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 .
Claim Objections
The claim objections are withdrawn due to applicant’s amendments
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.
Regarding claim 18, it is unclear how the oil component can have a protein content greater than the protein content of the shells since the oil component would be expect to be mainly oil. This rejection was not addressed by amendment or argument.
The remaining rejections are withdrawn due to applicant’s amendments.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-14, 17-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Higgs(US 2003/0072866).
Regarding claims 1,4,26, Higgs teaches a method for obtaining at least one protein preparation and several oil fractions from the seeds of sunflowers(para 17). Higgs teaches providing a source of oilseed; subjecting the oilseed to heat treatment to substantially reduce the concentration of at least some antinutritional components normally present in the oilseed to obtain heat-treated seed; dehulling the heat-treated seed to produce a meat fraction, a hull fraction or a mixture thereof; and cold pressing the meat fraction or the mixture to yield the plant oils and the protein and lipid-rich meals(abstract). Higgs teaches that the oilseeds can be undehulled, partially dehulled or totally dehulled depending on the purpose of the oil and protein product(para 174). Therefore, it would have been obvious to have a mix of undehulled(>60 mass percent shell content), partially dehulled(>0.3 mass percent and <20 mass percent) and totally dehulled(<1 mass percent shell content).
Higgs teaches producing oil fractions and protein fractions(de-oiled fraction) through cold pressing of oil from the fraction(para 193).
Regarding claim 2, Higgs teaches a method for obtaining at least one protein preparation and several oil fractions from the seeds of rape seeds(para 17). Higgs teaches providing a source of oilseed; subjecting the oilseed to heat treatment to substantially reduce the concentration of at least some antinutritional components normally present in the oilseed to obtain heat-treated seed; dehulling the heat-treated seed to produce a meat fraction, a hull fraction or a mixture thereof; and cold pressing the meat fraction or the mixture to yield the plant oils and the protein and lipid-rich meals(abstract). Higgs teaches that the oilseeds can be undehulled, partially dehulled or totally dehulled depending on the purpose of the oil and protein product(para 174). Therefore, it would have been obvious to have a mix of undehulled(>60 mass percent shell content), partially dehulled(>0.3 mass percent and <20 mass percent) and totally dehulled(<1 mass percent shell content).
Higgs teaches producing oil fractions and protein fractions(de-oiled fraction) through cold pressing of oil from the fraction(para 193).
Regarding claims 3,17, Higgs teaches shelling the seeds, removing a part of the shells by sieving and/or winnowing and/or sorting in such manner that the at least three fractions are obtained with the stated shell contents(para 210-211 sunflower seeds are dehulled and sieved to achieve a mix of dehulled and undehulled oil seeds). Higgs teaches that the oilseeds can be undehulled, partially dehulled or totally dehulled depending on the purpose of the oil and protein product(para 174). Therefore, it would have been obvious to have a mix of undehulled(>60 mass percent shell content), partially dehulled(>0.3 mass percent and <20 mass percent) and totally dehulled(<1 mass percent shell content).
Regarding claim 5,13,14,19,Higgs teaches that the separation of the oil is carried out by partial mechanical de-oiling(para 211 oilseed cold-pressing) and subsequent solvent extraction(para 194).
Regarding claims 6,20, Higgs teaches performing partially de-oiling of the oilseeds using a cold-press method(below 80C)(para 211) to reach an oil content of about 5 to about 12%)(para 199).
Regarding claims 7,21, Higgs teaches that the oilseeds can be totally dehulled depending on the purpose of the oil and protein product(para 174). A totally dehulled oil seed would comprise <1% shell content, i.e. 0%, and encompass the first fraction as claimed.
Higgs does not specifically teach that the provision or formation of the at least three fractions from the seeds takes place in such manner that the first fraction contains between 1 and 80%, advantageously between 5 and 35%, particularly advantageously between 15 and 25% of the quantity of kernels that are present in the starting material for the method. However, it would have been obvious to adjust the amount of the first fraction depending on the nature of the intended animal feed product.
Regarding claim 8, Higgs teaches partially dehulled sunflower seeds(para 174) which render obvious a shell content of >80 mass percent and <99 mass percent as claimed.
Regarding claim 9, Higgs teaches completely dehulled sunflower seeds(para 174) which render obvious a shell content of <0.5 mass percent as claimed.
Regarding claim 10, Higgs teaches completely dehulled sunflower seeds(para 174) which render obvious a shell content of <10 mass percent as claimed.
Regarding claim 11, Higgs teaches removing oil from the first fraction(para 193) but does not specifically teach one or several de-oiling steps until a residual oil content of <2 mass percent. However, Higgs teaches “In cases where the lipid content of the dried protein fraction is too high for the desired animal feed use, a solvent extraction step involving hexane is performed, with subsequent recovery of the solvent and the animal feed grade oil.”(para 194). Therefore, it would have been obvious to perform further oil extraction to provide a fraction containing a residual oil content of <2 mass percent.
Regarding claim 12, Higgs teaches removing oil from the second fraction(para 193) but does not specifically teach one or several de-oiling steps until a residual oil content of <10 mass percent. However, Higgs teaches “In cases where the lipid content of the dried protein fraction is too high for the desired animal feed use, a solvent extraction step involving hexane is performed, with subsequent recovery of the solvent and the animal feed grade oil.”(para 194). Therefore, it would have been obvious to perform further oil extraction to provide a second fraction containing a residual oil content of <10 mass percent.
Regarding claim 18, Higgs teaches a method for obtaining at least one protein preparation and several oil fractions from the seeds of sunflowers(para 17). Higgs teaches providing a source of oilseed; subjecting the oilseed to heat treatment to substantially reduce the concentration of at least some antinutritional components normally present in the oilseed to obtain heat-treated seed; dehulling the heat-treated seed to produce a meat fraction, a hull fraction or a mixture thereof; and cold pressing the meat fraction or the mixture to yield the plant oils and the protein and lipid-rich meals(abstract).
Therefore, oil and a protein containing residue are recovered. Since the protein containing residue would contain mostly protein(since oils are removed), the protein containing residue would have a protein content greater than a protein content of the shells.
According to the 112 rejection, it is unclear how the oil component can have a protein content greater than the protein content of the shells, since the oil component would be expect to be mainly oil. Therefore, any oil component would meet the limitation according to the 112 rejection. One of ordinary skill in the art would also expect the oil component to have the same properties as the claimed oil component since Higgs teaches the same method of extraction(cold pressing and solvent extraction).
Regarding claim 22, Higgs teaches that the oilseeds can be partially dehulled depending on the purpose of the oil and protein product(para 174). A partially dehulled oil seed would comprise a shell content of >80% and <99% shell content, and encompass the third fraction as claimed.
Regarding claim 23, Higgs teaches that the oilseeds can be totally dehulled depending on the purpose of the oil and protein product(para 174). A totally dehulled oil seed would comprise <0.5% shell content, i.e. 0%, and encompass the first fraction as claimed.
Regarding claim 24, Higgs teaches that the oilseeds(which includes sunflowers and rapeseeds) can be partially dehulled depending on the purpose of the oil and protein product(para 17,174). A partially dehulled oil seed would comprise a shell content of <10 mass shell content, and encompass the third fraction as claimed.
Regarding claim 25, Higgs teaches producing oil fractions and protein fractions but does not specifically teach that the protein fraction has <2 mass percent(para 193). However, Higgs teaches “In cases where the lipid content of the dried protein fraction is too high for the desired animal feed use, a solvent extraction step involving hexane is performed, with subsequent recovery of the solvent and the animal feed grade oil.”(para 194). Therefore, it would have been obvious to perform further oil extraction to provide <2 mass percent protein extract if so desired for the intended animal feed product.
Regarding claim 26, Higgs teaches producing oil fractions and protein fractions but does not specifically teach that the second protein fraction is oil-free(para 193). However, Higgs teaches “In cases where the lipid content of the dried protein fraction is too high for the desired animal feed use, a solvent extraction step involving hexane is performed, with subsequent recovery of the solvent and the animal feed grade oil.”(para 194). Therefore, it would have been obvious to perform further oil extraction to provide an oil-free second protein extract and an oil fraction if so desired for the intended animal feed product.
Response to Arguments
Applicant's arguments filed 1/28/2026 have been fully considered but they are not persuasive.
The applicant argues that Higgs does not teach a combination of fractions with different shell contents and only teaches oilseeds can be undehulled, partially dehulled or totally dehulled depending on the purpose of the oil and protein product(para 174).
However, para 174 states
“The oilseed can be undehulled, partially dehulled or totally dehulled if desired. This product is a very cost-effective organic oil for the increasing organic human food industry and will find utility in various types of food products or as a separate product in and of itself. Depending on the intended utility, the animal feed grade oil can be an oil derived from raw oilseed or the edible organic oils may be derived from raw oilseed.”
Therefore, it would have been obvious to have a mix of undehulled(>60 mass percent shell content), partially dehulled(>0.3 mass percent and <20 mass percent) and totally dehulled(<1 mass percent shell content) depending on the use of the intended various food products.
Furthermore, see MPEP 2144.06 which states "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious); and In re Couvaras, 70 F.4th 1374, 1378-79, 2023 USPQ2d 697 (Fed. Cir. 2023) (That the two claimed types of active agents, GABA-a agonists and ARBs, were known to be useful for the same purpose—alleviating hypertension—alone can serve as a motivation to combine).
The applicant argues that Higgs does not teach a protein fraction with a residual oil content of <3 mass percent. However, Higgs teaches a protein fraction comprising less than 10% lipid(oil) content of(para 109).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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