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 . Claims 21-24,27-32 and 34-45
are examined herein.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/23/2025 has been entered.
Election/Restrictions
Newly submitted claim 46 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Originally, 6/26/202, the following independent claims were submitted:
Claim 20, an intermediate chickpea protein product; and
Claim 27, a final product comprising the intermediate chickpea protein product of claim 20.
The amendments of 10/09/2024:
deleted the embodiment of the intermediate chickpea protein product;
amended claim 34 to become a second independent claim toward the final product comprising a chickpea protein product (narrower than claim 27); and
newly presented a product by process embodiment of the final product comprising a chickpea protein product, which presents a product that is generic to claims 27 and 34.
Herein, new claim 46 imparts another product by process embodiment of the final product comprising a chickpea protein product, however, given Applicant had presented this in the originally treated claims, a restriction requirement would have been proper.
This is because the groups of inventions originally examined:
Claim 20, an intermediate chickpea protein product; and
Claim 27, a final product comprising the intermediate chickpea protein product of claim 20.
did not relate to a single general inventive concept under PCT Rule 13.1 because: A special technical feature is defined as: A contribution which each of the inventions, considered as a whole, makes over the prior art. “Contribution” over the prior art requires that the “special technical feature” is considered with respect to both novelty and inventive step, in other words that the special technical feature is not anticipated or made obvious.
Priori
In Group I, the technical feature is a chickpea protein product (A).
In Group II, the technical feature includes: a food (B) comprising chickpea protein product (A).
Posteriori
Under PCT Rule 13.2, they lack unity of invention because even though the inventions of these groups require the technical feature of a chickpea protein product (A), this technical feature is not a special technical feature as it does not make a contribution over the prior art cited as shown by the references applied in the International Search Report and Written Opinion thereof, for related PCT/IB17/01715
Therefore lack of unity is shown in two ways: a priori, before consideration of the prior art in relation to the claims; or a posteriori, after consideration of the prior art in relation to the claims, and a restriction would have been proper.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 46 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention
Affidavit
The office appreciates Eviatar Lazar’s time, education and experience in the second Affidavit filed April 28, 2025, wherein the first Affidavit was filed October 09, 2024.
It was asserted, that the experiments provided in this second Affidavit were conducted by them or under their direct supervision except for:
the spray drying process which was conducted by technicians of an external laboratory, while being monitored by them; and
the chemical analysis of various products which were conducted at an outside laboratory upon their orders.
In response, the office appreciates this information.
It is asserted:
In item 3, that experiments provided were conducted to provide unexpected results, wherein the that the emulsified products made by the method of the present invention unexpectedly has emulsion properties versus those inherently possessed by emulsified products of the chickpea product of Gugger, including:
superior emulsion capacity; and
superior emulsion stability;
wherein low oil emulsion products also have superior emulsion properties.
In item 4, that in said experiments, chickpea preparations were produced by two different methods. The first method corresponds to the method as described in the present patent application and denominated herein as "Innovopro," and the second method corresponds to the method described by the applied Gugger reference.
Item 6, that in both methods, Sugat’s dry chickpea seeds were used as the raw material for the chickpea preparations.
The Innovopro method (as discussed in items 6-17) is a modified version of that described in pending Example 1, wherein available equipment of their laboratory was used. The Sugat’s dry chickpea seeds were ground using a 'Ninja' blender model BL480IS to reach a fine powder (flour) (item 8);
a first phase comprising: a four-day process of collecting protein curd was used, and keeping it in the refrigerator at the acidic pH (this step was chosen since at low pH the sample is more stable against microbial growth); and
a second phase, comprising: the fifth day was used, by collecting all the protein curds, diluting, neutralizing, homogenizing, heat treating and spray drying them to final product in powder (the amount from one set of extraction is too minimal to operate the needed equipment).
In the first phase 100 g of grounded dry chickpea seeds were mixed with water in I liter beaker using an overhead stirrer. The slurry temperature was kept between 53-54.6 °C using a hotplate. NaOH IN was used to increase slurry pH to between 8-9. The sample (item 11.) was then centrifuged at 3082 RCF for 10 minutes and the supernatant was collected into 1 liter beaker while the sediment ( starch phase) was discarded. With the same setup as before, the sample was mixed and brought to a temperature of 43.3-60°C. Using HCl 1 N sample was brought to pH between 3.5-4.5 while keeping the temperature mentioned previously and held between 10- 60 minutes. The slurry was then centrifuged at 3082 RCF for ten minutes and sediment (protein curd) was collected into a pre-weighted beaker and kept in the refrigerator.
In the second phase fifth day, collecting all protein curd accumulated over 4 days). All the protein curd accumulated were mixed into 1 liter beaker and diluted for adjusted solids between 7-15 %. The %DM was validated using a moisture analyzer. The sample was then stirred and heated using a hot plate and an overhead stirrer to bring it to a temperature between 46-46.5°C. The sample was then neutralized using NaOH 1 N to a pH between 6.5-7. The neutralized slurry was then fed to an SPX Flow Technology laboratory homogenizer, model APVl000, and was one stage homogenized at 150-190 Bar. Homogenized slurry was transferred to a beaker and was heated using a metal container with hot water in which the beaker was placed while everything is standing on the hot plate, in order to keep stirring with a magnetic stirrer. The temperature was held between 82.2-85 °C (kept for 30 seconds) on a hotplate while stirring using a magnetic stirrer. The sample was then cooled down to 48.9°C by entering the beaker into a cold-water bowl, and kept for ten minutes between 46. 7-50 °C. The cold-water bowl was heated on a hot plate to adjust temperature and the sample was stirred using a magnetic stirrer during the entire process.
The protein liquid produced was then fed to a spray dryer as described below to produce a chickpea protein product. The wet samples were spray-dried using a 'BUCHI Mini Spray Dryer B-290', operated by 'Food Lab Innovation Hub', (Rishpon, Israel) and monitored by myself. The settings for drying methods were inlet temperature of 150°C.
In the chickpea preparation produced by the "Gugger" method, as discussed in items 18-27) was that substantially as described in Example 2 of Gugger, although also slightly modified so as to use their equipment and scaling up in order to obtain more Gugger powder. Spray drying was done in a different external laboratory, who requested to remain anonymous, using spray drier Pilotech YC-015. 685 grams of dry chickpea seeds were soaked overnight in 4110 grams of tap water in a beaker.
Soaked chickpeas were drained and the soak water was retained. The sample was split into two to fit the mixer volume. 342.5 grams drained chickpea water was weighed into container (two containers with 342.5 grams drained chickpea water). Drained chickpeas were then ground with a Thermomix™ at speed 8 for 15 seconds. 342.5 g of drained chickpea water was added slowly while mixing at speed 3 and final mixing at speed 8 for 10 seconds was applied to get chickpea paste. Chickpea paste and the remaining soaking water were combined into a 5 Liter double jacket reactor. In the reactor the sample was stirred. 0.651 g of CaCh was added and pH was adjusted using NaOH IN to pH=7.3 at 58.4°C. The sample was then heated to 65.6- 66°C. Three drops of BAN480L (alpha-amylase enzyme) was added, pH was monitored and corrected using NaOH IN to keep pH=7.3 as it was heated in the reactor. Once the sample reached 80.1-82.7 °Cit was held for 30 minutes more. After 30 minutes pH was adjusted to 7.44-7.46 and held for another 20 minutes. The sample was then fed into a basket centrifuge with a 150 micron basket. The sample was then filtered again with 150 mesh seive to obtain the Gugger milk. The Gugger milk was then kept covered in refrigeration until being spray dried. This entire procedure was done three times over three days.
The Gugger milk product was then spray dried in an external laboratory with the following settings: Inlet temperature of 150°C.
The emulsification properties were evaluated on spray-dried powders obtained using the two preparation methods (in items 28-30), the Innovopro method and Gugger method).
High oil emulsification (greater than 60% oil or fat), for products such as mayonnaise, was tested based on Yuqi Zhang et al., Survey on Methods for Investigating Protein Functionality and Related Molecular Characteristics, Foods 10:2848 (2021) (a copy of which is attached hereto) as described below. Emulsification in dairy and dairy alternative (items , such as milk alternative, ice cream or vegan ice cream, is usually obtained by a combination of 2-30% oil or fat, an emulsifier and water, creating pre-emulsion, and then homogenized for stabilization. To evaluate the low oil (below 30%) product emulsification properties, a basic emulsion was created and evaluated according to the method that is described below.
Material and methods- High oil O/W (oil in water) emulsion were evaluated (items 31-36 by using Canola oil, Protein powder (Gugger, Innovopro powder), Thermomix TM-6, Spatula, Centrifuge (NF1200), Circulator (MRC model WBH-200), Falcon 50 ml. 8 grams of concentrated protein powder is mixed with 116 grams of water in Thermomix at speed 3 for 1 minute. Open lid and scrape using rubber spatula remaining powder from the sides of the Thermomix and restart mixing at speed 3. Slowly (steady thin stream) add 276 grams of canola oil into mixer while sample is mixing at speed 3. Once all the oil has been added, increase speed to 5 for 20 seconds followed by an increase to speed 6 for 10 seconds. Stop mixer and scrape to center of the mixer sample stuck on the sides. Restart mixing at speed 6 for another 10 seconds. Finally, using the marked volume on the falcon, fill in 40 ml of the emulsion in duplicate. Centrifuge the 2 falcons at 4000 RPM for 10 minutes.
Emulsion capacity (EC) was calculated using the following equation:
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79
579
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The same two falcons were then transferred to a hot bath circulator set to 80°C for 20 minutes and then centrifuged again at 4000 RPM for 7 minutes.
Emulsion stability (ES) was calculated by following equation after the heat treatment and second centrifuge:
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88
878
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Greyscale
When enough powder was available, a duplicate of the same experiment was performed.
A low oil O/W (oil in water) emulsion was tested (items 37- 42), with results thereof (items 43-47). Materials and Equipment included: Canola oil, Protein powder (Gugger, Innovopro powder), Thermomix TM-6, Spatula, SPX Flow Technology laboratory homogenizer, model APVl000, 100 ml plastic cup, 50 ml falcon.
8 grams of product powder (Gugger or Innovopro) was mixed with 376 grams of tap water in Thermomix at speed 2 until temperatures reach 60°C. Once temperature reaches 60°C, holding time is 3 minutes (Hydration phase). Stop mixing and using a spatula scrape back to center residual powder from the edges. Continue mixing at speed 2 at 60°C while adding 16 grams canola oil gradually. Once oil was added, increase speed to 4 for 20 seconds. Feed sample to homogenizer and homogenize in two stages 200/50 Bars. Collect sample back to Thermomix. Mix sample at speed two until temperature reaches 85°C (pasteurization), holding time 3 minutes. Let the emulsion rest for 10 minutes in room temperature. Finally, fill in 100ml plastic cup and 50 ml falcon and keep in the refrigerator over-night. Check emulsion for separation the following morning. If samples do not separate, then emulsion is deemed stable.
Results of the Gugger and Innovopro samples were sent for chemical analysis in an external authorized laboratory.
Results are shown in Table 1 below:
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518
1039
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As shown in Table 1, the two processes of Gugger and Innovopro produce very different products. Gugger retains most of its carbohydrates while reducing the starch content due to the enzymatic reaction. Gugger also loses fat in the process. Innovopro, on the other hand, loses carbohydrates (almost all of them) while increasing fat concentration. Both processes increase the protein content; however, Innovopro increases it from 16.6% to 70.17%, i.e., over 4 times, while Gugger increases it from 16.6% to26.9%, i.e., less than 2 times. Samples were tested once each (RM, Gugger,
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496
978
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Innovopro product) due to quantity limitations of powders.
On EC and ES (mayonnaise with high O/W emulsion): As can be seen in Table 2, the EC of Innovopro product in all cases is always higher than Gugger. EC shows the ability to make the mayonnaise emulsion as is (before heat treatment). ES provided mixed results. On average, the ES of both Gugger and Innovopro product is essentially the same. ES is the ability of the mayonnaise emulsion to resist heat treatment of 80°C for 20 minutes and is used as an indication of stability; however, it is not always directly correlated with actual shelf life. Nevertheless, it is a well established and accepted method in the industry. While no improvement is shown in ES, the improvement in EC establishes the overall superiority of the high oil mayonnaise emulsions of Innovopro over Gugger.
Figures of item 49 show photos of samples of EC and ES of both products. Figure A is always EC while figure B is always ES of the same experiment.
Figure 1- Gugger ,
Figure 2- Innovopro from 27.02.25 (Best)
Figure 3- Innovopro from 20.03.25 (Worst)
Figure 1 A Figure 1B
Figure 2 A Figure 2B
Figure 3 A Figure 3 B
On Milk stability of Low oil O/W emulsion (items 50-52: As described in Table 2, all low oil emulsions of the Innovopro product remained stable while Gugger emulsions did not remain stable. Pictures in item 51, show both samples after overnight refrigeration.
Figure 4 A&B - Innovopro from 27.02.25 vs Gugger low oil emulsion
Figure 5 A- Innovopro from 06.03.25 (on the left) vs Gugger low oil emulsions Figure 6 A&B&C- Innovopro from 20.03.25 prepared on the 23rd and all samples
together. The picture was taken on the 24th of March 2025.
In summary (items 52-53), it is Eviatar Lazar’s opinion that the unexpected improvement in emulsion capabilities (EC) of the product of the present invention over that of Gugger is substantially due to the difference in protein and fat content of the two chickpea protein products used to make the emulsions. The chemical analysis set forth in Table 1 establishes the percentages of protein and fat in the protein powder of Innovopro, the present invention, and that of Gugger. Innovopro has 70 .1 7% protein, while Gugger has only 26.9%, despite using the same chickpea starting material. The amount of fat in Gugger is 2.56%, as compared to 21.67% in the Innovopro product. This confirms the approximate results obtained only by calculation set forth in my First Declaration. It remains my expert opinion that this large difference in protein and fat obtained by the two different methods is what causes the differences in emulsification properties proven by the comparative experimentation set forth above.
Taken together, the results using the chickpea preparation produced by the method of the present application provide a significant, non-obvious advantage over
the results of the process of Gugger, starting with the same starting material. This
difference of results is unexpected. The difference in results is due to the significantly
higher amounts of protein and fat in the end product of the present invention as compared to the end product of the process of Gugger.
In response, Eviatar Lazar’s opinion that the unexpected improvement in emulsion capabilities (EC) of the product of the present invention over that of Gugger, substantially due to the difference in protein and fat content of the two chickpea protein products used to make the emulsions is appreciated, however, this second declaration does not amount to a proper showing of unexpected results.
It is noted that some experimental information is missing, including: in Table 1, only the method of testing the protein in the Gugger samples are reported, with no mention of the method of the protein of the Innovopro samples is provided. Then, in item 18, the two samples were not made the same, as the spray drying is reported for the Grugger samples as being done by a different external laboratory who requested to remain anonymous, using spray drier Pilotech YC-015; whereas the Innovopro samples were spray-dried using a 'BUCHI Mini Spray Dryer B-290', operated by 'Food Lab Innovation Hub'. Also, the tests are toward a method of making a chickpea protein, shown in Table 1, wherein the Innovopro samples are not commensurate with the scope of the claimed chickpea products, including: at least 60 wt% chickpea protein (i.e. from 60 wt% up to 100 wt%), as in claims 21, 30, 32, 34, 35, 41 and 43; 4 to 30 wt% fat, as in claims 32 and 37; between 65 and 95 wt% chickpea protein, as in claim 22; at least 65 wt% chickpea protein (i.e. from 65 wt% up to 100 wt%), as in claim 23; at least 15.9 w%% fat, as in claim 24; and at least 50 wt% chickpea protein (i.e. from 50 wt% up to 100 wt%), as in claim 27.
Table 1 imparts very specific chickpea protein products, consisting of very specific amounts of very specific components. However, even if a chickpea product, comprising: protein and fat, wherein the protein consists of 70.17 % and the 21.67 % fat (although in Table 1, the percentages are indefinite, as no unit of percentage is reported), the experiment does not show how these or the claimed ranges were established and that they are responsible for the unexpected result.
Herein, the design of experiments (DOE), must aim to describe and explain the variation of information under conditions that are hypothesized to reflect the asserted function (unexpected result). In its simplest form, an experiment aims at predicting this outcome by introducing a change of the preconditions, which is represented by changing one or more independent variables at a time to show when the result occurs. Therefore, the experimental design must identify control variables that are held constant to prevent external factors from affecting the results, while modulating others independently by use of the upper, mid and lower limits claimed, and then using values right outside of the lower and upper limits, wherein the planning includes the delivery of a statistical showing. Herein, how the range for each component claimed is not is established, with regard to the unexpected result.
There are many DOE methods, for example, including the well-known full factorial design. Therein, wherein the total number of unique runs in a full factorial experimental design for fixed-level designs may be calculated as bf, where b is the number of levels for each factor, and f is the number of factors. For example, a complete factorial design of three factors, each at two levels, would consist of 23 = 8 runs. Similarly, a complete factorial design consisting of five factors at two levels and four factors at three levels would require of 25 * 34= 2,592 unique runs. More limited claims require a design with less experimental runs.
Herein, Applicant is using a method to make the chickpea product of Grugger, which they state is similar to that of Grugger’s Example 2, however, Gugger does not filter the chickpea milk twice as noted in this experiment. Gugger also does not report to keep it store the milk, covered in refrigeration, for some undisclosed amount of time until being spray dried.
Regarding emulsion stability, there is nothing that imparts what the emulsified products consist of, including: the milk products, the mayonnaise emulsion, and/or the low oil emulsions. Therefore, the emulsions are not shown to be commensurate with the scope of the claims.
The declaration does not provide test results that include: all of the actual steps, wherein nothing is left to conjecture; the results are not shown to be performed with compositions that reflect the scope of the inventions as claimed; results are shown regarding something called the Grugger’s composition, however, it is not clear that the product is made the same as Grugger; or that the two tested products were treated the same, as they were processed by separate laboratories; there is no showing of statistical and practical significance of the unexpected results, and the experimental design does not take into account the analysis of the test results, wherein the results are due to the claimed features (including how the ranges for the components are established, in other words how the specifically claimed ranges provide the unexpected result), wherein it is not toward some unclaimed features.
Therefore, the experiments above are not a proper showing of unexpected results, wherein the claimed products have superior emulsion capacity; superior emulsion stability; and wherein low oil emulsion products also have superior emulsion properties, as asserted; in view of the closest prior art.
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.
Claims 21-24, 27-30, 34-35, 38-41 and 44-45 are rejected under 35 U.S.C. 103 as being unpatentable over Gugger et al (US 2016/0309732) in view of the combination of Ghribi and Kaur.
Ghribi: Effect of drying methods on physico-chemical and functional properties of chickpea protein concentrates; Journal of Food Engineering 165 (2015) 179–188; Available online 11 June 2015.
Kaur: Characterization of protein isolates from different Indian chickpea (Cicer arietinum L.) cultivars; Food Chemistry 102 (2007) 366–374.
Independent claims 27, 34 and 38
Gugger provides methods of making legume protein products, including liquid chickpea (0006) protein products (0022), that are spray dried (i.e. powdered) (0045), which makes obvious powdered chickpea protein products, as claimed.
Protein content of legume protein product
Gugger teaches the legumes (e.g. chickpeas) used to make the legume protein product (0006) have high levels of protein, including greater than 20 wt% (0022), which encompasses: at least 50 wt% chickpea protein on a dry solids basis, as independent claim 27.
For specificity:
Ghribi also teaches methods of making/using chickpea protein products (ti.) and further provides they have protein contents of about 61 to 63 % (ab.), on a dry weight basis, which encompasses: at least 50 wt% chickpea protein on a dry solids basis, as independent claim 27.
Kaur also shows methods of making and using chickpea protein products, and further provides they have protein contents of from about 20 to 94 % (see Table 1), which encompasses: at least 50 wt% chickpea protein on a dry solids basis, as independent claim 27.
It would have been obvious to one of skill in the art, at the time of filing to modify the method of making and using chickpea protein products, as Gugger, to include they have at least 50 wt% chickpea protein on a dry solids basis----------------, as claimed, because the combination of Ghribi and Kaur shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed amount of protein content, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Chickpea fat
Gugger teaches that the non-soybean legumes (e.g. chickpeas) used to make the product have a lipid content of less than 10 wt% (0023), which encompasses the chickpea product comprising chickpea fat, as in independent claim 27.
Grugger further provides the use of added lipids in amounts from 5 to 85 wt% (0069), which also encompasses the chickpea product comprising chickpea fat, as in independent claim 27.
Use of the chickpea protein product: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts an emulsified food product comprising the chickpea protein product, as claimed.
Independent claim 34
Protein content of legume protein product: Gugger teaches the legumes used to make the legume protein product (0006) have high levels of protein, including greater than 20 wt% (0022), which encompasses: at least 60 wt% chickpea protein on a dry solids basis, as in independent claim 34.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
Use of the chickpea protein product: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts an emulsified food product comprising the chickpea protein product, as claimed.
Independent claim 38
Determination of patentability is based solely on the claimed product itself. The patentability of a product does not depend on its method of production. In this case, since the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Use of the chickpea protein product: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts an emulsified food product comprising the chickpea protein product, as claimed.
Claims dependent on independent claim 27
As for claim 28, Gugger teaches the food product made with the chickpea protein product, include: vegan food products (0085), as claimed.
As for claim 29, Gugger does not teach the use of added emulsifiers (see throughout, especially 0069), therefore one of skill in the art would have a reasonable expectation that the compositions made are free of externally added emulsifiers, as claimed.
As for claim 30, Gugger provide the compositions made, include: at least one of: mayonnaise (0070); dressings, dip, creams, ice cream (0045); vegan food products, making vegan ice cream obvious (0045 and 0085); milk (0042); and vegan food products, making vegan milk obvious (0042 and 0085), which encompasses: wherein the emulsified food product is at least one of salad dressing, dip, creamer, mayonnaise, ice cream, vegan ice cream, milk or vegan milk, as claimed.
On water content: Gugger teaches that when legume protein products are spray dried, which one in the art would have a reasonable expectation of success that this mean that the spray dried product has some water content because the food is not packaged and stored in a moisture free environment, meaning at least some water content from the environment is therein. Therefore. the claim of a water content, is made obvious for at least this reason, in view of the claims and the teaching above.
On at least one of oil or fat: Gugger teaches that although the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), added lipid as used in amounts of from 5 to 85 wt% (0069), which encompasses at least one oil or fat, as claimed.
On the amount of the legume protein product: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using:
from 25 to 85 wt% of fat/oil;
taste enhancers, including: salt, sugar, mustard, spices; and
acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070).
Therefore, Gugger imparts that the amount of ingredients other than the legume protein product are used in quantities of less than 15 to 75 wt%, which means that the teaching imparts the use of less than 15 wt% of the legume protein product, which encompasses the use of 0.05 wt% to 12 wt% of a chickpea protein product, based on a total weight of the food product, as claimed.
On the protein content of the legume protein composition: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the legume protein product being an emulsifier: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts that the at least one of oil and fat and the water form an emulsion when used with it, and that it is an emulsifier, as claimed.
As for claim 44, Gugger teaches that although the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), added lipid as used in amounts of from 5 to 85 wt% (0069), which encompasses chickpea product comprising at least 15.9 wt% fat, as claimed.
Claims dependent on independent claim 34
As for claim 35, Gugger provide the compositions made, include: at least one of: mayonnaise (0070); dressings, dip, creams, ice cream (0045); vegan food products, making vegan ice cream obvious (0045 and 0085); milk (0042); and vegan food products, making vegan milk obvious (0042 and 0085), which encompasses: wherein the emulsified food product is at least one of salad dressing, dip, creamer, mayonnaise, ice cream, vegan ice cream, milk or vegan milk, as claimed.
On water content: Gugger teaches that when legume protein products are spray dried, which one in the art would have a reasonable expectation of success that this mean that the spray dried product has some water content because the food is not packaged and stored in a moisture free environment, meaning at least some water content from the environment is therein. Therefore. the claim of a water content, is made obvious for at least this reason, in view of the claims and the teaching above.
On at least one of oil or fat: Gugger teaches that although the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), added lipid as used in amounts of from 5 to 85 wt% (0069), which encompasses at least one oil or fat, as claimed.
On the amount of the legume protein product: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using:
from 25 to 85 wt% of fat/oil;
taste enhancers, including: salt, sugar, mustard, spices; and
acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070).
Therefore Gugger imparts that the amount of ingredients other than the legume protein product are used in quantities of less than 15 to 75 wt%, which means that the teaching imparts the use of less than 15 wt% of the legume protein product, which encompasses the use of 0.05 wt% to 12 wt% of a chickpea protein product, based on a total weight of the food product, as claimed.
On the protein content of the legume protein composition: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the legume protein product being an emulsifier: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts that the at least one of oil and fat and the water form an emulsion when used with it, and that it is an emulsifier, as claimed.
As for claim 45, Gugger teaches that although the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), added lipid as used in amounts of from 5 to 85 wt% (0069), which encompasses chickpea product comprising at least 15.9 wt% fat, as claimed.
Claims dependent on independent claim 38
As for claim 21, Gugger teaches the legumes used to make the legume protein product (0006) have high levels of protein, including greater than 20 wt% (0022), which encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
As for claim 22, Gugger teaches the legumes used to make the legume protein product (0006) have high levels of protein, including greater than 20 wt% (0022), which encompasses: between 65 to 95 wt% protein in the chickpea protein product on a dry solids basis, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: between 65 to 95 wt% protein in the chickpea protein product on a dry solids basis, as claimed.
As for claim 23, with regard to the prior art, the phrase: chickpea protein product comprises less than 10 wt% moisture, encompasses: a powdered product, wherein when a sample thereof is dissolved in a solution and measured with a strip or meter, it has a pH of a pH of 7±1.
On moisture content: Grugger teaches the chickpea protein product is in the form of a liquid or the liquefied legume material may be evaporated to further reduce water content and made into a syrup, spray dried, precipitated, or gelled (0045). One of skill in the art would understand that a spray dried product would include powders having a moisture content of less than 10 wt%, as claimed, therefore such a thing would have been obvious.
On the pH of the protein product: Since the modified teaching provides a similar composition comprising similar amounts of similar ingredients, which reflects the breadth of the claim composition, it would be reasonable to expect that it would have a similar pH, including 7 +/- 1, absent a showing of criticality, because the teaching of a similar composition imparts a suggestion in or expectation that the composition taught will have the same or a similar utility/properties.
Therefore, it would have been obvious to one of skill in the art, at the time of filing/the invention to modify the method of making legume protein products, as the modified teaching above, to include that said composition will have a pH of 7 +/- 1, as claimed, because the composition established through the teachings above provides a sufficiently close relationship between the ingredients to create an expectation that such a similar compositions would have similar capabilities, properties or functionality because the claims are not physically or structurally distinguishable over the prior art compositions.
As for claim 24, Gugger teaches that although the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), added lipid as used in amounts of from 5 to 85 wt% (0069), which encompasses chickpea product comprising at least 15.9 wt% fat, as claimed.
As for claim 39, as discussed above, Gugger provide the compositions made, include: at least one of vegan food products, which encompasses being a vegan food product.
As for claim 40, as discussed above, Gugger does not teach the use of added emulsifiers (see throughout, especially 0069), therefore one of skill in the art would have a reasonable expectation that the compositions made are free of externally added emulsifiers, as claimed.
As for claim 41, Gugger provide the compositions made, include: at least one of: mayonnaise (0070); dressings, dip, creams, ice cream (0045); vegan food products, making vegan ice cream obvious (0045 and 0085); milk (0042); and vegan food products, making vegan milk obvious (0042 and 0085), which encompasses: wherein the emulsified food product is at least one of salad dressing, dip, creamer, mayonnaise, ice cream, vegan ice cream, milk or vegan milk, as claimed.
On water content: Gugger teaches that when legume protein products are spray dried, which one in the art would have a reasonable expectation of success that this mean that the spray dried product has some water content because the food is not packaged and stored in a moisture free environment, meaning at least some water content from the environment is therein. Therefore. the claim of a water content, is made obvious for at least this reason, in view of the claims and the teaching above.
On at least one of oil or fat: Gugger teaches that although the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), added lipid as used in amounts of from 5 to 85 wt% (0069), which encompasses at least one oil or fat, as claimed.
On the amount of the legume protein product: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using:
from 25 to 85 wt% of fat/oil;
taste enhancers, including: salt, sugar, mustard, spices; and
acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070).
Therefore Gugger imparts that the amount of ingredients other than the legume protein product are used in quantities of less than 15 to 75 wt%, which means that the teaching imparts the use of less than 15 wt% of the legume protein product, which encompasses the use of 0.05 wt% to 12 wt% of a chickpea protein product, based on a total weight of the food product, as claimed.
On the protein content of the legume protein composition: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the legume protein product being an emulsifier: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts that the at least one of oil and fat and the water form an emulsion when used with it, and that it is an emulsifier, as claimed.
Claims 31, 36 and 42 are rejected under 35 U.S.C. 103 as being unpatentable over Gugger et al (US 2016/0309732) in view of the combination of Ghribi and Kaur, as applied to claims 21-24, 27-30, 34-35, 38-41 and 44-45 above, further in view of Campbell.
Campbell: published as: BR 9700900 A on 1999-01-12
As for claim 31, Gugger provide the compositions made, include mayonnaise (0070), which encompasses: wherein the emulsified food product is mayonnaise, as claimed.
Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using: 1) from 25 to 85 wt% of fat/oil, which encompasses 60 wt% to 80 wt% of oil, based on a total weight of the mayonnaise emulsified food product; and 2) taste enhancers, including: salt, sugar, mustard, spices; and acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070), which encompasses: optionally, at least one of vinegar, salt, lemon concentrate, or sugar, as claimed.
Therefore Gugger imparts that the amount of ingredients other than the legume protein product are used in quantities of at least 85 wt%, which means that the teaching imparts the use of less than 15 wt% of the legume protein product. This encompasses the use of 1 wt% to 5 wt% chickpea protein product, based on the total weight of the mayonnaise emulsified food product, as claimed.
On the protein content of the legume protein composition: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the legume protein product being an emulsifier: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts that the at least one of oil and fat and the water form an emulsion when used with it, and that it is an emulsifier, as claimed.
On water content of the mayonnaise: Gugger teaches that emulsified food products (i.e. wherein water and oil form an emulsion), like mayonnaise (0070) are made by using: from 25 to 85 wt% of fat/oil (0070), which means there are from 15 to 75 wt% of remaining ingredients, including the water.
Gugger does not discuss the water content of the mayonnaise, including: 10 to 30 wt% of water, based on the total weight of the mayonnaise emulsified food product, as claimed.
Campbell also teaches methods of making mayonnaise with: oil, water and vegetable protein (ab.), and further provides the use of between 10 and 20 wt% water, which encompasses: 10 to 30 wt% of water, based on the total weight of the mayonnaise emulsified food product, as claimed.
It would have been obvious to one of skill in the art, at the time of filing to modify the method of making mayonnaise with: oil, water and vegetable protein, as the modified teaching above, to include the amount of water therein, as claimed, because Campbell shows that it was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select encompassing amounts of water when making mayonnaise with: oil, water and vegetable protein, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
As for claim 36, Gugger teaches that emulsified food products, include mayonnaise (0070), as claimed.
On amount of fat/oil: from 25 to 85 wt% of fat/oil (0070), which encompasses: 60 wt% to 80 wt% of oil, based on a total weight of the mayonnaise emulsified food product, as claimed.
On water content of the mayonnaise: The modified teaching, in Campbell also teaches methods of making mayonnaise with: oil, water and vegetable protein (ab.), and further provides the use of between 10 and 20 wt% water, which encompasses: 10 to 30 wt% of water, based on the total weight of the mayonnaise emulsified food product, as claimed.
On the amount of the legume protein product: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using:
from 25 to 85 wt% of fat/oil;
taste enhancers, including: salt, sugar, mustard, spices; and
acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070).
Therefore Gugger imparts that the amount of ingredients other than the legume protein product are used in quantities of less than 15 to 75 wt%, which means that the teaching imparts the use of less than 15 wt% of the legume protein product, which encompasses the use of 1 to 5 wt% of a chickpea protein product, based on a total weight of the food product, as claimed.
On optional ingredients: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using: taste enhancers, including: salt, sugar, mustard, spices; and acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070), which encompasses the use of optionally at least one of: vinegar, salt, lemon concentrate or sugar.
On the legume protein product being an emulsifier: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts that the at least one of oil and fat and the water form an emulsion when used with it, and that it is an emulsifier, as claimed.
As for claim 42, Gugger provide the compositions made, include: at least one of: mayonnaise (0070), as claimed.
On amount of fat/oil: from 25 to 85 wt% of fat/oil (0070), which encompasses: 60 wt% to 80 wt% of oil, based on a total weight of the mayonnaise emulsified food product, as claimed.
On water content of the mayonnaise: The modified teaching, in Campbell also teaches methods of making mayonnaise with: oil, water and vegetable protein (ab.), and further provides the use of between 10 and 20 wt% water, which encompasses: 10 to 30 wt% of water, based on the total weight of the mayonnaise emulsified food product, as claimed.
On optional ingredients: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using: taste enhancers, including: salt, sugar, mustard, spices; and acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070), which encompasses the use of optionally at least one of: vinegar, salt, lemon concentrate or sugar.
On the protein content of the legume protein composition: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the amount of the legume protein product: Gugger teaches that emulsified food products, like mayonnaise (0070) are made by using:
from 25 to 85 wt% of fat/oil;
taste enhancers, including: salt, sugar, mustard, spices; and
acids, including: acetic acid, citric acid, and/or lactic acid; and from natural sources of such acid, such as lemon juice, vinegar, fermented whey and/or yogurt (0070).
Therefore Gugger imparts that the amount of ingredients other than the legume protein product are used in quantities of less than 15 to 75 wt%, which means that the teaching imparts the use of less than 15 wt% of the legume protein product, which encompasses the use of 1 to 5 wt% of a chickpea protein product, based on a total weight of the food product, as claimed.
On the legume protein product being an emulsifier: Gugger provides that the legume protein products is used to emulsify oil-based ingredients (0042), therefore the teaching imparts that the at least one of oil and fat and the water form an emulsion when used with it, and that it is an emulsifier, as claimed.
Claims 32, 37 and 43 are rejected under 35 U.S.C. 103 as being unpatentable over Gugger et al (US 2016/0309732) in view of the combination of Ghribi and Kaur, as applied to claims 21-24, 27-30, 34-35, 38-41 and 44-45 above, further in view of Wen and Cuisinart.
Wen: published as CN101336674A on 7-Jan-2009.
Cuisinart: Recipe Booklet: Ice Cream… copyright 2011 (see pg. 6)
As for claim 32, Gugger provides that the legume protein product (0067-68) is used to make emulsified vegan food products, including: ice cream (0045 and 0085), which provides a reasonable expectation of success in the manufacture of vegan ice cream wherein the fat and the water form an emulsion, as claimed.
On fat content: Gugger teaches that the legume protein product is used in a liquid state, when making the cultured food products (0045), comprising: 0.1 to 8 wt% of lipids (0059), which encompasses 4 wt% to 30 wt% fat, based on a total weight of the emulsified food product, as claimed
On sweeteners: Gugger teaches that the legume protein product is used in a liquid state, when making the cultured food products (0045), comprising: zero to 15 wt% sweeteners (0048), including: sugar, syrups, and honey (0049), which encompasses the optional use of at least one of sugar, honey or syrup, as claimed.
Gugger also teaches that the ice cream is made by using cultured yogurt (0067): and the use of sweeteners for the cultured products, to include sugar, honey and syrups (0049), which encompasses the optional use of at least one of sugar, honey or syrup.
On water content: Gugger teaches that prior to making a spray dried chickpea protein product, the liquified version, a liquefied legume milk, can be used to make ice cream (0045).
Gugger shows that said milk is made with: 200 grams of chickpeas, 1200 grams of water, 153 grams of oil, and about 23.49 to 26.69 of other ingredients (see Example 2). Therefore the amount of water in the milk make amounts to about 1576.5 to 1579.7 grams, with a water content of about 76 wt%, which encompasses, 35 wt% to 80 wt% water, based on the total weight of the emulsified food product.
Gugger further teaches that the amount of water used to hydrate the legumes can range from a volume ratio of legumes to water from 1:0.1 (i.e., 1 volume part legume per 0.1 volume part water) to 1:20. In instances where the legumes are soaked, the volume ratio of legumes to water may be at least 1:1 (e.g., at least 1:2) to ensure sufficient extraction of water-soluble components from the legumes (0028).
Therefore, Gugger also provide how to adjust the water content of product made, by adjusting the water content in the chickpea protein milk product used, wherein it would 1have been obvious to a person having ordinary skill in the art at the time the invention was made to use 35 wt% to 80 wt% water, based on the total weight of the emulsified food product, since Gugger provides those of skill with instructions on how to adjust the water content, therefore they would have the information necessary to create an experiment to adjust the variable involved, to achieve the desired amount of water in an ice cream product.
For specificity, Wen also teaches methods of making non-dairy ice cream, with legume products (3rd full para. from the bottom of pg. 8) fat (2nd para. of Background), water (1st full para. on pg. 3) and sweeteners (ab.).
Wen provides water in amounts of up to about 70 wt% (1st full para. on pg. 3), which encompasses the use of 35 wt% to 80 wt% water, as claimed.
It would have been obvious to one of skill in the art, at the time of filing to modify the method of making non-dairy ice cream with: legume products, fat, water and sweeteners, as the modified teaching above, to include the amount of water used, as claimed, because Wen shows that it was known for encompassing amounts to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed amount when making non-dairy ice cream, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
On the amount of the legume protein product in ice cream:
Gugger teaches that emulsified food products, including: ice cream (0052) comprise: a variety of additives (0053-0059) in amounts up to at least 8 wt% (0059), and from 5 to 85 wt % of oil/fat (0069), which imparts that the remaining ingredients, including the liquefied legume material (i.e. chickpea protein product) is used in amounts of up to 13 to 93 wt%, which encompasses the chickpea protein product, used in an amounts of 0.05 wt% to 10 wt%, based on a total weight of the emulsified food product, as claimed.
Gugger does not specifically discuss/limit the amount of the legume milk used to make the ice cream product (see throughout).
For specificity, Cuisinart also teaches methods of making ice cream with legume milk and further provides that a mixture of about 1000 grams, comprising:
about 750 grams (3 cups) of almond milk;
about 100 g (2 Tbsp) of legume protein powder;
about 130 grams (¾ cup) of sugar; and
about 2-4 gr (1-2 tsp vanilla extract) (see the dairy free vanilla recipe on pg. 9).
100 grams of legume powder in about 1000 grams mixture is about 10 wt%, which encompasses 0.05 wt% to 10 wt%, based on a total weight of the ice cream product, as claimed. Although the taught amount could also be perceived as being toughing the claimed range of 10 wt%, one of skill would have the understanding that it is about the amount taught because they would have the knowledge that cooking measurements are no exact, wherein there are tolerances of the equipment used when weighed and per cup measures there is no precision as it is how packed of filled the measurement cup or spoon is.
It would have been obvious to one of skill in the art, at the time of filing to modify the method of making non-dairy ice cream with: legume protein products, as the modified teaching above, to include the amount of legume protein products used, as claimed, because Cuisinart shows that it was known for encompassing/touching amounts to have been successfully achieved and published at the time of filing, which means it was within the general skill of a worker in the art to select the claimed amount when making non-dairy ice cream, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use (see MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious); and because the taught amounts are applied in close values, based on tolerances of weight equipment used or how full or tightly packed the user makes cup and spoon measures, non or these delivering exact, repeatable values.
On the chickpea protein product
On protein content: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the legume protein product being an emulsifier: Gugger teaches that the legume protein material self-emulsifies the ingredients wherein traditionally used emulsification ingredients can be omitted from the product (0070), which imparts that the water and oil form therein are in the form of an emulsion (further discussed in 0068), as claimed; and wherein the chickpea protein product is an emulsifier, as claimed.
As for claim 37, Gugger provide the compositions made, include: at least one of: ice cream (0045) and vegan food products, making vegan ice cream obvious (0045 and 0085), as claimed.
On fat content: Gugger teaches that the legume protein product is used in a liquid state, when making the cultured food products (0045), comprising: 0.1 to 8 wt% of lipids (0059), which encompasses 4 wt% to 30 wt% fat, based on a total weight of the emulsified food product, as claimed
On water content: Gugger teaches that prior to making a spray dried chickpea protein product, the liquified version, a liquefied legume milk, can be used to make ice cream (0045).
Gugger shows that said milk is made with: 200 grams of chickpeas, 1200 grams of water, 153 grams of oil, and about 23.49 to 26.69 of other ingredients (see Example 2). Therefore the amount of water in the milk make amounts to about 1576.5 to 1579.7 grams, with a water content of about 76 wt%, which encompasses, 35 wt% to 80 wt% water, based on the total weight of the emulsified food product.
Gugger further teaches that the amount of water used to hydrate the legumes can range from a volume ratio of legumes to water from 1:0.1 (i.e., 1 volume part legume per 0.1 volume part water) to 1:20. In instances where the legumes are soaked, the volume ratio of legumes to water may be at least 1:1 (e.g., at least 1:2) to ensure sufficient extraction of water-soluble components from the legumes (0028).
Therefore, Gugger also provide how to adjust the water content of product made, by adjusting the water content in the chickpea protein milk product used, wherein it would 1have been obvious to a person having ordinary skill in the art at the time the invention was made to use 35 wt% to 80 wt% water, based on the total weight of the emulsified food product, since Gugger provides those of skill with instructions on how to adjust the water content, therefore they would have the information necessary to create an experiment to adjust the variable involved, to achieve the desired amount of water in an ice cream product.
For specificity, Wen also teaches methods of making non-dairy ice cream, with legume products (3rd full para. from the bottom of pg. 8) fat (2nd para. of Background), water (1st full para. on pg. 3) and sweeteners (ab.).
Further, as discussed above, the modified teaching, in Wen, provides water in amounts of up to about 70 wt% (1st full para. on pg. 3), which encompasses the use of 35 wt% to 80 wt% water, as claimed.
On the amount of the legume protein product in ice cream:
Gugger teaches that emulsified food products, including: ice cream (0052) comprise: a variety of additives (0053-0059) in amounts up to at least 8 wt% (0059), and from 5 to 85 wt % of oil/fat (0069), which imparts that the remaining ingredients, including the liquefied legume material (i.e. chickpea protein product) is used in amounts of up to 13 to 93 wt%, which encompasses the chickpea protein product, used in an amounts of 0.05 wt% to 10 wt%, based on a total weight of the emulsified food product, as claimed.
Further, the modified teaching, in Cusinart, provides that a mixture of about 1000 grams, comprising about 100 grams of legume powder, about 10 wt%, which encompasses 0.05 wt% to 10 wt%, based on a total weight of the ice cream product, as claimed (as discussed above).
On sweeteners: Gugger teaches that the legume protein product is used in a liquid state, when making the cultured food products (0045), comprising: zero to 15 wt% sweeteners (0048), including: sugar, syrups, and honey (0049), which encompasses the optional use of at least one of sugar, honey or syrup, as claimed.
Gugger also teaches that the ice cream is made by using cultured yogurt (0067): and the use of sweeteners for the cultured products, to include sugar, honey and syrups (0049), which encompasses the optional use of at least one of sugar, honey or syrup.
On the legume protein product being an emulsifier: Gugger teaches that the legume protein material self-emulsifies the ingredients wherein traditionally used emulsification ingredients can be omitted from the product (0070), which imparts that the water and oil form therein are in the form of an emulsion (further discussed in 0068), as claimed; and wherein the chickpea protein product is an emulsifier, as claimed.
As for claim 43, Gugger provide the compositions made, include: at least one of: ice cream (0045) and vegan food products, making vegan ice cream obvious (0045 and 0085), as claimed.
On fat content: Gugger teaches that the legume protein product is used in a liquid state, when making the cultured food products (0045), comprising: 0.1 to 8 wt% of lipids (0059), which encompasses 4 wt% to 30 wt% fat, based on a total weight of the emulsified food product, as claimed
On water content: Gugger teaches that prior to making a spray dried chickpea protein product, the liquified version, a liquefied legume milk, can be used to make ice cream (0045).
Gugger shows that said milk is made with: 200 grams of chickpeas, 1200 grams of water, 153 grams of oil, and about 23.49 to 26.69 of other ingredients (see Example 2). Therefore the amount of water in the milk make amounts to about 1576.5 to 1579.7 grams, with a water content of about 76 wt%, which encompasses, 35 wt% to 80 wt% water, based on the total weight of the emulsified food product.
Gugger further teaches that the amount of water used to hydrate the legumes can range from a volume ratio of legumes to water from 1:0.1 (i.e., 1 volume part legume per 0.1 volume part water) to 1:20. In instances where the legumes are soaked, the volume ratio of legumes to water may be at least 1:1 (e.g., at least 1:2) to ensure sufficient extraction of water-soluble components from the legumes (0028).
Therefore, Gugger also provide how to adjust the water content of product made, by adjusting the water content in the chickpea protein milk product used, wherein it would 1have been obvious to a person having ordinary skill in the art at the time the invention was made to use 35 wt% to 80 wt% water, based on the total weight of the emulsified food product, since Gugger provides those of skill with instructions on how to adjust the water content, therefore they would have the information necessary to create an experiment to adjust the variable involved, to achieve the desired amount of water in an ice cream product.
For specificity, Wen also teaches methods of making non-dairy ice cream, with legume products (3rd full para. from the bottom of pg. 8) fat (2nd para. of Background), water (1st full para. on pg. 3) and sweeteners (ab.).
Further, as discussed above, the modified teaching, in Wen, provides water in amounts of up to about 70 wt% (1st full para. on pg. 3), which encompasses the use of 35 wt% to 80 wt% water, as claimed.
On sweeteners: Gugger teaches that the legume protein product is used in a liquid state, when making the cultured food products (0045), comprising: zero to 15 wt% sweeteners (0048), including: sugar, syrups, and honey (0049), which encompasses the optional use of at least one of sugar, honey or syrup, as claimed.
Gugger also teaches that the ice cream is made by using cultured yogurt (0067): and the use of sweeteners for the cultured products, to include sugar, honey and syrups (0049), which encompasses the optional use of at least one of sugar, honey or syrup.
On the amount of the legume protein product in ice cream:
Gugger teaches that emulsified food products, including: ice cream (0052) comprise: a variety of additives (0053-0059) in amounts up to at least 8 wt% (0059), and from 5 to 85 wt % of oil/fat (0069), which imparts that the remaining ingredients, including the liquefied legume material (i.e. chickpea protein product) is used in amounts of up to 13 to 93 wt%, which encompasses the chickpea protein product, used in an amounts of 0.05 wt% to 10 wt%, based on a total weight of the emulsified food product, as claimed.
Further, the modified teaching, in Cusinart, provides that a mixture of about 1000 grams, comprising about 100 grams of legume powder, about 10 wt%, which encompasses 0.05 wt% to 10 wt%, based on a total weight of the ice cream product, as claimed (as discussed above).
On protein content: Gugger teaches the legumes used to make the product have high levels of protein, including greater than 20 wt% (0022), which encompasses comprising at least 60 wt% protein based on a total weight of the chickpea protein product, as claimed.
Further, the modified teaching, in Ghribi, provides about 61 to 63 % (ab.) of protein, on a dry weight basis, in chickpea protein products; and in Kaur, provides chickpea protein products have protein contents of from about 20 to 94 % (see Table 1), wherein the combination provides specificity that encompasses: at least 60 wt% chickpea protein on a dry solids basis, as claimed.
On the legume protein product being an emulsifier: Gugger teaches that the legume protein material self-emulsifies the ingredients wherein traditionally used emulsification ingredients can be omitted from the product (0070), which imparts that the water and oil form therein are in the form of an emulsion (further discussed in 0068), as claimed; and wherein the chickpea protein product is an emulsifier, as claimed.
Response to Arguments
Declaration under 37 CFR 1.132
Several arguments toward the experiment of the declaration under 37 CFR 1.132 filed 4/28/2025 are presented.
In response, please see the detailed discussion in the Affidavit section above, wherein it is concluded that the experimental design and the information thereof, does not provide a proper showing of unexpected results.
35 USC 112(a) rejection
It is asserted, that Claim 23 has been rejected under 35 USC 112(a) as failing to comply with the written description requirement. The examiner states that claim 23 recites that a chickpea product having a moisture content of less than 10 wt% has a pH of 7 1, but pH is toward a solution. Rather than arguing this point, the recitation about pH has now been removed from claim 23, thus obviating this rejection.
In response, Applicant’s timely response is appreciated, and said Rejection is not re-issued herein.
35 USC 112(b) rejection
It is asserted, that Claim 38 and all claims dependent therefrom has been rejected under 35 USC 112(b) as being indefinite in the recitation of "the protein curd solids," which lacks antecedent basis. Claim 38 has now been amended to specify that the precipitate of the acidifying step is a mixture of protein curd solids, thus providing antecedent basis for the term used in the separating step. Reconsideration and withdrawal of this part of the rejection are therefore respectfully urged.
In response, Applicant’s timely response is appreciated, and said Rejection is not re-issued herein.
Obviousness rejections
It is asserted, that the examiner states that Gugger provides methods of making liquid chickpea protein products that are spray dried, wherein Gugger teaches that its protein product has greater than 20 wt% protein, thus reading on the claimed at least 50 wt% protein. The examiner states that Gugger states that its protein can be used to emulsify oil-based ingredients. This rejection is respectfully traversed.
The primary deficiency of Gugger is that it does not teach any method of achieving a protein product with at least 50% protein.
In order to prove this fact, the examiner's attention is invited to the Second Declaration under 37 CFR 1.132 of Eviatar Lazar (hereinafter "second Lazar declaration"), which is being submitted herewith.
In response, the Second Declaration under 37 CFR 1.132 of Eviatar Lazar (hereinafter "second Lazar declaration") submitted herewith, is not a proper showing of this, as discussed in detail above. Further, broad ranges make a lesser amount therein obvious because Appellant must show that a particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range. The law is replete with cases in which the difference between a claimed invention and the prior art is the claimed range or other variable within the claims. These cases have consistently held that the Appellant must show that a particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range. See, e.g., In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness.”); [In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); Titanium Metals Corp. v. Banner, 778 F.2d 775, 783 (Fed. Cir. 1985). Herein the claimed range would have been obvious because Appellant has not met their burden, to establish (1) that the alleged unexpected results are, in fact, unexpected, (2) that the comparisons are to the disclosure of the closest prior art, and (3) that the supplied evidentiary showing is commensurate in scope with the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Therefore, because broad ranges make a lesser amount therein obvious this argument is not persuasive.
It is asserted, that claim 24 requires at least 15.9 wt% fat in the chickpea protein product, the examiner states that Gugger teaches that oil or fat can be added to produce the emulsified product and this therefore encompasses the claimed parameters of claim 24. However, claim 24 is directed to defining the content of the emulsifier, i.e., the chickpea protein product starting material of the emulsified food product of claim 38. While oil or fat is added to this product to produce the emulsion, this is not the oil or fat content of the starting chickpea protein product material.
In response, claim 24 is clear that the chickpea protein product, of claim 38, comprises the fat. In claim 38, it is clear that the emulsified food product comprises the chickpea protein product. It is not the emulsion that comprises the fat of claim 24, therefore this argument is not persuasive. It is further noted, that claim 24 precedes claim 38, however claims should be arranged in order of scope so that the first claim presented is the least restrictive (see 608.01(m)).
It is asserted, that Paragraph [0023] of Gugger does not teach a starting product with at least 15.9% fat, as required by claim 24. It only teaches adding that starting material to a composition containing additional fat in order to emulsify that composition.
In response, Gugger teaches that the non-soybean legumes used to make the product have a lipid content of less than 10 wt% (0023), and added lipids are used in amounts of from 5 to 85 wt% (0069), which encompasses the chickpea product comprising at least 15.9 wt% fat, as claimed.
It is asserted, that some of the examiner's criticisms of the first Lazar declaration are unreasonable.
1. As to the amount of water in Example 1, it would be obvious to anyone of ordinary skill in the art that the only necessity is that sufficient water is used to allow a slurry to be formed, as stated. There is no reason to believe that any small differences in the laboratory scale repetition of Example 1 in the second Lazar declaration would lead to any significant differences in results.
In response, Applicant’s opinion is appreciated, however, no evidence is provided for consideration, therefore this argument is not persuasive.
2. The examiner complains that neither Example 1 nor Experiment 1 state what amount of starch is removed/remaining. However, the amount of starch removed would be considered obvious in wet extraction, which is the goal of the first step of the extraction. By raising the pH and making the proteins soluble, unlike the starch in the flour, the soluble proteins are separated from the insoluble starch. The starch is precipitated through centrifugal forces and the protein (liquid phase) is kept in order to concentrate the protein and remove the starch. Thus, it would be fully expected in such a wet extraction step that the insoluble are substantially completely removed. This is an inappropriate ground to criticize the declaration.
In response, Applicant’s opinion is appreciated, however, said declaration asserts that a chickpea product was produced using the Grugger method, wherein no discussion of what was lacking in said method was provided, therefore, method steps concerning the work relied upon was left to conjecture, which is not proper.
3. At paragraph 2 on page 9 of the Office action of November 26, 2024, the examiner stated the in Experiment 1, the starch solids fraction was then re-hydrated with water, heated and then spray dried to achieve a chickpea starch by product and this was not done in Example 1, however, the step of obtaining a starch byproduct was not accomplished in Experiment 1 as it is irrelevant to the content of the protein fraction, which is what is used in the emulsification step. The starch byproduct is just waste (unless used in some unrelated process).
In response, Applicant’s opinion is appreciated, however, said declaration asserts that a chickpea product was produced using the Gruger method, wherein no discussion of what was lacking in said method was provided, therefore, method steps concerning the work relied upon was left to conjecture, which is not proper.
4. The other criticisms of the examiner are similarly explainable due to the differences between a process done in laboratory scale as opposed to a scale-up (industrial or semi-industrial) scale. A process in a laboratory cannot be continuous and therefore some differences are bound to happen. But the protein at the end was substantially the same in both.
In response, Applicant’s opinion is appreciated, however, said declaration asserts that a chickpea product was produced using the Gruger method, wherein no discussion of what was lacking in said method was provided, therefore, method steps concerning the work relied upon was left to conjecture, which is not proper.
It is submitted, that the examiner is not giving the rebuttal evidence submitted by applicant sufficient weight. Thus, the evidence presented must be considered for all that it establishes and should not be disregarded because of minor discrepancies that would not be expected to substantially affect what has been shown.
In response, no evidence is provided as to how the examiner not giving the rebuttal evidence submitted by applicant sufficient weight, therefore this argument tis not persuasive.
Conclusion
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/PATRICIA A GEORGE/Primary Examiner, Art Unit 1793