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.
Claim 12 is 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 12, the recitation “present in a sufficient proportion with respect to the oleosome fraction as to provide an oleosome fraction with improved resistance to agglomerating or separating out when the food product is heated or possess an acidic pH” renders the claim indefinite because it is not clear what the improvement is measured against. Is the resistance to agglomerating and separating out improved compared to a food product for human consumption comprising an oleosome fraction prepared from a plant material and no anionic polysaccharide?
Claim Rejections - 35 USC § 102
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, 7 and 9-11 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Mert et al. (“Hydrocolloid coated oleosomes for development of oleogels”, Food Hydrocolloids, 119, (2021), pp. 1-11).
Regarding claims 1, 4 and 7, Mert et al. disclose a hazelnut cream comprising an oleosome fraction and a hydrocolloid (i.e., anionic polysaccharide) where the hydrocolloid is xanthan gum or pectin (p. 2/2. Materials and methods).
Regarding claims 9-11, Mert et al. disclose all of the claim limitations as set forth above. Given Mert et al. disclose a composition identical to the claimed vegetable milk, inherently the composition would display the claimed median dimension of oil droplets in the oleosome fraction.
Claims 1, 4 and 9-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nikiforidis et al. (“Physicochemical Stability of Maize Germ Oil Body Emulsions As Influenced by Oil Body Surface-Xanthan Gum Interactions”, Journal of Agricultural and Food Chemistry, 58, (2010), pp. 527-532).
Regarding claims 1 and 4, Nikiforidis et al. disclose a maize oil body cream (i.e., vegetable milk) comprising an oil body fraction (i.e., oleosome fraction) and xanthan gum (i.e., anionic polysaccharide-Abstract, p. 527-528/Introduction).
Regarding claims 9-11, Nikiforidis et al. disclose all of the claim limitations as set forth above. Given Nikiforidis et al. disclose a composition identical to the claimed vegetable milk, inherently the composition would display the claimed median dimension of oil droplets in the oleosome fraction.
Claims 1, 4 and 9-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wu et al. (“In Vitro Assessment of the Bioaccessibility of Fatty Acids and Tocopherol from Soybean Oil Body Emulsions Stabilized with ι-Carrageenan”, Journal of Agricultural and Food Chemistry, 60, (2012), pp. 1567-1575).
Regarding claims 1 and 4, Wu et al. disclose a soybean oil body emulsion (i.e., vegetable milk) comprising soybean oil bodies (i.e., oleosome fraction) and carrageenan (i.e., sulfated carrageenan, an anionic polysaccharide – Abstract, p. 1568/Emulsion Preparation).
Regarding claims 9-11, Wu et al. disclose all of the claim limitations as set forth above. Given Wu et al. disclose a composition identical to the claimed vegetable milk, inherently the composition would display the claimed median dimension of oil droplets in the oil body fraction (i.e., oleosome fraction).
Regarding claim 12, Wu et al. disclose a soybean oil body emulsion comprising soybean oil bodies and carrageenan (i.e., anionic polysaccharide – Abstract, p. 1568/Emulsion Preparation). Wu et al. disclose the use of the soybean oil body emulsion in food products (i.e., intended for human consumption - Abstract).
Given Wu et al. disclose the use of soybean oil body emulsions comprising the claimed components, i.e., soybean oil body fraction and carrageenan, inherently the soybean oil body fraction would have improved resistance to agglomerating or separating out when added to a food product.
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 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (“In Vitro Assessment of the Bioaccessibility of Fatty Acids and Tocopherol from Soybean Oil Body Emulsions Stabilized with ι-Carrageenan”, Journal of Agricultural and Food Chemistry, 60, (2012), pp. 1567-1575).
Regarding claim 2, Wu et al. disclose all of the claim limitations as set forth above. Wu et al. disclose the purified soybean oil bodies comprise 48.2% oil and 6.6% protein and 44.2% moisture (p. /Purified Oil Body composition). Therefore the ratio by weight of the purified oil bodies to carrageenan when the oil body-carrageenan emulsions with an oil content of 5%w/w and 0.4% w/w carrageenan were prepared would be about 11:0.8. While Wu et al. does not disclose the precisely claimed ratio of 10:1, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art buy are merely close (MPEP §2144.05 I). Here the proportions are so close that prima facie one skilled in the art would have expected the resulting emulsions to display the same stability.
Regarding claim 3, Wu et al. disclose all of the claim limitations as set forth above. Wu et al. disclose the emulsion comprising 5% w/w oil from soybean oil bodies and 0.4% w/w carrageenan or a ratio of carrageenan to oil is 0.8:10. While Wu et al. does not disclose the precisely claimed ratio of 1:10, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art buy are merely close (MPEP §2144.05 I). Here the proportions are so close that prima facie one skilled in the art would have expected the resulting emulsions to display the same stability.
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Mert et al. (“Hydrocolloid coated oleosomes for development of oleogels”, Food Hydrocolloids, 119, (2021), pp. 1-11) in view of Shao et al. (“Recent advances in improving stability of food emulsion by plant polysaccharides”, Food Research International, 137, (2020), pp. 1-10).
Regarding claims 5 and 6, Mert et al. disclose all of the claim limitations as set forth above. While Mert et al. disclose a hazelnut cream comprising an oleosome fraction and a hydrocolloid (i.e., anionic polysaccharide) where the hydrocolloid is xanthan gum or pectin (p. 2/2. Materials and methods), the reference is silent with respect to gum Arabic or alginate.
Shao et al. teach the use of plant polysaccharides, including pectin, gum Arabic and alginate, to stabilize oil-in-water emulsions used in food applications (Abstract, p 6/Application of plant polysaccharide in improving emulsion stability, p. 6-7/4.1 Gum arabic, p. 7/4.2 Pectin, p.8/4.2/Alginate ).
Mert et al. and Shao et al. are combinable because they are concerned with the same field of endeavor, namely edible emulsions stabilized by anionic plant polysaccharides. Given Mert et al. disclose a cream comprising an oleosome fraction of a hazelnut cream, stabilized by an anionic polysaccharide, xanthan gum or pectin, and Shao et al. teach it was known to stabilize oil-in-water emulsions with gum Arabic, alginate or pectin 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 used gum Arabic or alginate in place of xanthan gum or pectin in the hazelnut cream of Mert et al. with a reasonable expectation of stabilizing the oleosome fraction (i.e., oil fraction) in the cream.
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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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
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