DETAILED ACTION
Background
Claims 1-15 stand pending in the instant application. The claims as filed with the instant application on July 23, 2020 have been examined. No amendments have been filed.
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 Objections
Claims 1-2, 6-7, 11-12, 16 and 21 are objected to because of the following informalities:
In claims 1-2, 6-7, 11-12, 16 and 21 remove the brackets ([,]) around the claim numbers. Appropriate correction is required.
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 1-2, 6-7, 11-12, 16 and 21 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.
In claims 1, 16 and 21, the recited content of diglyceride in wt% is indefinite for lacking a basis or a denominator. Is the recited content of diglyceride an amount based on the total weight of a shea butter fraction, based on the weight of total solids or total liquids in the shea butter fraction, based on the total weight of a specific fatty acid or ester, based on the total weight of a composition containing the shea butter fraction, or based on some other basis or denominator?
The Office interprets the recited content of diglycerides to be a wt%, based on the total weight of the claimed shea butter fraction.
In claim 2, the recited “content of diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids” is indefinite for lacking a basis or a denominator. Is the amount of diglyceride having one bonded oleic and one bonded stearic acid a wt%, based on the total weight of a shea butter fraction, based on the total weight of solid contents in the shea butter fraction, based on the total weight of a composition containing the shea butter fraction, or some other basis or denominator?
The Office interprets the recited content of diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids to be a wt%, based on the total weight of the diglycerides in the claimed shea butter fraction.
In claims 6 and 7, the recited “using” the claimed shea butter fraction is indefinite because the claim does not recite any affirmative process steps and the limits of the recited using cannot be ascertained.
The Office interprets the recited using a shea butter fraction broadly to include any known or disclosed method or step that includes a fat or oil or composition containing it.
In claims 6 and 7, the recited amount of shea butter fraction in wt% is indefinite for lacking a basis or a denominator. Is the recited amount of shea butter fraction an amount based on the total weight of a fat or oil, based on the total weight a composition containing the fat or oil, based on the total weight of another fat or oil, based on the total solids of or total liquid in a fat or oil, based on the total solids of a composition containing the fat or oil, or based on some other basis or denominator?
The Office interprets the recited amount of shea butter fraction to be a wt%, based on the total weight of any oil and/or fat containing the claimed shea butter fraction.
In claims 11 and 12, the recited water-in-oil emulsion obtained by “using” the shea butter fraction is indefinite because the claim does not recite any affirmative process steps and the limits of the recited using the claimed shea butter fraction cannot be ascertained.
The Office interprets the recited obtaining an emulsion by using a shea butter fraction broadly to include any known or disclosed method or step for obtaining an emulsion.
In claims 11 and 12, the recited amount of shea butter fraction in wt% is indefinite for lacking a basis or a denominator. Is the amount of shea butter fraction a wt%, based on the total weight of a composition containing an emulsion, based on the total weight an emulsion containing the shea butter fraction, based on the total weight of water in the emulsion, based on the total solids of the emulsion or its total liquids, based on the total solids of a composition containing the emulsion, or is it based on some other basis or denominator?
The Office interprets the recited amount of shea butter fraction in the claimed water-in-oil emulsion to be a wt%, based on the total weight of the claimed water-in-oil emulsion.
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, 6, 11, 16 and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO2018/206467 A1 to Ma (Ma), of record.
The Office interprets the recited content of diglycerides in claims 1, 16 and 21 to be a wt%, based on the total weight of the claimed shea butter fraction.
Regarding instant claims 1, 16 and 21, Ma at Example 4 on page 18 discloses a method of subjecting a shea olein to fractionation (“method for producing a shea butter fraction comprising removing a low-melting point fraction by fractionation of shea butter” as in claim 16) filtration to obtain a shea butter liquid oil or shea olein, and then (at [0036]) and recovering a stearin fraction (“shea butter fraction” - claims 1, 16 and 21), then (at the bottom of page 19) treating the stearin fraction with a lipase to provide a product as disclosed in Table 8 on page 20 comprising 51.6 wt% of a diglyceride, based on the total weight of the shea butter fraction (claims 1, 16 and 21). In addition, the shea butter fraction of Example 4 of Ma comprises about 70 wt%, based on the total weight of the shea butter fraction of oleic acid and 6.1 wt% of stearic acid. The Office considers claimed the shea butter fraction having an iodine value of 55 or less or disclose that its shea butter fraction and a slip melting point of 40°C or higher as in claims 1, 16 and 21 as including the shea butter fraction of Example 4 of Ma as a stearin of a shea olein comprising diglycerides and the composition of Table 8 on page 20 of Ma.
Further and regarding instant claims 6 and 11, Ma at Example 5 on page 23, lines 8-17 discloses adding 0.8g of its shea butter fraction of Example 4 (about 1.0 wt.%, based on the total weight of the oil and/or fat - claim 6) shea butter fraction to 80g of rapeseed oil to make an oil and/or fat and blending with 20 mL water to make a 100 ml water-in-oil emulsion (about 0.8 wt% of the shea butter fraction, based on the total weight of the water-in-oil emulsion - claim 11) without an emulsifier “method comprising reducing an amount of an emulsifier in a water-in-oil emulsion or providing a substitute for an emulsifier in a water-in-oil emulsion by blending a shea butter fraction” as in claim 16).
The Office interprets the recited using a shea butter fraction in claim 6 broadly to include any known or disclosed method or step that includes a fat or oil or composition containing it. Further, the Office interprets the recited amount of shea butter fraction in the claimed “oil and/or fat” to be a wt%, based on the total weight of the claimed oil and/or fat. Still further, the Office interprets the recited obtaining an emulsion by using a shea butter fraction as in claims 11 broadly to include any known or disclosed method or step for obtaining an emulsion. And, the Office interprets the recited amount of shea butter fraction in the claimed water-in-oil emulsion in claims 11 to be a wt%, based on the total weight of the claimed water-in-oil emulsion.
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.
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, 6-7, 11-12, 16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over CN112970914A to Jin et al. (Jin).
All references to Jin refer to its Espace.net machine translation, a copy of which is included with this Office action.
The Office interprets the recited content of diglycerides in claims 1, 16 and 21 to be a wt%, based on the total weight of the claimed shea butter fraction.
Regarding instant claims 1, 16 and 21, Jin at Example 3 at [0035] discloses a method of subjecting a shea butter to filtration to obtain a shea butter liquid oil or shea olein, and then (at [0036]) subjecting the shea olein to gel column chromatography and recovering a mixed diglyceride and eluting it with hexane, ether, methanol and acetic acid to obtain a mixed diglyceride, and (at [0037]) by crystallizing to obtain the stearin (a “shea butter fraction” - claims 1, 16 and 21) as a shea butter fraction comprising a diglyceride content of over a 90 wt%, based on the total weight of the shea butter fraction (claims 1, 16 and 21). The Office considers the claim 16 method for producing a shea butter fraction comprising removing a low-melting point fraction by fractionation of shea butter as including the method disclosed in Jin at [0035]-[0037].
Further, Jin does not provide an iodine value for its shea butter fraction or provide a slip melting point for its shea butter fraction and does not disclose that its shea butter fraction has an iodine value of 55 or less or disclose that its shea butter fraction has a slip melting point of 40°C or higher, as in claims 1, 16 and 21. In addition, Jin does not disclose that its method reduces an amount of an emulsifier in a water-in-oil emulsion or providing a substitute for an emulsifier in a water-in-oil emulsion, by blending a shea butter fraction as in claim 21. However, at [0018] Jin discloses that its fractionated fat comprises diglycerides including 1,3-StO, 1,3-OO 1,3-PO 1,3-PO diglycerides (St = stearic; O = oleic; P + palmitic) useful (at [0019]) for reducing bloom in chocolate wherein its fractionated fat comprises more than 80 wt% of diglycerides. Further, at [0041] Jin discloses making a chocolate with cocoa butter and its fat or butter fraction and containing no emulsifiers.
The Office considers the claimed shea butter fraction having an iodine value of 55 or less or disclose that its shea butter fraction has a slip melting point of 40°C or higher to include the stearin shea butter fraction of Example 3 of Jin.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Jin to make and use a shea butter fraction as in its Example 3 having the claimed iodine value and slip melting point, and to use the Example 3 shea butter fraction for reducing an amount of an emulsifier in a water-in-oil emulsion or providing a substitute for an emulsifier in a water-in-oil emulsion by blending a shea butter fraction for use in making chocolate because Jin discloses that its shea butter fraction diglyceride is useful to inhibit blooming in the chocolate.
The Office interprets the recited content of diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids in claim 2 to be a wt%, based on the total weight of the diglycerides in its shea butter fraction.
Regarding instant claim 2, Jin does not disclose an amount of 10 wt% or more, based on the total weight of the constituent fatty acids in the claimed shea butter fraction diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids. However, at [0036] Jin at Example 3 discloses a shea olein having 30.7 wt% StOO (St = stearic; O = oleic), based on the total weight of the shea olein as its most prominent triglyceride; and, at [0037] Jin discloses a shea butter fraction mode from the shea olein comprising 84.3 wt%, based on the total weight of the shea butter fraction of 1,3- diglycerides and 12.9 wt%, based on the total weight of the shea butter fraction of 1,2- diglycerides. Further, at [0018] Jin discloses that its fat fraction comprises diglycerides including relatively hard 1,3-StO as one of four diglycerides useful (at [0019]) for reducing bloom in chocolate. The Office considers the claimed shea butter fraction having a content of diglycerides having one stearic acid and one oleic acid being bonded as constituent fatty acids of 10 wt% or more, based on the total weight of the diglycerides in its shea butter fraction as including the stearin shea butter fraction of Example 3 of Jin. The ordinary skilled artisan in Jin would have found it obvious to make and use its shea butter fraction having the claimed proportion of the diglycerides having one stearic acid and one oleic acid being bonded as constituent fatty acids because Jin discloses the desirability of adding a shea butter stearin fraction having the claimed amount of 1,3-StO of diglycerides having one stearic acid and one oleic acid being bonded as constituent fatty acids to inhibit blooming in the chocolate.
Regarding instant claims 6-7 and 11-12, Jin at [0041] discloses making chocolate from cocoa butter and its diglyceride (comprising an “oil and/or fat” as in claims 6 and 7 and a “water-in-oil emulsion composition” as in claims 11 and 12) by adding 0.1 and 0.2 wt% of its diglyceride (claims 6 and 7), based on the total weight of the chocolate (“water-in-oil emulsion” as in claims 11-12) which contains 35 wt% of the fat, or about 0.3 and about 0.6 wt% of the total weight of the oil and/or fat (claims 6 and 7).the Office interprets the recited using a shea butter fraction in claims 6-7 broadly to include any known or disclosed method or step that includes a fat or oil or composition containing it.
The Office interprets the recited amount of shea butter fraction in the claimed “oil and/or fat” to be a wt%, based on the total weight of the claimed oil and/or fat. Still further, the Office interprets the recited obtaining an emulsion by using a shea butter fraction as in claims 11 and 12 broadly to include any known or disclosed method or step for obtaining an emulsion. And, the Office interprets the recited amount of shea butter fraction in the claimed water-in-oil emulsion in claims 11-12 to be a wt%, based on the total weight of the claimed water-in-oil emulsion.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over WO2018/206467 A1 to Ma (Ma) as applied to claim 1 above, and further in view of CN112970914A to Jin et al. (Jin).
The Office interprets the recited content of diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids in claim 2 to be a wt%, based on the total weight of the diglycerides in its shea butter fraction.
As applied to claim 1, Ma discloses at Examples 4 and 5 a shea butter fraction having a content of diglycerides of 22 wt% or more, based on the total weight of the shea butter fraction and having an iodine value of 55 or less and a slip melting point of 40°C or higher.
The Office interprets the recited content of diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids in claim 2 to be a wt%, based on the total weight of the diglycerides in its shea butter fraction.
Ma does not disclose an amount of 10 wt% or more, based on the total weight of the constituent fatty acids in the claimed shea butter fraction diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids.
At [0018], Jin discloses a fractionated fat comprising more than 80 wt% of diglycerides including 1,3-StO, 1,3-OO 1,3-PO 1,3-PO diglycerides useful (at [0019]) for reducing bloom in chocolate (St = stearic; O = oleic; P = palmitic). Further, at [0041] Jin discloses making a chocolate with cocoa butter and its fat or butter fraction and containing no emulsifiers. Still further, at [0036] Jin at Example 3 discloses a fractionated fat comprising a shea olein made by fractionation in n-hexane having 30.7 wt% StOO, based on the total weight of the shea olein as its most prominent triglyceride; and, at [0037] Jin discloses a shea butter fraction mode from the shea olein comprising 84.3 wt%, based on the total weight of the shea butter fraction of 1,3- diglycerides and 12.9 wt%, based on the total weight of the shea butter fraction of 1,2- diglycerides.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Jin for Ma make its diglyceride rich shea butter fraction emulsifier substitute for use in chocolate so as to comprise the claimed amount of 10 wt% or more, based on the total weight of the constituent fatty acids in the claimed shea butter fraction of a diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids. Both references disclose shea butter fractions that are stearins from shea olein and that comprise a high diglyceride content for making chocolate remain blended or homogeneous. The ordinary skilled artisan in Ma would have found it obvious to make a shea butter fraction having the claimed proportion of the diglycerides having one stearic acid and one oleic acid being bonded as constituent fatty acids as in Jin by including more stearic acid the diglycerides of its shea butter fraction as in Jin because discloses the desirability of adding a shea butter stearin fraction having the claimed amount of 1,3-StO of diglycerides having one stearic acid and one oleic acid being bonded as constituent fatty acids to inhibit blooming in a chocolate like that of Ma.
Claims 7 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over WO2018/206467 A1 to Ma (Ma) in view of CN112970914A to Jin et al. (Jin) as applied to claim 2, above.
As applied to claim 2, Ma at Examples 4 and 5 in view of Jin at [0018]-[0019], Example 3 at [0035]-[0037] and [0040] discloses a shea butter fraction having a content of diglycerides of 22 wt% or more, based on the total weight of the shea butter fraction and having an iodine value of 55 or less and a slip melting point of 40°C or higher wherein the content of a diglyceride having one stearic acid and one oleic acid being bonded as constituent fatty acids is 10 wt% or more, based on the total weight of the diglycerides in the claimed shea butter fraction.
The Office interprets the recited using a shea butter fraction in claim 7 broadly to include any known or disclosed method or step that includes a fat or oil or composition containing it. Further, the Office interprets the recited amount of shea butter fraction in the claimed “oil and/or fat” to be a wt%, based on the total weight of the claimed oil and/or fat. Still further, the Office interprets the recited obtaining an emulsion by using a shea butter fraction as in claim 12 broadly to include any known or disclosed method or step for obtaining an emulsion. And, the Office interprets the recited amount of shea butter fraction in the claimed water-in-oil emulsion in claims 12 to be a wt%, based on the total weight of the claimed water-in-oil emulsion.
Regarding instant claims 7 and 12, Ma at Example 5 on page 23, lines 8-17 discloses adding 0.8g of its shea butter fraction of Example 4 (about 1.0 wt.%, based on the total weight of the oil and/or fat - claim 7) shea butter fraction to 80g of rapeseed oil to make an oil and/or fat and blending with 20 mL water to make a 100 ml water-in-oil emulsion (about 0.8 wt% of the shea butter fraction, based on the total weight of the water-in-oil emulsion - claim 12) without an emulsifier.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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