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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 18 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 18 recites the limitations of regulating blood lipids and/or clearing thrombi; (2) preventing Alzheimer's disease, nourishing the brain and/or improving memory; (3) preventing arthritis, relieving gout and asthma, and temporarily relieving swelling and pain caused by arthritis; and (4) improving vision and/or preventing and treating presbyopia; and (5) maintaining the retina. Applicants’ specification fails to convey nor recite the above disease or aliments being treated or prevented by the claimed oleogel composition. Of particular interest Alzheimer’s disease is not mentioned in the specification and it is well known in the art and stated by applicants’ specification oleogel is used in food products and in pharmacy as a topical and sustained release drug delivery matrix.
Claim Rejections - 35 USC § 102
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 1-14 and 16 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Scholten et al. (WO 2016062685 A1).
Regarding claims 1-14 and 16, Scholten teaches an oleogel composition comprising 0.5-30 wt.% protein, 70-99.5 wt% lipid material comprising vegetable oil, 0-10 wt% of one or more other components, and up to about 5 wt% of water to add strength to the gel (relevant to claim 1-2) (abstract, Page 3 lines 17-23, Page 8 lines 17-24). The oleogel composition have a storage modulus around 60kPa and the loss tangent <0.1 (relevant to claim 10) (figure 8). The protein is of whey protein isolate (WPI) aggregates that undergoes steps of protein in oil suspension (8 wt.% globular protein) (relevant to claim 6), thermal denaturation, rotor-stator homogenizer (mechanical stirring homogenization), shaking, vortex and vacuum freeze drying to obtain denatured protein particles (relevant to claims 4-5, 16) (Pg 30-31).
The vegetable oil, which is known in the art to contain mono and poly saturated fatty acids, as taught by Scholten is of olive oil, palm oil, peanut oil, canola oil (relevant to claims 3 and 7) (Pg 6 lines 31-34). Scholten additionally teaches the oleogel composition as being used in food products, animal feed products, cosmetic products, and pharmaceutical products (relevant to claims 11-12) (Pg 14, lines 12-30) wherein the preparation of the oleogel comprises (i) providing a water- protein composition, wherein the protein especially comprises a globular protein; (ii) exchanging in a solvent exchange process at least part of the water by a lipid material comprising an oil, wherein in a specific embodiment the oil is a vegetable oil, wherein an intermediate solvent is applied wherein water is solvable (and wherein the oil is solvable); and (iii) providing said oleogel (relevant to claim 13). The solvent exchange process to provide an oleogel wherein proteins also have gelation and oil holding capacities for oil-continuous gels (Pg 2 lines 19-34). In this process there is no step if heating the liquid oil and the addition of one or more components in certain embodiments contain an antioxidant (relevant to claim 14) and not contain an antioxidant (relevant to claims 8-9).
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.
Claims 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Scholten et al. (WO 2016062685 A1).
The teachings of Scholten for the above 102 rejection of claims 1-14 and 16 is incorporated herein by reference. Scholten additionally teaches the one or more components of the oleogel composition comprises a salt, a sugar, a fat, a fatty acid, an amino acid, a bioactive compound (such as a vitamin), a gelling agent (such as a polysaccharide), and a surfactant (Pg 7, lines 30-33).
Scholten fails to teach the oleogel composition comprising a monounsaturated fatty acid selected from myristic acid, palmitoleic acid, oleic acid, trans-oleic acid, ricinoleic acid, erucic acid and cetoleic acids; and/or polyunsaturated fatty acids of omega-3 and omega-6 polyunsaturated fatty acids; and sugar of sucrose.
Therefore, it would have been obvious to some one of ordinary skill in the art at the time of filling to have constructed the claimed oleogel composition comprising a monounsaturated fatty acid of oleic acid and sugar of sucrose. One would have been motivated to do so from the teachings of Scholten of the claimed oleogel composition comprising a vegetable canola oil, which is known in the art to contain oleic acid as the primary monounsaturated fatty acid found in vegetable canola oil and containing a sugar od sucrose which is known in the art to be the main sugar found in food compositions. There is a reasonable expectation of producing the claimed oleogel composition containing a monounsaturated fatty acid of oleic acid and sugar of sucrose from the teachings of Scholten.
Conclusion
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MIKHAIL O'DONNEL. ROBINSON
Examiner
Art Unit 1627
/MIKHAIL O'DONNEL ROBINSON/Examiner, Art Unit 1627
/SARAH PIHONAK/Primary Examiner, Art Unit 1627
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