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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/2/2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
The previous 112(a) rejections are withdrawn due to applicant’s amendments.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1,2,4-10,21,23-26,28-32 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.
Claim 1 now recites “wherein the crisp proteinaceous food product does not comprise a texture modifier”. However, it is unclear what is meant by a “texture modifier” in light of the claims. The applicant argues that Olson contains hydrocolloids which would modify the texture of the composition. However, all required components in the claimed invention(e.g. water, starch, protein, pre-gelatinized flour) would modify the texture of the composition. Therefore, it is not clear what components are considered to be “texture modifiers”.
As such, the applicant provides no definition in the instant spec and only gives one example of calcium carbonate(para 36). Therefore, for purposes of examination, the prior art is considered to meet the claim if no calcium carbonate(the only example of a texture modifier) is required.
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) 1,2,4-10,21,23-26,28-32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Olson(US 2013/0022731) in view of Ford(WO 2017/040610A1) and Huang(US 2002/0041923).
Regarding claims 1,2,7,10,23-26,Olson teaches a crisp proteinaceous food product, comprising water, tapioca starch, powdered egg protein, rice flour(vegetable flour), and rice protein inherently present in the rice flour(example 10). Olson further teaches the addition of vegetable protein isolates such as soy or rice protein(paragraph 21). Olson teaches in paragraph 3 “A diet high in protein and low in carbohydrates can result in lower levels of lipids in the body, less frequent blood glucose spikes, and increasing muscle mass.” Therefore, it would have been obvious to include vegetable protein isolates such as soy or rice protein in the composition in order to provide the nutritional benefits as taught in Olson.
As stated in the 112(b) rejection above, for purposes of examination, Olson is considered to meet the claim since no calcium carbonate(the only example of a texture modifier) is required.
Olson teaches that the proteinaceous food product comprises at least 12g of protein per 1 ounce serving(28.35g)([0022]). Therefore, the food product comprises at least 42% protein, which overlaps the claimed range of at least 50 weight percent total proteins and renders it obvious.
Olson teaches that the food product in example 10 comprises 15g powdered eggs whites which contain 80% egg protein. Ovalbumin comprises 58% of the egg protein. Therefore, the egg white powder contributes 6.96g ovalbumin and 5.04g other egg proteins.
Olson further teaches that the food product comprises 16.8g of rice flour. Rice flour comprises 7% protein. Therefore, the rice flour contributes 1.91g rice protein to the composition.
The total amount of protein in the composition from the egg protein and rice protein equates to 13.91g. Therefore, the total proteins comprise 50% ovalbumin(6.96/13.91), and not at least 65 weight percent as claimed.
However, Olson teaches that the starch can comprise 0.5 to 20%(paragraph 29) of the composition. It would have been obvious to decrease the amount of starch and increase the amount of egg protein within the above stated range, therefore achieving a higher amount of ovalbumin as claimed(e.g. at least 65%).
Furthermore, Olson teaches in paragraph 3 “A diet high in protein and low in carbohydrates can result in lower levels of lipids in the body, less frequent blood glucose spikes, and increasing muscle mass.” Therefore, it would have been obvious to increase the content of ovalbumin protein to 65% of the total proteins based on the benefits as described in Olson.
As calculated above, the composition of example 10 comprises 13.91g of total protein. The composition also comprises 16.8g rice flour, which comprises 80%(127g/158g) carbohydrates. Therefore, total carbohydrates comprise 13.44g from rice flour(16.8x 80%) plus 1g carbohydrates from tapioca starch, for a total of 14.44g. Therefore, the food product contains a 1:1 ratio of protein to carbohydrates.
Olson is silent on the bulk density of the crisp, expanded proteinaceous product. However, Ford teaches a crisp protein product comprising whole liquid egg, an additional protein concentrate and starch(paragraph 10). Ford teaches that the crisp product has a bulk density of less than 300 grams per 100 cubic inch(183 g/L)(paragraph 44) for a “desirable light crunch bite”(paragraph 45). It would have been obvious to have the crisp product of Olson have a bulk density of less than 300 grams per 100 cubic inch(183 g/L) as taught in Ford in order to provide a “desirable light crunch bite”.
Olson teaches that the composition can comprise starch and that “Different starches can be used to control the water retention, porosity, puffiness, crispiness, and/or mouth feel of the end products”. “Flours can be used to engineer the structure, thickness, and/or texture of the end product”. (paragraph 28). Therefore, it would have been obvious to include pre-gelatinized flour in the crisp product in order to engineer the structure, thickness, and/or texture of the end product. It would have been obvious to adjust the amount of pregelatinized flour depending on the structure, texture and thickness desired in the final product.
Furthermore, Huang teaches the use of pregelatinized starches such as rice flour used in low or no gluten dough based product such as chips(para 5,23 24). Huang teaches that(para 4) “The addition of a pregelatinized starch helps bind moisture, thus providing improved tenderness in the final product and contributing to the development of a fine uniform cell structure. In certain low or no gluten-containing systems, such as masa, such a starch may be used as a continuous matrix binder to provide a workable dough.” It would have been obvious to include pregelatinized rice flour in Olson because pregelatinized rice flour functions to provide a workable dough in low or no-gluten systems as taught in Huang.
Regarding claim 4, Olson teaches that the product comprises 15g of powdered egg whites(example 10). Olson further teaches that the product comprises 1g of tapioca starch(the at least one starch as claimed). This equates to a 15:1 ratio of powdered egg whites to starch. However, Olson further teaches that the amount of starch can comprise 0.5 to 20% of the formulation. Therefore, it would have been obvious to increase the amount of starch within the range of 0.5 to 20%(paragraph 29). Upon increasing the amount of starch, the egg white powder to starch would increase to a range of 3:1 to 7:1
Regarding claim 5, Olson teaches that the product comprises 15g of powdered egg whites and 1g of tapioca starch(example 10). This equates to 94% egg white powder based on the combined weight of the at least one starch and the at least one source of egg white protein. Olson does not specifically teach that the egg white powder is from 75 to 85 weight percent of the combined weight in said at least one starch and said at least one source of egg protein.
However, Olson further teaches that the amount of starch can comprise 0.5 to 20% of the formulation(paragraph 29). Therefore, it would have been obvious to increase the amount of starch within the range of 0.5 to 20%. Upon increasing the amount of starch, the egg white powder content would decrease to 75 to 85 weight percent of the combined weight of said at least one starch and said at least one source of egg protein.
Regarding claim 6, Olson teaches that the starch comprises 0.5 to 20% of the food product(paragraph 29).
Regarding claim 8, Olson teaches that the food product comprises 15g powdered eggs whites(example 10). Olson further teaches that the food product comprises 16.8g of rice flour. Rice flour comprises 9g protein in 158g(1 cup). This equates to 0.95g of protein from the rice flour. Therefore, the ratio of egg white powder to vegetable protein is about 17:1 and not 7:2 to 10:1. However, since both are protein sources it would have been obvious to adjust the amount of vegetable protein from the rice flour and egg white powder protein depending on the diet and preferences of the consumer.
Olson further teaches that one can add additional vegetable protein sources such as rice protein isolates(paragraph 21). Therefore, it would have been obvious to include vegetable protein isolates, thus lowering the ratio of egg white powder to vegetable powder to encompass the claimed amount.
Regarding claim 9, Olson teaches that the food product comprises 15g powdered eggs whites. Olson further teaches that the food product comprises 16.8g of rice flour. Rice flour comprises 9g protein in 158g(1 cup). This equates to 0.95g of protein from the rice flour. Therefore, the composition comprises 94% egg white powder and not from 77.5 to 87.5 weight percent as claimed. However, since both are protein sources it would have been obvious to adjust the amount of vegetable protein from the rice flour and egg white powder protein depending on the diet and preferences of the consumer.
Regarding claim 21, Olson teaches that the proteinaceous food product comprises at least 12g of protein per 1 ounce serving(28.35g)([0022]). Therefore, the food product comprises 42% protein. As stated above in claim 1 analysis, it would have been obvious to have at least 65% of the total proteins be ovalbumin. Therefore, the food product would contain at least 28% ovalbumin(12*.65/28.35), which overlaps the claimed range of at least 33 weight percent and renders it obvious.
Regarding claim 28, Olson teaches that the amount of starch can comprise 0.5 to 20% of the formulation(paragraph 29). The balance would comprise the egg white protein at 80%, for an egg white powder to starch ratio of 4:1.
Regarding claim 29, Olson teaches that the food product comprises 15g powdered eggs whites(example 10). Olson further teaches that the food product comprises 16.8g of rice flour. Rice flour comprises 9g protein in 158g(1 cup). This equates to 0.95g of protein from the rice flour. Therefore, the ratio of egg white powder to vegetable protein is about 17:1 and not 7:2 to 10:1. However, since both are protein sources it would have been obvious to adjust the amount of vegetable protein from the rice flour and egg white powder protein depending on the diet and preferences of the consumer.
Olson teaches that the product comprises 15g of powdered egg whites and 1g of tapioca starch(example 10). This equates to 94% egg white powder based on the combined weight of the at least one starch and the at least one source of egg white protein. Olson does not specifically teach that the egg white powder is from 75 to 85 weight percent of the combined weight of the egg protein and vegetable protein. However, since both are protein sources it would have been obvious to adjust the amount of vegetable protein from the rice flour and egg white powder protein depending on the diet and preferences of the consumer.
Regarding claim 30, Olson teaches that the composition can comprise starch and that “Different starches can be used to control the water retention, porosity, puffiness, crispiness, and/or mouth feel of the end products”. “Flours can be used to engineer the structure, thickness, and/or texture of the end product”. (paragraph 28). Therefore, it would have been obvious to include pre-gelatinized flour in the crisp product in order to engineer the structure, thickness, and/or texture of the end product. It would have been obvious to adjust the amount of pregelatinized flour depending on the structure, texture and thickness desired in the final product.
Regarding claims 31 and 32, Olson teaches a crisp proteinaceous food product, comprising water, tapioca starch, powdered egg protein, rice flour(vegetable flour), and rice protein inherently present in the rice flour(example 10). Olson further teaches the addition of vegetable protein isolates such as soy or rice protein(paragraph 21). Olson teaches in paragraph 3 “A diet high in protein and low in carbohydrates can result in lower levels of lipids in the body, less frequent blood glucose spikes, and increasing muscle mass.” Therefore, it would have been obvious to include vegetable protein isolates such as soy or rice protein in the composition in order to provide the nutritional benefits as taught in Olson.
Response to Arguments
Applicant's arguments filed 3/2/2026 have been fully considered but they are not persuasive.
The applicant argues that Olson requires texture modifiers such as hydrocolloids that are now excluded in the present claims. However, as stated in the 112(b) rejection above, Olson is considered to meet the claim since no calcium carbonate(the only example of a texture modifier recited in the instant spec) is required.
Conclusion
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791