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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 29 December 2025 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-6, 8, 11-15, 17, 27, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (WO 2018075589 A1) in view of Wang et al. (herein referred to as Wang, CN 108967550 A) with evidentiary support from Smith (“Temperature and Speed for Bacterial Fermentation”) for Claim 14.
With regard to Claim 1, Zhang teaches a process for manufacturing a homogenized pea protein composition (abstract, [0006]) wherein the composition can be used in food such as dairy products ([00037]). Zhang teaches (i) providing a soluble-plant protein isolate in a dried form; (ii) preparing an aqueous solution of said plant protein isolate ([00010]). Zhang teaches (iii) high pressure homogenizing said solution wherein the operating temperature is from 10 to 70℃ ([0009]). Zhang teaches the high pressure homogenization effectively reduces the particle diameter of the pea protein composition consequently improving solubility ([00032]). Because Zhang teaches the high-pressure homogenization, as instantly claimed, and the resulting reduction in mean particle size, one with ordinary skill in the art would recognize that sedimentation and particle size are directly related. Meaning decreasing the size of the particle, in this case of the protein isolate, would decrease the protein sedimentation (See applicant’s specification [00134], “these results correlate with the decrease in particle size distribution) PSD after the HPH (high pressure homogenization) step since the stability of suspensions and emulsions is a function of the particle size). The composition taught by Zhang does not contain a stabilizer (whole document).
However, Zhang is silent to process steps (iv) and (v).
Wang teaches a process for the manufacturing of a homogenized emulsion for the preparation of a fermented dairy product-substitute ([0021]-[0022], Claim 9 Wang read such that the method uses soy protein isolate to produce a stirred yogurt). The process comprises providing a soluble- or partially soluble-plant protein concentrate/isolate in a dried form ([0012], [0023] Wang reads such that soy protein isolate is mixed with water to hydrate evenly. The isolate is prepared by an alkali-dissolution and acid-precipitation method which inherently would result in a dried product). Next, Wang teaches preparing an aqueous solution or dispersion of the plant concentrate/isolate ([0023] ). Wang teaches adding oil to the aqueous solution and mixing at high speed until completely emulsified, now referred to as the soy protein emulsion ([0023]). Wang teaches the soy protein emulsion is homogenized in a two-stage high pressure homogenization step with an preheat temperature of 40-50℃ ([0030]). Wang teaches sucrose can be added after the oil is emulsified with the protein isolate and before the high-pressure homogenization ([0023]).
Wang reads on the instant claims limitations of steps (i), (ii), (iv), and (v). With regard to step (iv) and (v) Wang reads such that the aqueous solution containing the oil is homogenized to form and emulsion ([0023]) and the emulsion of the oil and aqueous solution then undergoes high-pressure homogenizing ([0024], [0030]). Wang teaches this process is advantageous for the development of a room-temperature yogurt product ([0005]). Wang also teaches the high-stability room-temperature stirred yogurt adopts a high-concentration fermentation and post-dilution method, which has a better flavor and a more stable system than the yogurt prepared by direct low-concentration fermentation ([0034]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang to include steps (iv) and (v) taught by Wang to produce a product which has a better flavor and a more stable system.
With regard to Claim 2, Zhang teaches the plant protein isolate is a pea protein isolate ([00010]).
With regard to Claim 3, Zhang teaches the aqueous solution or dispersion is prepared by dissolving or dispersing said plant protein concentrate/isolate in water ([00023]).
With regard to Claims 4 and 5, Zhang teaches the concentration of plant protein in the homogenized emulsion is at least 30 wt% ([00021]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
With regard to Claim 6, Zhang is silent to the composition comprising oil.
Wang teaches the vegetable oil is one or a mixture of two or more of corn germ oil, olive oil, soybean oil, coconut oil and palm oil. ([0014]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang to include steps (iv) and (v) with one or a mixture of two or more of corn germ oil, olive oil, soybean oil, coconut oil and palm oil as taught by Wang to produce a room-temperature yogurt product.
With regard to Claims 8, Zhang is silent to the step the sugar is added.
Wang teaches sugar is added together with said oil in step (iv) ([0023])
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang to add sucrose together with the oil in step (iv) as taught by Wang to produce a room-temperature yogurt product.
With regard to Claim 11, Zhang teaches the high-pressure homogenization in step (iii) is carried out under a pressure of 5 MPa to 200 MPa ([00011]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
With regard to Claim 12, Zhang is silent to steps (iv) and (v) being carried out as a single step.
Wang teaches the steps of adding an oil to the high-pressure homogenized solution or dispersion, homogenizing the mixture to obtained an emulsion and high-pressure homogenizing said emulsion can be carried out in a single step ([0023], [0029]-[0030])
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang carry out steps (iv) and (v) as a single step as taught by Wang to produce a room-temperature yogurt product.
With Regard to Claim 13, Zhang is silent to steps (vi) and (vii).
Wang teaches step (vi) inoculating the high-pressure homogenized emulsion with a lactic acid bacteria ([0017], [0025]-[0026]) and step (vii) fermenting the inoculated high-pressure homogenized emulsion to obtain yogurt ([0033]-[0034]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang to include steps (vi) and (vii) to obtain yogurt.
With regard to Claim 14, Zhang is silent to (a)-(d).
Wang teaches the inoculated high-pressure homogenized emulsion is fermented at 42℃ for 6 hours ([0053]). Wang teaches the metabolites produced during the lactic acid bacteria fermentation process have unique nutritional value ([0005]) Smith teaches for lactic acid bacteria temperature range depends on the type of bacteria and fermentation. Thermophilic lactic acid bacteria for yogurt work best between 110 to 115℉ (43 to 46℃) (paragraph 5). Therefore, Wang teaches the inoculated high-pressure homogenized emulsion is fermented at a temperature, or temperature range, compatible with said lactic acid bacteria.
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang in view of Wang to inoculated high-pressure homogenized emulsion is fermented at 42℃ for 6 hours, which is compatible with the lactic acid bacteria, because teaches the metabolites produced during the lactic acid bacteria fermentation process have unique nutritional value.
With regard to Claim 15, Zhang teaches a process for manufacturing a homogenized pea protein composition (abstract, [0006]) wherein the composition can be used in food such as dairy products ([00037]). Zhang teaches (i) providing a soluble-plant protein isolate in a dried form; (ii) preparing an aqueous solution of said plant protein isolate ([00010]). Zhang teaches (iii) high pressure homogenizing said solution wherein the operating temperature is from 10 to 70℃ ([0009]). Zhang teaches the high pressure homogenization effectively reduces the particle diameter of the pea protein composition consequently improving solubility ([00032]). Because Zhang teaches the high-pressure homogenization, as instantly claimed, and the resulting reduction in mean particle size, one with ordinary skill in the art would recognize that sedimentation and particle size are directly related. Meaning decreasing the size of the particle, in this case of the protein isolate, would decrease the protein sedimentation (See applicant’s specification [00134], “these results correlate with the decrease in particle size distribution) PSD after the HPH (high pressure homogenization) step since the stability of suspensions and emulsions is a function of the particle size). The composition taught by Zhang does not contain a stabilizer (whole document).
However, Zhang is silent to process steps (iv), (v), (vi), and (vii).
Wang teaches a process for the manufacturing of a homogenized emulsion for the preparation of a fermented dairy product-substitute ([0021]-[0022], Claim 9 Wang read such that the method uses soy protein isolate to produce a stirred yogurt). The process comprises providing a soluble- or partially soluble-plant protein concentrate/isolate in a dried form ([0012], [0023] Wang reads such that soy protein isolate is mixed with water to hydrate evenly. The isolate is prepared by an alkali-dissolution and acid-precipitation method which inherently would result in a dried product). Next, Wang teaches preparing an aqueous solution or dispersion of the plant concentrate/isolate ([0023] ). Wang teaches adding oil to the aqueous solution and mixing at high speed until completely emulsified, now referred to as the soy protein emulsion ([0023]). Wang teaches the soy protein emulsion is homogenized in a two-stage high pressure homogenization step with an preheat temperature of 40-50℃ ([0030]). Wang teaches sucrose can be added after the oil is emulsified with the protein isolate and before the high-pressure homogenization ([0023]).
Wang reads on the instant claims limitations of steps (i), (ii), (iv), and (v). With regard to step (iv) and (v) Wang reads such that the aqueous solution containing the oil is homogenized to form and emulsion ([0023]) and the emulsion of the oil and aqueous solution then undergoes high-pressure homogenizing ([0024], [0030]). Wang teaches step (vi) inoculating the high-pressure homogenized emulsion with a lactic acid bacteria ([0017], [0025]-[0026]) and step (vii) fermenting the inoculated high-pressure homogenized emulsion to obtain yogurt ([0033]-[0034]).
Wang teaches this process is advantageous for the development of a room-temperature yogurt product ([0005]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang to include steps (iv) and (v) taught by Wang to produce a room-temperature yogurt product.
With regard to Claim 17, Zhang is silent to steps (vi) and (vii).
Wang teaches the manufacturing of a yogurt product ([0021]-[0022],). Wang teaches the steps of inoculating the high-pressure homogenized emulsion with a bacteria selected from the group consisting of Lactobacillus or Streptococcus ([0017] Wang reads such that the fermentation agent is one or a mixture of two or more of Lactobacillus bulgaricus, Streptococcus thermophilus, and Lactobacillus plantarum). Wang teaches fermenting the inoculated high-pressure homogenized emulsion to obtain said yogurt ([0052], [0053], [0059]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang to include steps (vi) and (vii) to obtain yogurt.
With regard to Claim 27, Zhang teaches the concentration of plant protein in the homogenized emulsion is at least 30 wt% ([00021]). Zhang teaches current pea protein products suffer from severe problems in terms of solubility and flavor ([0003]).
However, Wang teaches the concentration of plant protein in the homogenized emulsion is 1-6% ([0011]). Wang teaches
With regard to Claim 29, as shown in the rejection of Claim 14, Wang teaches the inoculated high-pressure homogenized emulsion is fermented at 42℃ for 6 hours ([0053]). Since claim 29 does not further limit the “inoculated high-pressure homogenized emulsion” which was optionally recited in claim 14 and has not been positively recited in Claim 29, the limitations of claim 29 are seen to have been met.
With regard to Claims 30-35, Zhang teaches the high-pressure homogenization in step (iii) is carried out under a pressure of 5 MPa to 200 MPa ([00011]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
Claims 7, 9, 10, 16, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (WO 2018075589 A1) in view of Wang et al. (herein referred to as Wang, CN 108967550 A) with evidentiary support from Smith (“Temperature and Speed for Bacterial Fermentation”) for Claim 14.
With regard to Claim 7, Zhang is silent to the sugar being added to the aqueous solution or dispersion obtained in step (ii) prior to step (iii).
Kizer teaches a method for producing a dairy yogurt analogue ([0021]) The first steps include blending the at least one carbohydrate component, the at least one lipid component, and the at least one refined protein component with a water component to produce a mixture ([0025]). The mixture is then heated and emulsified ([0026]). These steps read on the instant claim 1’s steps (ii) and (iii). Kizer teaches in some embodiments, one or more other ingredients are further added. In some such embodiments, the one or more other ingredients are added to the water component prior to mixing. In other embodiments, the one or more additional ingredients are added to the lipid and/or protein components or to the lipid, protein and water mixture ([0131]). Kizer further teaches other ingredients include sugar ([0251]). Advantageously, Kizer teaches additional ingredients improve one or more of the following characteristics: color, taste, and nutritional and other qualities ([0249]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang in view of Kizer to include sugar to improve one or more of the following characteristics: color, taste, and nutritional and other qualities ([0249]). In addition, Kizer imparts reasoning for obviousness because the teaching shows the step of sugar being added to an aqueous solution of plant protein concentrate/isolate prior to further treatment (this reads on instant claim 1’s step (ii)) to have been successfully achieved and published at the time of filing , which means it was within the general skill of one with ordinary skill in the art to add sugar to the aqueous solution prior to further treatment, because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claims 9 and 10, Kizer teaches in addition to sugar, other ingredients include health promoting compounds such as a probiotic ([0257]), prebiotics ([0267]), antioxidants ([0250]), lipophilic vitamins (Vitamin A, D, E, and K), and carotenoids ([0250], [0252]). Advantageously, Kizer teaches additional ingredients improve one or more of the following characteristics: color, taste, and nutritional and other qualities ([0249]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Zhang in view of Kizer to include a probiotic ([0257]), prebiotics ([0267]), antioxidants ([0250]), lipophilic vitamins (Vitamin A, D, E, and K), and/or carotenoids ([0250], [0252]) to improve one or more of the following characteristics: color, taste, and nutritional and other qualities ([0249]). In addition, Kizer imparts reasoning for obviousness because the teaching shows the step of a health promoting compound being added to an aqueous solution of plant protein concentrate/isolate prior to further treatment (this reads on instant claim 1’s step (ii)) to have been successfully achieved and published at the time of filing , which means it was within the general skill of one with ordinary skill in the art to add a health promoting compound to the aqueous solution prior to further treatment, because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 16, Zhang teaches (i) providing a soluble-plant protein isolate in a dried form; Zhang teaches the plant protein isolate is a pea protein isolate ([00010]). (ii) preparing an aqueous solution of said plant protein isolate ([00010]). Zhang teaches (iii) high pressure homogenizing said solution wherein the operating temperature is from 10 to 70℃ ([0009]). Zhang teaches the high-pressure homogenization in step (iii) is carried out under a pressure of 5 MPa to 200 MPa ([00011]). Zhang teaches the concentration of plant protein in the homogenized emulsion is at least 30 wt% ([00021]).
However, Zhang is silent to the oil added in step (iv).
Wang teaches the plant protein concentrate is prepared by dissolving or dispersing the plant protein concentrate/isolate in water ([0023]) in an amount such that the concentration of the protein is 6-8% ([0023]). ). Wang teaches adding vegetable oil to the aqueous solution and mixing at high speed until completely emulsified, now referred to as the soy protein emulsion ([0023]).
However, Wang is silent to the vegetarian oil being canola oil.
Kizer teaches suitable lipids include canola oil ([0108]).
Therefore, Kizer imparts reasoning for obviousness because the teaching shows that it was known to utilize pea protein isolate/concentrate and canola oil in their respective steps in the processes of making a yogurt beverage substitute. Using pea protein isolate/concentrate and canola oil had been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select these ingredients because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 28, Zhang is silent to the composition containing oil.
Wang teaches a composition with vegetable oil ([0014]) However, the reference is silent to the percent of oil in the composition.
Kizer teaches the milk product analogue may further include a lipid. In some embodiments, the milk product analogue comprises between 0% by weight and about 10% of a lipid. Kizer teaches suitable lipids include olive oil, soybean oil, coconut oil and palm oil ([0106]). Kizer teaches The amounts and ratios of the at least one lipid and at least one refined protein component are thereby selected to provide a desired nutritional profile ([0125]). During emulsification, by varying certain parameters the degree of emulsification can be achieved and thus the final texture of the emulsion can be controlled to a certain extent. Examples of such parameters include, but are not limited to, the type and/or amount of the lipid component ([0133]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Zhang and Wang in view of Kizer to include oil in an amount between 0-10% to provide the composition with the desired nutritional profile and assist in controlling the final texture of the emulsion. See MPEP 2144.05(I) which states In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. 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)
Response to Arguments
Applicant’s arguments with respect to claims 1 and 15 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. In this case, applicant amended claims 1 and 15 to state “and said homogenized emulsion does not contain a stabilizer”. As applicant pointed out in the remarks filed 12 December 2025, Wang teaches the emulsion requires a stabilizer. However, Zhang teaches a pea protein composition for the use in food products wherein a stabilizer is not required.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792