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 1-16 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.
The term “egg-like” in claims 1-9 and 11-16 is a relative term which renders the claim indefinite. The term “egg-like” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purposes of examination, the term “egg-like” will be interpreted to mean “egg or egg substitute”.
Due to its dependency on claim 9, claim 10 is also rejected.
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, 4, 6-7, and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yuichiro (JP 2016101114 A).
Citations with respect to Yuichiro correspond to translation provided by eSpacenet and attached herein.
With respect to Claim 1, Yuichiro teaches a composition designed to provide frozen egg drop soup comprising a soluble calcium salt and sodium alginate. [0007] In a specific embodiment, Yuichiro teaches a base material for the composition comprising 10% edible oil, 4% Trehalose, and 0.5% sodium alginate. [0039] Trehalose is a naturally occurring glucide comprising two glucose molecules. Therefore, Yuichiro reads on a base material for an egg-like gelatinized product comprising an alginate, an edible oil or fat between 10-23%, and a glucide between 3-13%.
With respect to Claim 4, 6, and 15, Yuichiro teaches the composition described above also comprises an emulsifier and 0.5% salt. [0039] Therefore, Yuichiro anticipates claims 4, 6, and 15.
With respect to Claim 7, Yuichiro teaches a composition designed to provide frozen egg drop soup comprising a soluble calcium salt and sodium alginate. [0007] In a specific embodiment, Yuichiro teaches a base material for the composition comprising 10% edible oil, 4% Trehalose, and 0.5% sodium alginate. [0039] Trehalose is a naturally occurring glucide comprising two glucose molecules. Additionally, Yuichiro teaches the composition described above is added to a solution comprising calcium. [0035] Therefore, Yuichiro reads on a method for producing a coagulated egg-like gelatinized product comprising a base material comprising an alginate, an edible oil or fat between 10-23%, and a glucide between 3-13%, that is added to a calcium solution.
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.
Claims 2, 8-11, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Yoichiro (JP 2016101114 A).
Citations with respect to Yuichiro correspond to translation provided by eSpacenet and attached herein.
With respect to Claim 2, Yoichiro teaches the invention recited in claim 1, as described above. Additionally, Yoichiro teaches combining the composition described above with a second composition comprising 5% liquid whole eggs and 3% trehalose, [0038] in a ratio of 80% first composition to 20% second composition. [0035] The resulting composition comprises 3.8% trehalose and about 8% edible fat.
Though the resulting composition does not have between 10-23% edible fat, MPEP 2144.05 I states, “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Additionally, MPEP 2144.05 II A. states, “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”. The liquid whole eggs in the composition would also comprise protein.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Yoichiro to devise an invention according to the limitations recited in claim 1, wherein the composition further comprises a protein.
With respect to Claim 8, Yuichiro teaches a composition designed to provide frozen egg drop soup comprising a soluble calcium salt and sodium alginate. [0007] In a specific embodiment, Yuichiro teaches a base material for the composition comprising 10% edible oil, 4% Trehalose, and 0.5% sodium alginate. [0039] Trehalose is a naturally occurring glucide comprising two glucose molecules.
Additionally, Yoichiro teaches combining the composition described above with a second composition comprising 5% liquid whole eggs and 3% trehalose, [0038] in a ratio of 80% first composition to 20% second composition, wherein the resulting combination comprises calcium alginate. [0035] The resulting composition comprises 3.8% trehalose and about 8% edible fat.
The amount of trehalose lies within the range recited, but the resulting composition does not have between 10-23% edible fat, MPEP 2144.05 I states, “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Additionally, MPEP 2144.05 II A. states, “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”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Yoichiro to devise a coagulated egg-like gelatinized product comprising calcium alginate, and edible fat between 10-23%, a glucide between 3-13%, thereby rendering claim 8 obvious.
With respect to Claims 9 and 10, Yoichiro renders obvious the invention recited in claim 8, as described above. Additionally, Yoichiro teaches that the composition is designed for use in an egg drop soup. [0007] Therefore, Yoichiro renders claims 9 and 10 obvious
With respect to Claims 11 and 13, Yoichiro renders obvious the invention recited in claim 2, as described above. The invention taught by Yoichiro comprises an emulsifier and salt at a concentration of 0.5% [0039] that is combined with a second composition[0038] in a ratio of 80% first composition to 20% second composition. [0035] The resulting combination comprises about 0.4% salt.
0.4% salt is close to 0.5% salt, and MPEP 2144.05 I states, “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Additionally, MPEP 2144.05 II A. states, “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”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Yoichiro in order to devise the invention recited in claim 2, further comprising 0.5% salt and an emulsion, thereby rendering obvious claims 11 and 13.
Claims 3, 12, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Yoichiro (JP 2016101114 A) as applied to claim 2 above, and in further view of Shepheard (US 2013/0084361 A1).
With respect to Claim 3, Yoichiro renders obvious the invention recited in claim 2, as described above. Yoichiro is silent to the invention comprising plant protein.
Shepheard teaches a vegan simulated egg product that has the same organoleptic and sensory properties of a standard chicken egg. [0015] Shepheard teaches the proteins used in the egg replacement product can be plant proteins. [0024] Additionally, Shepheard teaches that the vegan egg product is a healthier alternative to the standard chicken egg [0053] and can be used in place of standard chicken eggs in recipes comprising them. [0054]
Yoichiro and Shepheard exist within the same field of endeavor in that they both teach compositions comprising egg or egg-like products. Where Yoichiro teaches a composition for making egg drop soup, Shepheard teaches a vegan alternative to eggs that can be used to replace chicken eggs in recipes. One of ordinary skill in the art would have been motivated to replace the egg taught in Yoichiro with the vegan egg product taught in Shepheard in order to provide a healthier composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Yoichiro in view of Shepheard to have devised a product comprising the invention recited in claim 2, wherein the protein is a plant protein, thereby rendering claim 3 obvious.
With respect to Claims 12 and 14, Yoichiro in view of Shepheard renders obvious the invention recited in claim 3, as described above. Additionally, the invention taught by Yoichiro teaches the inclusion of an emulsion and salt at a concentration of 0.5%. [0039] Therefore, Yoichiro in view of Shepheard renders obvious claims 12 and 14.
Claims 5 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Yoichiro (JP 2016101114 A) as applied to claim 1 above, and in further view of Hayashi et al. (US 2008/0070992 A1).
With respect to Claim 5, Yoichiro teaches the invention recited in claim 4, as described above. Yoichiro is silent to the exact emulsifier used in the composition.
Hayashi et al. teaches a method of producing an oil soluble composition for use in aqueous food and drink that has high stability in both acid and heat. [0006] The composition comprises an oil-soluble substance with acid and heat resistance [0009] and an emulsifier with at least 10 HLB, [0011-13] including an emulsifier comprising lysophospholipids such as lysophosphotidylcholine. [0013]
Yoichiro and Hayashi et al. exist within the same field of endeavor in that they teach compositions for use in hot foods. Where Yoichiro teaches a specific food in the form of egg drop soup, Hayashi et al. teaches an emulsifier for use in hot foods, such as soup. [0077] One of ordinary skill in the art would have been motivated to use the invention taught in Hayashi et al. in place of the emulsifier taught in Yoichiro in order to form a more stable food composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Yoichiro in view of Hayashi et al. in order to devise a product according to the invention recited in claim 4, wherein the emulsifier comprises at least one hydrophilic emulsifier with an HLB of at least 10 or a lysophospholipid, thereby rendering claim 5 obvious.
With respect to Claim 16, Yoichiro in view of Hayashi et al. renders obvious the invention recited in claim 5. Additionally, Yoichiro teaches the inclusion of salt at a concentration of 0.5%. [0039] Therefore, Yoichiro in view of Hayashi et al. renders obvious claim 16.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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