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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 15, 2025 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 17, 19-29, and 34 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 17 recites the limitation reduce total dietary fiber content of the soaked plant seed feedstock by at least 7% to produce the liquefied plant seed feedstock” in lines 10-12. Claim 17 also recites the limitation “so that the resulting plant seed base product consists of water and essentially all components of the plant seeds or their degradation products” in lines 17-18. It is unclear how the plant seed base product contains essentially all components of the plant seeds when the claim also requires a reduction of total dietary fiber content by at least 7%.
Claim 17 recites the limitation “high pressure homogenization at a pressure of at least 800 bar to 3000 bar” in lines 13-15. It is unclear if the claimed high pressure homogenization range encompasses pressures above 3000 bar by virtue of the phrase “at least 800 bar” or if the high pressure homogenization ranges is limited to pressures between 800 bar to 3000 bar. For purposes of examination Examiner interprets the claim to require a high pressure homogenization at a pressure of between 800 bar to 3000 bar.
Claim 22 recites the limitation “altering a pH value” in line 3. It is unclear what structures or components a pH value” is associated with.
Claim 29 recites the limitation “maintaining a temperature of the resulting plant seed base product in the range from 65°C to 95°C after high pressure homogenization of the liquefied plant seed feedstock for up to 50 minutes” in lines 2-4. It is unclear if the phrase “for up to 50 minutes” modifies the phrase “maintaining a temperature of the resulting plant seed base product in the range from 65°C to 95°C” or if the phrase “for up to 50 minutes” modifies the phrase “high pressure homogenization of the liquefied plant seed feedstock.”
Claim 34 recites the limitation “preferably smaller than 120 micrometers” in line 4. The phrase “preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Clarification is required.
Claims 19, 21, and 23-28 are rejected as being dependent on a rejected base claim.
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 17, 19, 28-29, and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Vessio et al. US 2013/0156922 in view of Herrmann-Buerk et al. US 2020/0100529 (cited on Information Disclosure Statement filed July 12, 2022) and Hammond US 5,292,537 (cited on Information Disclosure Statement filed July 12, 2022).
Regarding Claim 17, Vessio et al. discloses a method for producing a plant seed base product (base ingredient derived from cereals and/or legume seeds) (‘922, Paragraphs [0019]-[0021]). The method comprises soaking a plant seed feedstock in water (‘922, Paragraphs [0024] and [0028]) mixed with at least one enzyme (‘922, Paragraphs [0042]-[0043]). The plant seed feedstock comprises plant seeds (‘922, Paragraph [0019]) to produce a soaked plant seed feedstock (‘922, Paragraphs [0027]-[0028]). The soaked plant seed feedstock is liquefied (hydrolyzed) under the action of the at least one enzyme to produce a liquefied plant seed feedstock (‘922, Paragraph [0042]). The soaked plant seed feedstock comprises dietary fibers (‘922, Paragraphs [0028] and [0038]). The liquefied plant seed feedstock is subjected to high pressure treatment at a pressure of between 50 and 1500 bar for purposes of reducing the particle size of the seeds in a micronization step (‘169, Paragraph [0028]), which overlaps the claimed pressure ranges of between 800 bar and 3000 bar. Where the claimed pressure ranges for purposes of reducing particle size overlaps pressure ranges for purposes of reducing particle sizes 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.). Vessio et al. also discloses the plant seed base product (‘922, Paragraph [0001]) using whole grain seeds that keep the bran and the germ (‘922, Paragraphs [0014] and [0027]-[0028]), which whole grain seeds reads on the limitations regarding not removing any components of the plant seeds used so that the resulting plant seed base product consists of water (‘922, Paragraphs [0027]-[0028]) and essentially all components of the plant seeds or their degradation products (‘922, Paragraphs [0014] and [0042]).
Vessio et al. discloses a micronization step in which seeds are placed in water occurring at a pressure of between 50 and 1500 bar (‘922, Paragraph [0028]). However, Vessio et al. does not characterize the micronization step to be a homogenization step. Vessio et al. is also silent regarding the at least one enzyme having a hydrolytic activity of at least 7% towards dietary fiber components of the soaked plant seed feedstock for a time sufficient to reduce total dietary fiber content of the soaked plant seed feedstock by at least 7% to produce the liquefied plant seed feedstock.
Herrmann-Buerk et al. discloses a method for producing a plant seed base product (recipe component) (‘529, Paragraph [0017]). The method comprises soaking a feedstock (almond flour) in water (‘529, Paragraph [0046]) wherein the feedstock is derived from nut seeds to produce a soaked feedstock (‘529, Paragraph [0013]) wherein the feedstock comprises dietary fibers (‘529, Paragraph [0009]). Herrmmann- Buerk et al. further discloses subjecting the liquefied feedstock to high pressure homogenization at a pressure of between 100 bar and 3000 bar (‘529, Paragraph [0025]), which overlaps the claimed high pressure homogenization pressure range of 800 bar and 3000 bar.
Vessio et al. discloses a vegan food or beverage product (‘922, Paragraph [0056]) comprising a base ingredient being derived from nuts of peanuts (‘922, Paragraphs [0019]-[0020]). Herrmann-Buerk et al. also discloses a vegan food or beverage product (‘529, Paragraph [0006]). Both Vessio et al. and Herrmann-Buerk et al. are directed towards the same field of endeavor of vegan/milk substitute food and beverage products comprising a liquefied feedstock derived from nuts subjected to a high pressure that overlaps the claimed high pressure . It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Vessio et al. and utilize a high pressure processing parameter with the claimed pressure ranges in the context of a high pressure homogenization pressure conditions since Hermann-Buerk et al. teaches that the high pressure homogenization pressure ranges were known and conventional pressure ranges for reducing the particle sizes of food particles while homogenizing said food particles. Furthermore, where the claimed pressure ranges for purposes of reducing particle size overlaps pressure ranges for purposes of reducing particle sizes 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.).
Further regarding Claim 17, Vessio et al. discloses the liquefied plant seed feedstock mixture of wholegrain seeds being treated through an enzyme process using amylase treatments that hydrolyze the starches (‘922, Paragraphs [0042] and [0044]) wherein the wholegrain seeds keep the bran and are rich in fiber (‘922, Paragraphs [0014] and [0028]), which reads on the claimed at least one enzymes (amylase) having a hydrolytic activity towards dietary fiber components of the soaked plant seed feedstock. The seeds are derived from wholegrain rice seeds (‘922, Paragraphs [0017]-[0018]). However, Vessio et al. modified with Hermann-Buerk et al. is silent regarding the at least one enzyme having a hydrolytic activity of at least 7% towards dietary fiber components of the soaked plant seed feedstock for a time sufficient to reduce total dietary fiber content of the soaked plant seed feedstock by at least 7% to produce the liquefied plant seed feedstock.
Hammond discloses a method for enzymatically stabilizing rice bran and products produced from a stabilized and unstabilized rice bran (‘537, Column 1, lines 5-8) wherein the starch in the liquid phase can be converted into dextrins and dextroses by application of acid, heat, and/or amylases (‘537, Column 2, lines 6-14) until a desired extent of conversion is completed (‘537, Column 5, lines 31-38). Ohkuma et al. provides evidence that it was known in the food art that dextrin contains dietary fiber (‘652, Column 1, lines 6-10).
Both modified Vessio et al. and Hammond are directed towards the same field of endeavor of methods of processing food grains enzymatically using an enzyme and applying the process to rice bran. Although Hammond does not explicitly disclose the degree to which the at least one enzyme has a hydrolytic activity of at least 7% towards dietary fibers thereby reducing a total dietary fiber content of the plant seed feedstock by enzymatic liquefying by at least 7%, 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 Vessio et al. and have the enzyme have a hydrolytic activity towards dietary fibers within the claimed amount of at least 7% since differences in the degree of hydrolytic activity of a generic enzyme will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such degree of hydrolytic activity of a generic enzyme 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 hydrolytic activity towards dietary fibers of Vessio et al. to the desired extent of conversion (‘537, Column 5, lines 31-38).
Regarding Claim 19, Hammond discloses the at least one enzyme comprising amylase (‘537, Column 5, lines 7-21), lipase (‘573, Column 6, lines 39-54), and/or protease (‘537, Column 2, lines 60-68). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Vessio et al. that utilizes generic enzymes in the process and incorporate amylase, lipase, and/or protease as taught by Hammond since the selection of a known material 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). Hammond teaches that there was known utility in the food art to process milk and dairy substitutes using the claimed enzymes.
Regarding Claim 28, Hermann-Buerk et al. discloses maintaining a temperature of the resulting plant seed base product in the range of from between 72°C and 138°C after high pressure homogenization (‘529, Paragraph [0027]), which overlaps the claimed temperature maintenance after high pressure homogenization of the liquefied plant seed feedstock of from 65°C to 95°C, in order to form large rough almond protein agglomerates (‘529, Paragraph [0027]). The temperature is maintained at this level for a heat holding time of between 30 seconds and 25 minutes (‘529, Paragraph [0027]), which falls within the claimed high pressure homogenization time of up to 50 minutes. Where the claimed maintenance temperature after homogenization and holding times overlaps maintenance temperature after homogenization and holding times 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 maintenance temperature after homogenization and holding time will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such maintenance temperature and holding time 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 maintenance temperature after homogenization in order to form large rough protein agglomerates.
Regarding Claim 29, Hermann-Buerk et al. discloses the pressure during the high pressure homogenization being between 100 bar and 3000 bar (‘529, Paragraph [0025]), which overlaps the claimed high pressure homogenization pressure range of 2000 bar and 3000 bar.
Vessio et al. discloses a vegan food or beverage product (‘922, Paragraph [0056]) comprising a base ingredient being derived from nuts of peanuts (‘922, Paragraphs [0019]-[0020]). Herrmann-Buerk et al. also discloses a vegan food or beverage product (‘529, Paragraph [0006]). Both Vessio et al. and Herrmann-Buerk et al. are directed towards the same field of endeavor of vegan/milk substitute food and beverage products comprising a liquefied feedstock derived from nuts subjected to a high pressure that overlaps the claimed high pressure. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process of Vessio et al. and utilize a high pressure processing parameter with the claimed pressure ranges in the context of a high pressure homogenization pressure conditions since Hermann-Buerk et al. teaches that the high pressure homogenization pressure ranges were known and conventional pressure ranges for reducing the particle sizes of food particles while homogenizing said food particles. Furthermore, where the claimed pressure ranges for purposes of reducing particle size overlaps pressure ranges for purposes of reducing particle sizes 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.).
Regarding Claim 34, Vessio et al. discloses the particles being micronized to a size of less than about 27 microns (‘922, Paragraph [0028]), which falls within the claimed particles included in the resulting plant seed base product being occupied by particle which are smaller than 130 micrometers. Hermman-Buerk et al. also discloses the particles having a particle size distribution of between 10 microns and 44 microns (‘529, Paragraph [0025]), which indicates that a majority of the volume of particles in the resulting plant seed base product occupied by particles are smaller than 130 micrometers. It would have been obvious to one of ordinary skill in the art at the time of the invention to use high pressure processing parameters that reduces the particle sizes of the food particles to the claimed particle sizes since Vessio et al. and Hermann-Buerk et al. both teach that using high pressure processing were known and conventional pressure ranges for reducing the particle sizes of food particles to the claimed particle sizes. Furthermore, where the claimed particle size range overlaps particle size 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.).
Claims 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Vessio et al. US 2013/0156922 in view of Herrmann-Buerk et al. US 2020/0100529 (cited on Information Disclosure Statement filed July 12, 2022) and Hammond US 5,292,537 (cited on Information Disclosure Statement filed July 12, 2022) as applied to claim 17 above in further view of Nelson et al. US 4,041,187.
Regarding Claim 21, Vessio et al. discloses processing soybeans (‘922, Paragraph [0020]). However, Vessio et al. modified with Herrmann-Buerk et al. and Hammond is silent regarding deactivating the at least one enzyme before the high pressure homogenization of the liquefied plant seed feedstock.
Nelson et al. discloses a method for producing a plant seed base product (soybean dispersion beverage base) (‘187, Column 12, lines 64-68). The method comprises soaking a plant seed feedstock (soybean) in water mixed with at least one enzyme wherein the plant seed feedstock comprises plant seeds (soybean) to produce a soaked plant seed feedstock (ground slurry of soybeans), liquefying the soaked plant seed feedstock under the action of the at least one enzyme to produce a liquefied plant seed feedstock (‘187, Column 10, lines 7-35), and subjecting the liquefied plant seed feedstock to high pressure homogenization (‘187, Column 11, lines 1-20). Nelson et al. further discloses deactivating the at least one enzyme before the high pressure homogenization of the liquefied plant seed feedstock (‘187, Column 4, lines 6-26).
Both modified Vessio et al. and Nelson et al. are directed towards the same field of endeavor of methods of processing soybean. 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 Vessio et al. and deactivate the at least one enzyme before the high pressure homogenization of the liquefied plant seed feedstock as taught by Nelson et al. in order to prevent off flavor and off odor of the final product (‘187, Column 5, lines 29-39) (‘187, Column 7, lines 23-44).
Regarding Claim 22, Nelson et al. discloses the deactivating the at least one enzyme being achieved by heating (‘187, Column 7, lines 23-44).
Regarding Claims 23-24, Nelson et al. discloses the deactivating being performed at about a boiling temperature for a duration of about 20 to 40 minutes (‘187, Column 7, lines 23-44), which falls within the claimed enzyme deactivation duration of up to one hour. The disclosure of the deactivating temperature occurring at about a boiling temperature of water reads on the claimed the deactivating being performed at temperatures of up to one hour. Where the claimed enzyme deactivation time and temperature ranges overlaps enzyme deactivation time and temperature 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.).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Vessio et al. US 2013/0156922 in view of Herrmann-Buerk et al. US 2020/0100529 (cited on Information Disclosure Statement filed July 12, 2022), Hammond US 5,292,537 (cited on Information Disclosure Statement filed July 12, 2022) and Nelson et al. US 4,041,187 as applied to claim 22 above in further view of Carder et al. US 2019/0233864.
Regarding Claim 22, Nelson et al. discloses the deactivating of the at least one enzyme being achieved by heating (‘187, Column 7, lines 54-61). However, Vessio et al. modified with Herrmann-Buerk et al., Hammond, and Nelson et al. is silent regarding the deactivating being achieved also by altering a pH value.
Carder et al. discloses a food composition comprising a hydrolyzed composition (‘864, Paragraph [0041]) comprising a fiber hydrolysis catalyzing enzyme or a starch hydrolysis catalyzing enzyme (alpha-amylase) (‘864, Paragraph [0097]) comprising deactivating a second enzyme of alpha-amylase (‘864, Paragraph [0095]) by heating (‘864, Paragraph [0122]) or by altering a pH value (by adding an acid) (‘864, Paragraph [0123]). Hammond discloses a method for enzymatically stabilizing rice bran and products produced from a stabilized and unstabilized rice bran (‘537, Column 1, lines 5-8) wherein the starch in the liquid phase can be converted into dextrins and dextroses by application of acid, heat, and/or amylases (‘537, Column 2, lines 6-14).
Modified Vessio et al., Carder et al., and Hammond are all directed towards the same field of endeavor of methods of deactivating at least one enzyme of a food composition containing enzyme. 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 Vessio et al. and deactivate the at least one enzyme by altering a pH value as taught by Carder et al. or by enzymatic hydrolysis resulting in converting starches into dextrins by application of acid, heat, and/or amylases as taught by Hammond since the simple substitution of one known element (using only heating to inactivate enzymes) for another (using both heating and altering pH values to inactivate enzymes) to yield predictable results (to inactivate enzymes) is prima facie obvious (MPEP § 2143.I). Hammond discloses one method known in the art includes enzymatic conversion of grains in the form of rice bran by application of acid, heat, and/or amylases (‘537, Column 2, lines 6-14).
Claims 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Vessio et al. US 2013/0156922 in view of Herrmann-Buerk et al. US 2020/0100529 (cited on Information Disclosure Statement filed July 12, 2022), Hammond US 5,292,537 (cited on Information Disclosure Statement filed July 12, 2022), and Nelson et al. US 4,041,187 as applied to claim 22 above in further view of Triantafyllou US 2002/0081367 or alternatively Claims 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Vessio et al. US 2013/0156922 in view of Herrmann-Buerk et al. US 2020/0100529, Hammond US 5,292,537 (cited on Information Disclosure Statement filed July 12, 2022), Nelson et al. US 4,041,187, and Carder et al. US 2019/0233864 as applied to claim 22 above in further view of Triantafyllou US 2002/0081367.
Regarding Claim 25, Vessio et al. modified with Herrmann-Buerk et al., Hammond, and Nelson et al. or alternatively Vessio et al. modified with Herrmann-Buerk et al., Hammond, Nelson et al., and Carder et al. is silent regarding adjusting the pH value in the range from 3 to 5 prior to heating.
Triantafyllou discloses a method for producing a plant seed base product comprising the steps of mixing water with at least one enzyme and soaking a plant seed feedstock in the water (‘367, Paragraphs [0058] and [0082]). The plant seed feedstock comprises plant seeds (oat grain cereals) (‘367, Paragraph [0054]). The soaked plant seed feedstock is liquefied under the action of the at least one enzyme to produce a liquefied plant seed feedstock (‘367, Paragraphs [0058]-[0060]). The liquefied plant seed feedstock mixture (cereal meal suspension) is treated with beta-amylase in a first enzyme treatment step that generates maltose units and then the resulting suspension is treated with alpha-amylase in a second enzyme treatment step to generate maltose units (‘367, Paragraph [0085]) and using enzymatic hydrolysis of constituents in a cereal substrate suspension (‘367, Paragraph [0049]), which reads on the claimed at least one enzymes (amylase) having a hydrolytic activity towards dietary fibers. The liquefied plant feedstock is high pressure homogenized (‘367, Paragraph [0096]). Triantafyllou also discloses the pH value being adjusted to 4.7 (‘367, Paragraph [0070]), which falls within the claimed pH range of from 3 to 5.
Vessio et al. discloses processing oats (‘922, Paragraph [0011]). Both modified Vessio et al. and Triantafyllou are directed towards the same field of endeavor of methods of processing oats using high pressure conditions. 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 Vessio et al. and adjust the pH value to the claimed pH range of 3 to 5 as taught by Triantafyllou since where the claimed pH ranges overlaps pH 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, 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.). Enzymes extracted from different sources may catalyze the same reaction at different pH conditions (‘367, Paragraph [0070]). The claims do not specify any particular enzyme for the deactivating step. Additionally, Hammond discloses the starch in the liquid phase can be converted into dextrins and dextroses by application of acid, heat, and/or amylases (‘537, Column 2, lines 6-14).
Further regarding Claim 25, Vessio et al. modified with Herrmann-Buerk et al., Hammond, Nelson et al., and Triantafyllou or alternatively Vessio et al. modified with Herrmann-Buerk et al., Hammond, Nelson et al., Carder et al., and Triantafyllou is silent regarding the pH adjustment step being conducted prior to the heating step. However, claims directed towards a process that reverses the order of the prior art process steps is prima facie obvious in view of Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (MPEP § 2144.04.IV.C.).
Regarding Claim 26, Triantafyllou discloses the pH value being adjusted to 7.5 (‘367, Paragraph [0070]), which falls within the claimed pH range of from 6 to 8. 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 Vessio et al. and adjust the pH value since where the claimed pH ranges overlaps pH 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, 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.). Enzymes extracted from different sources may catalyze the same reaction at different pH conditions (‘367, Paragraph [0070]). The claims do not specify any particular enzyme for the deactivating step. Additionally, Hammond discloses the starch in the liquid phase can be converted into dextrins and dextroses by application of acid, heat, and/or amylases (‘537, Column 2, lines 6-14).
Further regarding Claim 26, Vessio et al. modified with Herrmann-Buerk et al., Hammond, Nelson et al., and Triantafyllou or alternatively Vessio et al. modified with Herrmann-Buerk et al., Hammond, Nelson et al., Carder et al., and Triantafyllou is silent regarding the pH adjustment step being conducted following the heating step. However, claims directed towards a process that reverses the order of the prior art process steps is prima facie obvious in view of Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (MPEP § 2144.04.IV.C.).
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Vessio et al. US 2013/0156922 in view of Herrmann-Buerk et al. US 2020/0100529 (cited on Information Disclosure Statement filed July 12, 2022) and Hammond US 5,292,537 as applied to claim 17 above in further view of Kim et al. US 2019/0289870.
Regarding Claim 27, Vessio et al. modified with Herrmann-Buerk et al. and Hammond is silent regarding a separate step of comminuting the plant seed feedstock and/or comminuting the liquefied plant seed feedstock before the step of high pressure homogenization of the liquefied plant seed feedstock.
Kim et al. discloses a method for producing a plant seed base product comprising soaking a plant seed feedstock in water mixed with at least one enzyme to produce a soaked plant seed feedstock and liquefying the soaked plant seed feedstock under the action of the at least one enzyme to produce a liquefied plant seed feedstock, comminuting the plant seed feedstock before high pressure homogenization of the liquefied plant seed feedstock (‘870, Paragraph [0048]).
Both modified Vessio et al. and Kim et al. are directed towards the same field of endeavor of methods of making milk/dairy substitutes using enzymes. 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 Vessio et al. and incorporate a step of comminuting the plant seed feedstock before the high pressure homogenization step since Kim et al. teaches that it was known and conventional in the food art to process a milk/dairy substitute for milk using a comminuting step before the high pressure homogenization step.
Response to Arguments
Examiner notes that the previous Claim Objections have been withdrawn in view of the amendments.
Examiner notes that the previous rejections under 35 USC 112(d) have been withdrawn in view of the amendments.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of Claims 17, 19, 21-29, and 34 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The claims have been amended to recite the new limitations “so that the resulting plant seed base product consists of water and essentially all components of the plant seeds or their degradation products,” which are newly presented limitations not previously considered which necessitated the new combination of references. It is noted that a different pressure range disclosed in Vessio et al. than that relied upon by Examiner in the previous rejection is currently being relied upon in the current rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Bezelgues et al. US 2020/0367521 discloses a method of making a creamer composition comprising dissolving ingredients in hot water under agitation, sterilizing the composition using ultra high temperature (UHT) treatment, homogenizing the composition at a total pressure ranging from 135-300 bars and a temperature ranging from 65 to 80°C wherein homogenization is performed before UHT treatment, after UHT treatment, or before and after UHT treatment sterilizing at UHT conditions at 136-150°C for 3-30 seconds, cooling the obtained beverage creamer base product to 25°C or below and filling aseptically UTH beverages in aseptic containers (‘521, Paragraph [0012]).
Stiles et al. US 2022/0079187 discloses a method of making a non-dairy analog and beverage with deamidated plant proteins wherein emulsification is aided by higher amounts of mechanical energy in a 1 or 2 stage homogenizer between about 1000 psi and about 10000 psi or microfluidic homogenization between about 500 and about 2000 bar resulting in an average droplet size emulsion wherein at least about 75% of the droplets have a diameter of less than about 10µm (‘187, Paragraph [0113]) wherein the non-dairy analog is sterilized or pasteurized to kill more than 95% of microbes and pasteurized by heating to a temperature of between about 280 and about 306°F and held for a period of time of about 1 and about 10 seconds (‘187, Paragraph [0115]).
Kizer et al. US 2019/0000112 discloses a food product derived substantially from or wholly from non-animal sources for dairy like food products and/or other analogous food products (‘112, Paragraph [0002]) wherein emulsification occurs without additional mechanical energy wherein nanoemulsions are obtained by homogenizing in a microfluidizer or other suitable equipment to induce emulsification in a 1 or 2 stage homogenizer using microfluidic homogenization between about 500 and about 2000 bar wherein the average droplet size of the resulting emulsion has at least about 75% of the droplets having a diameter of less than about 10 µm wherein emulsification is performed at between about 90° and 120°C (‘112, Paragraph [0123]) wherein the dairy milk analog is sterilized or pasteurized (‘112, Paragraph [0125]).
Bringe US 2017/0156360 discloses an almond based food product (‘360, Paragraph [0001]) that is a homogenized product exposed to a maximum homogenization pressure of any suitable maximum pressure wherein an ultrahigh homogenization pressure (UHP) is used in which product is exposed to a maximum homogenization pressure of approximately 25000 psi which UHP exposes the product to provide stabilizing properties to the product in a manner similar to some hydrocolloids (‘360, Paragraph [0036]).
Simpson US 2013/0202741 discloses a homogenizer that reduces particle size to maintain the particle distribution and improve mouthfeel wherein homogenization occurs under ultra high pressure (UHP) homogenization at pressures greater than 20000 psi wherein the product is homogenized prior to and/or after pasteurization (‘741, Paragraph [0020]).
McCready US 2011/0064862 discloses a non-dairy nut based milk (‘862, Paragraph [0002]) made using ultrahigh homogenization pressure (UHP) of approximately 25000 psi to provide stabilizing properties to the product in a manner similar to some hydrocolloids wherein the UHP processing is substantially or entirely free of hydrocolloids (‘862, Paragraph [0031]).
Eibel US 2009/0041920 discloses ultra high pressure (UHP) homogenizing methods are used for manufacturing stable oil/water emulsions and for dissipating fat aggregates to obtain small fat particles (‘920, Paragraph [0002]).
Tewnion et al. US 2012/0040056 discloses a non-dairy coconut based beverage (‘056, Paragraph [0001]) made by an ultrahigh homogenization pressure (UHP) of approximately 25000 psi to provide stabilizing properties to the product in a manner similar to some hydrocolloids wherein UHP processing is substantially or entirely free of hydrocolloids (‘056, Paragraph [0032]).
Mahler et al. US 2022/0071224 discloses a method for producing cream cheese like vegan food products of a particle suspension based on nuts and/or seeds (‘224, Paragraph [0001]) comprising a high pressure homogenization step at a pressure of between 100 bar and 3000 bar using a microfluidizer (‘224, Paragraph [0065]) in a one stage homogenization (‘224, Paragraph 0064]) and heating before and/or during mechanical processing at a temperature from between 65°C and 140°C to cause a viscosity increase of at least 100% (‘224, Paragraph [0060]).
Singh et al. US 2013/0115258 discloses a method of making a food emulsion (‘258, Paragraph [0001]) comprising heating a mixture of an MPC dispersion and palm oil to 60°C and then homogenizing in a microfluidizer at a pressure of 300 MPa to form a nanoemulsion wherein nanoemulsion droplets are in the range of 50 to 200 nm average diameter (‘258, Paragraph [0125]).
Bouwens et al. US 2020/0037628 a water in oil emulsion comprising plant tissue (‘628, Paragraph [0001]) wherein the plant material is heated than subjected to shear and high pressure homogenization and microfluidizing at a high pressure homogenization pressure of 100-2000 bar and a microfluidizer pressure of 500-2000 bar (‘628, Paragraphs [0194]-[0196]) wherein homogenization of the heated plant material ensures that most of the cells walls are ruptured and that water soluble components are easily removed during a washing step (‘628, Paragraph [0200]).
Desai et al. US 6,749,868 discloses a microfluidizer is a high pressure homogenization machine wherein a product passes through an interaction chamber or a homogenizing valve which channels the product through narrow orifices with tortuous paths of 10 microns to 2000 microns to provide high levels of shear to break down particle size.
Antinone et al. US 5,681,600 discloses microfluidization is an alternative to traditional homogenization which utilizes the collision of two product streams at high pressures to produce a more uniform particle size distribution and smaller average particle diameter of about 156 nm for the blend containing soy polysaccharide.
Dionisi et al. US 2022/0039417 discloses a vegan food composition without discarding any nutrients of dietary fibers wherein the vegan food composition comprises legume and non-legume seeds or non legume nuts (‘417, Paragraphs [0010]-[0011]) comprising mixing chickpea and sunflower seeds, milling the dry mixture to a D90 less than 1000 microns, diluting the mixture in water and adding alpha amylase enzyme for 15 minutes at 80°C followed by a deactivation step at 135°C for at least 80 seconds, ball milling the mixture to get a D90 lower than 80 microns (‘417, Paragraphs [0089]-[0092]), carrying out a homogenization step, and heat treating to at least 107°C for at least 38 seconds (‘417, Paragraphs [0094]-[0095]).
Valdez et al. US 2013/0259973 discloses a beverage supplemented with hydrolyzed whole grain (‘973, Paragraph [0001]) comprising spray dried hydrolyzed whole grain from whole oat, skim milk, and fruit juice (‘973, Paragraph [0150]) wherein hydrolysis results in a reduction of the viscosity of the mixture wherein when the whole grain hydrolysate has reached a viscosity in a range between 50 and 5000 mPas the enzymes are inactivated by heating the hydrolysate at a temperature above 100°C by steam injection at 120°C (‘973, Paragraph [0129]).
Korstad et al. US 2020/0297014 discloses a method of making a food and beverage paste derived from nuts, seeds, or grains comprising the use of a cutter followed by a shear mixer followed by homogenizing in a homogenizer mill to reduce the mean particle size of the nut paste (‘014, Paragraph [0026]).
Sudo et al. US 4,902,526 discloses a method of processing high fat soybean milk comprising the steps of grinding soybean in a primary grinding step to obtain a slurry and then homogenizing the slurry using a high pressure homogenizer.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and which has been previously cited in a prior Notice of References cited 892 form.
Alting et al. US 2018/0020695 discloses a method of making proteins used in commercial food or feed products for use in a dispersion (‘695, Paragraph [0004]) wherein plant proteins have an improved dispersibility in an aqueous fluid (‘695, Paragraph [0006]) and to replace milk protein fully or partly (‘695, Paragraph [0017]) wherein pressurization typically results in a particle size reduction of the particles comprising the plant protein wherein the intermediate dispersion usually has a pH above 5 (‘695, Paragraph [0052]) and pressurization of the intermediate dispersion is carried out in a homogenizer of a microfluidizer at a pressure of 250 MPa or less (‘695, Paragraph [0053]) at a temperature starting at about ambient temperature or at a higher or lower temperature and treated at a temperature less than 100°C such as between 40-90°C (‘695, Paragraph [0055]) wherein an enzyme is heat inactivated after 5 hours by heating the dispersion at 90°C for 10 minutes (‘695, Paragraph [0138]).
Savino US 2019/0344233 discloses a process of making a food and beverage product comprising mixing dehydrated oats with oil and milling to a particle size of 1 to 60 microns wherein the oats and oil mix forms a viscous colloidal substance of a substance with viscosity and consistency of peanut butter of paint wherein the size of the milled particles is selected to produce a shelf stable colloid, i.e. a colloid that maintains consistency and the oats and oil do not separate (‘233, Paragraph [0122]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792