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 .
DETAILED ACTION
Status of Claims
The amendments and arguments filed on 06/11/2026 are acknowledged and have been fully considered. Claims 1-10 and 16-25 are now pending. Claims 11-15 are canceled; claims 7-10 and 17-20 are withdrawn.
Claims 1-6, 16, and 21-25 will be examined on the merits herein.
Objections/Rejections Withdrawn
Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied, and constitute the complete set presently being applied to the instant application.
Maintained Rejections
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.
Claims 1-4, 6, 16, 21, and 23-25 are rejected under 35 U.S.C. 103 as being unpatentable over Guo (2019) in view of Zaaboul (2018).
In regards to claims 1-4, Guo teaches a method of roasting sunflower seeds at 125, 135, and 145°C for 15, 30, 45, and 16 minutes followed by an extraction process of the volatile compounds in the seeds (i.e., the pyrazines) (see Guo, page 9, Roasting process; Flavor extraction).
In regards to claim 6, the amount of 2,5 dimethylpyrazine is taught to be 0.99, 0.98, 0.49, 0.81 µg/g (i.e., ppm) when the seeds are roasted at 125°C for 30 and 45 minutes and at 135°C for 15 and 45 minutes respectively, among other amounts that overlap with the instant claim (see Guo, Table 1). There are also multiple overlapping amounts of 2-ethyl-3-methylpyrazine, such as 125°C for 15-45 minutes, and 2-ethy-3,5-dimethylpryazine, such as 125°C for 30-45 minutes (see Guo, Table 1). MPEP 2144.05 states that "[i]n the case where the claimed ranges 'overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists" quoting In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
In regards to claim 16, it is taught that the roasting process is used to develop a more desirable aroma and taste (see Guo, page 1, paragraph after abstract).
Guo is silent on the isolation of oleosomes from the oleosome source.
Zaaboul teaches a method of extracting oil bodies (i.e., oleosomes) from peanuts (see Zaaboul, abstract). The oil bodies are shown to be intact (see Zaaboul, figure 5).
In regards to claim 24, It is taught that the oil bodies are washed in a sodium phosphate buffer (i.e., an aqueous solution) (see Zaaboul, figure 1; page 3, column 1, second paragraph).
In regards to claim 25, it is taught that pasteurization can enhance the stability of the oil bodies (see Zaaboul, conclusion; abstract).
Further, in regards to claims 1, 21, and 23, it is taught in the specification as filed that the method of isolating oleosomes is first grinding/crushing the seeds, filtering the slurry, and centrifuging the product into a watery phase and an oily oleosome containing phase (see instant specification as filed, paragraphs 0037-0039). The method of Zaaboul teaches these steps as well (see Zaaboul, figure 1; 2. Experimental section as a whole). MPEP §2112.01(I) states that “[w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” As the prior art renders obvious the instant method, a person of ordinary skill in the art would reasonably expect the same composition to have the same properties as instantly claimed.
In regards to claims 1-4, 6, 16, 21, and 23-25, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Guo with Zaaboul as Guo teaches a method of enhancing the aroma and taste of sunflower seed extracts and Zaaboul teaches a known method of extracting oils from peanuts (i.e., seeds) in an efficient manner. One with ordinary skill in the art would be motivated to combine the methods of Guo and Zaaboul according to the method of extraction as taught by Zaaboul to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Further in regards to the limitations of oleosome behavior or properties, such as having a D50 diameter, MPEP §2112.01(I) states that “[w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” In the instant case, the combination of Guo and Zaaboul an identical method of roasting and isolating oleosomes, it would be understood by one with ordinary skill in the art that the average globule diameter of the intact oleosomes would behave identically as instantly claimed as well. A person of ordinary skill in the art would reasonably expect the same composition to have the same properties as instantly claimed.
Claims 5 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Guo (2019) in view of Zaaboul (2018) as applied to claims 1-4, 6, 16, 21, and 23-25 above, and further in view of Shrestha (2016).
The teachings of Guo and Zaaboul have been described supra.
The teachings of Guo and Zaaboul are silent on the relative humidity of the roasting step or the injection of steam during roasting.
Shrestha teaches that when baking sesame seeds the humidity is an important factor in eliminating pathogens such as Salmonella (see Shrestha, abstract). Further, Shrestha teaches baking sesame seeds at a relative humidity of 20% (see Shrestha, page 117, baking temperature, time, and relative humidity). It is taught that the target humidity is reached by injecting steam during baking (see Shrestha, page 117, baking temperature, time, and relative humidity).
In regards to claim 5, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Guo and Zaaboul with Shrestha in order to best manage the growth of dangerous pathogens in the seeds of Guo and Zaaboul. It is noted that 20% relative humidity is not optimal for this, it is sufficient to reduce the Salmonella population (see Shrestha, page 123, column 1, paragraphs 1-3). As such, it would be within the purview of one with ordinary skill in the art to envisage a roasting step done at the relative humidity as instantly claimed. One with ordinary skill in the art would be motivated to combine the teachings of Guo and Zaaboul with Shrestha according to the known method of using relative humidity to control pathogen on oleosome seeds (see Shrestha, Baking temperature, time, and relative humidity) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Response to Arguments
Applicant's arguments filed 06/11/2026 have been fully considered but they are not persuasive in view of the modified grounds of rejection as necessitated by amendment.
In regards to aaplicant’s argument that Guo and Zaaboul have diffrrent teachings that one with ordinary skill in the art would not combine, it is noted that although Zaaboul is not in the same field of endeavor as Guo, it is reasonably pertinent to the problem to be solved with regards roasting seeds for enhancing the extraction of oleosomes. A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). Note that "same field of endeavor" and "reasonably pertinent" are two separate tests for establishing analogous art; it is not necessary for a reference to fulfill both tests in order to qualify as analogous art. See Bigio, 381 F.3d at 1325, 72 USPQ2d at 1212. When more than one prior art reference is used as the basis of an obviousness rejection, it is not required that the references be analogous art to each other. See Sanofi-Aventis Deutschland GMbH v. Mylan Pharms. Inc., 66 F.4th 1373, 1380, 2023 USPQ2d 552 (Fed. Cir. 2023) and Corephotonics, Ltd. v. Apple Inc., 84 F.4th 990, 1007, 2023 USPQ2d 1202 (Fed. Cir. 2023).
In response to applicant's argument that Guo does not teach anything about oleosomes and Zaaboul does not teach roasting, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In the instant case, the teachings of both references have been taught. As such, , it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of Guo with Zaaboul as Guo teaches a method of enhancing the aroma and taste of sunflower seed extracts and Zaaboul teaches a known method of extracting oils from peanuts (i.e., seeds) in an efficient manner. One with ordinary skill in the art would be motivated to combine the methods of Guo and Zaaboul according to the method of extraction as taught by Zaaboul to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Applicant mentions that the previously used reference Xu, which was a reference previously used, but not currently cited, indicates the knowledge of one with ordinary skill in the art, it is noted that the Zaaboul and Guo both used in the current rejection would also indicate knowledge of one with ordinary skill in the art.
As the arguments presented against Guo, Zaaboul, and Shrestha have been rebutted and are not persuasive, the rejections of record over claims 1-6, 16, and 21-25 are maintained.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-6, 16, and 21-25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of copending Application No. 18834679 in view of Guo (2019), Zaaboul (2018), and Shrestha (2016).
18834679 claims a method of grinding sunflower seeds and isolating the oleosome fraction.
The claimed method of 18834679 is silent on roasting the sunflower seeds, the average diameter D50 not increasing more than 20% compared to the initial oleosomes, and pasteurizing the oleosome composition.
The teachings of Guo, Zaaboul, and Shrestha have been described supra.
In regards to claims 1-6, 16, and 21-25, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of 18834679 with Guo and Shrestha as these references teach that the roasting step at the specific relative humidity of 20% allows for a better aroma, taste, and overall lower lethality through the reduction of pathogens (see Guo, page 1, paragraph after abstract; see Shrestha, page 123, column 1, paragraphs 1-3). Further the method of Guo teaches that the seeds are ground up after roasting as a point of similarity. One with ordinary skill in the art would be motivated to combine the teachings of 18834679 with Guo and Shrestha according to the known method of using relative humidity to control pathogen on oleosome seeds by roasting (see Shrestha, Baking temperature, time, and relative humidity) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Further in regards to the limitations of oleosome behavior or properties, such as having a D50 diameter, MPEP §2112.01(I) states that “[w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” In the instant case, the combination of 18834679 with Guo, Zaaboul, and Shrestha yeild an identical method of roasting and isolating oleosomes, it would be understood by one with ordinary skill in the art that the average globule diameter of the intact oleosomes would behave identically as instantly claimed as well. A person of ordinary skill in the art would reasonably expect the same composition to have the same properties as instantly claimed.
This is a provisional nonstatutory double patenting rejection.
Claims 1-6, 16, and 21-25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of copending Application No. 18834675 in view of Guo (2019), Zaaboul (2018), and Shrestha (2016).
18834675 claims a method of grinding sunflower seeds and isolating the oleosome fraction (claims 1-7).
The claimed method of 18834675 is silent on roasting the sunflower seeds, the relative humidity of the roasting step, the average diameter D50 not increasing more than 20% compared to the initial oleosomes, and pasteurizing the oleosome composition.
The teachings of Guo, Zaaboul, and Shrestha have been described supra.
In regards to claims 1-6, 16, and 21-25, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of 18834675 with Guo and Shrestha as these references teach that the roasting step at the specific relative humidity of 20% allows for a better aroma, taste, and overall lower lethality through the reduction of pathogens (see Guo, page 1, paragraph after abstract; see Shrestha, page 123, column 1, paragraphs 1-3). Further the method of Guo teaches that the seeds are ground up after roasting as a point of similarity. One with ordinary skill in the art would be motivated to combine the teachings of 18834675 with Guo and Shrestha according to the known method of using relative humidity to control pathogen on oleosome seeds by roasting (see Shrestha, Baking temperature, time, and relative humidity) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Further in regards to the limitations of oleosome behavior or properties, such as having a D50 diameter, MPEP §2112.01(I) states that “[w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” In the instant case, the combination of 18834675 with Guo, Zaaboul, and Shrestha yeild an identical method of roasting and isolating oleosomes, it would be understood by one with ordinary skill in the art that the average globule diameter of the intact oleosomes would behave identically as instantly claimed as well. A person of ordinary skill in the art would reasonably expect the same composition to have the same properties as instantly claimed.
This is a provisional nonstatutory double patenting rejection.
Claims 1-6, 16, and 21-25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 18834672 in view of Guo (2019), Zaaboul (2018), and Shrestha (2016).
18834672 claims a method of grinding sunflower seeds and isolating the oleosome fraction (see claims 1-8).
The claimed method of 18834672 is silent on roasting the sunflower seeds, the relative humidity of the roasting step, the average diameter D50 not increasing more than 20% compared to the initial oleosomes, and pasteurizing the oleosome composition.
The teachings of Guo, Zaaboul, and Shrestha have been described supra.
In regards to claims 1-6, 16, and 21-25, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the teachings of 18834672 with Guo and Shrestha as these references teach that the roasting step at the specific relative humidity of 20% allows for a better aroma, taste, and overall lower lethality through the reduction of pathogens (see Guo, page 1, paragraph after abstract; see Shrestha, page 123, column 1, paragraphs 1-3). Further the method of Guo teaches that the seeds are ground up after roasting as a point of similarity. One with ordinary skill in the art would be motivated to combine the teachings of 18834672 with Guo and Shrestha according to the known method of using relative humidity to control pathogen on oleosome seeds by roasting (see Shrestha, Baking temperature, time, and relative humidity) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Further in regards to the limitations of oleosome behavior or properties, such as having a D50 diameter, MPEP §2112.01(I) states that “[w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.” In the instant case, the combination of 18834672 with Guo, Zaaboul, and Shrestha yeild an identical method of roasting and isolating oleosomes, it would be understood by one with ordinary skill in the art that the average globule diameter of the intact oleosomes would behave identically as instantly claimed as well. A person of ordinary skill in the art would reasonably expect the same composition to have the same properties as instantly claimed.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 06/11/20026 have been fully considered but they are not persuasive.
As stated above, the arguments presented against Guo, Zaaboul, and Shrestha have been rebutted and the rejections are maintained.
Conclusion
No claims allowed.
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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/ISIS A GHALI/Primary Examiner, Art Unit 1611
/A.A.A./ Examiner, Art Unit 1611
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