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 .
This office action is in response to amendment filed on 7/10/25. Claims 10 and 30 are amended. Claims 10-16 and 19-30 are pending.
The previous 112 first paragraph rejection of claim 30 is withdrawn due to the amendment.
Claim Rejections - 35 USC § 103
Claim(s) 10-16, 19-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cho ( 2007/004203) in view of Hawley ( 3598610).
For claim 10, Cho discloses in the background that soy flakes made by comminuting the flake in grinding and milling equipment. The comminuted materials are typically heat-treated with dry heat to toast the ground flakes and inactivate anti-nutritional elements present in soy such as trypsin inhibitors. The resulting ground, heat treated material is soy flour. Cho also discloses soy protein isolates are formed by extracting soy protein and water soluble carbohydrate from soy flour with an alkaline aqueous extractant. The aqueous extract along with soluble protein and carbohydrates are separated from insoluble material. The extract is typically then treated with an acid to adjust the pH of the extract to the isoelectric point of the protein to precipitate the protein from the extract. The precipitated protein is separated and dried after an optional pH adjustment step. ( see paragraphs 0006, 0008). Cho discloses the claimed steps of dry heat treatment, milling, suspending in aqueous solution, separating the soluble components and extracting proteins. For claim 12, Cho discloses suitable acid to adjust the pH to about isoelectric point to precipitate protein is from about 4 t0 5 ( see paragraph 0029). For claim 13,28,29, Cho teaches the precipitated protein can be can be neutralized to a pH of from 7.2-7.6 and can be heated to sterilize or pasteurize. The temperature used is from 75-160 degrees C for about 5-15 seconds ( see paragraphs 0032-0033). For claim 14, Cho discloses drying the protein. For claim 23, Cho discloses the soluble soy protein extract found in the liquid is preferably separated from the insoluble material by centrifuging the soy protein extract. For claim 26, Cho discloses the precipitated soy protein curd mixture is centrifuged ( see paragraph 0028)
Cho does not disclose dry heating the seed and the temperature and time as in claims 10,19-22 the percent solid as in claims 11, 24,the heating as in claims 12,25 , the legumes as in claims 15-16 , the 7 value as in claim 27 and the feature as in claim 30.
Hawley discloses heat treating legume seed with dry heat to remove bitter flavor constituents and causes flavor improvement. The dry heating is done at temperature of about 175-500 degrees F ( 79.4-260 degrees C. The preferred temperature range is about 250-450 degrees F ( 121-232 degrees C) in the time range of about 10 minutes to about 25 seconds. The legume includes bean and pea. The heat-treated seeds are ground. Hawley discloses the treatment enable soybeans and like legumes to be commercially converted from the raw complete bean to a full fat delectable flour retaining the nutritional protein and oil components with the objectionable flavor and physiologically objectionable components removed. ( see col. 1 lines 20-60, col 3 lines 20-45, col. 4 lines 35-55)
As shown in Cho, all the claimed steps for preparing leguminous protein is known in the art. Cho discloses to use soy flour as prepared in the steps disclosed in paragraph 0006 of Cho. Hawley discloses a process for forming soy flour and teaches that heat-treating the seeds with dry heat retains the nutritional profile of soybeans but eliminate the objectionable flavor and components. It would have been obvious to one of ordinary skill in the art at the time of the invention to heat the seeds as taught in Hawley in a process of forming soy flour to use in the protein isolation steps of Cho to obtain a starting material having the benefits taught in Hawley. It would have been obvious to one of ordinary skill in the art to follow the guideline of Hawley for the temperature. Hawley teaches a preferred temperature and time ranges that overlap with the claimed ranges. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) It would have been obvious to one of ordinary skill in the art to follow the guideline of Hawley in the temperature and time and to adjust depending on the extent of treatment desired. Such parameter can readily be determined by one of ordinary skill in the art through routine experimentation. Cho in view of Hawley discloses a method for producing a leguminous protein composition comprising the step of “ dry heat treatment of leguminous plant seeds”. Thus, it’s obvious inherent the properties cited in claim 10. It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA1977), in re Spada, 15 USPQ2d 1655, 1658 ( Fed. Cir. 1990).
It would have within the ordinary skill of one in the art to determine the percent of solid depending of the quality of protein desired to be extracted. It would have been obvious to one of ordinary skill in the art to heat the protein during different point in processing to keep the product sterilize which would enhance the safety for consumption. As shown in Hawley, different legumes can be treated. It would have been obvious to one of ordinary skill in the art to use pea when desiring to extract protein from pea. Cho discloses the soy protein curd slurry is first neutralized to a pH of from about 7.2. About 7.2 means the pH can be a little lower than 7.2 and would encompass the pH of 7 as claimed. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ773 (Fed. Cir. 1985). It would have been obvious to one of ordinary skill in the art to mill the seeds sequentially following the heat treatment if the seeds are desired to be used right after treatment. Such parameter would have been well within the determination of one of ordinary skill in the art.
Response to Arguments
Applicant's arguments filed 7/10/25 have been fully considered but they are not persuasive.
In the response, applicant argues Cho does not disclose the dry-heat treatment of leguminous plant seed and anything regarding improved organoleptic properties, reduced gelling power and improved emulsifying power. This argument is not persuasive. It’s acknowledged that Cho does not teach the dry heat treatment. However, the rejection is not based on the Cho reference alone. Cho discloses “ extracting soy protein from defatted soy flakes or soy flour” ( paragraph 0008). Cho discloses to use soy flour as prepared in the steps disclosed in paragraph 0006 of Cho. Hawley discloses a process for forming soy flour and teaches that heat-treating the seeds with dry heat retains the nutritional profile of soybeans but eliminate the objectionable flavor and components. It would have been obvious to one of ordinary skill in the art at the time of the invention to heat the seeds as taught in Hawley in a process of forming soy flour to use in the protein isolation steps of Cho to obtain a starting material having the benefits taught in Hawley. As to the properties added in claim 10, Cho in view of Hawley discloses a method for producing a leguminous protein composition comprising the step of “ dry heat treatment of leguminous plant seeds”. Thus, it’s obvious inherent the properties are present. It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA1977), in re Spada, 15 USPQ2d 1655, 1658 ( Fed. Cir. 1990). Applicant argues nowhere the results on the properties are observed in any combination of the cited prior art and that Hawley does not disclose anything about a protein composition with the properties recited. It is not required to incorporate a step for the same purpose as applicant. It’s only required to show that the step would have been obvious. Even if the properties are not recognized and one is not aware of them, it would still have been obvious to incorporate the modification. Hawley specifically teaches to dry heat-treat the seeds to retain the nutritional profile of the legumes but to eliminate the objectionable flavor and components. Based on these benefits alone, one of ordinary skill in the art would have been motivated to incorporate the step in the processing to obtain the flour. The Hawley reference is not relied upon to show protein composition. It’s only relied upon to show the step of dry heat treatment in the processing to obtain flour.
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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September 11, 2025
/LIEN T TRAN/Primary Examiner, Art Unit 1793