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 .
Response to Amendment
The amendment filed 11/18/2025/ has been entered. Claims 14-32 remain pending in the application. Claims 27-31 remain withdrawn. Claims 14-26 and 32 remain rejected. Applicant’s amendments to the Claims have overcome each and every objection previously set forth in the Non-Final Office Action mailed 08/20/2025.
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.
Claim(s) 14-19, and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Boursier (US 20110311599 A1) in view of Segall (US 20140017379 A1), Senecot (US 20220400700 A1), and Chéreau et. al. (Combination of existing and alternative technologies to promote oilseeds and pulses proteins in food applications).
Regarding claim 14, Boursier teaches (Paragraph 0001, 0037, 0045, 0061) a granulated powder containing at least one protein of vegetable origin and at least one fiber of vegetable origin (i.e. consisting of), wherein the vegetable protein is a protein derived from the family of cereals, oleaginous plants, leguminous plants, tuberous plants, algae and microalgae, wherein preferably, said leguminous plant protein is pea. Boursier further teaches (Paragraph 0072, 0073, 0075) the pea proteins used are in the form of a composition of pea protein (soluble fraction) having: a soluble protein content of between 20% and 99%, wherein, preferably, use is made of a protein having a high soluble protein content of between 45% and 90%, and wherein embodiments of the pea protein are mainly in native globular form, globulins, or albumins (which includes embodiments containing albumins but not globulins). In addition, Boursier teaches (Paragraph 0110) said powder comprises pea proteins and at least one insoluble vegetable fiber, and preferably one leguminous plant fiber and even more preferably one pea fiber (pulp). Also, Boursier teaches (Paragraph 0037) the granulated powder has a dry matter content (solids content) of greater than 80%, preferably greater than 85%, and even more preferably greater than 90%. Additionally, Boursier teaches (Paragraph 0021-0023) providing vegetable proteins as a replacement for animal proteins, while at the same time making it possible to retain a nutritional value which is at least similar, or even improved, wherein the product will have an equivalent nutritional value: if it contains an amount of proteins, mineral salts, and vitamins equivalent to that present in the products of animal origin. Thus, Boursier does not explicitly state that the product contains salts, but at least indicates that salts are desirable in the product.
Boursier is silent on the soluble fraction being the residual aqueous fraction obtained after the extraction of the starch, pulps and proteins of globulin type derived from seeds of leguminous plants, using a wet fractionation process, wherein said soluble fraction includes sugars and salts. Boursier is further silent on the product being free of sugars and mineral salts added after wet fractionation, though Boursier does not indicate the addition of any sugars or salts to the processed product.
However, the Examiner notes that, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If 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 MPEP 2113 I).
Segall teaches (Paragraph 0002, 0046) pH-adjusted pulse protein products, wherein pulses to which the invention may be applied include, but are not limited to lentils, chickpeas, dry peas and dry beans. Segall further teaches (Paragraph 0005-0011) extracting a pulse protein source with an aqueous calcium salt solution, preferably an aqueous calcium chloride solution, to cause solubilization of pulse protein from the protein source and to form an aqueous pulse protein solution; separating the aqueous pulse protein solution from residual pulse protein source; adjusting the pH of the aqueous pulse protein solution to a pH of about 1.5 to about 4.4, preferably about 2 to about 4, to produce an acidified pulse protein solution; optionally clarifying the acidified pulse protein solution if it is not already clear; optionally concentrating the acidified aqueous pulse protein solution while maintaining the ionic strength substantially constant by a selective membrane technique. Segall further teaches (Paragraph 0090) in the procedures in which precipitated solids are collected and dried, the remaining soluble protein fraction may also be processed to form a pulse protein product, wherein, in some embodiments, the soluble fraction may be dried directly.
Furthermore, it is known in the art, for example from Senecot (US 20220400700 A1) that (Paragraph 0046, 0049) the soluble fraction of separated pea protein contains albumins, sugars and salts (which would be retained when directly drying as disclosed by Segall).
It would have been obvious to one of ordinary skill in the art to modify Boursier to provide a soluble fraction (which is known in the art to include albumins, salts, and sugars) as taught by Segall since both are directed to methods of preparing products containing dry concentrates of pea proteins, including albumins, since providing a soluble fraction is known in the art as shown by Segall, since the soluble fraction of pea protein is known to include albumins, sugar, and salt as shown by Senecot, since albumins are richer in sulphur amino acids and lysine while globulins are characterized by a higher proportion of aspartic acid, glutamic acid and their corresponding amides on the one hand, and on the other, upper arginine content (Chéreau et. al., Section 2.4), thus a soluble fraction with a higher albumin content can be used to control or increase the amount of lysine and sulphur amino acids provided to the consumer, which will beneficial to consumers in need on additional lysine, and sulphur amino acids, since, alternatively, the soluble fraction can be provided to reduce the amount glutamic acid, aspartic acid, etc., provided to consumers of pea protein, which can be beneficial to consumers who need a reduced intake of such components, since salt and sugar can provide additional flavor and nutrition to the composition, since removal of salt and sugar would require extra time and processing expenses, since using only the soluble fraction of the protein would allow the composition to be added to be combined with water or other liquids to make a beverage or consumable product with all the components dissolved and no clumping or aggregation of ingredients.
Regarding claim 15, Boursier teaches (Paragraph 0037) the granulated powder has a dry matter content (solids content) of greater than 80%, preferably greater than 85%, and even more preferably greater than 90%.
Regarding claim 16, Boursier teaches (Paragraph 0037) the granulated powder has a dry matter content (solids content) of greater than 80%, preferably greater than 85%, and even more preferably greater than 90%. Boursier further teaches (Paragraph 0239, 0255-0257) an exemplary embodiment, wherein a granulated powder containing pea proteins has a dry matter content (solids content) of 94.5%.
It would have been obvious to one of ordinary skill in the art to configure the product's solids content to be greater than 94% by weight since such a solids content is already known from an exemplary embodiment of Boursier, since a higher solids content (which necessitates a lower water content) will better preserve the product by reducing the possibly of bacterial or microorganism growth, and since a higher solids content can reduce shipping and transportation costs of the product since water can be added back in if necessary at the final destination of the product or in a food prepared using the product as an ingredient.
Regarding claim 17, Boursier teaches (Paragraph 0072-0075, 0110), as shown above, said powder comprises pea proteins including protein having a high soluble protein content (soluble fraction) and at least one insoluble vegetable fiber, and preferably one leguminous plant fiber and even more preferably one pea fiber (pulp).
Regarding claim 18, Boursier teaches (Paragraph 0164) according to one particular embodiment of the present invention, 90% of the powder has a diameter of less than 1000 µm, preferably less than 500 µm, and even more preferably less than 400 µm, which overlaps with the claimed range of between 50 microns and 3000 microns.
Regarding claim 19, Boursier teaches (Paragraph 0164) according to one particular embodiment of the present invention, 90% of the powder has a diameter of less than 1000 µm, preferably less than 500 µm, and even more preferably less than 400 µm, which overlaps with the claimed range of between 300 microns and 1000 microns.
Regarding claim 32, Boursier teaches (Paragraph 0038) the invention relates to a process for obtaining a granulated powder and to the use thereof in various industrial fields, and more particularly in the food-processing field, where it is used as a functional agent such as an emulsifying, overrun, stabilizing, thickening and/or gelling agent, in particular for totally or partially replacing certain animal proteins in the preparation of food products.
Claim(s) 20-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Boursier (US 20110311599 A1) in view of Segall (US 20140017379 A1), Senecot (US 20220400700 A1), and Chéreau et. al. (Combination of existing and alternative technologies to promote oilseeds and pulses proteins in food applications), and further in view of Segall (US 20140093626 A1).
Regarding claim 20, Boursier teaches (Paragraph 0176), according to another embodiment of the invention, the granulated powder comprises pea proteins and vegetable fibers, and can also contain any suitable additive, such as dyes.
Boursier is silent on the product’s component L being greater than 30, wherein its coloring is according to the "L*a*b*" technique.
Segall (US 20140093626 A1) teaches (Paragraph 0016, 0044) a pulse protein product having a pulse protein content of at least 60 wt. %, wherein pulses to which the invention may be applied include lentils, chickpeas, dry peas and dry beans. Segall (US 20140093626 A1) further teaches (Paragraph 0086; Table 2) an exemplary embodiment, wherein a pea protein isolate in dry powder form has an L* values of 85.74.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the product of Boursier to have an L* value greater than 30 (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in view of Segall (US 20140093626 A1) since both are directed to powdered products containing pea protein, since a powdered product containing pea protein with an L* value greater than 30 is known in the art as shown by Segall (US 20140093626 A1), since altering the color of the powder (which would necessarily result from the use of colorants such as dyes), is known in the art as shown by Boursier, since a higher L* value corresponds to a lighter coloring that will give the product the appearance of being, undegraded, unburnt, and/or free from impurities that will be more visually appealing and desirable for the consumer, since a lighter coloring will satisfy consumer expectations by resembling conventional animal based protein powders that are lighter in color, and since a powder with a lighter coloring can be combined with other ingredients without darkening the end composition in a way that would adversely affect the appearance.
Furthermore, the claimed L* value would have been used during the course of normal experimentation and optimization procedures (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in the production of the product of Boursier based upon factors such as consumer expectations (where conventional animal based protein powders are lighter in color), consumer preferences in color (where some consumers prefer foods with a lighter coloration and may use food dyes), the intended use of protein powder (where the powder may be combined with other ingredients to make a resulting product which is intended to have a lighter coloration), the desired proportions of the soluble fraction and pulp, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed L* value that would render it non-obvious.
Regarding claim 21, Boursier teaches (Paragraph 0176), according to another embodiment of the invention, the granulated powder comprises pea proteins and vegetable fibers, and can also contain any suitable additive, such as dyes.
Boursier is silent on the product’s component L being greater than 40, wherein its coloring is according to the "L*a*b*" technique.
Segall teaches (Paragraph 0016, 0044) a pulse protein product having a pulse protein content of at least 60 wt. %, wherein pulses to which the invention may be applied include lentils, chickpeas, dry peas and dry beans. Segall further teaches (Paragraph 0086; Table 2) an exemplary embodiment, wherein a pea protein isolate in dry powder form has an L* values of 85.74.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the product of Boursier to have an L* value greater than 40 (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in view of Segall, since both are directed to powdered products containing pea protein, since a powdered product containing pea protein with an L* value greater than 40 is known in the art as shown by Segall, since altering the color of the powder (which would necessarily result from the use of colorants such as dyes), is known in the art as shown by Boursier, since a higher L* value corresponds to a lighter coloring that will give the product the appearance of being, undegraded, unburnt, and/or free from impurities that will be more visually appealing and desirable for the consumer, since a lighter coloring will satisfy consumer expectations by resembling conventional animal based protein powders that are lighter in color, and since a powder with a lighter coloring can be combined with other ingredients without darkening the end composition in a way that would adversely affect the appearance.
Furthermore, the claimed L* value would have been used during the course of normal experimentation and optimization procedures (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in the production of the product of Boursier based upon factors such as consumer expectations (where conventional animal based protein powders are lighter in color), consumer preferences in color (where some consumers prefer foods with a lighter coloration and may use food dyes), the intended use of protein powder (where the powder may be combined with other ingredients to make a resulting product which is intended to have a lighter coloration), the desired proportions of the soluble fraction and pulp, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed L* value that would render it non-obvious.
Regarding claim 22, Boursier teaches (Paragraph 0176), according to another embodiment of the invention, the granulated powder comprises pea proteins and vegetable fibers, and can also contain any suitable additive, such as dyes.
Boursier is silent on the product’s component L being greater than 50, wherein its coloring is according to the "L*a*b*" technique.
Segall teaches (Paragraph 0016, 0044) a pulse protein product having a pulse protein content of at least 60 wt. %, wherein pulses to which the invention may be applied include lentils, chickpeas, dry peas and dry beans. Segall further teaches (Paragraph 0086; Table 2) an exemplary embodiment, wherein a pea protein isolate in dry powder form has an L* values of 85.74.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the product of Boursier to have an L* value greater than 50 (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in view of Segall, since both are directed to powdered products containing pea protein, since a powdered product containing pea protein with an L* value greater than 50 is known in the art as shown by Segall, since altering the color of the powder (which would necessarily result from the use of colorants such as dyes), is known in the art as shown by Boursier, since a higher L* value corresponds to a lighter coloring that will give the product the appearance of being, undegraded, unburnt, and/or free from impurities that will be more visually appealing and desirable for the consumer, since a lighter coloring will satisfy consumer expectations by resembling conventional animal based protein powders that are lighter in color, and since a powder with a lighter coloring can be combined with other ingredients without darkening the end composition in a way that would adversely affect the appearance.
Furthermore, the claimed L* value would have been used during the course of normal experimentation and optimization procedures (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in the production of the product of Boursier based upon factors such as consumer expectations (where conventional animal based protein powders are lighter in color), consumer preferences in color (where some consumers prefer foods with a lighter coloration and may use food dyes), the intended use of protein powder (where the powder may be combined with other ingredients to make a resulting product which is intended to have a lighter coloration), the desired proportions of the soluble fraction and pulp, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed L* value that would render it non-obvious.
Regarding claim 23, Boursier teaches (Paragraph 0176), according to another embodiment of the invention, the granulated powder comprises pea proteins and vegetable fibers, and can also contain any suitable additive, such as dyes.
Boursier is silent on the product’s component a being less than 20, preferentially less than 10, and its component b being greater than 25.
Segall teaches (Paragraph 0016, 0044) a pulse protein product having a pulse protein content of at least 60 wt. %, wherein pulses to which the invention may be applied include lentils, chickpeas, dry peas and dry beans. Segall further teaches (Paragraph 0086; Table 2) an exemplary embodiment, wherein a pea protein isolate in dry powder form has an a* values of 3.27.
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the product of Boursier to have an a* value less than 20 (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in view of Segall, since both are directed to powdered products containing pea protein, since a powdered product containing pea protein with an a* value less than 20 is known in the art as shown by Segall, since altering the color of the powder (which would necessarily result from the use of colorants such as dyes), is known in the art as shown by Boursier, since a lower a* value corresponds to a less red, more neutral coloring that may more be more visually appealing and desirable for the consumer, since a more neutral coloration would be more desirable for consumers who desire to add the powder to beverages, soups, etc. without drastically altering the appearance of the base ingredients, and since an overly red or bright red coloration may make the product appear artificial or unhealthy to the consumer.
Furthermore, while the prior art is silent on component b being greater than 25, both the claimed a* value and b* value would have been used during the course of normal experimentation and optimization procedures (such as by dying the product, adjusting the relative proportions of the soluble fraction and pulp, controlling or changing the drying technique, etc.) in the production of the product of Boursier based upon factors such as consumer expectations (where conventional animal based protein powders are yellow (higher b*) in color ), consumer preferences in color (where some consumers prefer foods with a specific coloration), the intended use of protein powder (where the powder may be intended to be combined with other ingredients to make a resulting product which is intended to have a specific coloration such that that powder’s color should be adjusted to match to coloration), the desired proportions of the soluble fraction and pulp, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed a* or b* value that would render it non-obvious.
Claim(s) 24 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Boursier (US 20110311599 A1) in view of Segall (US 20140017379 A1), Senecot (US 20220400700 A1), and Chéreau et. al. (Combination of existing and alternative technologies to promote oilseeds and pulses proteins in food applications), and further in view of Fenioux (FR 2860396 A1) and Mount Sinai (Lysine).
Regarding claim 24, Boursier is silent on the product’s lysine content being between 3% and 10% by weight of its total protein content.
Chéreau et. al. teaches (Section 2.4) albumins are richer in lysine compared to globulins.
Fenioux teaches (Paragraph 0008, 0011) a food product comprising a carbohydrate component and at least one legume protein isolate, wherein the legume protein isolate is chosen from alfalfa, clover, bean, pea and lupine protein isolates, and wherein the legume protein isolate contains at least 4.4% by weight of lysine.
Mount Sinai teaches that lysine is an essential amino acid that is necessary for human health, but must be acquired from food or supplements. Mount Sinai further teaches that insufficient lysine intake can result in symptoms including fatigue, nausea, and dizziness. Also, Mount Sinai teaches Lysine helps the body absorb calcium and reduces the amount of calcium that is lost in urine. In addition, Mount Sinai teaches studies suggest lysine helps muscle tissue recover after stress. Furthermore, Mount Sinai teaches that excessive doses of lysine can cause gallstones and renal dysfunction.
It would have been obvious to one of ordinary skill in the art to configure the product to have a lysine content between 3% and 10% (such as by adjusting the relative amounts of protein and fiber, adjusting the amount of albumin, manipulating the production process of the protein to control the resulting lysine content, adding additional lysine, etc.) in view of Fenioux since both are directed to products containing legume protein isolates, including pea protein isolates, since a pea protein isolate with a lysine content of between 3% and 10% by weight of its total protein content, is known in the art as shown by Fenioux, since lysine is an essential amino acid that is necessary for human health, but must be acquired from food or supplements (Mount Sinai), since insufficient lysine intake can result in symptoms including fatigue, nausea, and dizziness (Mount Sinai), since lysine helps the body absorb calcium and reduces the amount of calcium that is lost in urine (Mount Sinai), since studies suggest lysine helps muscle tissue recover after stress (Mount Sinai), and since excessive doses of lysine can cause gallstones and renal dysfunction (Mount Sinai).
Furthermore, the claimed lysine content would have been used during the course of normal experimentation and optimization procedures in the method of Boursier (such as by adjusting the relative amounts of protein and fiber, adjusting the amount of albumin, manipulating the production process of the protein to control the resulting lysine content, adding additional lysine, etc.) based upon factors such as the intended nutritional effect of the powder (where lysine can improve calcium retention and muscle recovery, but excess lysine can cause issues including gallstones), the consumers diet (where some consumers may have diets that have too little or too much lysine intake), the length or heat of drying to prepare the powder, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed lysine content that would render it non-obvious.
Regarding claim 25, Boursier is silent on the product’s lysine content being between 5% and 8% by weight of its total protein content.
Fenioux teaches (Paragraph 0008, 0011) a food product comprising a carbohydrate component and at least one legume protein isolate, wherein the legume protein isolate is chosen from alfalfa, clover, bean, pea and lupine protein isolates, and wherein the legume protein isolate contains at least 4.4% by weight of lysine (i.e., the lysine content may be higher than 4.4%).
Chéreau et. al. teaches (Section 2.4) albumins are richer in lysine compared to globulins.
Mount Sinai teaches that lysine is an essential amino acid that is necessary for human health, but must be acquired from food or supplements. Mount Sinai further teaches that insufficient lysine intake can result in symptoms including fatigue, nausea, and dizziness. Also, Mount Sinai teaches Lysine helps the body absorb calcium and reduces the amount of calcium that is lost in urine. In addition, Mount Sinai teaches studies suggest lysine helps muscle tissue recover after stress. Furthermore, Mount Sinai teaches that excessive doses of lysine can cause gallstones and renal dysfunction.
It would have been obvious to one of ordinary skill in the art to configure the product of Boursier to have a lysine content between 5 and 8% (such as by adjusting the relative amounts of protein and fiber, adjusting the amount of albumin, manipulating the production process of the protein to control the resulting lysine content, adding additional lysine or an additional source of lysine, etc.) in view of Fenioux and Mount Sinai since both Boursier and Fenioux are directed to products containing legume protein isolates, including pea protein isolates, since a pea protein isolate with a lysine content of at least 4.4% (i.e., the lysine content may be higher than 4.4%) is known in the art as shown by Fenioux, since lysine is an essential amino acid that is necessary for human health, but must be acquired from food or supplements (Mount Sinai), since insufficient lysine intake can result in symptoms including fatigue, nausea, and dizziness (Mount Sinai), since lysine helps the body absorb calcium and reduces the amount of calcium that is lost in urine (Mount Sinai), since studies suggest lysine helps muscle tissue recover after stress (Mount Sinai), and since excessive doses of lysine can cause gallstones and renal dysfunction (Mount Sinai).
Furthermore, the claimed range of the lysine content would have been used during the course of normal experimentation and optimization procedures in the method of Boursier (such as by adjusting the relative amounts of protein and fiber, adjusting the amount of albumin, manipulating the production process of the protein to control the resulting lysine content, adding additional lysine, etc.) based upon factors such as the intended nutritional effect of the powder (where lysine can improve calcium retention and muscle recovery, but excess lysine can cause issues including gallstones), the consumers diet (where some consumers may have diets that have too little or too much lysine intake), the length or heat of drying to prepare the powder, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed range of the lysine content that would render it non-obvious.
Claim(s) 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Boursier (US 20110311599 A1) in view of Segall (US 20140017379 A1), Senecot (US 20220400700 A1), and Chéreau et. al. (Combination of existing and alternative technologies to promote oilseeds and pulses proteins in food applications), and further in view of Barata (US 20190045826 A1).
Regarding claim 26, Boursier is silent on wherein the total digestibility of the product’s organic matter for monogastric animals being greater than 75%.
Barata teaches (Paragraph 0001, 0092, 0107) nutritional formulations comprising a pea protein isolate, for use as a single protein source or as a food supplement, intended for infants, children and/or adults (i.e., humans, which are monogastric animals) wherein the pea protein isolate has a digestibility of between 93.5 and 95% (greater than 75%).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the product of Boursier (such as by adjusting the relative amounts of protein and fiber, the types of peas used for the protein or fiber, etc.) to provide a product with a digestibility greater than 75% for monogastric animals in view of Barata, since both are directed to food products comprising pea protein isolates, since a pea protein isolate with digestibility of its organic matter for monogastric animals being greater than 75% is known in the art as shown by Barata, since a higher digestibility gives the consumer improved uptake of amino acids from the protein, since a higher digestibility yields better nutrition per volume of food, allowing consumers with small appetites to gain necessary nutrients and potentially reducing costs by lowering the volume of food need to provide the necessary amount of nutrition.
Furthermore, the claimed digestibility would have been used during the course of normal experimentation and optimization procedures in the method of Boursier (such as by adjusting the relative amounts of protein and fiber, the types of peas used for the protein or fiber, etc.) based upon factors such as the intended nutritional effect of the powder (a higher digestibility gives the consumer improved uptake of amino acids from the protein), the consumers appetite (where some consumers eat lower volumes of food and, therefore, need to digest more nutrients per volume of food), food costs, the desired proportions of protein and fiber, etc. Furthermore, the Applicant does not appear to have identified any unique or unexpected benefit from the claimed digestibility that would render it non-obvious.
Response to Arguments
Applicant's arguments filed 11/18/2025 have been fully considered but they are not persuasive.
Regarding the Applicant’s argument that the process-by-product doctrine only applies when the product of the prior art is identical or indistinguishable from the claimed product, and the claimed product is neither identical nor indistinguishable from the products disclosed in Boursier and Segall, the Examiner notes that one cannot show non-obviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, the Examiner maintains that the claimed product is obvious over Boursier in view of Segall (US 20140017379 A1), Chéreau et. al., and Senecot (US 20220400700 A1). Therefore, though the process of achieving such a product in view of the prior art may be different from that intended or preferred by the Applicant, the process-by-product doctrine still applies, and the patentability of the product does not depend on its method of production.
The Applicant further argues that both products disclosed in Boursier and Segall comprise globulins, while the claimed product is obtained by intentional removal of said globulins.
Regarding the Applicant’s argument that, in Boursier, the protein component is the total protein (pea) content (globulins + albumins) since nowhere does Boursier suggest discarding the globulin fraction and using only the residual soluble fraction, the Examiner notes that, Boursier discloses a product comprising "pea protein", wherein, as noted by the Applicant, Boursier states (Paragraph 0071) the term "pea protein" preferably denotes the pea proteins which are mainly in native globular form, globulins, or albumins. The use of the term “or” indicates that Boursier is at least suggesting embodiments wherein, for example, only albumins are included, rather than both albumins and globulins. To further support the provision of a product consisting of a soluble fraction as defined by the Applicant, the Examiner has cited Segall, Chéreau et. al., and Senecot.
In response to the Applicant’s argument that the process of Segall, cited to teach a soluble fraction, would result in a soluble fraction containing some amount of globulins, because the process of Segall includes acidification of the aqueous pulse protein solution prior to concentration and diafiltration, resulting in a portion of the globulins remaining in the product, according to Figure 1 of Grossmannetal., Food Hydrocolloids, Vol. 137, 2023, 108416, as cited by the Applicant, the Examiner notes that Segall does not indicate that globulins remain in the separated soluble fraction. Furthermore, the Applicant concedes that "a globulin fraction also remains in solution while another globulin fraction precipitates" as a result of the process of Segall. Thus, at least some amount of globulins are removed. The Applicant argues that the product of the invention is free of globulins. However, the claimed product consists of "a soluble fraction from leguminous plants and of pulps from leguminous plants, . . . wherein said soluble fraction is the residual aqueous fraction obtained after the extraction of the starch, pulps and proteins of globulin type derived from seeds of leguminous plants, using a wet fractionation process, wherein said soluble fraction includes albumin, sugars and salts". Thus, the claimed soluble fraction has had globulins extracted, but the claim is silent on whether or not all or only some fraction of the globulins are extracted. Consequently, the soluble fraction disclosed by Segall is still understood to satisfy the claim language.
Regarding the Applicant’s argument that both products disclosed in Boursier and Segall do not contain sugars and salts, contrary to the claimed product, since in both Boursier and Segall sugars and salts are never cited as part of the soluble fraction, the Examiner maintains that Boursier and Segall are simply silent or not explicit in this regard, rather than actively teaching a lack of sugars and salts. Furthermore, as previously stated, it is known in the art, for example from Senecot (US 20220400700 A1) that (Paragraph 0046, 0049) the soluble fraction of separated pea protein contains albumins, sugars and salts (which would be retained when directly drying as disclosed by Segall).
The Applicant further argues that the Examiner cannot arbitrarily take the definition of soluble fraction from a single, non-representative document (Senecot) which, in addition, is unrelated to the content of the invention because it relates to a pea albumin having an improved emulsifying activity. However, the Examiner maintains that Senecot is related to the invention. While Senecot is concerned with extraction of primarily albumin from peas, the process and intermediary products, including the soluble fraction, disclosed by Senecot are relevant to the claimed product comprising a soluble fraction from a legume. Furthermore, the argument that the definition of a soluble fraction is arbitrary is not persuasive because Senecot is referring to the soluble fraction of a leguminous plant, specifically peas, which is the same as the claimed invention, the primary reference Boursier and secondary reference Segall. Senecot demonstrates that albumins, sugars and salts are all soluble components presents in peas. Solubility is an intensive property that depends on the substance itself, not a particular amount. Therefore, soluble components in one mixture or composition will also be soluble in another mixture or composition, even if present in different amounts. Consequently, a product comprising a soluble fraction of peas, such as is disclosed by Segall, would be understood to comprise albumins, sugars, and salts.
Regarding the Applicant’s argument that the Examiner cannot assume that the soluble fraction disclosed in Segall corresponds to the soluble fraction as defined under [0036] of the instant specification, which "consists primarily of proteins which are soluble at an acidic pH, belonging mainly to the group of albumins, and also various water-soluble compounds such as sugars and salts", the Examiner maintains that this definition is not arbitrary, for the reasons stated above, and notes that it matches the definition provided by Senecot, further demonstrating that a soluble fraction would be understood to comprise albumins, sugars, and salts due to the inherent properties of these substances and the natural composition of peas.
In response to the Applicant’s argument that, against any reasonable expectations of success, the inventors demonstrated that obtaining such a dry product of high nutritional value is possible thanks to the process of the invention, the Examiner maintains that, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If 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 MPEP 2113 I).
The Applicant further argues that the instant specification demonstrates the unexpected nature and thus the non-obviousness of the claimed product, particularly under Examples 2 and 3.
In response to applicant's argument that Example 2, which compares a pea-based product to a wheat-based product, with the pea based product of the Applicant’s invention having less coloring and lower loss of lysine, the Examiner notes that the coloration and lysine content are not required limitations in the independent claim. Furthermore, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this case, the claimed composition of the product would be obvious to one of ordinary skill in the art for the reasons stated above with regard to claim 14. Additionally, the claimed coloring and lysine content of claims 20-23 and 24-25 is obvious to one of ordinary skill in the prior art in view of the prior art as stated in the rejection above for reasons including, that more neutral coloring that may more be more visually appealing and desirable for the consumer, since a more neutral coloration would be more desirable for consumers who desire to add the powder to beverages, soups, etc. without drastically altering the appearance of the base ingredients, that the claimed coloring would have been used during the course of normal experimentation and optimization procedures, since lysine is an essential amino acid that is necessary for human health, but must be acquired from food or supplements (Mount Sinai), since insufficient lysine intake can result in symptoms including fatigue, nausea, and dizziness (Mount Sinai), since lysine helps the body absorb calcium and reduces the amount of calcium that is lost in urine (Mount Sinai), etc.
In response to applicant's argument that Example 3, which compares a pea-based product to a wheat-based product and corn-based product, with the pea based product of the Applicant’s invention having improved digestibility, the Examiner notes that the digestibility is not a required limitation in the independent claim. Furthermore, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In this case, the claimed composition of the product would be obvious to one of ordinary skill in the art for the reasons stated above with regard to claim 14. Additionally, the claimed digestibility of claim 26 is obvious to one of ordinary skill in the prior art in view of the prior art as stated in the rejection above for reasons including, that a higher digestibility gives the consumer improved uptake of amino acids from the protein, since a higher digestibility yields better nutrition per volume of food, allowing consumers with small appetites to gain necessary nutrients and potentially reducing costs by lowering the volume of food need to provide the necessary amount of nutrition, and since the claimed digestibility would have been used during the course of normal experimentation and optimization procedures.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Consequently, for the reasons stated above, claim 14 and all dependent claims remain rejected under 35 U.S.C. 103.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/AUSTIN PARKER TAYLOR/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792