DETAILED ACTION
EXAMINER’S REMARKS
The supplemental amendment response filed April 30, 2026 has been entered herein. The supplemental amendment response filed April 30, 2026 presents the same claim amendments as that of the previous claim amendment response filed April 15, 2026 and provides additional arguments with respect to the previous obviousness rejections under 35 USC 103(a).
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
Claim 22 is objected to because of the following informalities:
Claim 22 recites the limitation “the liquefied plant base feedstock” in line 3. It appears the claim should recite “the liquefied plant seed feedstock” in order to maintain consistency with “a liquefied plant seed feedstock” recited in Claim 17, line 6.
Appropriate correction is required.
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 34-37 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]). Herrmann- 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 keeping 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.).
Regarding Claim 35, Herrmann-Buerk et al. discloses the viscosity of the liquid mixture is significantly reduced by means of the facultative cold high pressure homogenization step with a corresponding reduction of viscosity to further process the liquid mixture to pump it through devices used even if the proportion by weight of protein is higher (‘529, Paragraph [0022]). Applicant discloses high pressure homogenization can be performed more easily since the liquefaction enables to lower the viscosity (Specification, Page 4, lines 12-15). Hammond discloses a process for stabilizing rice bran by deactivating naturally occurring lipases without denaturing the rice bran protein or otherwise altering its physical or chemical properties (‘537, Column 1, lines 46-50) wherein lipase enzyme has been deactivated and the resulting dried stabilized rice bran should have a long shelf life without deterioration (‘537, Column 7, lines 3-13) wherein lipase enzymes are used to partially hydrolyze triglycerides into mono and diglycerides and then deactivated by the addition of an antilipase enzyme or the application of heat (‘537, Column 6, lines 49-54). Applicant discloses hydrolytic breakdown of dietary fibers wherein breaking down dietary fibers reduces the viscosity of the mixture of seed feedstock and water (Specification, Page 14, lines 7-17). Therefore, the method of the combination of Vessio et al. modified with Hermann-Buerk et al. and Hammond necessarily reads on the step of liquefying the soaked plant seed feedstock under the action of the at least one enzyme lowering the viscosity of the soaked plant seed feedstock in view of applicant’s disclosure.
Regarding Claims 36-37, Vessio et al. modified with Hermann-Buerk et al. and Hammond is silent regarding the at least one enzyme being present at a concentration of about 0.5 kg/MT or about 1.0 kg/MT of plant feedstock. However, Hammond et al. discloses a rice bran containing protein having a naturally occurring lipase enzyme that causes rancidity is stabilized without denaturing the protein wherein an antilipase enzyme is selected which inactivates the naturally occurring lipase enzyme in the rice bran wherein the antilipase enzyme is provided in an amount effective to substantially inactivate the lipase enzyme in a period of time that is a function of the amount of water present in the mix which wet stabilized rice bran can be dried or processed into other products for use in the food industry (‘537, Column 1, lines 60-68) (‘537, Column 2, lines 1-5) (‘537, Column 3, lines 34-43). The claims recite a step of soaking a plant seed feedstock in water mixed with at least one enzyme without specifying any particular volumes of water used in the soaking 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 Vessio et al. and adjust the concentration of a generic at least one enzyme present in a plant seed feedstock in an unspecified volume of water since differences in the concentration of a generic enzyme in an unspecified volume of water will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such degree of concentration of a generic enzyme in an unspecified volume of water 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 the at least one enzyme that is generically recited in an amount effective to substantially inactive the enzyme that is a function of the amount of water present in the mix (‘537, Column 1, lines 60-68) (‘537, Column 2, lines 1-5) (‘537, Column 3, lines 34-43).
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 the liquefied plant base feedstock (‘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
Applicant’s arguments with respect to the indefiniteness rejection under 35 USC 112(b) pertaining to the limitation regarding reducing total dietary fiber content of the soaked plant seed feedstock by at least 7% to produce the liquefied plant seed feedstock enumerated in Paragraph 5 of the Non-Final Rejection mailed November 6, 2025 has been fully considered and are persuasive. Applicant argues on Page 5 of the Remarks that while the fiber is enzymatically degraded during the liquefying step, a 7% reduction in the total fiber content does not alter the total amount of the total components in the resulting feedstock or their degradation products and that the fiber is broken down via enzyme action but such degradation products of the enzymatically degraded fiber are not removed from the liquefied feedstock such that all of the original components of the plant seed including any corresponding degradation product remains within the feedstock. This argument is found persuasive and this particular limitation is clear in view of applicant’s explanation. This particular indefiniteness rejection of Claim 17 under 35 USC 112(b) has been withdrawn.
Examiner notes that the other previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that a new Claim Objection has been made in view of the amendments.
Applicant's arguments filed April 6, 2026 with respect to the previous obviousness rejections of Claim 17 under 35 USC 103(a) to Vessio et al. modified with Hermann-Buerk et al. and Hammond have been fully considered but they are not persuasive. It is noted that the response filed April 15, 2026 merely clarifies the status of canceled Claims 1-16 as being canceled. The response filed April 15, 2026 relies upon the arguments presented previously on April 6, 2026.
Applicant argues on Page 7 of the Remarks that Vessio relates the treating whole grain seeds with amylase, which is a starch degrading enzyme wherein starch is composed of amylose and amylopectin. Applicant contends that starch does not exhibit any hydrolytic activity towards dietary fibers as required by independent Claim 17 because dietary fibers is a structurally and chemically distinct category of plant polysaccharides distinct from amylose and amylopectin. Applicant contends that dietary fiber molecules are not broken down by digestive enzymes including amylases that degrade starch in the human digestive system.
Examiner argues Claim 17 recites a generic “at least one enzyme.” The claim does not specify any particular enzyme other than that the at least one enzyme has a hydrolytic activity that reduces total dietary fiber content of the soaked plant seed feedstock. The primary reference of Vessio et al. is not being relied upon to render obvious this particular limitation. The obviousness rejection is based on the primary reference of Vessio et al. modified with the secondary references of Hermann-Buerk et al. and Hammond. The secondary reference of Hammond is being relied upon to render obvious the limitations 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). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Applicant argues on Page 3 of the Remarks that Hammond relates to enzymatic conversion of starch in rice bran using amylases to produce dextrins and dextroses. Applicant contends that Hammond relates to a process of starch conversion and not dietary fiber reduction. Applicant asserts that starch and dietary fiber are different classes of polysaccharides degraded by different enzymes and produce different breakdown products and that amylase does not enzymatically degrade dietary fiber.
Examiner argues independent Claim 17 recites a generic “at least one enzyme” and does not specify any particular enzyme used. Applicant contends that starch and dietary fibers are different classes of polysaccharides degraded by different enzymes but the claims do not specify any particular enzymes that are used in the claimed process. With respect to applicant’s allegation that amylase does not enzymatically degrade dietary fiber, it is noted that dependent Claim 19 recites the at least one enzyme comprising one or more of amylase, lipase, β-glucanase, protease, and cellulase. 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. Where the claimed and prior art products are identically or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Furthermore, products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, it the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (MPEP § 2112.01.II.), i.e. the alpha amylase enzyme disclosed by the combination of Vessio et al. modified with Hermann-Buerk et al. and Hammond (‘537, Column 7, lines 7-21) would necessarily be capable of having a hydrolytic activity towards dietary fiber components of Vessio et al. (‘922, Paragraphs [0014] and [0022]) to reduce the total dietary fiber content of the soaked plant feedstock of Vessio et al. 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). Therefore, this argument is not found persuasive.
Applicant argues on Pages 8-9 of the Remarks that the claimed high pressure homogenization process carried out at a pressure of 800 to 3000 bar is distinct from the micronization process of Vessio such that there would be no reason to combine with Hermann-Buerk. Applicant contends that micronization is mechanistically different from high pressure homogenization and the instant specification distinguishes these processes as entirely separate steps. Applicant points to Page 14, lines 25-30 of the specification teaching an optional comminution step involving the use of rotor stator device or a pressure of up to 300 bar.. Applicant points to a Wikipedia entry to comminution that is a process involving the reduction of particle size from a larger particle size to a smaller particle size. Applicant also points to Page 14, lines 28-29 and Page 15, line 1 of the Specification disclosing the comminution step is performed at significantly lower pressures than the actual high pressure homogenization which high pressure homogenization can be preceded by a comminution process. Applicant contends that a person of ordinary skill in the art would understand that the step of comminution to be distinct process from high pressure homogenization performed at different pressures using different equipment. Applicant continues that the specification describes the claimed high pressure homogenization being ultra high pressure homogenization (UHPH) in which the feedstock is conveyed through a nozzle using at least one high pressure pump.
Examiner argues through understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim in view of Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). See also Liebel-Flarsheim Co. v. Medrad Inc., 358 F.3d 898, 906, 69 USPQ2d 1801, 1807 (Fed. Cir. 2004) (MPEP § 2111.01.II.). The claims do not recite a step of ultra high pressure homogenization or a nozzle or a high pressure pump. Applicant argues limitations that are not commensurate in scope with the claimed invention. Furthermore, 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]). Herrmann- 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.). With respect to applicant’s arguments pertaining to the inclusion of a micronization step of Vessio et al., it is noted that Claim 17 recites the transitional phrase “the method comprising,” which 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 a micronization step that is not claimed. Additionally, it is noted that the claims do not specify any particular size of the claimed components used. The claims also do not preclude a micronization step being conducted simultaneously with the homogenization step or for the micronization/communition to be a separate step from the homogenization step. Applicant argues limitations that are not commensurate in scope with the claimed invention. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 8-12 of the Remarks that the instant specification teaches the criticality of the claimed pressure range for carrying out the UHPH and carrying out the process outside of these ranges produces a different outcome such that it would not have been obvious to combine Vessio with Hermann-Buerk. Applicant provides a table of data of an analysis of a mixture of oat flour and water of Exemplary Embodiment 3 in which the oat content was 35 wt% through repeated homogenization and alleges that it is impossible with multiple passes through a two stage high pressure homogenizer to achieve a similar result as with the method according to the invention and that adequate comminution for a smooth mouthfeel and a particle size of less than 130 micrometers is only achieved at the higher pressures according to the invention. Applicant continues that Exemplary Embodiment 3 allegedly demonstrates that despite subjecting the sample to high pressure homogenization the same results cannot be achieved at a pressure of 300/50 bar and provides a table of data pertaining to 2000 bar, 2500 bar, and 3000 bar to produce wholegrain oat base products with a dry mass content of 35 wt% and a smooth texture in the mouthfeel wherein the sample produced at 3000 bar was preferred in the sensory evaluation and the highest viscosity and the best mouthfeel among the samples examined was achieved with a pressure of 2500 bar. Applicant continues that there would have been no reasonable expectation of success that the enzymatic reduction of dietary fiber would permit UHPH to be carried out to achieve a stabilized product that does not require the addition of stabilizer as well as achieve a product having desirable sensory properties that also retains the full nutritional value of the whole seed.
Examiner argues Claim 17 does not specify the plant seed feedstock to be oat flour or the oat content to be 35%. Applicant argues limitations that are not commensurate in scope with the claimed invention. With respect to applicant’s allegations of running experiments with a two stage high pressure homogenizer, the claims do not limit the high pressure homogenization step to be a single step. The transitional phrase “comprising” 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.). Claim 17 does not preclude the presence of multiple high pressure homogenization steps and also does not preclude the presence of additional stabilizers. Furthermore,
Herrmann- 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.). 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.). The data provided by applicant does not provide data below the claimed pressure range. Additionally, it is unknown how applicant quantifies the mouthfeel of the samples in the experiments. Therefore, the obviousness rejection has been maintained herein.
Examiner notes that applicant’s comments on Pages 12-14 with respect to Claims 21-27 does not specifically and distinctly point out the supposed errors of the Office Action.
Applicant's arguments in the supplemental amendment filed April 30, 2026 with respect to the previous obviousness rejections of Claim 17 under 35 USC 103(a) to Vessio et al. modified with Hermann-Buerk et al. and Hammond have been fully considered but they are not persuasive.
Applicant argues on Pages 7-8 of the Remarks that Vessio relates to a food product that lacks saccharose and gluten, which applicant contends fails to meet the claimed limitation that the method is performed without removing any components of the plant seeds so that the resulting plant seed base product consists of water and essentially all components of the plant seeds or their degradation products. Applicant continues that saccharose is another term for sucrose, which is found in plant seed. Applicant continues that Vessio discloses a base ingredient comprising cereal seeds selected from one or more of polished or wholegrain seeds, said base ingredient being in the form of a fluid or an anhydrous powder wherein the cereal seeds are gluten free cereal seeds and that a base ingredient of Vessio’s food product lacks the network of gliadin and glutenin found in cereal grains known as gluten.
Examiner argues Claim 17 recites a generic plant seed feedstock. Vessio discloses the base ingredient consisting of seeds derived from gluten free cereals such as amaranth and quinoa (‘922, Paragraph [0012]), which are examples of plant seed feedstock used by applicant (Specification, Page 8, lines 28-32) (Specification, Page 9, lines 1-4). Not all cereal grains naturally contain gluten. In fact, Kim et al. US 2019/0289870 discloses quinoa naturally has no gluten components and contains various minerals and vitamins including protein and dietary fiber (‘870, Paragraph [0023]) and amaranth is a gluten free grain having excellent effects on hypertension, diabetes, and hyperlipidemia (‘870, Paragraph [0024]). Kim et al. provides evidence that it was known in the food and beverage art that quinoa and amaranth are types of cereal grains that are naturally gluten free. Since Claim 17 recites a generic plant seed feedstock, the disclosure of Vessio of using a plant seed feedstock of a cereal grain of quinoa and/or amaranth, which is naturally gluten free as evidenced by Kim et al., reads on the claimed method being performed without removing any components of the plant seed since quinoa and amaranth naturally do not contain any gluten. Furthermore, Claim 17 recites “A method for producing a plant seed base product,” which encompasses intermediate food products and does not necessarily require the method to be used to make a food product in its final form. Vessio discloses the food products (in its final form) not containing substances that can be poorly tolerated by users suffering from certain intolerances such as saccharose (‘922, Paragraph [0004]). However, not all consumers have a saccharose intolerance. Vessio discloses the phrase “can be” and “such as,” which are specific embodiments of the final food product not having saccharose. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). Furthermore, Vessio discloses the base ingredient and/or the consequent food product can be made free from saccharose or other added sugars without the need to declare the presence of sweeteners in them (‘922, Paragraphs [0039]-[0040]). Vessio discloses the phrase “and/or,” which indicates an embodiment wherein the consequent food product is free of saccharose and wherein the base ingredient contains saccharose. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art including nonpreferred embodiments in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 9-10 of the Remarks that the combination of Vessio, Herrmann-Buerk, and Hammond fails to teach or suggest the instant claim limitation that at least one enzyme has 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 by at least 7%. Applicant asserts that Vessio relates to treating whole grain seeds with amylase which is a starch degrading enzyme and that starch is composed of amylose and amylopectin. Applicant argues that amylase does not exhibit any hydrolytic activity towards dietary fiber components as required by Claim 17 and that dietary fiber is resistant to enzymatic digestion by amylase and other starch degrading enzymes. Applicant continues that Hammond relates to a process of starch conversion and not dietary fiber reduction and that starch and dietary fiber are different classes of polysaccharides degraded by different enzymes and produce different breakdown products and that amylase does not enzymatically degrade dietary fiber.
Examiner argues independent Claim 17 recites a generic “at least one enzyme” and does not specify any particular enzyme used. Applicant contends that starch and dietary fibers are different classes of polysaccharides degraded by different enzymes but the claims do not specify any particular enzymes that are used in the claimed process. With respect to applicant’s allegation that amylase does not enzymatically degrade dietary fiber, it is noted that dependent Claim 19 recites the at least one enzyme comprising one or more of amylase, lipase, β-glucanase, protease, and cellulase. 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. Where the claimed and prior art products are identically or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Furthermore, products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, it the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (MPEP § 2112.01.II.), i.e. the alpha amylase enzyme disclosed by the combination of Vessio et al. modified with Hermann-Buerk et al. and Hammond (‘537, Column 7, lines 7-21) would necessarily be capable of having a hydrolytic activity towards dietary fiber components of Vessio et al. (‘922, Paragraphs [0014] and [0022]) to reduce the total dietary fiber content of the soaked plant feedstock of Vessio et al. 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). Therefore, this argument is not found persuasive.
Applicant argues on Pages 10-11 of the Remarks that the claimed high pressure homogenization process carried out at a pressure of 800 to 3000 bar is distinct from Vessio’s micronization process such that there would be no reason to combine with Herrmann-Buerk. Applicant contends that micronization is mechanistically different from high pressure homogenization and the instant specification distinguishes these processes as entirely separate steps. Applicant points to Page 14, lines 25-30 of the specification teaching an optional comminution step involving the use of rotor stator device or a pressure of up to 300 bar.. Applicant points to a Wikipedia entry to comminution that is a process involving the reduction of particle size from a larger particle size to a smaller particle size. Applicant also points to Page 14, lines 28-29 and Page 15, line 1 of the Specification disclosing the comminution step is performed at significantly lower pressures than the actual high pressure homogenization which high pressure homogenization can be preceded by a comminution process. Applicant contends that a person of ordinary skill in the art would understand that the step of comminution to be distinct process from high pressure homogenization performed at different pressures using different equipment. Applicant continues that the specification describes the claimed high pressure homogenization being ultra high pressure homogenization (UHPH) in which the feedstock is conveyed through a nozzle using at least one high pressure pump.
Examiner argues through understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim in view of Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). See also Liebel-Flarsheim Co. v. Medrad Inc., 358 F.3d 898, 906, 69 USPQ2d 1801, 1807 (Fed. Cir. 2004) (MPEP § 2111.01.II.). The claims do not recite a step of ultra high pressure homogenization or a nozzle or a high pressure pump. Applicant argues limitations that are not commensurate in scope with the claimed invention. Furthermore, 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]). Herrmann- 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.). With respect to applicant’s arguments pertaining to the inclusion of a micronization step of Vessio et al., it is noted that Claim 17 recites the transitional phrase “the method comprising,” which 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 a micronization step that is not claimed. Additionally, it is noted that the claims do not specify any particular size of the claimed components used. The claims also do not preclude a micronization step being conducted simultaneously with the homogenization step or for the micronization/communition to be a separate step from the homogenization step. Applicant argues limitations that are not commensurate in scope with the claimed invention. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 11-14 of the Remarks that the instant specification teaches the criticality of the claimed pressure range for carrying out the UHPH and carrying out the process outside of these ranges produces a different outcome such that it would not have been obvious to combine Vessio with Hermann-Buerk. Applicant provides a table of data of an analysis of a mixture of oat flour and water of Exemplary Embodiment 3 in which the oat content was 35 wt% through repeated homogenization and alleges that it is impossible with multiple passes through a two stage high pressure homogenizer to achieve a similar result as with the method according to the invention and that adequate comminution for a smooth mouthfeel and a particle size of less than 130 micrometers is only achieved at the higher pressures according to the invention. Applicant continues that Exemplary Embodiment 3 allegedly demonstrates that despite subjecting the sample to high pressure homogenization the same results cannot be achieved at a pressure of 300/50 bar and provides a table of data pertaining to 2000 bar, 2500 bar, and 3000 bar to produce wholegrain oat base products with a dry mass content of 35 wt% and a smooth texture in the mouthfeel wherein the sample produced at 3000 bar was preferred in the sensory evaluation and the highest viscosity and the best mouthfeel among the samples examined was achieved with a pressure of 2500 bar. Applicant continues that there would have been no reasonable expectation of success that the enzymatic reduction of dietary fiber would permit UHPH to be carried out to achieve a stabilized product that does not require the addition of stabilizer as well as achieve a product having desirable sensory properties that also retains the full nutritional value of the whole seed.
Examiner argues Claim 17 does not specify the plant seed feedstock to be oat flour or the oat content to be 35%. Applicant argues limitations that are not commensurate in scope with the claimed invention. With respect to applicant’s allegations of running experiments with a two stage high pressure homogenizer, the claims do not limit the high pressure homogenization step to be a single step. The transitional phrase “comprising” 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.). Claim 17 does not preclude the presence of multiple high pressure homogenization steps and also does not preclude the presence of additional stabilizers. Furthermore,
Herrmann- 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.). 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.). The data provided by applicant does not provide data below the claimed pressure range. Additionally, it is unknown how applicant quantifies the mouthfeel of the samples in the experiments. Therefore, the obviousness rejection has been maintained herein.
Examiner notes that applicant’s comments on Pages 14-17 with respect to Claims 21-27 does not specifically and distinctly point out the supposed errors of the Office Action.
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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/ERICSON M LACHICA/Examiner, Art Unit 1792
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