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 .
Status of the Application
The status of the claims stands as follows:
Pending claims: 1-37
Withdrawn claims: None
Canceled claims: None
Claims currently under consideration: 1-37
Currently rejected claims: 1-37
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claim 32 is 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 32 recites “A method…comprising addition of a fat phase,” which is vague and indefinite in that the claim does not recite addition of the fat phase to any other component.
Claim Rejections - 35 USC § 102
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-10, 15-29, 32-35, and 37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Christiansen et al. (WO 2021/165475 A1).
Regarding claim 1, Christiansen et al. discloses a dairy analogue composition comprising a fat phase, an aqueous phase (p. 17, ll. 23-30), and an emulsifier (p. 20, ll. 9-10), where the fat phase comprises interesterified (p. 2, ll. 32-35) coconut oil (p. 3, ll. 31-33; p. 5, ll. 27-28, 36-38) and where the dairy analogue composition is substantially free of hydrogenated fats/oils (p. 5, ll. 36-38, where hydrogenated vegetable oils are optional alternatives).
As for claim 2, Christiansen et al. discloses the fat phase as comprising interesterified coconut oil mixed with a vegetable oil (p. 4, ll. 27-30; p. 10, ll. 17-21).
As for claim 3, Christiansen et al. discloses the fat phase as comprising from 25-100% of interesterified coconut oil (p. 4, ll. 32-24) mixed with 0-75% of a vegetable oil (p. 11, ll. 5-15). MPEP 2131.03 II states: “When the prior art discloses a range which touches or overlaps the claimed range, but no specific examples falling within the claimed range are disclosed, a case by case determination must be made as to anticipation. In order to anticipate the claims, the claimed subject matter must be disclosed in the reference with ‘sufficient specificity to constitute an anticipation under the statute.’ What constitutes a ‘sufficient specificity’ is fact dependent. If the claims are directed to a narrow range, and the reference teaches a broader range, other facts of the case, must be considered when determining whether the narrow range is disclosed with ‘sufficient specificity’ to constitute an anticipation of the claims.” The breadth of the claim in terms of the generality of claimed components, potential inclusion of additional unclaimed components, and breadth of the claimed range(s) are considered to weigh in favor of deeming the disclosure of Christiansen et al. being sufficiently specific to anticipate the claimed range(s).
As for claim 4, Christiansen et al. discloses the fat phase as comprising from 40-90% (p. 4, ll. 32-34) of interesterified coconut oil mixed with from 10-60% of a vegetable oil (p. 11, ll. 5-15). The breadth of the claim in terms of the generality of claimed components, potential inclusion of additional unclaimed components, and breadth of the claimed range(s) are considered to weigh in favor of deeming the disclosure of Christiansen et al. being sufficiently specific to anticipate the claimed range(s).
As for claim 5, Christiansen et al. discloses the vegetable oil as being high oleic rapeseed oil (p. 12, ll. 33 – p. 13, l. 3; p. 13, ll. 13-14).
As for claim 6, Christiansen et al. discloses the vegetable oil as being high oleic rapeseed oil (p. 12, ll. 33 – p. 13, l. 3; p. 13, ll. 13-14).
As for claim 7, Christiansen et al. discloses the interesterified coconut oil as being fully interesterified (p. 8, ll. 19-20).
As for claim 8, Christiansen et al. discloses the interesterified coconut oil as being unfractionated coconut oil (p. 5, ll. 37, where no fractionation is disclosed as being performed on the coconut oil).
As for claim 9, Christiansen et al. discloses the dairy analogue composition comprises up to 65% by weight of the aqueous phase (p. 19, ll. 31-37).
As for claim 10, Christiansen et al. discloses the aqueous phase as being present in an amount of 10-50 wt.% by weight (p. 19, ll. 36-37). The breadth of the claim in terms of the generality of claimed components, potential inclusion of additional unclaimed components, and breadth of the claimed range(s) are considered to weigh in favor of deeming the disclosure of Christiansen et al. being sufficiently specific to anticipate the claimed range(s).
As for claim 15, Christiansen et al. discloses the inclusion of up to 8% by weight emulsifier (p. 20, ll. 9-13).
As for claim 16, Christiansen et al. discloses the inclusion of 3-5% by weight emulsifier (p. 20, ll. 9-13).
As for claim 17, Christiansen et al. discloses the inclusion of up to 2% by weight emulsifier (p. 20, ll. 9-13).
As for claim 18, Christiansen et al. discloses the inclusion of up to 1% by weight emulsifier (p. 20, ll. 9-13).
As for claim 19, Christiansen et al. discloses the emulsifier is mono- and diglycerides (p. 20, ll. 9-10).
As for claim 20, Christiansen et al. discloses the inclusion of a color additive in an amount of 0.001-1% by weight of the composition (p. 20, l. 35 – p. 21, l. 1).
As for claim 21, Christiansen et al. discloses the inclusion of a flavoring in an amount of 0.01-5% by weight of the composition (p. 20, l. 35 – p. 21, l. 1).
As for claim 22, Christiansen et al. discloses the composition as being free of palm and palm kernel oils and oils derived therefrom (p. 5, ll. 36-38, where palm oil products are optional alternatives that are not required to be present in the composition).
As for claim 23, Christiansen et al. discloses the composition is substantially free of animal protein and animal fat (p. 13, ll. 34-36; p. 20, l. 26, where animal fat is optional; p. 25, ll. 20-21, where a different embodiment comprising the fat mixture is a vegan product).
As for claim 24, Christiansen et al. discloses the composition is substantially free of animal-derived products (p. 13, ll. 34-36; p. 20, l. 26, where animal fat is optional; p. 25, ll. 20-21, where a different embodiment comprising the fat mixture is a vegan product).
As for claim 25, Christiansen et al. discloses fat phase as having a solid fat content greater than 1 (p. 14, l. 39 – p. 15, ¶2; p. 31, ll. 8-9). Although the protocol differs from that claimed (p. 31, l. 12), all the disclosed solid fat content values fall within the claimed range. The fat phase of Christiansen et al. is presumed to meet the claimed solid fat content limitation performed according to the claimed protocol.
As for claim 26, Christiansen et al. discloses a food product comprising the dairy analogue composition (p. 17, ll. 23-30; p. 20, ll. 21-30).
As for claim 27, Christiansen et al. discloses the food product as being a butter substitute (p. 17, ll. 23-30; p. 20, ll. 21-30).
As for claim 28, Christiansen et al. discloses the food product as being a spread (p. 17, ll. 23-30; p. 20, ll. 21-30).
As for claim 29, Christiansen et al. discloses the food product as being a vegetarian/vegan dairy substitute food product (p. 13, ll. 34-36; p. 20, l. 26, where animal fat is optional; p. 25, ll. 20-21, where a different embodiment comprising the fat mixture is a vegan product).
As for claim 32, Christiansen et al. discloses a method of making a dairy analogue composition comprising addition of a fat phase (p. 17, ll. 23-30) comprising interesterified (p. 2, ll. 32-35) coconut oil (p. 3, ll. 31-33; p. 5, ll. 27-28, 36-38) and a blending vegetable oil (p. 4, ll. 27-30; p. 10, ll. 17-21), the blending vegetable oil being present in an amount of up to 65% by weight of the fat phase (p. 11, ll. 5-15), and wherein the fat phase is substantially free of hydrogenated oils (p. 5, ll. 36-38, where hydrogenated vegetable oils are optional alternatives). The breadth of the claim in terms of the generality of claimed components, potential inclusion of additional unclaimed components, and breadth of the claimed range(s) are considered to weigh in favor of deeming the disclosure of Christiansen et al. being sufficiently specific to anticipate the claimed range(s).
As for claim 33, Christiansen et al. discloses adding the composition to a food product (p. 17, ll. 23-30; p. 20, ll. 21-30).
As for claim 34, Christiansen et al. discloses the composition as being free of palm and palm kernel oils and oils derived therefrom (p. 5, ll. 36-38, where palm oil products are optional alternatives that are not required to be present in the composition).
As for claim 35, Christiansen et al. discloses a method of making the dairy analogue composition comprising mixing a fat phase (p. 17, ll. 23-30) comprising interesterified (p. 2, ll. 32-35) coconut oil (p. 3, ll. 31-33; p. 5, ll. 27-28, 36-38), an aqueous phase (p. 17, ll. 26-27), and an emulsifier (p. 20, ll. 9-10).
As for claim 37, Christiansen et al. discloses the interesterified coconut oil is obtained by enzymatic interesterification (p. 2, ll. 34-35; p. 7, ll. 18-36).
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 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Christiansen et al. (WO 2021/165475 A1) in view of Lau (U.S. 2017/0347676 A1).
Regarding claims 11 and 12, Christiansen et al. discloses the dairy analogue composition of claim 1.
Christiansen et al. does not disclose the composition as comprising a plant-based milk alternative, such as coconut milk.
However, Lau discloses a dairy analogue composition comprising coconut milk ([0004]-[0005]).
It would have been obvious to one having ordinary skill in the art to produce the composition of Christiansen et al. with coconut milk in the aqueous phase. First, Christiansen et al. indicates the aqueous phase may comprise vegan non-fat solids (p. 20, ll. 26-30; p. 22, ll. 22-23) without providing detail about suitable vegetable/vegan ingredients. A skilled practitioner would thus be motivated to consult Lau for clarification regarding suitable ingredients. Since Lau discloses that dairy substitute products comprising coconut milk and coconut water have desirable texture and consistency attributes ([0003]-[0005]), a skilled practitioner would find the incorporation of coconut milk into the composition of Christiansen et al. to be obvious in order to modify the organoleptic properties of the composition. As such, the claimed limitations that the aqueous phase comprise a plant-based milk alternative (claim 11) that may be derived from a nut (claim 12) are considered obvious to a skilled practitioner.
Regarding claims 13 and 14, Christiansen et al. discloses the dairy analogue composition of claim 1.
Christiansen et al. does not disclose the composition as comprising a plant-based water, such as coconut water.
However, Lau discloses a dairy analogue composition comprising coconut water ([0004]-[0005]).
It would have been obvious to one having ordinary skill in the art to produce the composition of Christiansen et al. with coconut water in the aqueous phase. First, Christiansen et al. indicates the aqueous phase may comprise vegan non-fat solids (p. 20, ll. 26-30; p. 22, ll. 22-23) without providing detail about suitable vegetable/vegan ingredients. A skilled practitioner would thus be motivated to consult Lau for clarification regarding suitable ingredients. Since Lau discloses that dairy substitute products comprising coconut milk and coconut water have desirable texture and consistency attributes ([0003]-[0005]), a skilled practitioner would find the incorporation of coconut water into the composition of Christiansen et al. to be obvious in order to modify the organoleptic properties of the composition. As such, the claimed limitations that the aqueous phase comprise a plant-derived water (claim 13) that is coconut water (claim 14) are considered obvious to a skilled practitioner.
Claims 30 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Christiansen et al. (WO 2021/165475 A1).
Regarding claims 30 and 31, Christiansen et al. discloses the food product of claim 26 but does not specifically disclose spreadability attributes. However, Christiansen et al. characterizes the product as being a spread, wherein consistency may range “from liquid to very solid depending on the fat composition” (p. 20, ll. 21-30). The spreadability is considered a measure of consistency and is thus considered a result-effective variable subject to optimization, where obtaining any spreadability conventional for a food spread product via component concentration manipulation is considered within the ordinary skill in the art. MPEP 2144.05 II A. The claimed limitations requiring a spreadability at 3°C of about 5-125 kg-sec (claim 30) and a spreadability at 22°C of about 0.3-16.0 kg-sec (claim 31) would thus be obvious to a skilled practitioner.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Christiansen et al. (WO 2021/165475 A1) in view of Montefiori (EP 3 245 876 A1).
As for claim 36, Christiansen et al. discloses method of claim 35.
Christiansen et al. does not disclose the interesterified chemical oil as being obtained by chemical interesterification.
However, Montefiori discloses interesterification of fat ([0109]) that may be chemical interesterification ([0111]).
It would have been obvious to one having ordinary skill in the art to perform the interesterification of Christiansen et al. via chemical interesterification. Since Christiansen et al. indicates that the interesterification is preferably catalyzed via enzymatic interesterification (p. 3, ll. 20-21), a skilled practitioner would recognize that an alternate method would be suitable as well and would consult Montefiori for further instruction. Since Montefiori discloses chemical and enzymatic interesterification as being alternatives, and further indicates a preference for chemical interesterification ([0111]), performing the interesterification of Christiansen et al. via chemical interesterification would be obvious to a skilled practitioner. MPEP 2144.06 II.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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