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 .
Support for the amendments is within the instant application specification.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 8/28/2025 has been entered.
Applicant’s amendment to the claims filed on 8/28/2025 in response to the Nonfinal Rejection mailed on 6/25/2025 is acknowledged. This listing of claims replaces all prior listings of claims in the application.
Claims 1-16 are pending and examined on the merits.
Claims 17-20 are cancelled.
Applicant’s remarks filed on 8/28/2025 in response to the Nonfinal Rejection mailed on 6/25/2025 have been fully considered and are deemed persuasive to overcome at least one of the rejections and/or objections as previously applied.
The text of those sections of Title 35 U.S. Code not included in the instant action can be found in the prior Office Action.
Withdrawn Rejections
The rejection of claim 2 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement for the reasons of record and the reasons set forth below is withdrawn in view of Applicant’s response that NRRL No. Y-2311-1 is deposited in compliance with the criteria set-forth in 37 C.F.R. 1.801-1.809 (Response to Remarks dated 8/28/2025, page 6) and amendment of claim 2 to remove Aureobasidium pullulans deposited strain NRRL No. 50792, NRRL No. 50793, NRRL No. 50794, NRRL No. 50795 or a combination thereof.
The rejection of claims 3 and 10 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matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant) is withdrawn in view of Applicant’s amendment of claim 3 to recite ‘edible portions of the seeds’ and amendment of claim 10 to recite ‘”Thai”1.
The rejection of claims 1, 5, 7 under 35 U.S.C. 103 as being unpatentable over Wang et al. (Wang et al., Comprehensive Reviews in Food Science and Food Safety, 2019, cited on PTO892 dated 7/14/2024) in view of Bartkiene (Bartkiene et al., LWT - Food Science and Technology, 2016, cited on PTO892 dated 7/14/2024), {hereinafter Bartkiene} as evidenced by Nutrition (20205, Healthline, cited on PTO-892 dated 6/25/2025) {herein Nutrition} is withdrawn in view of Applicant’s amendment of claim 1 to recite ‘a composition containing a fungi-fermented hempseed protein concentrate.’
The rejection of claims 2-4, 6 under 35 U.S.C. 103 as being unpatentable over Wang et al. (Wang et al., Comprehensive Reviews in Food Science and Food Safety, 2019, cited on PTO892 dated 7/14/2024) in view of Bartkiene (Bartkiene et al., LWT - Food Science and Technology, 2016, cited on PTO892 dated 7/14/2024), {hereinafter Bartkiene} as applied to claims 1, 5, 7 in further view of Gibbons et al. (US 9370200 B2, publication date: 06/21/2016/effective filing date: 12/02/2012, cited on PTO892 dated 7/14/2024), {hereinafter Gibbons} as evidenced by Nutrition (20205, Healthline, cited on PTO-892 dated 6/25/2025) {herein Nutrition} is withdrawn in view of Applicant’s amendment of claim 1 to recite ‘a composition containing a fungi-fermented hempseed protein concentrate.’
The rejection of claims 8, 14-15 under 35 U.S.C. 103 as being unpatentable over Wang et al. (Wang et al., Comprehensive Reviews in Food Science and Food Safety, 2019, cited on PTO892 dated 7/14/2024) in view of Bartkiene (Bartkiene et al., LWT - Food Science and Technology, 2016, cited on PTO892 dated 7/14/2024), {hereinafter Bartkiene} as evidenced by Nutrition (20205, Healthline, cited on PTO-892 dated 6/25/2025) {herein Nutrition} is withdrawn in view of Applicant’s amendment of claim 1 to recite ‘a composition containing a fungi-fermented hempseed protein concentrate.’
The rejection of claims 9-13, 16 under 35 U.S.C. 103 as being unpatentable over Wang et al. (Wang et al., Comprehensive Reviews in Food Science and Food Safety, 2019, cited on PTO892 dated 7/14/2024) in view of Bartkiene (Bartkiene et al., LWT - Food Science and Technology, 2016, cited on PTO892 dated 7/14/2024), {hereinafter Bartkiene}, as applied to claims 8, 14-15, in further view of Gibbons et al. (US 9370200 B2, publication date: 06/21/2016/effective filing date: 12/02/2012, cited on PTO892 dated 7/14/2024), {hereinafter Gibbons} as evidenced by Nutrition (20205, Healthline, cited on PTO-892 dated 6/25/2025)) {herein Nutrition} is withdrawn in view of Applicant’s amendment of claim 1 to recite ‘a composition containing a fungi-fermented hempseed protein concentrate.’
New 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 1-16 are newly rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (Wang et al., Comprehensive Reviews in Food Science and Food Safety, 2019, cited on PTO892 dated 7/14/2024) in view of Gibbons et al. (US 9370200 B2, publication date: 06/21/2016/effective filing date: 12/02/2012, cited on PTO892 dated 7/14/2024), {hereinafter Gibbons} as evidenced by Nutrition (20205, Healthline, examiner cited) {herein Nutrition}. The new rejection is necessitated by Applicant’s amendment of claim 1 to recite ‘a composition containing a fungi-fermented hempseed protein concentrate.’
As amended, claims 1-15 are drawn to a composition containing a fungi-fermented hempseed protein concentrate from a hempseed methionine-rich, cystine-rich fraction containing at least 18% sulfur amino acids, wherein the fermented hempseed protein concentrate contains protein content in the range of from about 45% to about 90%, phytase, and linoleic (Co-6) and a-linolenic (o-3) acids at a ratio between 2:1 and 3:1, wherein said concentrate has lower soluble carbohydrates and antinutritional factors than the hempseed from which it is derived, and wherein said fermented hempseed protein concentrate is produced in the absence of alcohol precipitation or flocculation and/or clearing agent.
With respect to claims 1, 5, 8, 14-15, Wang teaches hempseed protein composition that is methionine- and cystine-rich, isolated from hempseed (page 937, column 2, para 3) via enzymatic digestion with phytase (page 937, column 2, para 5). Examiner is interpreting the isolation of methionine and cystine-rich seed protein from hempseed via enzymatic digestion with phytase to be in the absence of alcohol precipitation or flocculation and/or clearing agent as Wang does not teach the utilization of alcohol or flocculation and/or cleaning agent in the composition of hempseed protein (instant application claim 1). Fibers within the hempseed are also digested with carbohydrase and phytase to form the hempseed protein concentrate (page 937, column 2, para 5). Evidentiary reference of Nutrition is cited to demonstrate that whole hempseed contain soluble fibers (page 6, para 6). As such, Examiner is interpreting the digestion of the fibers within the hempseed by carbohydrase and phytase would result in a reduction/lowering of soluble carbohydrates as hempseed are comprised of soluble carbohydrate. The hempseed protein contains 18% (w/w) sulfur amino acids (page 937, column 2, para 3). Said hempseed protein composition has many food applications (table 3). As such, Examiner is interpreting the hempseed protein composition taught by Wang, further teaches hemp protein concentrate that contains at least 65% protein, which encompasses the recited ‘at least 55% protein content’ in claim 5 is the instant application, on a dry weight basis, after digestion with phytase (page 937, column 2, para 5; instant application claim 1). Examiner is interpreting the resulting composition will contain phytase since it was used in the enzymatic digestion of the hempseed. The oil extracted from hempseeds is rich in polyunsaturated fatty acids, especially linoleic (ω-6) and a-linolenic (ω-3) acids with a desirable ratio between 2:1 and 3:1 (page 936, column 1, para 2 and column 2, para 1). Wang further teaches after removal of the hull, the concentration of antinutritional compounds, such as phytic acid, condensed tannins, and trypsin inhibitors, is very low in hempseeds (page 936, column 1, para 2). Examiner is interpreting the seed containing the hull as the hempseed from which the concentrated protein composition is derived. Examiner is interpreting lower antinutritional factors than the hempseed from which it is derived the same as a reduction of antinutritional compounds by removal of the hull since the hull and hempseed were the hempseed at which Wang started with. Wang further teaches up to 40% hemp can be incorporated into cracker formulation to replace rice flour (page 949, table 3). Examiner is interpreting 40% hemp to encompass the recitation ‘wherein the composition includes at least 35% of said animal feed or foodstuff by weight‘ (instant application claim 8) as Wang teaches up to 40% hemp can be incorporated into a food item. Additionally, said hempseed protein concentrate can be incorporated into food stuff (snacks) and liquid beverages (infant formula) for humans (table 3) as encompassed by claims 14-15 of the instant application.
Examiner is interpreting the recitation (a) optionally extruding hempseed material at above room temperature to form a mash; (b) optionally adding one or more cellulose-deconstructing enzymes to release sugars into the mash within the instant application claim 5 to not be required limitations of the claim due to the recitation “optionally.”
With respect to claim 7, Wang teaches dehulling and defatting hempseed (page 937, column 2).
However, Wang does not teach the method of claim 1 or fungi-fermented hempseed protein concentrate (claim 1) or teach the product of claim 2, wherein said composition contains Aureobasidium pullulans strain NRRL No. Y-2311-1 (claim 2). Wang does not teach the product of claim 3, wherein the hemp protein concentrate is combined with protein concentrates from cereal grain and oilseed plant material selected from the group consisting of soybeans, peanuts, Rapeseeds, canola, sesame seeds, barley, cottonseeds, palm kernels, grape seeds, olives, safflowers, sunflowers, copra, corn, coconuts, linseed, hazelnuts, wheat, rice, potatoes, cassavas, legumes, camelina seeds, mustard seeds, germ meal, corn gluten meal, distillery/brewery by-products, edible portions of the seeds and combinations thereof (claim 3). Wang does not teach the product of claim 4, at least one of the cereal grain or oilseed plant material concentrates has been fermented with one or more organisms (claim 4). Wang does not teach the product of claim 6, wherein the at least one microbe is selected from the group consisting of, Aureobasidium pullulans, Sclerotium glucanicum, Kluyveromyces spp, Pichia spp, Trichoderma reesei, Pleurotus ostreatus, Rhizopus spp, and combinations thereof (claim 6). Wang does not teach the product of claim 8 of an animal feed or foodstuff comprising the fermented hempseed protein concentrate of claim 1, wherein the composition contains linoleic (o-6) and a-linolenic (o-3) acids at a ratio between 2:1 and 3:1 and at least 40% protein content on a dry matter basis, and wherein the composition includes at least 35% of said animal feed or foodstuff by weight (claim 8). Wang does not teach the product of claim 9, wherein said composition is a complete replacement for animal-based fishmeal in a fish feed (claim 9). Wang does not teach the product of claim 10, wherein the fish feed is formulated for fish selected from the group consisting of Siberian sturgeon, Sterlet sturgeon, Starry sturgeon, White sturgeon, Arapaima, Japanese eel, American eel, Short-finned eel, Long-finned eel, European eel, Chanos chanos, Milkfish, Bluegill sunfish, Green sunfish, White crappie, Black crappie, Asp, Catla, Goldfish, Crucian carp, Mud carp, Mrigal carp, Grass carp, Common carp, Silver carp, Bighead carp, Orangefin labeo, Roho labeo, Hoven's carp, Wuchang bream, Black carp, Golden shiner, Nilem carp, White amur bream, That silver barb, Java, Roach, Tench, Pond loach, Bocachico, Dorada, Cachama, Cachama Blanca,Paco, Black bullhead, Channel catfish, Bagrid catfish, Blue catfish, Wels catfish, Pangasius (Swai, Tra, Basa) catfish, Striped catfish, Mudfish, Philippine catfish, Hong Kong catfish, North African catfish, Bighead catfish, Sampa, South American catfish, Atipa, Northern pike, Ayu sweetfish, Vendace, Whitefish, Pink salmon, Chum salmon, Coho salmon, Masu salmon, Rainbow trout, Sockeye salmon, Chinook salmon, Atlantic salmon, Sea trout, Arctic char, Brook trout, Lake trout, Atlantic cod, Pejerrey, Lai,Common snook, Barramundi/Asian sea bass, Nile perch, Murray cod, Golden perch, Striped bass, White bass, European seabass, Hong Kong grouper, Areolate grouper, Greasy grouper, Spotted coralgrouper, Silver perch, White perch, Jade perch, Largemouth bass, Smallmouth bass, European perch, Zander (Pike-perch), Yellow Perch, Sauger, Walleye, Bluefish, Greater amberjack, Japanese amberjack, Snubnose pompano, Florida pompano, Palometa pompano, Japanese jack mackerel, Cobia, Mangrove red snapper, Yellowtail snapper, Dark seabream, White seabream, Crimson seabream, Red seabream, Red porgy, Goldlined seabream, Gilthead seabream, Red drum, Green terror, Blackbelt cichlid, Jaguar guapote, Mexican mojarra, Pearlspot, Three spotted tilapia, Blue tilapia, Longfin tilapia, Mozambique tilapia, Nile tilapia, Tilapia, Wami tilapia, Blackchin tilapia, Redbreast tilapia, Redbelly tilapia, Golden grey mullet, Largescale mullet, Gold-spot mullet, Thinlip grey mullet, Leaping mullet, Tade mullet, Flathead grey mullet, White mullet, Lebranche mullet, Pacific fat sleeper, Marble goby, White-spotted spinefoot, Goldlined spinefoot, Marbled spinefoot, Southern bluefin tuna, Northern bluefin tuna, shrimp, Climbing perch, Snakeskin gourami, Kissing gourami, Giant gourami, Snakehead, Indonesian snakehead, Spotted snakehead, Striped snakehead, Turbot, Bastard halibut (Japanese flounder), Summer Flounder, Southern flounder, Winter flounder, Atlantic Halibut, Greenback flounder, Common sole, and combinations thereof (claim 10). Wang does not teach the product of claim 11, wherein the fish feed effects greater performance in one or more performance aspects selected from the group consisting of, but not limited to, growth, weight gain, protein efficiency ratio, feed conversion ratio, total consumption, survival, and Fulton's condition factor compared to equivalent fish feed comprising animal-based fishmeal or soy protein concentrate (claim 11). Wang does not teach the product of claim 12, wherein the animal feed is for livestock or domesticated pets (claim 12). Wang does not teach the product of claim 13, wherein the feed effects the performance aspects at a crude protein content that is less than or equal to the protein content of equivalent feed comprising animal-based protein concentrate or hempseed protein concentrate (claim 13). Wang does not teach the product of claim 14, wherein the foodstuff is for humans (claim 14). Wang does not teach the product of claim 15, wherein the foodstuff is a liquid beverage (claim 15). Wang does not teach the product of claim 16, further comprising lysine, methionine, lipids, biotin, choline, niacin, ascorbic acid, inositol, pantothenic acid, folic acid, pyridoxine, riboflavin, thiamin, vitamin A, vitamin B 12, vitamin D, vitamin E, vitamin K, calcium, phosphorus, potassium, sodium, magnesium, manganese, aluminum, iodine, cobalt, zinc, iron, selenium or a combination thereof (claim 16).
With respect to claims 1, 2, 4, 6 Gibbons teaches grain product is fermented with A. pullulans, which is a fungi, to add more nutritional fermentation products (column 15, lines 46-49 and column 32, lines 64-65). The Examiner takes the position that the strain taught by Gibbons and the strain within the instant application claim 2 are inherently the same as they belong to the same genus and species. Absent evidence otherwise, it would be obvious the method of Wang could use the strain taught by Gibbons, Aureobasidium pullulans strain NRRL No. Y-2311-1, , as said strain is the same genus and species of Aureobasidium pullulans taught by Gibbons.
With respect to claim 3, Gibbons teaches, non-animal based protein concentrate is isolated from cereal grain and oilseed plant material including, but not limited to, soybeans, peanuts, Rapeseeds, canola, sesame seeds, barley, cottonseeds, palm kernels, grape seeds, olives, safflowers, sunflowers, copra, corn, coconuts, linseed, hazelnuts, wheat, rice, potatoes, cassavas, legumes, camelina seeds, mustard seeds, germ meal, corn gluten meal, distillery/brewery by-products (column 2, lines 29 - 33).
With respect to claim 9, Gibbons teaches a composition of plant-derived protein as a complete replacement of animal-based fishmeal in a fish feed (column 2, lines 66-67).
With respect to claims 10, 12, Gibbons teaches plant-based fishmeal formulated for fish including, but not limited to, Siberian sturgeon, Sterlet sturgeon, Starry sturgeon, White sturgeon, Arapaima, Japanese eel, American eel, Short-finned eel, Long-finned eel, European eel, Chanos chanos, Milkfish, Bluegill sunfish, Green sunfish, White crappie, Black crappie, Asp, Catla, Goldfish, Crucian carp, Mud carp, Mrigal carp, Grass carp, Common carp, Silver carp, Bighead carp, Orangefin labeo, Roho labeo, Hoven's carp, Wuchang bream, Black carp, Golden shiner, Nilem carp, White amur bream, Thai silver barb, Java, Roach, Tench, Pond loach, Bocachico, Dorada, Cachama, Cachama Blanca, Paco, Black bullhead, Channel catfish, Bagrid catfish, Blue catfish, Wels catfish, Pangasius (Swai, Tra, Basa) catfish, Striped catfish, Mudfish, Philippine catfish, Hong Kong catfish, North African catfish, Bighead catfish, Sampa, South American catfish, Atipa, Northern pike, Ayu sweetfish, Vendace, Whitefish, Pink salmon, Chum salmon, Coho salmon, Masu salmon, Rainbow trout, Sockeye salmon, Chinook salmon, Atlantic salmon, Sea trout, Arctic char, Brook trout, Lake trout, Atlantic cod, Pejerrey, Lai, Common snook, Barramundi/Asian sea bass, Nile perch, Murray cod, Golden perch, Striped bass, White bass, European seabass, Hong Kong grouper, Areolate grouper, Greasy grouper, Spotted coralgrouper, Silver perch, White perch, Jade perch, Largemouth bass, Smallmouth bass, European perch, Zander (Pike-perch), Yellow Perch, Sauger, Walleye, Bluefish, Greater amberjack, Japanese amberjack, Snubnose pompano, Florida pompano, Palometa pompano, Japanese jack mackerel, Cobia, Mangrove red snapper, Yellowtail snapper, Dark seabream, White seabream, Crimson seabream, Red seabream, Red porgy, Goldlined seabream, Gilthead seabream, Red drum, Green terror, Blackbelt cichlid, Jaguar guapote, Mexican mojarra, Pearlspot, Three spotted tilapia, Blue tilapia, Longfin tilapia, Mozambique tilapia, Nile tilapia, Tilapia, Wami tilapia, Blackchin tilapia, Redbreast tilapia, Redbelly tilapia, Golden grey mullet, Largescale mullet, Gold-spot mullet, Thinlip grey mullet, Leaping mullet, Tade mullet, Flathead grey mullet, White mullet, Lebranche mullet, Pacific fat sleeper, Marble goby, White-spotted spinefoot, Goldlined spinefoot, Marbled spinefoot, Southern bluefin tuna, Northern bluefin tuna, Climbing perch, Snakeskin gourami, Kissing gourami, Giant gourami, Snakehead, Indonesian snakehead, Spotted snakehead, Striped snakehead, Turbot, Bastard halibut (Japanese flounder), Summer Flounder, Southern flounder, Winter flounder, Atlantic Halibut, Greenback flounder, Common sole, and combinations thereof” (column 3, lines 2 - 46). Examiner is interpreting said fishes as livestock as said fishes are commercially raised as a food source (column 12, lines 46-53)
With respect to claim 11, Gibbons teaches the plant-based high protein fish feed effects greater performance in one or more performance aspects including, but not limited to, growth, weight gain, protein efficiency ratio, feed conversion ratio, total consumption, survival, and Fulton's condition factor compared to equivalent fish feed comprising animal-based fishmeal (column 3, lines 48 - 53).
With respect to claim 13, Gibbons teaches the fish feed effects the performance aspects at a crude protein content that is less than or equal to the protein content of equivalent fish feed comprising animal based fishmeal (column 3, lines 54-57).
With respect to claim 16, Gibbons teaches the animal feed is supplemented with lysine, methionine, lipids, biotin, choline, niacin, ascorbic acid, inositol, pantothenic acid, folic acid, pyridoxine, riboflavin, thiamin, vitamin A, vitamin B12, vitamin D, vitamin E, vitamin K, calcium, phosphorus, potassium, Sodium, magnesium, manganese, aluminum, iodine, cobalt, Zinc, iron, selenium or a combination thereof (column 3, lines 58-64).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to apply the teachings of Wang et al. of a hempseed protein composition that is methionine- and cystine-rich, isolated from hempseed (page 937, column 2, para 3) via enzymatic digestion with phytase (page 937, column 2, para 5) or combine with the teachings of Gibbons because Gibbons teaches grain product is fermented with A. pullulans, which is a fungi, to add more nutritional fermentation products (column 15, lines 46-49 and column 32, lines 64-65).
One of ordinary skill in the art would be motivated to either use the teachings of Wang et al. and combine with the teachings of Gibbons because Gibbons provides the motivation for Wang to add A. pullulans to hempseed during fermentation as said microbe can efficiently convert a broad range of difficult to metabolize oligosaccharides into cell mass (i.e., protein) and a microbial gum (column 32, lines 49-51). Furthermore, said strain produces a broad range of hydrolytic enzymes that allows for the effective conversion of grain protein into high-quality grain protein (column 32, lines 62-63). One of ordinary skill in the art knowing the benefit of adding fungi to hempseed during fermentation based on the teachings of Wang and Gibbons would have a reasonable expectation of success that adding A. pullulans to the hempseed during fermentation would result in a more nutritional fermentation product as Gibbons teaches said attribute of A. pullulans (Gibbons: column 15, lines 46-50). The utilization of said strain during the fermentation of hempseed would also result in a cost effective dual use product with the solid portion being highly nutritious as cattle feed, while the liquid portion can be further purified to produce ethanol for non-fuel uses. Furthermore, using an evaporator, the thin stillage (liquid) can be concentrated to form distiller's solubles, which can be added back to and combined with a distiller's grains process stream and dried (Gibbons: column 16, lines 1-7). This combined product in accordance with embodiments of the disclosure may be marketed as an enhanced fermentation product having
increased amino acid and micronutrient content (Gibbons: column 16, lines 4-7).
One of skill in the art would have a reasonable expectation of success to make and use the claimed fungi-fermented hempseed protein concentrate because Wang provides hempseed protein composition that is methionine- and cystine-rich, isolated from hempseed (page 937, column 2, para 3) via enzymatic digestion with phytase (page 937, column 2, para 5). Whereas, Gibbons teaches grain product is fermented with A. pullulans, which is a fungi, to add more nutritional fermentation products (column 15, lines 46-49 and column 32, lines 64-65). Therefore there would be a reasonable expectation of success to arrive at the above invention. Therefore, the above invention would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
RESPONSE TO REMARKS: Beginning on p. 7 of Applicant’s remarks, Applicant contends that the rejection has been addressed by amendment. In summary, Applicant contends that claim 2 has been amended to recite only NRRL No. Y-2311-1. Respectfully, none of the cited references teach or suggest NRRL No. Y-2311-1.
This argument is found to be not persuasive in view of the modified rejection set forth. Examiner contends that the strain taught by Gibbons and the strain within the instant application claim 2 are inherently the same as they belong to the same genus and species. Absent evidence otherwise, it would be obvious to one of ordinary skill in the art that Gibbons could utilize a fungal strain of Aureobasidium pullulans strain NRRL No. Y-2311-1, as said strain is the same genus and species of Aureobasidium pullulans taught by Gibbons.
Applicant contends that Examiner’s response to remarks in the nonfinal dated 6/25/2025 where Applicant stated that ‘ Wang et al., do not teach or suggest fermentation, but in fact demonstrate that hemp protein content varies based on the methods of isolation’ and Examiner stated ‘Examiner contends that the teachings within Wang et al. have no bearing on the claim limitation as long as the Wang teaches a composition with a protein content that is encompassed in the range claimed by the Applicants’ is in direct contradiction to the M.P.E.P. which states: "The test for obviousness is what the combined teachings of the references would have suggested to one of ordinary skill in the art, and all teachings in the prior art must be considered to the extent that they are in analogous arts." (See M.P.E.P. §2143.01(11); emphasis added).
This argument is found to be not persuasive in view of the modified rejection set forth. Examiner acknowledges Applicant’s assertion. In order to clear the record, in the response to remarks within the non-final office action dated 6/25/2025, Examiner contends that Wang, in view of Bartkiene (Bartkiene et al., LWT - Food Science and Technology, 2016, cited on PTO892 dated 7/14/2024), provides the motivation for one of ordinary skill in the art to utilize hempseed protein concentration as Wang teaches hempseed protein has been well-known for its excellent digestibility and desirable essential amino acid composition (page 936, column 2, para 1). However, Bartkiene provides the motivation for one of ordinary skill in the art to utilize the process of fermentation to obtain a hempseed protein concentrate as Bartkiene teaches the fermentation of hempseed by bacteria to reduce the growth of fungi and enterobacteria (Abstract and page 550, column 1, para 1). Examiner contends that Wang was not and is not relied upon to teach ‘fermentation.’
Conclusion
Status of the Claims
Claims 1-16 are pending and examined on the merits.
Claims 17-20 are cancelled.
Claims 1-16 are rejected.
No claims are in condition for allowance.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICA NICOLE JONES-FOSTER whose telephone number is (571)270-0360. The examiner can normally be reached mf 7:30a - 4:30p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Manjunath Rao can be reached at 571-272-0939. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERICA NICOLE JONES-FOSTER/ Examiner, Art Unit 1656
/MANJUNATH N RAO/ Supervisory Patent Examiner, Art Unit 1656