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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
In claim 1, the limitation “ palm-based” in the preamble is vague and indefinite because it’s not clear what is intended by “ palm-based” because none of the ingredients listed is based on palm.
In claim 2, the recitation of “ the amount, the range, the total weight” does not have proper antecedent basis.
Claims 3-5,7,8,10,12,13, have the same problem as claim 2.
`In claim 15, the limitation “ comprising or consisting of” is vague and indefinite because it’s not clear what is intended. Comprising is a broad transitional language and consisting of is a closed language. The the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). ( for prior art application, the language “ comprising” is considered)
Claim 16 has the same problem as claim 15.
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tsubaki ( 2003/0165604) in view of Do ( BR 102018004601) and Liu ( CN 109938327).
For claims 1,15,16 Tsubaki discloses an oil composition comprising beta-glucan extract which is a beta-glucan source, an oil, an acidifier and water. ( see paragraph 0009-010, 0028,0037,0059)
For claims 4-8,15,16, Tsubaki discloses the beta glucan is extracted from gramineous plant. The content of the beta-glucan extracted from the plant in the fat and oil composition is from .01-500 parts. The extract layer can be used as such and has a purity ranging from 1-100%. The amount in claims 7, 8 falls within the range disclosed in Tsubaki. When the beta-glucan has 100% purity, it mean only beta-glucan is present. The beta-glucan content in claim 6 falls within the range of purity of 1-100% disclosed in Tsubaki because 40% purity means the content of beta-glucan in the extract is 40%. The amount in claim 4 also falls within the range disclosed in Tsubaki because the source is the extract that can be used as it’s and the amount ranges from .01-500 parts. For claim 15, the amount of beta glucan is from about .058-.145% which falls within the range disclosed. For claim 16, the amount of about .06- about .15% falls within the range disclosed. ( see paragraphs 0034,0035,0036,0030)
For claim 9, Tsubaki discloses the oil including rapeseed oil, sunflower oil ( see paragraph 0028)
For claims 10, 15,16, Tsubaki discloses the oil is included in amount of 4-85%. ( see paragraph 0058)
For claims 11, 12, 15,16,Tsubaki discloses additives including acetic acid, lactic acid. The additives can be added in amounts ranging from .01-15% by weight of the composition. ( see paragraph 0037)
For claims 13,15,16, Tsubaki discloses the water content in the composition is from 15-95%, preferably 5-45%. ( see paragraph 0059)
For claim 14, Tsubaki discloses the composition is an oil-in-water emulsion. ( see paragraphs 0057, 0059)
For claim 17, Tsubaki discloses a method of making a composition. The method comprises the steps of obtaining beta-glucan extract, adding an oil and adding water and an acidifier. ( see paragraphs 0034, 0037, 0057, 0058, 0059)
For claims 19-20, Tsubaki discloses edible item comprising a composition comprising beta-glucan source, an oil, and acidifier and water. The edible items includes mayonnaise, bread, cookie . ( see paragraphs 0039,0044, 0009-010, 0028,0037,0059)
Tsubaki does not disclose the inclusion of linseed meal as in claims 1,15,16,17,19, the amounts of linseed meal as in claims 2-3, 16-17 and the type of acid and amount in claims 11-12.
Do discloses a nutritional formulation. Do teaches sources of true protein included in the formulation includes linseed meal. ( see paragraph 0058)
Liu disclose a fat substitute in a form of an emulsion. The emulsion contains flaxseed powder. ( see claim 1)
Tsubaki discloses additives including protein can be added to the fat composition. The protein can be plant protein ( paragraph 0037). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add linseed meal as the plant protein source as Do teaches linseed meal is a true protein source and Liu discloses the flaxseed powder can be added to an emulsion. Tsubaki discloses additives can be added in amount of .01-15%. Thus, it would have been obvious to one skilled in the art to select amount within the range depending on the protein content desired. Such parameter can readily be determined by one skilled in the art through routine experimentation. It would have been obvious to use any known acids. All the claimed acids are well known. it would have been obvious to one skilled in the art to select amount within the range of additives depending on the sourness desired. Such parameter can readily be determined by one skilled in the art through routine experimentation. It would have been obvious to add the linseed meal together with the beta-glucan because both are solid materials.
Conclusion
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August 19, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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