table 1 Fat blend B). Thus, Manson reads such that the vegetable fat blend, in one embodiment, comprises triglycerides of which 45.6% by weight are selected from UUU. See MPEP 2144.05(I) 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)
Moreover, Manson teaches the fat blend comprises 1.7 wt.% StStSt, 0.1 wt.% PPSt, and 0.6 wt.% PStSt (Page 6, table 1 Fat blend B). Thus, Manson reads such that the vegetable fat blend, in one embodiment, comprises triglycerides of which 2.4 wt.% by weight are selected from SatSatSat. See MPEP 2144.05(I) 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).
With regard to the fatty acids, Manson teaches the sum of saturated fatty acids is 20.8 wt.% (Page 5, table 1 Fat blend B). Manson teaches the sum of C16 fatty acids is approximately 2.5% wt.% (Page 5, table 1 Fat blend B). The sum of C16 fatty acids was calculated based on the total sum of fatty acids from the FAME analysis on page 5. See MPEP 2144.05(I) a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Manson teaches the sum of C18 fatty acids is approximately 96 wt.% (Page 5, table 1 Fat blend B). The sum of C18 fatty acids was calculated based on the total sum of fatty acids from the FAME analysis on page 5. See MPEP 2144.05(I) 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).
With regard to Claim 6, Manson teaches the vegetable blend comprises triglycerides (page 4). Manson teaches the fat blend comprises 1.7 wt.% StStSt, 0.1 wt.% PPSt, and 0.6 wt.% PStST (Page 6, table 1 Fat blend B). Thus, Manson reads such that the vegetable fat blend, in one embodiment, comprises triglycerides of which 2.4 wt.% by weight are selected from SatSatSat. See MPEP 2144.05(I) 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)
With regard to Claim 7, Manson teaches the first vegetable component contains polyunsaturated fatty acids (page 4). With regard to the amount of polyunsaturated fatty acids, Manson teaches saturated fatty acids (SAFA), monounsaturated fatty acids (MUFA) and polyunsaturated fatty acids (PUFA) values are calculated by adding up amounts of the respective compounds as determined through the FAME analysis (page 4). Manson teaches in one embodiment the PUFA in fat blend A Interesterified shea olein A (inShf) is less than 35% by weight (Page 3 example 1, Table 1). See MPEP 2144.05(I) 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).
With regard to Claim 8, Manson teaches the sum of the oleic acid fatty acids in the vegetable fat blend is 50% or more by weight (page 2). See MPEP 2144.05(I) 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).
With regard to Claims 9 and 10, Manson teaches the vegetable fat oil blend is rapeseed oil (page 2, claim 5).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Manson et al. (herein referred to as Manson, WO 2017055102 A1) in view of Juul et al. (herein referred to as Juul, WO 2015072913 A1)
With regard to Claim 3, Manson teaches wherein the vegetable fat blend is an interesterified composition of at least a first vegetable fat component and a second vegetable fat component, wherein the first vegetable fat component is selected from a liquid vegetable oil, and the second vegetable fat component is shea olein (claim 1). However, Manson is silent to the vegetable fat composition comprising a third vegetable fat component wherein the third vegetable fat component is shea oil, and wherein the third vegetable fat component is in a concentration of 20% or less by weight.
Juul teaches a cocoa butter stabilizing fat composition (abstract). Juul teaches the vegetable fat blend with three components (page 3 lines 10-22). Juul teaches the third component is in an amount of 1-38% (page 3 lines 18-22) and is shea oil (page 3 lines 24-27). See MPEP 2144.05(I) 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). Juul teaches the third component may affect the texture of the fat composition but will not negatively affect the storage stability of products comprising the fat composition (page 9 lines 11-22).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Manson in view of Juul to include Shea oil as the third vegetable fat component in the amount taught by Juul to affect the texture of the fat composition but not negatively affect the storage stability of products comprising the fat composition.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Manson et al. (herein referred to as Manson, WO 2017055102 A1) in view of Dionisi et al. (herein referred to as Dionisi, WO 2017220511 A1).
With regard to Claim 4, Manson is silent about the vegetable fat composition further comprising a vegetable fat oil blend.
Dionsis teaches a process for forming a stabilized fat blend which can be utilized in confectionary filling (abstract, page 11 lines 5-6). Dionsis teaches a stabilized fat blend comprising a first fat component and a second fat component (page 2 line 20 – page 3 line 1). Dionsis teaches wherein the second fat component comprises one or more liquid vegetable oils (page 8 lines 19-28). Dionis teaches the quantity of the second fat component may be such that it is present in the composition at a level between 10 and 30 wt.% (page 9 lines 17-19). See MPEP 2144.05(I) 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). Dionsis teaches by adding the vegetable fat oil blend to a mixture already containing fat, a dispersion can be obtained which is stable against sedimentation (page 3 lines 6-9).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Manson in view of Dionisis to include a vegetable fat oil blend to obtain a dispersion which is stable against sedimentation.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Manson et al. (herein referred to as Manson, WO 2017055102 A1) in view of Andersen et al. (herein referred to as Andersen, WO 2016200329 A1).
With regard to Claim 5, Manson is silent to the vegetable fat composition further comprises sorbitan tristearate (STS), and wherein STS is in a concentration of 2% or less by weight.
Andersen teaches a confectionary product comprising chocolate (abstract). Andersen teaches using sorbitan tristearate as an emulsifier which results in a composition with a good texture and sensoric properties (page 20-21 lines 27-1, page 27 lines 19-20). Andersen teaches the emulsifier in the fat phase in an amount of 0.01% - 7% (page 27, lines 11-12). See MPEP 2144.05(I) 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).
It would have been obvious to one with ordinary skill in the art to modify Manson to include sorbitan tristearate as an emulsifier in the amounts as taught by Andersen to create a composition with a good texture and sensoric properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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