DETAILED ACTION
Background
The preliminary amendment dated September 20, 2024 (amendment) amending claims 3 and 4 has been entered. Claims 1-9 as filed with the amendment have been examined.
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 and 6 are objected to because of the following informalities:
In claim 1, at line 2 after “and having” replace [[and SFC]] with – a solid fat content (SFC)--;
at line 6 after “composition is” replace [[2]] with –2:1--; and,
at line 8 after “composition is” replace [[1.9]] with --1.9:1—; and,
In claim 6, at line 4 after “less in the” insert –total mass of the--.
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 1-9 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.
In claims 1 and 3, the recited solid fat content in % is indefinite for lacking units. Is the recited solid fat content a mass%, a weight %, a volume % or some other % unit, based on the recited oil and/or fat?
The Office interprets the recited solid fat content as being a weight % (wt%), based on the total weight of the solid fat.
In claim 1, each of the recited content of unsaturated fatty acid and the recited content of stearic acid are indefinite for lacking a proper basis or denominator. Is the recited content of unsaturated fatty acid and of stearic acid based on the total mass of an oil or fat, the total mass of constituent fatty acids in the oil or fat, the total mass of a chocolate composition, or some other basis?
The Office interprets the recited content of unsaturated fatty acid and of stearic acid to be a mass%, based on the total mass of the recited oil and/or fat.
Regarding instant claims 6 and 7, at line 6 in each claim the term “non-tempering type hard butter” is indefinite. The addition of the word "type" to an otherwise definite expression extends the scope of the expression so as to render it indefinite.
The Office interprets a non-tempering “type” hard butter broadly as including any hard fat other than coca butter that is used in any chocolate, whether it is tempered or not.
In claims 6 and 7, the recited content of mass% of an oil and/or fat component X is indefinite for lacking a proper basis or denominator. Is the recited content of an oil or fat component X based on the total mass of a chocolate-like food, a total mass of a composition containing a chocolate-like food, or some other basis?
The Office interprets the recited content of oil and/or fat component X to be a mass%, based on the total mass of the recited chocolate-like food.
Claims 2-5 and 8-9 are rejected as being dependent from a rejected base claim.
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 1-5 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US2015/0164102 A1 to Cruz et al. (Cruz).
Cruz is equivalent to WO2013/132284 A1, of record.
Unless otherwise stated or disclosed, any (percent (%) disclosed without units is interpreted as weight % (wt%), and the Office considers wt% and mass% as being interchangeable.
Regarding instant claims 1-3, Cruz at Example 1 at [0065]-[0068] and Table 4 discloses an interesterified fat (“oil and/or fat” of claim 1 as in claim 2) made from blend of 60 wt% palm kernel oil and 40 wt% (mass%) palm oil and having a content of 21.9 wt% (mass%) of palmitic acid, 27.97 wt% (mass%) of lauric acid and 34.21 wt% (mass%) of stearic acid (claim 1) and 0.87 wt% (mass%) of oleic acid, all masses based on the total mass of the fatty acid composition. The interesterified fat disclosed in Example 1 of Cruz comprises an unsaturated fatty acid content (A) of 0.87 mass%. Accordingly, the interesterified fat of Cruz comprises a content mass ratio of palmitic acid to stearic acid (B) of about 0.6:1 and a content mass ratio of lauric acid to palmitic acid (C) of about 1.3:1. Further, the interesterified fat of Example 1 of Cruz has a solid fat content (SFC) at 35 °C of 66.22 wt% or mass % (claim 1) and an SFC at 40 °C of 18.67 wt% (mass%). The Office considers the SFC at 45 °C of the interesterified fat of Cruz to be lower than its SFC at 40 °C. Accordingly, the oil and/or fat of Example 1 of Cruz to have an SFC at 45 °C of less than 18.67 mass% (claim 1). In addition, the oil and/or fat in Table 4 of Cruz has an SFC at 20 °C or 91.78 wt% or mass% and an SFC at 30 °C of 66.22 wt% or mass% (claim 3). The Office considers the claimed oil and/or fat having an SFC at 25 °C of from 60 mass% to 90 mass% in claim 3 to include the fat disclosed in Example 1, Table 4 of Cruz.
Regarding instant claims 4-5, at [0069] Cruz discloses a cocoa butter substitute comprising 45 wt% (mass%) of the interesterified fat of Example 1, 54 wt% (mass%) of high oleic sunflower oil and 1 wt% (mass%) of fully hydrogenated palm oil. Further claims 1 and 2 of Cruz disclose a test chocolate (“chocolate-like food”) comprising, in claim 1, 26 to 36 wt% or mass % of its cocoa butter substitute and, in claim 2, 34 wt% or mass% of its cocoa butter substitute, or a total of about 11 to 16 mass% of the interesterified fat of Example 1 of Cruz.
Claims 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by EP3662757 A1 to Suzuki et al. (Suzuki).
Unless otherwise stated or disclosed, any (percent (%) disclosed without units is interpreted as weight % (wt%), and the Office considers wt% and mass% as being interchangeable.
Regarding instant claims 1-3, Suzuki at [0071]-[0072] and Table 3 on pages 14-15 discloses an oil and/or fat bloom inhibitor as interesterified fat L and M (claim 1 and as in claim 2) as a bloom inhibitor. In oil and/or fat L, Suzuki discloses a fat from a blend of 10 parts by mass of MCT1 (a lauric fat), 55 parts by mass of extremely hardened palm kernel oil, 25 parts by mass of extremely hardened rapeseed oil and 10 parts by mass of rapeseed oil to give a content of 6.3 mass% of palmitic acid, 25.6 mass% of lauric acid and 37.4 mass% of stearic acid (claim 1) and unsaturated fatty acids in an amount of up to (6.5 + 1.9 + 0.7 + 0.8 mass%) or up to 9.9 mass%, all masses based on the total mass of the fatty acid composition. In oil and/or fat M, Suzuki discloses a fat from a blend of 15 parts by mass of MCT1, 55 parts by mass of extremely hardened palm kernel oil, 25 parts by mass of extremely hardened rapeseed oil and 5 parts by mass of rapeseed to give a content of 6.0 mass% of palmitic acid, 25.5 mass% of lauric acid and 36.9 mass% of stearic acid (claim 1) and unsaturated fatty acids in an amount of up to (3.9 + 0.3 + 0.7 mass%) or up to 4.9 mass%, all masses based on the total mass of the fatty acid composition. Accordingly, the interesterified fats L and M disclosed in Table 3 Suzuki, respectively comprise an unsaturated fatty acid content (A) of up to 9.9 mass% (In L) and up to 4.9 mass% (in M); comprise a content mass ratio of palmitic acid to stearic acid (B) of about 0.16:1 (In L) and of about 0.18:1 (In M), and a content mass ratio of lauric acid to palmitic acid (C) of about 0.67:1 (In L) and about 0.65:1 (In M).
Further, at [0075] Suzuki discloses testing chocolate for bloom resistance in 12 repeat cycles that include aging the chocolate at 32 °C for 12 hours, with scores shown in Table 5 (Example 19 for L and Example 20 for M) for the interesterified fats L and M, and which in Table 5 withstand 8 cycles in chocolate containing only 1 mass% of the oil and/or fat L and M. Accordingly, the oil and/or fat of Suzuki appear to be substantially the same thing as the oil and/or fat as claimed. Absent a clear showing as to how the solid fat contents at various temperatures of the oil and/or fat of Suzuki differs the oil and/or fat as claimed, the Office considers the interesterified fats L and M at Table 3 and [0071]-[0072] of Suzuki to have a solid fat content (SFC) at 35 °C of 30 mass % or more and an SFC at 45 °C of 20 mass% or less as in claim 1; and, further to have an SFC at 20 °C of from 75 to 95 mass%, an SFC at 25 °C of from 60 mass% to 90 mass%, and an SFC at 30 °C of from 55 to 75 mass% as in claim 3). See MPEP 2112.01.I.
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 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0164102 A1 to Cruz et al. (Cruz) as applied to claims 1 and 3 above.
Unless otherwise stated or disclosed, any (percent (%) disclosed without units is interpreted as weight % (wt%), and the Office considers wt% and mass% as being interchangeable.
As applied to claims 1 and 3 above, Cruz at Example 1 ([0065]-[0068]) and Table 4 discloses an oil and/or fat for improving chocolate satisfying all of (A) to (D) and having a solid fat content (SFC) at 35°C of 30 mass% or more and an SFC at 45°C of 20% or less: (A) a content of unsaturated fatty acid in a constituent fatty acid composition is from 0.5 mass% to 15 mass%; (B) a content mass ratio of palmitic acid to stearic acid in the constituent fatty acid composition is 2 or less; (C) a content mass ratio of lauric acid to stearic acid in the constituent fatty acid composition is 1.9 or less; and (D) a content of stearic acid in the constituent fatty acid composition is from 20 mass% to 45 mass%.
Regarding instant claims 6-7, Cruz does not disclose an example showing the trans fatty acid content of its oil and/or fat or a specific oil and/or fat having a trans fatty acid content of 5 mass% or less, based on the total mass of the constituent fatty acids in the composition. However, Cruz at [0049] discloses that its coca butter substitutes have a trans fatty acid content of 2% (mass%) or less. Further, Cruz at Table 2 discloses a non-tempering chocolate (“chocolate-like food”) comprising 26 to 36 wt% or mass % of a cocoa butter substitute as its oil and/or fat, based on the total mass of the fatty acid composition. Further, at Example 1 and Table 4, Cruz discloses a hard fat composition as an interesterified fat having a slip melting point of 43.2 °C The Office considers the recited non-tempering hard butter to include the interesterified fat of Example 1 of Cruz. The ordinary skilled artisan would have found it obvious in Cruz to include an oil and/or fat having the claimed trans fatty acid content because Cruz discloses that its cocoa butter substitute limits the amount of trans fatty acids to the claimed level to make a desirable chocolate composition.
Regarding instant claims 8-9, at Abstract and [0049] Cruz discloses using its chocolate comprising its oil and/or fat for coating.
Claims 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over EP3662757 A1 to Suzuki et al. (Suzuki) as applied to claims 1 and 3 above.
Unless otherwise stated or disclosed, any (percent (%) disclosed without units is interpreted as weight % (wt%), and the Office considers wt% and mass% as being interchangeable.
As applied to claims 1 and 3 above, Suzuki at interesterified fat L and M at Table 3 and [0071]-[0072] discloses an oil and/or fat for improving chocolate satisfying all of (A) to (D) and having a solid fat content (SFC) at 35°C of 30 mass% or more and an SFC at 45°C of 20% or less: (A) a content of unsaturated fatty acid in a constituent fatty acid composition is from 0.5 mass% to 15 mass%; (B) a content mass ratio of palmitic acid to stearic acid in the constituent fatty acid composition is 2 or less; (C) a content mass ratio of lauric acid to stearic acid in the constituent fatty acid composition is 1.9 or less; and (D) a content of stearic acid in the constituent fatty acid composition is from 20 mass% to 45 mass%.
Regarding instant claims 4-5, Suzuki does not disclose an example of its chocolate comprising from 2 to 35 mass% of its interesterified oil and/or fat in its chocolate. However, at [0049] Suzuki discloses a chocolate comprising its bloom resisting agent in the amount of from 2 to 6 mass% of its chocolate as in claims 4 and 5. The ordinary skilled artisan would have found it obvious in Suzuki to use the claimed amount of the claimed oil and/or fat because Suzuki discloses that use of the claimed amount of its interesterified fats L and M are suitable for making a desirable bloom resistant chocolate.
Regarding instant claims 6-7, Suzuki does not disclose an example showing the trans fatty acid content of its oil and/or fat or a specific oil and/or fat having a trans fatty acid content of 5 mass% or less, based on the total mass of the constituent fatty acids in the composition. However, at Table 5 and Examples 19-20 Suzuki discloses a chocolate-like food comprising 34 wt% (mass%) of total fat, including interesterified fats L and M. The interesterified fat bloom inhibitors L and M of Suzuki appear to be substantially the same thing as the claimed oil and/or fat. Accordingly, absent a clear showing as to how the trans fatty acid content of the interesterified fats L and M of Suzuki differ from that of as claimed, the Office considers the oil and or fat X in the chocolate of Examples 19 and 20 of Suzuki to have a trans fatty acid content of 5 mass% or less, based on the total mass of the fatty acid composition as in claims 6 and 7. See MPEP 2112.01.I.
The Office considers the claimed non-tempering type hard butter or a lauric oil and/or fat to include the interesterified fats L and M of Suzuki contained in the chocolate of Examples 19 and 20.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over EP3662757 A1 to Suzuki et al. (Suzuki) as applied to claims 6 and 7, above, and further in view of .
Unless otherwise stated or disclosed, any (percent (%) disclosed without units is interpreted as weight % (wt%), and the Office considers wt% and mass% as being interchangeable.
As applied to claims 6 and 7 above, Suzuki at [0049], Table 3, [0071]-[0072] and Examples 19-20 on Table 5 discloses a chocolate-like food comprising from 30 to 95 mass%, based on the total mass of the fatty acid composition, of oil or fat component X including its interesterified fat L and M as a bloom inhibitor, further having a trans fatty acid content of 5 mass% or less, based on the total mass of the fatty acid composition and comprising a non-tempering type hard butter or a lauric oil and/or fat.
Suzuki does not disclose its chocolate-like food as for coating.
At Abstract and [0049] Cruz discloses using its chocolate comprising its oil and/or fat for coating, wherein the oil or fat of Cruz comprises an interesterified fat in Example 1 which has a trans fatty acid content of 5 mass% or less, based on the total mass of the fatty acid composition, and comprises a non-tempering type hard butter or a lauric oil and/or fat.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Cruz for Suzuki to use its lauric hard butter or hard fat containing chocolate-like food in a coating. Both references disclose a chocolate-like food comprising a lauric interesterified fat the melts in the mouth, has a high solid fat content at room temperature and that acts to improve the consistency and homogeneity of its chocolate-like food. The ordinary skilled artisan in Suzuki would have desired to use its chocolate-like food in a coating as in Cruz because the Suzuki chocolate composition containing its hard lauric fat has a sufficient consistency and firmness for such a coating application.
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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