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 .
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 2 and 6-9 are 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.
Regarding claim 2, the recitation “a fatty acid residue chemical composition” is indefinite as it was never positively recited that the fat and oil composition comprising a fatty acid residue composition. It is suggested to amend to state “wherein the fat and oil composition comprises a fatty acid residue chemical composition that satisfies any one or more of the following conditions”.
Regarding claims 6-9, the recitation “wherein a continuous phase is an oil phase” is indefinite as it is not clear what exactly the continuous phase is. Is the fat and oil composition as a whole a continuous oil phase, or just part of the fat and oil composition? It is suggested to amended to state “wherein the fat and oil composition is a continuous oil phase”.
Claim Rejections - 35 USC § 103
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 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.
Claims 1-9 and 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Bhaggan et al. (US 2020/0060304 A1; Feb. 27, 2020).
Regarding claim 1, Bhaggan discloses a fat and oil composition for flavor enhancement ([0002]) comprising shea stearin (e.g. a fractionated oil of a shea butter; [0029]-[0031]).
Bhaggan further teaches that the fat and oil composition has a solid fat content N35 value of less than 3, wherein the N35 value is at least 15 less than the N25 value ([0013]-[0014]). Therefore, the ratio of N25/N35, would be at least 6 when N35 is 3 and N25 is at least 15 more at 18 (e.g. 18/3=6), which overlaps the claimed range of 2.2 to 80. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Further, Table 1 in Bhaggan shows that different blends of fats can result in different ratios of N25/N35. It would have been obvious to one of ordinary skill in the art to vary the amount of each component in the fat and oil composition to arrive at a desired solid fat content ratio as claimed. This is merely routine experimentation that is well within the ordinary skill in the art.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claim 2, Bhaggan further teaches that the fat and oil composition comprises fatty acid residues, wherein the content of lauric acid is 0.1% (Table 2), thus falling within the claimed range of 15% by mass or less.
Bhaggan also teaches a content of linoleic acid being 10.6% (Table 2), thus falling within the claimed range of 5 to 45% by mass.
Regarding claim 3, Bhaggan teaches that the fat and oil composition comprises component C in claim 1 and does not comprise a cocoa butter or a shea butter. Bhaggan teaches that the shea stearin is present in an amount from 10-30% by weight ([0031]) and therefore Bhaggan teaches that the total content of A to C is 10-30% by weight, thus overlapping the claimed range of 20-80%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Regarding claims 4-5, Bhaggan teaches that the fat and oil composition further comprises a palm mid fraction and a liquid oil that can be rapeseed oil ([0029]-[0030], Example 1).
Regarding claims 6-9, as stated above in the 112 rejection, it is not clear what exactly is the continuous phase. However, Bhaggan is considered to teach the oil phase being the continuous phase (See Examples).
Regarding claim 11, Bhaggan teaches that the fat and oil composition can be used in a variety of applications, such as a confectionery filling ([0033]-[0037]). As the term “seasoning” is broad in that any substance that provides flavor can be a seasoning, Bhaggan is considered to teach a seasoning comprising the fat and oil composition of claim 1 as it can be used in a confectionery filling, which provides flavor, (i.e. a seasoned taste).
Regarding claim 12, Bhaggan teaches that the fat and oil composition can be blended with a liquid oil that is a cooking oil ([0030]-[0031], [0045]).
Regarding claim 13, Bhaggan further teaches a liquid food comprising the fat and oil composition of claim 1 as the fat can be liquid and added to other liquids ([0033]-[0045]).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Bhaggan et al. (US 2020/0060304 A1; Feb. 27, 2020) as applied to claim 1 above, and further in view of Kobori et al. (JP 2016082881 A; May 19, 2016, See English Translation).
Regarding claim 10, Bhaggan teaches that the fat and oil composition can be used in a variety of applications ([0033]-[0045]), but fails to specifically teach using it in a ground meat-processed food or meat substitute food.
Kobori discloses a fat and oil composition comprising a shea stearin and rapeseed oil (See Example 1), similar to the fat and oil composition of Bhaggan. Kobori further teaches that the fat and oil composition can be used for various food including, confectionery (page) and meats (page 4 para 1).
As Kobori teaches that it is well known in the art to use a similar fat and oil composition as taught by Bhaggan in various food products such as meat and also include confectionery, it would have been obvious to one of ordinary skill in the art to use the fat and oil composition o Bhaggan in a meat or meat substitute product as it would suitably provide a suitable fat profile to the meat or meat substitute product as taught by Kobori.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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