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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/03/2025 has been entered.
Application Status
Claim 72-73 and 75-76 are under examination.
Claim 1-71 and 79-81 are withdrawn from examination.
Claim 74 and 77 are cancelled.
Withdrawn Rejections
The 112, second paragraph rejections over claim 73, 75 and 76 as set forth in previous office action have been withdrawn in light of Applicant’s amendments.
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) 72, 73, 75 and 76 are rejected under 35 U.S.C. 103 as being unpatentable over Ivanova et al. (Ref. U) and in view of DEAK (US 20130129867).
Regarding claim 72 and 73, Ivanova et al. (Ivanova) discloses a sunflower protein isolates (sunflower protein product) (Ref. U, pg. 2996, col. 1, 2nd paragraph). With respect to at least about 90 wt% (N x 6.25) d.b., it was well known art a standard term of protein isolate is associated with respect to protein content is of as at least about 90 wt% (N 6.25) d.b; hence it would be obvious to one of ordinary skill in the art to expect Ivanova’s protein isolates have a protein content of as at least about 90 wt% (N 6.25) d.b., and encompass the cited range.
Ivanova’s protein isolates have an amino acid profile (Ref. U, p. 2997, Table 1) including cysteine and methionine in a combined concentration of amount of 34.70 mg/g protein. Ivanova does not disclose the combined concentration with individual concentration of the cysteine and methionine. However, DEAK discloses a protein isolate composition (‘867, [0017]) sourced from sunflower (‘867, [0021]) with additional ingredients including amino acids cysteine and methionine (‘867, [0033]) to yield a functional food product (‘867, [0020]). Ivanova and DEAK are of the same field of endeavor of sunflower protein isolate with amino acids for nutritive value. It would have been obvious to one of ordinary skill in the art to optimize the amounts in individual concentration of Ivanova’s cysteine and methionine including the cited amounts to provide a desired functional food product (‘867, [0020]) as taught by DEAK.
With respect to the limitation in clam 72 and 73, Ivanova’s protein isolates have the amino acid profile (Ref. U, p. 2997, Table 1) including lysine (Ref. U, p. 2997, Table 1) and concentration amounts.
Ivanova does not disclose the concentrations as cited for lysine.
However, DEAK discloses a protein isolate composition (‘867, [0017]) sourced from sunflower (‘867, [0021]) with additional ingredients including amino acids lysine (‘867, [0033]) to yield a functional food product (‘867, [0020]). Ivanova and DEAK are of the same field of endeavor of sunflower protein isolate with amino acids for nutritive value. It would have been obvious to one of ordinary skill in the art to optimize the amounts lysine in Ivanova’s protein isolate including the cited amounts to provide a desired functional food product (‘867, [0020]) as taught by DEAK, absent a clear and convincing argument or evidence to the contrary
Regarding claim 75 and 76, Ivanova’s protein isolates have the amino acid profile (Ref. U, p. 2997, Table 1) including threonine, valine, isoleucine, tyrosine, phenylalanine, lysine, histidine, cysteine, methionine and tryptophan (Ref. U, p. 2997, Table 1) and concentration amounts. Ivanova does not disclose the concentrations as cited for threonine, valine, isoleucine, tyrosine, phenylalanine, lysine, histidine, cysteine, methionine and tryptophan. However, DEAK discloses a protein isolate composition (‘867, [0017]) sourced from sunflower (‘867, [0021]) with additional ingredients including amino acids threonine, valine, isoleucine, tyrosine, phenylalanine, lysine, histidine, cysteine, methionine and tryptophan (‘867, [0033]) to yield a functional food product (‘867, [0020]). Ivanova and DEAK are of the same field of endeavor of sunflower protein isolate with amino acids for nutritive value. It would have been obvious to one of ordinary skill in the art to optimize the amounts threonine, valine, isoleucine, tyrosine, phenylalanine, lysine, histidine, cysteine, methionine and tryptophan in Ivanova’s protein isolate including the cited amounts to provide a desired functional food product (‘867, [0020]) as taught by DEAK, absent a clear and convincing argument or evidence to the contrary.
Response to Arguments
Applicant's arguments filed 12/03/2025 have been fully considered but they are not persuasive.
Applicant asserts “…that the plain meaning of the terms “amino acid profile” and “sunflower protein product” excludes free amino acids added to the product during manufacture. An amino acid profile is an analysis of the amino acid composition of a protein, but a free amino acid is not a protein. Therefore, the PHOSITA would not interpret free amino acids added during manufacture of a sunflower protein product to change the sunflower protein product’s amino acid profile…”.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., excludes free amino acids) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Additionally, Applicant’s remarks does not commensurate with the scope of the claim, wherein the claim recites “comprising” as the transitional language; in other words, open-ended recitation to include additional ingredients or components, including free amino acids in the sunflower protein product.
DEAK is replied upon for the teaching of protein isolate composition (‘867, [0017]) sourced from sunflower (‘867, [0021]) with additional ingredients including amino acids threonine, valine, isoleucine, tyrosine, phenylalanine, lysine, histidine, cysteine, methionine and tryptophan (‘867, [0033]) to yield a functional food product (‘867, [0020]). Ivanova and DEAK are of the same field of endeavor of sunflower protein isolate with amino acids for nutritive value. It would have been obvious to one of ordinary skill in the art to optimize the amounts threonine, valine, isoleucine, tyrosine, phenylalanine, lysine, histidine, cysteine, methionine and tryptophan in Ivanova’s protein isolate including the cited amounts to provide a desired functional food product (‘867, [0020]) as taught by DEAK, absent a clear and convincing argument or evidence to the contrary.
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).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792