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 .
DETAILED ACTION
Claim Objections
Claims 1 and 10 is/are objected to because of the following informalities:
Regarding Claim 1, “soft serve composition” in line 6-7 appears to be missing a comma after “composition”.
Regarding Claim 10 “soft serve composition” recited in lines 5-6 appears to be missing a comma after “composition”. 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 4, 9, 11-15 is/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.
Regarding Claim 4, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding Claim 9, the phrase "for example" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding Claim 11, the limitation “mixing in air” renders the claim indefinite because it is not clear what air is being mixed into. The claim should recite “mixing in air into the non-dairy soft serve composition to form an aerated non-dairy soft serve composition”. Also, the freezing limitation should be clear that the claim is freezing the composition after it has been mixed with air such as by reciting “freezing the aerated non-dairy soft serve composition. Appropriate correction is required.
Claim 12 is rejected based on its dependency on a rejected claim.
Regarding Claim 13, the claim depends on a composition according to Claim 1 but does not refer to the composition within the body of the claim. Therefore, it is unclear if “a base composition” is referring to the composition of Claim 1.
Claims 14-15 are rejected based on its dependency on a rejected claim.
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) 1-3, 5-7, 9-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou’369 (US 6,451,369).
Regarding Claim 1, Triantafyllou’369 discloses a non-dairy soft serve composition (oat milk…ready-to-consume products, such as ice cream, Col. 2, ln. 48-56), the composition comprising:
an oat-derived material comprising dry matter in an amount of 4.25 to about 19.8% by weight of the soft serve composition (see Claim 2 and Col. 3, ln. 11-13, 85% to 99% of which is in the soft serve composition after 1-15% of a fat and sugar mix is added, see claim 9);
vegetable fat present in an amount of 0.01 to 2.25% by weight of the soft serve composition (1 to about 15% w/w vegetable fat, 1 to about 15% of which is added to the soft serve composition, Claim 9)
sugars present in an amount of 0.03 to about 4.5% by weight of the soft serve composition (1 to 10 percent sucrose, 1-10 percent glucose syrup, and 1-10 percent glucose, 1-15% of which is added to the soft serve composition, claim 9),
an emulsifier and stabilizer blend (Claim 9 step b), and
water (suspended in water, see Example 8, Col. 12, ln. 59-62).
Note that the composition of Triantafyllou’369 comprises up to about 4.5% sucrose, glucose, and glucose syrup, and also comprises maltose and maltodextrin through enzymatic reactions (Col 6, ln. 50-65), thus adding to the total sugar present in the composition and reasonably overlapping with 5 to 25% as claimed. Triantafyllou’369 is silent to specifically recite maltodextrin present in an amount of 2 to 6% by weight of the soft serve composition. However, Triantafyllou’369 recognizes that maltodextrin is a high molecular weight molecule that yields viscous products (Col. 8, ln. 39-44). Therefore, it would have been obvious to one of ordinary skill in the art to vary the amount of maltodextrin present based on the desired consistency of the soft serve product. 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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05.II.A.
Regarding Claim 2, Triantafyllou’369 further teaches wherein the sugars comprise one or more of sucrose, dextrose and sugars from glucose syrup (Claim 9).
Regarding Claim 3, Triantafyllou’369 further teaches wherein the emulsifier and stabilizer blend is present in an amount of 0.001 to about 1.5% by weight of the soft serve composition (0.1 to about 10 percent w/w, 1-15% of which is added to the soft serve composition, Claim 9 step b), which overlaps with the claimed range of 0.25 to 4%, and wherein the emulsifier and stabilizer blend comprises monoglycerides (Example 12, Col. 14, ln. 43-45).
Regarding Claim 5, Triantafyllou’369 discloses an oat milk suspension comprising about 10-15w/w oat suspended in water (See Example 8, Col. 12, ln. 59-62) thus constituting about 85% to 90% water. The oat suspension is mixed with 1 to 15 w/w of a fat-sugar mixture, bringing the water content down to approximately 72.2% to 76.5% thus overlapping with the claimed range.
Regarding Claim 6, Triantafyllou’369 further teaches wherein the oat-derived material has been obtained from treatment of oats comprising degradation of starch (starch degrading enzyme, Col. 2, ln. 65-67).
Regarding Claim 7, Triantafyllou’369 further teaches wherein the oat-derived material is a liquid oat base or an oat drink, or a combination thereof (oat milk, Col. 2, ln. 48-55).
Regarding Claim 9, Triantafyllou’369 further teaches wherein the oat-derived material comprises maltose (Col. 6, ln. 50-65).
Regarding Claim 10, Triantafyllou’369 further teaches wherein
the oat-derived material comprises dry matter in an amount of 4.25 to about 19.8% by weight of the soft serve composition (see Claim 2 and Col. 3, ln. 11-13, 85% to 99% of which is in the soft serve composition after 1-15% of a fat and sugar mix is added, see claim 9);
the vegetable fat is present in an amount of 0.01 to 2.25% by weight of the soft serve composition (1 to about 15% w/w vegetable fat, 1 to about 15% of which is added to the soft serve composition, Claim 9),
wherein the sugar comprises sucrose and sugar from glucose syrup and dextrose (Claim 9, step b)
the emulsifier and stabilizer blend is present in an amount of 0. 0.001 to about 1.5% by weight of the soft serve composition (0.1 to about 10 percent w/w, 1-15% of which is added to the soft serve composition, Claim 9 step b).
Triantafyllou’369 is silent to wherein the sugars are present in an amount of 10 to 20% by weight of the soft serve composition,
the maltodextrin is present in an amount of 3 to 5% by weight of the soft serve composition,
and
the water is present in an amount of 60 to 70% by weight of the soft serve composition.
As to the sugars and the maltodextrin, while Triantafyllou’369 discloses up to 4.5% added sugar content into the soft serve composition, this does not include the natural sugars that are formed through starch degradation through enzymatic activities. That is, Triantafyllou’369 notes that the sugar content can be regulated or manipulated by varying the relative amounts of enzymes used, while maintaining a “high concentration of natural sugars” (see Col. 2, ln. 41-46). Therefore, it would be reasonable to expect the total sugars in the soft serve composition to be higher than the added 4.5% of sugars described in claim 9. In any case, based on Triantafyllou’s disclosure of manipulating the sugar content by adjusting the amount of enzymes used, it would have been obvious to one of ordinary skill in the art to increase the total sugar content of the soft serve composition based on desired sweetness preference.
As to the amount of Maltodextrin, Triantafyllou’369 recognizes that maltodextrin is a high molecular weight molecule that yields viscous products (Col. 8, ln. 39-44). Therefore, it would have been obvious to one of ordinary skill in the art to vary the amount of maltodextrin present based on the desired consistency of the soft serve product.
As to the water content, Triantafyllou’369 discloses an oat milk suspension comprising about 10-15w/w oat suspended in water (See Example 8, Col. 12, ln. 59-62) thus constituting about 85% to 90% water. The oat suspension is mixed with 1 to 15 w/w of a fat-sugar mixture, bringing the water content down to about 72.2% to 76.5% thus overlapping with the claimed range (heating steps would likely reduce this number). A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)
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. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05.II.A.
Regarding Claim 11, Triantafyllou’369 discloses a method for producing a non-dairy soft serve from the non-dairy soft serve composition according to claim 1, the method comprising:
providing the non-dairy soft serve composition according to claim 1 (see rejection of Claim 1),
mixing in air, and
freezing of the non-dairy soft serve composition (hardened at temperatures below -20°C (Example 12, Col. 14, ln. 55-57).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou’369 (US 6,451,369) in view of Schimoler et al. (US 2020/0029613 A1).
Regarding Claim 4, Triantafyllou’369 is silent to wherein the vegetable fat comprises coconut fat. Schimoler is relied on to teach a frozen confection product that is plant-based that includes oat protein (paragraph 18), wherein the fat component can be selected from coconut oil (see paragraph 25). Schimoler also prefers non-hydrogenated fats (paragraph 50). Therefore, since both Triantafyllou’369 and Schimoler are directed to plant-based frozen confectionary products, it would have been obvious to one of ordinary skill in the art to comprise coconut oil as a source of fat. One of ordinary skill in the art would consider coconut oil as a plant-based fat and dairy-free fat. Also, coconut oil would have been obvious as a matter of taste preference.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou’369 (US 6,451,369) in view of Triantafyllou’501 (US 2019/0110501 A1).
Regarding Claim 8, Triantafyllou is silent to wherein the oat-derived material is a deamidated oat-derived material. Triantafyllou’501 is directed to an oat milk composition comprising deamidated oat which provides enhanced viscosity properties (see paragraph 10 and 11). Therefore, since both Triantafyllou references are directed to providing an oat milk suspension to resemble dairy products (i.e. dairy milk or ice cream), it would have been obvious to one of ordinary skill in the art to provide deamidated oat for the purpose of modifying the viscosity of the composition.
Claim(s) 12 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou’369(US 6,451,369) in view of Whalen et al. (US 6,395,314).
Regarding Claim 12, while Triantafyllou’369 is directed to making frozen confectionary and discloses the steps of claim 11, Triantafyllou’369 does not specifically recite performing the steps using a soft serve apparatus. Whalen is relied on to teach an oat-based frozen confection using a soft-serve machine (see abstract and Col. 7, ln. 55-59). In fact, Whalen indicates that machines that produce both soft-serve or hard-pack ice cream can be used. Therefore, since both Triantafyllou’369 and Whalen are directed to oat-based confectionary products, it would have been obvious to one of ordinary skill in the art to use conventional apparatuses to produce a frozen confectionary products such as soft-serve.
Regarding Claim 16, Triantafyllou’369 discloses the composition according to Claim 1 (see rejection above). Whalen is relied on to teach an oat-based soft-serve product using a soft-serve machine (see abstract and Col. 7, ln. 55-59). In fact, Whalen indicates that machines that produce both soft-serve or hard-pack ice cream can be used. Therefore, since both Triantafyllou’369 and Whalen are directed to oat-based confectionary products, it would have been obvious to one of ordinary skill in the art to use conventional apparatuses to produce a frozen confectionary products such as soft-serve.
Claim(s) 13-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou’369 (US 6,451,369) in view of Tarazanova et al. (US 2021/0345641 A1).
Regarding Claim 13, Triantafyllou’369 discloses a method, for manufacturing of a non-dairy soft serve composition according to claim 1, the method comprising:
providing a base composition comprising:
an oat-derived material, vegetable fat, sugars, maltodextrin, an emulsifier and stabilizer blend, and water (see rejection of Claim 1);
subjecting the base composition to heat treatment followed by cooling to a temperature below 85°C;
subjecting the base composition to homogenization followed by cooling below 30°C, thereby obtaining the non-dairy soft serve composition (homogenized at 200 bar prior to cooling…hardened at temperatures below -20°C, Example 12, Col. 14, ln. 55-58).
While Triantafyllou’369 discloses a step of heat treating, he does not specifically recite heat treating at a temperature above 125°C. However, Triantafyllou’369 performs a heat treatment to undergo pasteurizing (Example 12, Col. 14, ln. 55-57). It would have been obvious to use any known heat treatment for the purpose of extending the shelf-life. That is, it is known to increase the temperature while reducing the time known as ultra-high temperature processing (UHT) thereby achieving different effects in shelf-life. In any case, Tarazanova is relied on to teach a milk substitute product such as oat milk (paragraph 99) which undergoes a sterilizing step at 100-140°C for UHT treatment (see paragraph 71). Therefore, it would have been obvious to one of ordinary skill in the art to use known pasteurizing temperatures based on the desired effects of pasteurization.
Regarding Claim 14, Triantafyllou’369 further teaches wherein the vegetable fat is subjected to melting by heating prior to being provided for the base composition (heated to solubilized the emulsifier, Example 12, Col. 14, ln. 55-57).
Regarding Claim 15, Triantafyllou’369 further teach comprising mixing the base composition, following the providing the base composition, and preceding the subjecting the composition to heat treatment (The final mixture was then pasteurized, Example 12, Col. 14, ln. 55-57).
Conclusion
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/T.H.N/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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