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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 23, 2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6, 10-13, and 16-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “slow cooking at a temperature in the range of 60°C-70°C” in line 9. The term “slow” is a relative term which renders the claim indefinite. The term “slow” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what cooking durations/times are required to read on the claimed “slow” cooking.
Claim 3 recites the limitation “a predefined moisture level” in line 4. It is unclear if this refers to “a predefined moisture level” recited in Claim 1, line 7 or to an entirely different predefined moisture level. For purposes of examination Examiner interprets the claims to refer to the same predefined moisture level.
Clarification is required.
Claims 2, 4-6, 10-13, and 16-17 are rejected as being dependent on a rejected base claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 17 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 17 recites the limitation “wherein the desolventization of chickpea flakes is done in the vacuum evaporator with a water jacket having the predefined temperature in the range of 50°C-55°C” in lines 1-3. Claim 1, lines 11-12 recites the limitation “deoiling the chickpea flakes using a predefined solvent at a predefined solvent at a predefined temperature of 45°C-50°C.” Claim 7 recites a desolventization temperature range that is outside of the desolventization temperature range recited in Claim 1. Therefore, Claim 7 fails to further limit the desolventization temperature range recited in Claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 3, 5, 10, 12, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Nickels US 2006/0263509 in view of Spinelli et al. US 2016/0309745 as further evidenced by Cardenas et al. US 2003/0198725 in further view of Tegel US 2015/0017312, May et al. US 2019/0216103, Chatel et al. US 2016/0081375, Sterner et al. US 2020/0154745, Schmidt et al. US 5,275,833, and Faulconbridge et al. US 2009/0047720.
Regarding Claim 1, Nickels discloses a process for preparing legume flour including the steps of preparing legumes wherein the step of preparing the legumes includes cleaning raw matter including raw legumes (‘509, Paragraph [0014]) to obtain broken legumes (peas removed from pods) (‘509, Paragraph [0029]) and treating (cooking) the broken legumes (‘509, Paragraphs [0015] and [0018]) wherein the step of treating the broken chickpeas includes addition of water to achieve a predefined moisture level (‘509, Paragraph [0028]).
Nickels discloses the process steps being employed with legumes of all types (‘509, Paragraph [0029]). However, Nickels is silent regarding the legume flour being chickpea flour, splitting and cracking the chickpeas to obtain the broken chickpeas after the cleaning step, conditioning the broken chickpeas followed by “slow” cooking at a temperature in the range of 60°C-70°C, deoiling the flakes using a predefined solvent at a predefined temperature to extract compounds responsible for off flavor, desolventizing the chickpea flakes in vacuum, cooling and grinding the desolventized chickpea flakes to obtain chickpea flour, and recycling the predefined solvent used for deoiling.
Spinelli et al. discloses a method for processing legumes such as chickpeas (‘745, Paragraph [0108]) including the steps of preparing chickpea flour (‘745, Paragraph [0015]) and preparing (washing) chickpeas (‘745, Paragraph [0021]) to obtain broken chickpeas (cortexes and outer hull of chickpeas removed) wherein the step of preparing the chickpea includes decortication of the chickpeas to remove the outer hull from the chickpea (‘745, Paragraph [0097]). Cardenas et al. provides evidence that it was known in the food art that flours (‘725, Paragraph [0002]) made using a decortication process necessarily entails cracking the food item (‘725, Paragraph [0014]). Spinelli et al. further discloses treating the broken chickpeas (via roller mill/flaker) to obtain chickpea flakes (‘745, Paragraphs [0096]-[0097]), deoiling the chickpea flakes using a predefined solvent (ethanol) at a predefined temperature (‘745, Paragraph [0099]), desolventizing the chickpea flakes (‘745, Paragraph [0101]) in vacuum (‘745, Paragraph [0024]), and recycling the predefined solvent (ethanol) used for deoiling (ethanol recycling stream 532) (‘745, Paragraphs [0103] and [0109]-[0110]).
Both Nickels and Spinelli et al. are directed towards the same field of endeavor of methods of processing dry legume compositions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the legume manufacturing process of Nickels and apply the process to chickpea legumes as taught by Spinelli et al. based upon the particular type of legume desired to be made. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Nickels and crack the chickpeas by a decortication process after cleaning the raw matter including raw chickpeas and generate the chickpea flour from the deoiled chickpea flakes by desolventizing the chickpea flakes in vacuum since Spinelli et al. teaches that these claimed steps were known and conventional steps in a process of making edible flours. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Nickels and deoil the chickpea flakes using a predetermined solvent of ethanol at a predefined temperature and recycle the ethanol solvent used for deoiling as taught by Spinelli et al. since Tegel teaches that flours made with too high of an oil content causes production problems, i.e. clogging mills or the product turns into a paste and that removing oil increases overall protein yield in a flour formula (‘312, Paragraph [0023]).
Further regarding Claim 1, Nickels in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel is silent regarding the step of preparing the chickpea that includes cleaning raw matter including the raw chickpeas being followed by splitting the chickpeas, adding the water to achieve a predefined moisture level of 12%-15%, conditioning the broken chickpeas followed by cooking the broken chickpeas at a temperature in the range of 60°C-70°C to flake the broken chickpeas to obtain chickpea flakes, and cooling and grinding the desolventized chickpea flakes to obtain chickpea flour.
May et al. discloses a method of processing legume flours (‘103, Paragraph [0041]) comprising feeding broken grains into a vessel with a stirrer via a screw conveyor (paddle screw conveyor) with addition of water to achieve a predefined moisture level (‘103, Paragraph [0043]) such that the moisture level is 10-14 percent and that higher moisture content results in excessive starch gelatinization and protein denaturation (‘103, Paragraph [0039]), which overlaps the claimed predefined moisture level in the range of 12-15%, conditioning the legumes by resting for a predefined period of time with intermittent stirring to attain moisture equilibrium (‘103, Paragraph [0057]) wherein the predefined period of time for conditioning the broken legumes being 0 to 24 hours to result in the desired moisture content (’103, Paragraph [0073]), which encompasses the predefined period of time for conditioning the broken legumes in the range of 30-150 minutes, and cooking with intermittent stirring in a vessel jacketed with water (cooker extruder) (‘103, Paragraph [0053]) wherein further conditioning is done to increase the moisture content after the thermal processing step (‘103, Paragraph [0057]).
Both modified Nickels and May et al. are directed towards the same field of endeavor of methods of processing legume flours. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and condition the legumes as taught by May et al. in order to optimize moisture content for physical separation processes to ensure efficient and gentle separation of bran from endosperm (‘103, Paragraphs [0057] and [0074]). Furthermore, in the event that it can be argued that May et al. teaches cooking followed by conditioning rather than conditioning followed by cooking, the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.). Additionally, it would been obvious to one of ordinary skill in the art at the time of the invention to modify the predefined moisture level and the predefined conditioning time range of the process of modified Nickels to fall within the claimed moisture level and predefined conditioning time range as taught by May et al. since where the claimed predefined moisture level and predefined conditioning time of an intermediate product of broken legumes overlaps predefined moisture levels ranges disclosed by the prior at, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.).
Further regarding Claim 1, May et al. discloses a step of using jacketed chamber walls that are heated by water, oil, steam, or electrically (‘103, Paragraph [0053]). However, modified Nickels is silent regarding the “slow” cooking step being conducted at a temperature in the range of 60°C-70°C. Additionally, May et al. discloses the conditioning step occurring after the cooking/thermal processing step (‘103, Paragraph [0057]) rather than the conditioning step to be followed by the cooking step. Furthermore, modified Nickels is also silent regarding the step of preparing the chickpea that includes cleaning raw matter including the raw chickpeas being followed by splitting the chickpeas and cooling and grinding the desolventized chickpea flakes to obtain the chickpea flour.
Chatel et al. discloses a method of making flour (‘375, Paragraph [0002]) comprising the steps of combining a flour starting mixture and a suitable enzyme solution in a pre-conditioner mixer and then heating the mixture wherein the enzyme treated mixture is then subject to an extrusion process to gelatinize, hydrolyze, and cook the flour mixture (‘375, Paragraph [0029]) wherein the enzyme treated mixture resides in the extruder for a time sufficient to gelatinize, hydrolyze, and cook the starch wherein starch gelatinization requires water and heat wherein heat is applied through an extruder barrel wall with a jacket around the barrel through which a hot medium such as steam, water, or oil is circulated wherein extrusion occurs at barrel temperatures between 140°F and 350°F (‘375, Paragraphs [0039]-[0041]), which converts to barrel temperatures of between 60°C and 176°C, which encompasses the claimed conditioning cooking step being conducted at a temperature in the range of 60°C-70°C. Chatel et al. also discloses the conditioning cooking step being hydrated at times longer than 25 minutes (‘375, Paragraph [0063]), which broadly reads on the claimed “slow” cooking step.
Nickels discloses the legumes containing starch (‘509, Paragraph [0024]). Both modified Nickels and Chatel et al. are directed towards the same field of endeavor of methods of processing starch based flours comprising a step of heating the flour components using a jacketed container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and conduct the conditioning cooking step at the claimed temperature range for the claimed “slow” cooking time as taught by Chatel et al. since where the claimed conditioning cooking temperature ranges overlaps conditioning cooking ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the conditioning cooking temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such conditioning cooking temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the conditioning cooking temperatures of the process of making the starch based flour to be conducted at a temperature that induces starch gelatinization (‘375, Paragraphs [0039]-[0041]). Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and conduct the conditioning step before the cooking step as taught by Chatel et al. since the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.). Additionally, Sterner et al. discloses a process for preparing a legume food product (‘745, Paragraph [0062]) comprising a step of conditioning the legumes with conditioning water to hydrate the legumes that allows cooking the whole legumes more quickly by saturating the legumes as heat is more easily transferred by water in the saturated legumes than if the legumes were dry and to allow the conditioned legumes to use less water to cook than if cooking dry legumes (‘745, Paragraph [0033]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and conduct the conditioning step to occur prior to cooking as taught by Sterner et al. in order to cook the legumes more quickly using less water to cook.
Further regarding Claim 1, modified Nickels is silent regarding the step of preparing the chickpea that includes cleaning raw matter including the raw chickpeas being followed by splitting the chickpeas.
Schmidt et al. discloses a method of processing flour (‘833, Column 6, lines 9-20) and to make a food product that incorporates vegetable or cereal grains or legume fiber flour that has been bleached (‘833, Column 7, lines 9-14) wherein yellow pea hulls are taken from a pea splitter and milled (‘833, Column 17, lines 41-50).
Both modified Nickels and Schmidt et al. are directed towards the same field of endeavor of methods of making legume flours comprising a milling step. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and split the legume after the cleaning step since Schmidt et al. teaches that splitting legumes in a flour making process was well known and conventional in the food art.
Further regarding Claim 1, Spinelli et al. discloses the desolventization (‘745, Paragraph [01010} occurring in a vacuum evaporator having a pressure dependent on the pasteurization setup of the pasteurizer (‘745, Paragraph [0024]). However, modified Nickels is silent regarding the deoiling step using the predefined solvent being conducted at a predefined temperature of 45°C-50°C.
Faulconbridge et al. discloses extraction of oil from legumes is common wherein the legumes is ground, cracked, milled, or otherwise processed to increase its surface area wherein oil is then extracted from the ground item (‘720, Paragraph [0003]) wherein miscella is treated for separation of oil from the organic phase in an evaporator wherein the oil is referred to as crude oil and typically recovered as a result of heating and boiling off the organic phase wherein the resulting organic phase is reclaimed and reused and separation is done under a vacuum evaporator (‘720, Paragraph [0036]) wherein the evaporator runs at atmospheric pressure or at a reduced pressure (‘720, Paragraph [0043]), which encompasses pressures at or less than 760 torr, which overlaps the claimed predefined pressure in the range of 60-3000 Torr.
Both modified Nickels and Faulconbridge et al. are directed towards the same field of endeavor of methods of extracting oil from water in a legume using ethanol solvent in a vacuum evaporator. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the pressure of the vacuum evaporator of modified Nickels and conduct the desolventization step at the predefined pressure range since where the claimed predefined pressure of the vacuum evaporator overlaps predefined pressure of the vacuum evaporator ranges disclosed by the prior at, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the predefined pressure of the vacuum evaporator will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined pressure of the vacuum evaporator is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Faulconbridge et al. teaches that the resulting miscella is conveyed to the evaporator at a pressure that causes the solvent to vaporize and separate from the oil (‘720, Paragraph [0041]). The vacuum evaporator pressure ranges depends upon the type of solvent used since different solvents have different vaporization temperature properties. With respect to the limitations regarding the claimed deoiling temperature being conducted at a predefined temperature of 45°C-50°C, although Faulconbridge et al. does not explicitly state that the vacuum evaporator is operated at the claimed heated temperature, Faulconbridge et al. establishes that the stream is heated to a temperature and pressure that causes the solvent to vaporize and separate from the oil. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the heated temperature of the vacuum evaporator of modified Nickels and heat the vacuum evaporator to the claimed temperature since differences in the predefined temperature of the vacuum evaporator will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined temperature of the vacuum evaporator is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Faulconbridge et al. teaches that the resulting miscella is conveyed to the evaporator at a temperature that causes the solvent to vaporize and separate from the oil (‘720, Paragraph [0041]). The vacuum evaporator temperature ranges depends upon the type of solvent used since different solvents have different vaporization temperature properties.
Regarding Claim 3, Nickels discloses the step of treating the broken legumes including cooking the broken legumes for a predefined period of time and feeding the broken legumes into a flaker machine (rollers 26) to obtain legume flakes of predefined thickness (‘509, Paragraph [0018]) and the predefined moisture level of the broken legumes varying depending upon the type of legume processed (‘509, Paragraph [0019]). Spinelli et al. also discloses a protein slurry having an adjustable moisture level (‘745, Paragraph [0060]).
May et al. discloses a method of processing legume flours (‘103, Paragraph [0041]) comprising feeding broken grains into a vessel with a stirrer via a screw conveyor (paddle screw conveyor) with addition water to achieve a predefined moisture level (‘103, Paragraph [0043]), conditioning the legumes by resting for a predefined period of time with intermittent stirring to attain moisture equilibrium (‘103, Paragraph [0057]), and cooking with intermittent stirring in a vessel jacketed with water (cooker extruder) (‘103, Paragraph [0053]).
Both modified Nickels and May et al. are directed towards the same field of endeavor of methods of processing legume flours. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and use a screw conveyor with added water and stirring to the legumes and cook with stirring in a vessel jacketed with water since May et al. teaches that the claimed apparatuses and process steps for processing legumes was known and conventional in the food art. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and condition the legumes as taught by May et al. in order to optimize moisture content for physical separation processes to ensure efficient and gentle separation of bran from endosperm (‘103, Paragraph [0074]). Furthermore, it would been obvious to one of ordinary skill in the art at the time of the invention to modify the predefined moisture level of the process of modified Nickels to fall within the claimed moisture level range as taught by May et al. since where the claimed predefined moisture level of an intermediate product of broken legumes overlaps predefined moisture levels ranges disclosed by the prior at, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the predefined moisture level of the broken chickpeas will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined moisture level of the broken chickpeas is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Nickels discloses mixing water with the legumes (‘509, Paragraph [0005]) and dehydrating the legumes (‘509, Paragraph [0017]). One of ordinary skill in the art would adjust the moisture content of the broken legumes based upon the desired feed viscosity.
Further regarding Claim 3, Chatel et al. discloses a method of making flour (‘375, Paragraph [0002]) comprising the steps of combining a flour starting mixture and a suitable enzyme solution in a pre-conditioner mixer and then heating the mixture wherein the enzyme treated mixture is then subject to an extrusion process to gelatinize, hydrolyze, and cook the flour mixture (‘375, Paragraph [0029]) wherein the enzyme treated mixture resides in the extruder for a time sufficient to gelatinize, hydrolyze, and cook the starch wherein starch gelatinization requires water and heat wherein heat is applied through an extruder barrel wall with a jacket around the barrel through which a hot medium such as steam, water, or oil is circulated wherein extrusion occurs at barrel temperatures between 140°F and 350°F (‘375, Paragraphs [0039]-[0041]), which converts to barrel temperatures of between 60°C and 176°C, which encompasses the claimed conditioning cooking step being conducted at a temperature in the range of 60°C-70°C.
Nickels discloses the legumes containing starch (‘509, Paragraph [0024]). Both modified Nickels and Chatel et al. are directed towards the same field of endeavor of methods of processing starch based flours comprising a step of heating the flour components using a jacketed container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and conduct the conditioning cooking step at the claimed temperature range as taught by Chatel et al. since where the claimed conditioning cooking temperature ranges overlaps conditioning cooking ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the conditioning cooking temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such conditioning cooking temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the conditioning cooking temperatures of the process of making the starch based flour to be conducted at a temperature that induces starch gelatinization (‘375, Paragraphs [0039]-[0041]).
Regarding Claim 5, Nickels discloses the water jacket being maintained at a predetermined pressure (‘509, Paragraph [0005]). Spinelli et al. discloses the step of generating chickpea flour from the deoiled chickpea flakes comprising desolventizing the chickpea flakes by stirring continuously in the vacuum evaporator (vacuum dryer 518) wherein the vacuum is maintained at a predefined pressure wherein the solvent content is reduced (‘745, Paragraphs [0105]-[0106]). The deoiled, desolventized chickpea flakes are transferred into a vessel to allow cooling of the chickpea flakes to an ambient temperature (‘745, Paragraph [0025]). The chickpea flakes are fed to an air classifying mill (‘745, Paragraph [0070]) wherein the chickpea flakes are ground to give chickpea flour (‘745, Paragraph [0092]).
Regarding Claim 10, Nickels discloses the predefined period of time for cooking the conditioned broken legumes varying depending upon the particular legume that is being cooked (‘509, Paragraph [0021]). Although Nickels modified with Spinelli et al., Tegel, and May et al. does not explicitly disclose the predefined period of time for cooking the conditioned broken chickpeas being in the range of 100-120 minutes, differences in the predefined cooking time of the broken chickpeas will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined cooking time of the broken chickpeas is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 12, Spinelli et al. discloses the predefined thickness of the chickpea flakes being in the range of 0.25 mm to 0.4 mm (‘745, Paragraph [0098]), which overlaps the claimed predefined thickness of the chickpea flakes in the range of 0.3 mm to 0.8 mm. It would been obvious to one of ordinary skill in the art at the time of the invention to modify the predefined thickness of the chickpea flakes of the process of modified Nickels to fall within the claimed predefined thickness of the chickpea flakes range as taught by May et al. since where the claimed predefined thickness of the chickpea flakes overlaps predefined thickness of the chickpea flakes ranges disclosed by the prior at, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the predefined thickness of the chickpea flakes will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined thickness of the chickpea flakes is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 16, Spinelli et al. discloses the desolventization (‘745, Paragraph [01010} occurring in a vacuum evaporator having a pressure dependent on the pasteurization setup of the pasteurizer (‘745, Paragraph [0024]). Faulconbridge et al. discloses extraction of oil from legumes is common wherein the legumes is ground, cracked, milled, or otherwise processed to increase its surface area wherein oil is then extracted from the ground item (‘720, Paragraph [0003]) wherein miscella is treated for separation of oil from the organic phase in an evaporator wherein the oil is referred to as crude oil and typically recovered as a result of heating and boiling off the organic phase wherein the resulting organic phase is reclaimed and reused and separation is done under a vacuum evaporator (‘720, Paragraph [0036]) wherein the evaporator runs at atmospheric pressure or at a reduced pressure (‘720, Paragraph [0043]), which encompasses pressures at or less than 760 torr, which overlaps the claimed predefined pressure in the range of 60-3000 Torr.
Both modified Nickels and Faulconbridge et al. are directed towards the same field of endeavor of methods of extracting oil from water in a legume using ethanol solvent in a vacuum evaporator. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the pressure of the vacuum evaporator of modified Nickels and conduct the desolventization step at the predefined pressure range since where the claimed predefined pressure of the vacuum evaporator overlaps predefined pressure of the vacuum evaporator ranges disclosed by the prior at, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the predefined pressure of the vacuum evaporator will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined pressure of the vacuum evaporator is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Faulconbridge et al. teaches that the resulting miscella is conveyed to the evaporator at a pressure that causes the solvent to vaporize and separate from the oil (‘720, Paragraph [0041]). The vacuum evaporator pressure ranges depends upon the type of solvent used since different solvents have different vaporization temperature properties.
Regarding Claim 17, Spinelli et al. discloses the vacuum evaporator having a pressure, temperature, and flow rate dependent on the pasteurization setup of the pasteurizer (‘745, Paragraph [0024]). Faulconbridge et al. discloses extraction of oil from legumes is common wherein the legumes is ground, cracked, milled, or otherwise processed to increase its surface area wherein oil is then extracted from the ground item (‘720, Paragraph [0003]) wherein miscella is treated for separation of oil from the organic phase in an evaporator wherein the oil is referred to as crude oil and typically recovered as a result of heating and boiling off the organic phase wherein the resulting organic phase is reclaimed and reused and separation is done under a vacuum evaporator (‘720, Paragraph [0036]) and the stream being heated to a temperature and pressure such that it causes the solvent to vaporize and separate from the oil (‘720, Paragraph [0041]).
Both modified Nickels and Faulconbridge et al. are directed towards the same field of endeavor of methods of extracting oil from water in a legume using ethanol solvent in a vacuum evaporator. Although Faulconbridge et al. does not explicitly state that the vacuum evaporator is operated at the claimed heated temperature, Faulconbridge et al. establishes that the stream is heated to a temperature and pressure that causes the solvent to vaporize and separate from the oil. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the heated temperature of the vacuum evaporator of modified Nickels and heat the vacuum evaporator to the claimed temperature since differences in the predefined temperature of the vacuum evaporator will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined temperature of the vacuum evaporator is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Faulconbridge et al. teaches that the resulting miscella is conveyed to the evaporator at a temperature that causes the solvent to vaporize and separate from the oil (‘720, Paragraph [0041]). The vacuum evaporator temperature ranges depends upon the type of solvent used since different solvents have different vaporization temperature properties.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Nickels US 2006/0263509 in view of Spinelli et al. US 2016/0309745 as further evidenced by Cardenas et al. US 2003/0198725 in further view of Tegel US 2015/0017312, May et al. US 2019/0216103, Chatel et al. US 2016/0081375, Sterner et al. US 2020/0154745, Schmidt et al. US 5,275,833, and Faulconbridge et al. US 2009/0047720 as applied to claim 1 above in further view of Copeland et al. US 2004/0253354, Brown et al. US 5,372,547, Gingras et al. US 2009/0155439, and Studer et al. US 2010/0316764.
Regarding Claim 2, Nickels in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May, Chatel et al., Sterner et al., Schmidt et al., and Faulconbridge et al. is silent regarding cleaning raw matter including raw chickpeas in a classifier separator to remove all the foreign and unwanted matter from the raw material and crack the chickpea splits into broken chickpeas.
Copeland et al. discloses a method of processing flour food (‘354, Paragraph [0020]) wherein typical solvent extraction processes involves the basic steps of preparation, extraction, solvent recovery from the extracted oil, i.e. miscella, rough cleaning, and cracking to break the oilseed into pieces properly sized for dehulling and flaking (‘354, Paragraphs [0017] and [0061]).
Both modified Nickels and Copeland et al. are directed towards the same field of endeavor of methods of processing flours. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels et and clean the raw chickpeas to remove foreign unwanted matter from the raw material and crack the chickpeas since Copeland et al. teaches that these are known and conventional steps in processing flours.
Further regarding Claim 2, Nickels et al. in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May, Chatel et al., Sterner et al., Schmidt et al., Faulconbridge et al., and Copeland et al. is silent regarding feeding the chickpeas into a splitter machine to get the chickpea splits and removing residual powder generated from broken chickpeas using an aspirator.
Brown et al. discloses a splitter machine (legume pod thresher) used to feed legumes to obtain legume splits (‘547, Column 3, lines 21-30). Gingras et al. discloses a mechanical extrusion process combining flour fraction with legumes (‘439, Paragraph [0058]) wherein stock from a degerminator is dried and passed through a separator and through a centrifugal type aspirator to remove aspirator bran to remove germ fraction (‘439, Paragraph [0030]). Studer et al. discloses a method of making flour (‘764, Paragraph [0006]) comprising the steps of grinding kernels to produce fragmented particles, separating flour from larger particles, wherein pretreatment steps include using aspirators to remove debris and other impurities (‘764, Paragraph [0021]).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels et al. and utilize a splitter machine to obtain legume splits since Brown et al. teaches that splitter machines in the form of legume pod threshers were known machines used to process legumes and to modify the process of modified Nickels et al. and utilize and aspirator to generate residual powder since Gingras et al. and Studer et al. teaches that aspirator machines were known machines used to process legumes and since Studer et al. teaches that aspirator machines were known to remove debris (‘764, Paragraph [0021]).
Further regarding Claim 2, Spinelli et al. discloses the size of the broken chickpeas having flakes larger than 0.4 mm that may require further processing for efficient deoiling (‘745, Paragraph [0098]). Although Nickels et al. in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May, Chatel et al., Sterner et al., Schmidt et al., Faulconbridge et al., Copeland et al., Brown et al., Gringas et al., and Studer et al. does not explicitly disclose the size of the broken chickpeas being in the range of 2-4 mm, differences in the size of the broken chickpeas will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such size of the broken chickpeas is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Claims 4 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Nickels US 2006/0263509 in view of Spinelli et al. US 2016/0309745 as further evidenced by Cardenas et al. US 2003/0198725 in further view of Tegel US 2015/0017312, May et al. US 2019/0216103, Chatel et al. US 2016/0081375, Sterner et al. US 2020/0154745, Schmidt et al. US 5,275,833, and Faulconbridge et al. US 2009/0047720 as applied to claim 1 above in further view of Tang US 2011/0287478.
Regarding Claim 4, Nickels discloses using an extractor vessel that is heated at a predetermined temperature using hot water (‘509, Paragraph [0007]) and transporting the legumes via a conveyor (‘509, Paragraph [0008]). Spinelli et al. discloses the step of deoiling the chickpea flakes comprising deoiling the chickpea flakes in an extractor vessel using a predefined solvent (ethanol) (‘745, Paragraph [0014]) and removing water using a vacuum evaporator (‘745, Paragraph [0058]) wherein some flakes are further processed for efficient deoiling (‘745, Paragraph [0098]).
Nickels in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May et al., Chatel et al., Sterner et al., Schmidt et al., and Faulconbridge et al. is silent regarding draining a remainder of the solvent with miscella and feeding the deoiled chickpea flakes into a vacuum evaporator and keeping the chickpeas in intermittent stirring in the extractor.
Tang discloses a method of making edible product products by removing fiber from an oilseed meal (‘478, Paragraph [0002]) comprising separating oil from solvent using a vacuum evaporator (‘478, Paragraph [0524]) wherein the solvent is ethanol which is concentrated by evaporation to form a high sugar fraction (‘478, Paragraph [0535]) wherein the extract is separated from washed defatted or protein enriched meal by evaporation (‘478, Paragraph [0564]) and extracted oil is recovered by evaporation and desolventization to remove solvent form miscella under vacuum (‘478, Paragraph [0911]) and stirred (‘478, Paragraph [0934]).
Both modified Nickels and Tang are directed towards the same field of endeavor of processes of separating oil from a solvent. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and drain the solvent with miscella and feed deoiled legumes into a vacuum evaporator while stirring since Tang teaches that the claimed apparatuses and process steps for separating oil from solvent was known and conventional in the food art.
Further regarding Claim 4, although Nickels in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May et al., Chatel et al., Sterner et al., Schmidt et al., Faulconbridge et al., and Tang does not explicitly disclose the predefined solvent having a concentration in the range of 95%-96%, differences in the concentration of the predefined solvent will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined solvent concentration is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 13, Spinelli et al. discloses the predefined solvent being ethanol (‘745, Paragraph [0099]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and use ethanol as the predefined solvent as taught by Spinelli et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Spinelli et al. teaches that there was known utility in the legume flour processing art to utilize ethanol as a solvent for deoiling chickpea flakes.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Nickels US 2006/0263509 in view of Spinelli et al. US 2016/0309745 as further evidenced by Cardenas et al. US 2003/0198725 in further view of Tegel US 2015/0017312, May et al. US 2019/0216103, Chatel et al. US 2016/0081375, Sterner et al. US 2020/0154745, Schmidt et al. US 5,275,833, and Faulconbridge et al. US 2009/0047720 as applied to claim 1 above in further view of Copeland et al. US 2004/0253354.
Regarding Claim 6, Spinelli et al. discloses the step of recycling the predefined solvent (ethanol) (‘745, Paragraph [0099]) comprising feeding the miscella generated in the deoiling step of the process into an evaporator wherein the oil is separated from the miscella by evaporating the solvent (ethanol) (‘745, Paragraph [0089]) and recycled back to the process again (‘745, Paragraph [0100]) and adjusting the concentrate levels (‘745, Paragraph [0111]).
Nickels in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May et al., Chatel et al., Sterner et al., Schmidt et al., and Faulconbridge et al. is silent regarding feeding the diluted solvent to a rectification column wherein the solvent is rectified to a concentration range of 95% to 96%.
Copeland et al. discloses a method of processing flour food (‘354, Paragraph [0020]) wherein typical solvent extraction processes involves the basic steps of preparation, extraction, solvent recovery from the extracted oil, i.e. miscella, rough cleaning, and cracking to break the oilseed into pieces properly sized for dehulling and flaking (‘354, Paragraphs [0017] and [0061]). Copeland et al. further discloses feeding the diluted solvent to a rectification column wherein the solvent is rectified to a concentrated form (‘354, Paragraph [0047]).
Both modified Nickels and Copeland et al. are directed towards the same field of endeavor of methods of processing flours. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels et and use a rectification column that is fed diluted solvent to create a concentrated solvent since Copeland et al. teaches that the claimed rectification column and process steps were known and conventional means to concentrate a solvent that is recycled. Although Nickels in view of Spinelli et al. as further evidenced by Cardenas et al. in further view of Tegel, May et al., Chatel et al., Sterner et al., Schmidt et al., Faulconbridge et al., and Copeland et al. does not explicitly state that the concentrated range is 95% to 96% after using the rectification column, Spinelli et al. discloses adjusting the concentrate levels (‘745, Paragraph [0111]). Differences in the concentration of the solvent after the rectification step will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the concentration of solvent after rectification based upon the desired concentrate levels as disclosed by Spinelli et al. (‘745, Paragraph [0111]).
Response to Arguments
Examiner notes that a new indefiniteness rejection under 35 USC 112(b) as well as a new rejection under 35 USC 112(d) have been made in view of the amendments.
Applicant's arguments filed February 23, 2026 with respect to the obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Examiner notes applicant’s comments on Pages 9-10 of the Remarks that the process of the present application provides a neutral chickpea flour without off flavor and with desired properties and that the steps of the process defined in Claim 1 cannot be performed in any other order to achieve the same desired result, e.g. desolventization would not yield the proper results if the chickpeas are not flaked properly at the previous step or milling the chickpeas before cooking would not simply produce a paste rather than flour does not specifically and distinctly point out the supposed errors of the Office Action. Applicant also argues that it would not be expected from a person having ordinary skill in the art who was presented with the teachings of no fewer than eight different prior art references to specifically know how to choose a single feature out of each of these prior art references to arrive at the specific steps and parameters of the process defined in amended Claim 1 in that particular order. The Office Action states that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and conduct the conditioning step before the cooking step as taught by Chatel et al. since the selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results in view of In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (MPEP § 2144.04.IV.C.). Furthermore, the primary reference of Nickels already teaches processing the legume flakes and then grinding into legume flour (‘509, Paragraph [0031]). The prior art recognizes producing a paste. Nickels never suggests that a paste is produced. With respect to applicant’s comment regarding the use of either prior art references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991). Therefore, these unspecific comments are not found persuasive.
Applicant argues on Page 10 of the Remarks that there is a huge difference between the teachings of May directed to cooking followed by conditioning and the steps of the present invention are directed to conditioning following cooking and these two steps are not interchangeable and would not yield a similar result in the four manufacture process.
Examiner argues May discloses a conditioning step in the form of tempering to form a low intermediate amount of moisture followed by its removal during heat treatment wherein the moisture content is 10-14 percent (‘103, Paragraph [0039]). The tempering step disclosed by May is being relied upon to teach the claimed conditioning step at the claimed predefined moisture level of 12%-15%. The further conditioning step disclosed by May after the thermal processing step (‘103, Paragraph [0057]) is not being relied upon in the rejection for the disclosure of the claimed conditioning step. Claim 1 recites the transitional phrase “including” which is synonymous with “comprising” and is inclusive or open ended and does not exclude additional, unrecited elements or method steps in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). The claims do not preclude the presence of unrecited method steps of a further conditioning step after the cooking step. Therefore, this argument is not found persuasive.
Examiner notes that applicant’s comments on Page 10 of the Remarks that the eight different prior art references each including a multitude of different parameters would have been impossible for a skilled person in the art to arrive at the invention of Claim 1 by mere routine experimentation merely based on these references and that a PHOSITA would not have been able to pick specific parameters from these eight prior art references to optimize the process does not specifically and distinctly point out the supposed errors of the Office Action.
Applicant argues on Pages 10-11 of the Remarks that the prior art fails to recognize that the specific moisture to temperature ratios is a result effective variable for reducing off flavors while maintaining starch integrity and the prior art was silent on the relationship between these variables and the specific goal of debittering and optimizing them was not a routine matter. Applicant continues that the claimed moisture range of 12%-15% is critical and not merely an optimization of a successful process in which the moisture level is maintained in the purpose of getting good flakes to keep the lipid content below 0.7% affecting desired foaming capabilities in the final flour. Applicant asserts that the experimental data shows keeping moisture level below 12% increases the powder content and reduces elasticity in the grits to make the thin flakes and keeping the moisture content above 15% increases the binding of flakes to each other and does not allow good percolation in extraction resulting in poor extraction.
Examiner argues the secondary reference of May already teaches a conditioning step in the form of tempering prior to heat treatment wherein the conditioning step in the form of tempering is 10-14% (‘103, Paragraph [0039]), which encompasses the claimed predefined moisture level of 12%-15%. The claimed predefined moisture level was already a known amount in the art in view of May. It would been obvious to one of ordinary skill in the art at the time of the invention to modify the predefined moisture level and the predefined conditioning time range of the process of modified Nickels to fall within the claimed moisture level and predefined conditioning time range as taught by May et al. since where the claimed predefined moisture level and predefined conditioning time of an intermediate product of broken legumes overlaps predefined moisture levels ranges disclosed by the prior at, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Therefore, this argument is not found persuasive.
Applicant argues on Page 11 of the Remarks with respect to the predefined temperature of 45°C-50°C in the deoiling step of deoiling the chickpea flakes using a predefined solvent that the specific 5° range within a range of 60° is no matter of mere routine and requires extensive testing. Applicant contends that while Tang discloses a general wide range of temperatures it would not have been obvious to a person skilled in the art that the application of a specific and narrow sub range would yield the desired results for the chickpea flour of the present application.
Examiner argues that Tang is not being relied upon to render obvious the limitations regarding the claimed deoiling temperature occurring at a predefined temperature of 45°C-50°C. Although Faulconbridge et al. does not explicitly state that the vacuum evaporator is operated at the claimed heated temperature, Faulconbridge et al. establishes that the stream is heated to a temperature and pressure that causes the solvent to vaporize and separate from the oil. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the heated temperature of the vacuum evaporator of modified Nickels and heat the vacuum evaporator to the claimed temperature since differences in the predefined temperature of the vacuum evaporator will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such predefined temperature of the vacuum evaporator is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Faulconbridge et al. teaches that the resulting miscella is conveyed to the evaporator at a temperature that causes the solvent to vaporize and separate from the oil (‘720, Paragraph [0041]). The vacuum evaporator temperature ranges depends upon the type of solvent used since different solvents have different vaporization temperature properties. The secondary reference of Tang is being relied upon to render obvious the limitations regarding draining the solvent with miscella and feed deoiled legumes into a vacuum evaporator while stirring. With respect to applicant’s allegations that the narrow range of 45-50°C is critical in chickpea processing, where the issue of criticality is involved, applicant has the burden of establishing his position by a proper showing of the facts upon which he relies in view of In re Scherl, 156 F.2d 72, 74-75, 70 USPQ 204, 205 (CCPA 1946) (MPEP § 2144.05.III.A.). To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02(d).II.). Applicant has provided no objective data supporting applicant’s allegations that the temperature range of 45-50°C is critical and/or leads to unexpected results. Therefore, this argument is not found persuasive.
Applicant argues on Page 12 of the Remarks that May teaches performing a conditioning step for anywhere between 0 to 24 hours while amended Claim 1 provides a specific and narrow subrange of 30-150 minutes and that it cannot be claimed that specifying a general range of 0 to 24 hours teaches choosing a specific time window which does not amount to more than 10% of this general range. Applicant continues that the attached experiments allegedly shows the specific time range contributes to the parameters of the final product and that May explains that the moisture level to be maintained at the time of tempering and heating by addition of moisture does not have the maillard reaction below the moisture and does not have gelatinization above the moisture level.
Examiner argues May already teaches a conditioning step in the form of tempering to ensure a moisture content of 10-14% prior to heat treatment (‘103, Paragraph [0039]), which tempering step disclosed by May is being relied upon to teach the claimed conditioning step at the claimed predefined moisture level of 12%-15%. May already teaches the claimed predefined moisture level of 12%-15%. With respect to applicants experiments, an affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness in view of In re Burckel, 592 F.2d 1175, 201 USPQ 67 (CCPA 1979) (MPEP § 716.02(e)). The documents of the experiments filed by applicant on February 23, 2026 are not an affidavit or declaration under 37 CFR 1.132. Nevertheless, applicant provides a laundry list of several experiments but does not specifically and distinctly which experiment(s) are providing a comparison with the closest prior art of record. It is unclear which experiment(s) are applicable to the claimed predefined moisture level of 12-15% conditioning time of 30-150 minutes. Furthermore, some of the experiments show adjusting the variable of flake thickness. However, Claim 1 does not specify any particular flake thickness. The data is not commensurate in scope with the claimed invention.
Applicant argues on Page 13 of the Remarks that Chatel is directed to extrusion cooking at 60-176°C whereas applicant’s process involves low temperatures of water jacketed cooking at 60-70°C which is a very specific range. Applicant asserts that Chatel teaches against applicant’s approach by endorsing high temperature gelatinization and substituting the extrusion conditions of Chatel into Nickels process would alter the product.
Examiner argues Chatel et al. discloses a method of making flour (‘375, Paragraph [0002]) comprising the steps of combining a flour starting mixture and a suitable enzyme solution in a pre-conditioner mixer and then heating the mixture wherein the enzyme treated mixture is then subject to an extrusion process to gelatinize, hydrolyze, and cook the flour mixture (‘375, Paragraph [0029]) wherein the enzyme treated mixture resides in the extruder for a time sufficient to gelatinize, hydrolyze, and cook the starch wherein starch gelatinization requires water and heat wherein heat is applied through an extruder barrel wall with a jacket around the barrel through which a hot medium such as steam, water, or oil is circulated wherein extrusion occurs at barrel temperatures between 140°F and 350°F (‘375, Paragraphs [0039]-[0041]), which converts to barrel temperatures of between 60°C and 176°C, which encompasses the claimed conditioning cooking step being conducted at a temperature in the range of 60°C-70°C. Chatel et al. also discloses the conditioning cooking step being hydrated at times longer than 25 minutes (‘375, Paragraph [0063]), which broadly reads on the claimed “slow” cooking step.
Nickels discloses the legumes containing starch (‘509, Paragraph [0024]). Both modified Nickels and Chatel et al. are directed towards the same field of endeavor of methods of processing starch based flours comprising a step of heating the flour components using a jacketed container. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of modified Nickels and conduct the conditioning cooking step at the claimed temperature range for the claimed “slow” cooking time as taught by Chatel et al. since where the claimed conditioning cooking temperature ranges overlaps conditioning cooking ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the conditioning cooking temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such conditioning cooking temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the conditioning cooking temperatures of the process of making the starch based flour to be conducted at a temperature that induces starch gelatinization (‘375, Paragraphs [0039]-[0041]). Chattel et al. teaches a temperature range encompassing the claimed cooking at 60-70°C. Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Reinhold “Cooking Class: Cooker Chickpeas” <https://www.shockinglydelicious.com/cooking-class-slow-cooker-chickpeas-for-sundaysupper/> (published January 5, 2014) discloses a method of slow cooking chickpeas for 6 hours or until the chickpeas are tender when cut or mashed (Reinhold, Page 2).
Hamshaw “Slow Cooker Chickpeas (Inspired by Chana Masala)” <https://www.thefullhelping.com/simple-slow-cooker-chana-masala/> (published October 3, 2018) discloses a method of slow cooking chickpeas on high for 3-4 hours or on low for 6-8 hours (Hamshaw, Page 7).
Aglaia “Slow Cooked Chickpeas with Orange and Celery” <https://www.aglaiakremezi.com/slow-cooked-chickpeas-with-orange-revithia-sto-fourno-me-portokali/> (published June 9, 2015) discloses a method of slow cooking chickpeas at a temperature of 80°C for 6 hours or until the chickpeas are very tender (Aglaia, Pages 3-4).
Pollyhubner “Chickpeas in the Slow Cooker” <https://www.nigella.com/ask/chickpeas-in-slow-cooker> (published April 12, 2016) discloses a method of cooking chickpeas comprising the steps of presoaking the chickpeas to soften them to reduce cooking time and slow cooking comprising adding baking soda to cooking water to help the chickpeas soften as they cook in which the bicarbonate of soda is an alkali that breaks down the skin of the chickpeas more quickly (Pollyhubner, Page 1).
Blackwell “How to Cook Any Kind of Bean in a Slow Cooker Crock Pot” <https://alittleandalot.com/how-to-cook-beans-slow-cooker/> (published April 26, 2018) discloses a method of slow cooking beans comprising the step of cooking beans at a high enough temperature for the liquid to boil wherein all legumes contain high amounts of lectins which can be toxic in high doses wherein lectins are killed off during the soaking and cooking process wherein the beans need to cook in liquid that has reached the boiling point in order to ensure that any lectins are killed off (Blackwell, Page 15) wherein soaking beans before cooking reduces the cooking time, creates a better texture for the cooked beans with fewer split open and burst beans, and makes the beans more digestible (Blackwell, Page 6) wherein the beans are soaked for up to 24 hours (Blackwell, Page 14) or soaked for 1 hour (Blackwell, Page 15).
Spinelli et al. US 2022/0000142 discloses a method and system for feedstock de-oiling (‘142, Paragraph [0004]) wherein the feedstock is chickpea flour (‘142,Paragraph [0041]) wherein de-oiled solubilized protein is extracted and separated in a separator having a temperature ranging from 20-75C depending on the yield of protein extracted in the separator step (‘142, Paragraph [0050]).
Pickardt et al. US 2012/0009287 discloses a method of obtaining a protein preparation from sunflower seeds (‘287, Paragraph [0001]) comprising deoiling edible seeds in a screw press at a temperature of approximately 40C ± 5C with hexane (‘287, Paragraph [0140]).
Bows et al. US 2008/0138480 discloses a method of making a raw food based chickpea slice (‘480, Paragraph [0023]) comprising the step of removing oil to the desired level wherein oil removal is assisted by the wet and raw to partially cooked nature of the food slice wherein the deoiling is directly from the lipophilic preconditioning step while hot (‘480, Paragraph [0043]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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