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
Applicant’s election of Group I, claims 1-10 and 16-18 in the reply filed on August 4, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 11-13 and 19-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Specification
The disclosure is objected to because of the following informalities: The specification does not include a section heading directed to the brief description of the drawings.
Appropriate correction is required.
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 1-10 and 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Bergwerff et al. (WO 2017080872 A1) in view of Goudappel et al. (WO 2017019752 A1).
Regarding claims 1-5, 8-10, 17 and 18, Bergwerff et al. disclose an oil-in-water emulsion comprising 10-75 wt% fat, an emulsifier, 0.05 to 4.0 wt% mustard bran (i.e., hydrocolloid/mucilage) and water (Abstract, p. 4/L27-p. 5/L8, p. 11/L9-12, p. 12/L28-31).
Bergwerff et al. disclose the mustard bran can structure foods by affecting viscosity and water binding properties (p. 1/L16-21). Bergwerff et al. disclose the use of an aqueous dispersion comprising mustard bran in oil-in-water emulsion leads to improved structuring and improved organoleptic properties of the emulsion and can be advantageously used to lower the amount of fat-oil in oil-in-water emulsions, such as mayonnaise without negative impact on stability and/or organoleptic properties (p. 5/L35-p. 6/L3).
Bergwerff et al. disclose wherein the fat is a vegetable oil and the emulsifier is protein, phospholipoprotein (i.e., phospholipid), milk proteins (i.e., whey protein and casein), soy protein (i.e., legume protein) whole egg or egg yolk (p. 12/L16-22).
Bergwerff et al. disclose wherein the emulsion comprises no added starch (e.g., modified starch – p. 13/L7-33).
While Bergwerff et al. disclose mustard bran, the reference is silent with respect to cellulose microfibrils.
Goudappel et al. teach dry citrus fibers and their use in oil-in-water emulsions comprising 5 to 50 wt% oil, e.g., mayonnaise (Abstract, [0075], [0114]-[0115]). Goudappel et al. teach adding 2 wt% dry citrus fibers to oil-in-water emulsions (Abstract, [0009], [0019]). Goudappel et al. teach the citrus fiber achieve superior product structure ([0159]). Goudappel et al. teach the citrus fiber has a crystallinity of between 10 and 60 % ([0027]). In the case where the claimed ranges overlap or lie inside ranges disclose by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I). Goudappel et al. teach the citrus fiber can be readily dispersed in an aqueous medium by applying relatively low levels of shear compared to conventional dry citrus fibers ([0045]).
Bergwerff et al. and Goudappel et al. are combinable because they are concerned with the same field of endeavor, namely, oil-in-water emulsions, including mayonnaise, comprising ingredients that provide structure. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added the citrus fiber of Goudappel et al. to the oil-in-water emulsions of Bergwerff et al. to achieve a product with superior structure. One of ordinary skill in the art would have expected the addition to be successfully since Goudappel et al. teach high shear is not needed to achieve the superior functionality of their citrus fiber.
Given the combination of Bergwerff et al. and Goudappel et al. disclose a composition substantially similar to that presently claimed, inherently the oil-in-water composition would exhibit a composition homogeneity parameter and Stevens consistency as presently claimed.
Regarding claims 6 and 16, modified Bergwerff et al. disclose all of the claim limitations as set forth above. Bergwerff et al. disclose an oil-in-water emulsion comprising at most 2.0 wt% of added non-mustard bran thickeners and/or gums (i.e., hydrocolloids) including native starches (i.e., non-modified starch – p. 13/L7-23). In the case where the claimed ranges overlap or lie inside ranges disclose by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Regarding claim 7, modified Bergwerff et al. disclose all of the claim limitations as set forth above. Given Bergwerff et al. disclose non-modified starch, the limitations of claim 7 are satisfied. Claim 6, from which claim 7 depends only requires one of a non-modified or physically modified starch.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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