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 .
This office action was written in response to the Applicants Remarks filed 4/20/26. Claims 1, 4-10, 12, 14-17, 18-24 are pending in this action. Claims 2, 3, 11, and 13 were previously cancelled. New claims 18-24 have been added. Claims 1, 4-10, 12, 14-24 are rejected.
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, 4-7, 9, 10, 12, 14-23 are rejected under 35 U.S.C. 103 as being unpatentable over Vlasie et al. (WO 2019/234137) in view of Nielsen et al. (US 5,989,600) and Vlasie et al. (WO 2019/233920) “Vlasie 2”.
Regarding Claims 1, 14, and 15: Vlasie discloses a method of improving the properties of plant protein by treating the plant protein with peptidyl arginine deiminase (PAD) [abstract; pg. 4, lines 34-38; pg. 6, lines 25-34]. Vlasie discloses incubating a solution containing plant protein in the form of a plant meal with PAD and that the PAD can be added at any point in the production of plant protein isolate [pg. 8, lines 20-35; pg. 9, lines 1-6]. Vlasie discloses phytase added at step v) [pg. 9, lines 34-36]. Vlasie discloses a food comprising plant protein in the form of a drink [pg. 4, lines 3-6; pg. 7, lines 24-27]. Vlasie discloses that the plant protein is rapeseed [abstract]. Vlasie discloses improving taste and mouthfeel [pg. 2, lines 29-32].
However, Vlasie also discloses pea protein and rapeseed as suitable alternative plant protein sources to soybean protein due to potential dietary intolerance to soybean protein. It would have been obvious to one of ordinary skill in the art to utilize pea protein in the alternative to rapeseed protein since both are disclosed as suitable alternatives to soy and further since Vlasie discloses an example of precipitating pea protein and that it is also suitable for rapeseed protein processing [pg. 9, lines 26-29].
Vlasie does not disclose wherein the phytase is added in an amount of at least 2 FTU per gram of pea protein, wherein one FTU is the activity of phytase that generates 1 µmol of inorganic phosphorus per minute from an excess of sodium phytate at pH 5.5 and 37° C.
Vlasie does not disclose wherein the phytase is added in an amount of 2 FTU to 20 FTU per gram of plant protein (claim 14); wherein the phytase is added in an amount of 20 FTU per gram of plant protein (claim 15).
Nielsen discloses treating plant/vegetable protein with phytase [abstract]. Nielsen discloses the improvement of solubility and improved hydrolysis of the protein as an effect of the enzyme on the protein [abstract; col. 2, lines 13-18]. Nielsen discloses pea protein, soybean, faba bean and rapeseed protein as desirable substrates [col. 2, lines 42-52]. Nielsen discloses suspending the vegetable protein in water before treating with the enzymes [col. 3, lines 17-22]. Nielsen discloses that the phytase is added at 2 to 50,000 FYT/kg of vegetable protein (.002 to 50U/g FYT of vegetable protein) [col. 4, lines 40-44]. Nielsen discloses that the activity of One Phytase Unit (FYT) is defined as the amount of enzyme which under standard conditions (i.e. at pH 5.5, 37°C, 5.0mM sodium phytate as a substrate) liberates 1 µmol of phosphate per minute [col. 7, lines 35-40].
“Vlasie 2” discloses PAD applied to pea protein solution [pg. 4, lines 15-36; pg. 6, lines 1-8, 21-27; claims 1-4, and 14]. “Vlasie 2” discloses using PAD to modify sweetness, licorice, astringency, powdery, fullness, thickness or digestibility of protein powder [abstract; claim 14]. “Vlasie 2” discloses in addition to pea protein, soy protein and rapeseed protein [pg. 6, lines 21-27].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Vlasie to include the phytase at amounts as in Nielsen since these amounts are shown to provide a desired effect (increased solubility and improved hydrolysis) in vegetable proteins including pea proteins. It would have been obvious to utilize phytase having an activity as in Nielsen since it is a standard activity for phytase and would have been expected to provide enough enzyme activity in the desired dose to provide the desired effect when applied to protein.
Alternatively, regarding the subjection of pea protein to PAD, it would have been obvious to one of ordinary skill in the art to modify the method of Vlasie to include pea protein as in “Vlasie 2” since “Vlasie 2” discloses rapeseed, soy and pea protein as suitable alternatives and since Vlasie itself acknowledges pea protein as a suitable alternative to soy protein along with rapeseed.
Alternatively, regarding the inclusion of phytase in the treatment of the pea protein it would have been obvious to include phytase with the PAD hydrolysis since Nielsen discloses that phytase improves the solubility and the hydrolysis of vegetable proteins including pea proteins.
Regarding the amount of phytase in claims 1, 14 and 15, although Nielsen does not explicitly disclose at least 2 FTU/g pea protein one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Nielsen overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 4: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses modifying astringency and thickness [pg. 4, lines 34-38].
Regarding Claim 5: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses improving flavor by reducing undesirable sensory attributes [pg. 3, lines 10-15; pg. 5, lines 30-38].
Regarding the reduction of pea flavor, claim 5 is a recitation of the intended use of the claimed invention and in order to patentably distinguish the claimed invention from the prior art, the recitation must result in a structural difference between the claimed invention and the prior art. MPEP 2103 states that intended use language "does not limit a claim to a particular structure does not limit the scope of a claim". The above mentioned phrase does not limit the claim to any particular structure, so it is not interpreted to limit the scope of the claims. If the prior art structure is capable of performing the intended use, then it meets the claim. Vlasie discloses that undesirable sensory attributes are reduced which improve the flavor and therefore Vlasie can be said to reduce flavor especially where the protein is to be used as a beverage.
Regarding Claim 6: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses rapeseed protein isolate solutions and aqueous protein powder suspensions before treatment with enzymes [pg. 8, lines 8-15; pg. 8, lines 20-27]. Nielsen also discloses suspending the vegetable protein in water before treating with the enzymes [col. 3, lines 17-22].
Regarding Claim 7: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses incubating a solution containing plant protein in the form of a plant meal with PAD and that the PAD can be added at any point in the production of plant protein isolate [pg. 7, lines 15-20; pg. 8, lines 20-35; pg. 9, lines 1-6]. Vlasie discloses phytase added at step v) which is after the addition of PAD [pg. 9, lines 34-36].
Regarding Claim 9: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses a drink having a neutral or acidic pH [pg. 7, lines 24-27].
Regarding Claim 10: Vlasie as modified discloses as discussed above in claim 1 and the rejection of claim 10 incorporates the rejection of claim 1 above. Vlasie discloses a drink comprising a treated plant protein [pg. 4, lines 3-6; pg. 7, lines 24-27]. Vlasie discloses improving the properties of plant protein by treating the plant protein with peptidyl arginine deiminase (PAD) [abstract; pg. 4, lines 34-38; pg. 6, lines 25-34]. Vlasie discloses incubating a solution containing plant protein in the form of a plant meal with PAD and that the PAD can be added at any point in the production of plant protein isolate [pg. 8, lines 20-35; pg. 9, lines 1-6]. Vlasie discloses phytase added at step v) [pg. 9, lines 34-36]. Vlasie discloses that the plant protein is rapeseed [abstract].
However, Vlasie also discloses pea protein and rapeseed as suitable alternative plant protein sources to soybean protein due to potential dietary intolerance to soybean protein. It would have been obvious to one of ordinary skill in the art to utilize pea protein in the alternative to rapeseed protein since both are disclosed as suitable alternatives to soy and further since Vlasie discloses an example of precipitating pea protein and that it is also suitable for rapeseed protein processing [pg. 9, lines 26-29].
Regarding Claim 12: Vlasie discloses a drink comprising a treated plant protein [pg. 4, lines 3-6; pg. 7, lines 24-27]. Vlasie discloses improving the properties of plant protein by treating the plant protein with peptidyl arginine deiminase (PAD) [abstract; pg. 4, lines 34-38; pg. 6, lines 25-34]. Vlasie discloses incubating a solution containing plant protein in the form of a plant meal with PAD and that the PAD can be added at any point in the production of plant protein isolate [pg. 8, lines 20-35; pg. 9, lines 1-6]. Vlasie discloses phytase added at step v) [pg. 9, lines 34-36]. Vlasie discloses that the plant protein is rapeseed [abstract]. Vlasie discloses improving taste and mouthfeel [pg. 2, lines 29-32]. Vlasie discloses modifying astringency and thickness [pg. 4, lines 34-38]. Vlasie discloses improving flavor by reducing undesirable sensory attributes [pg. 3, lines 10-15; pg. 5, lines 30-38].
However, Vlasie also discloses pea protein and rapeseed as suitable alternative plant protein sources to soybean protein due to potential dietary intolerances to soybean protein. It would have been obvious to one of ordinary skill in the art to utilize pea protein in the alternative to rapeseed protein since both are disclosed as suitable alternatives to soy and further since Vlasie discloses an example of precipitating pea protein and that it is also suitable for rapeseed protein processing [pg. 9, lines 26-29].
Vlasie does not disclose wherein the phytase is added in an amount of at least 2 FTU per gram of pea protein, wherein one FTU is the activity of phytase that generates 1 umol of inorganic phosphorus per minute from an excess of sodium phytate at pH 5.5 and 37° C.
Vlasie does not disclose wherein the phytase is added in an amount of 2 FTU to 20 FTU per gram of plant protein (claim 14); wherein the phytase is added in an amount of 20 FTU per gram of plant protein (claim 15).
Nielsen discloses treating plant/vegetable protein with phytase [abstract]. Nielsen discloses the improvement of solubility and improved hydrolysis of the protein as an effect of the enzyme on the protein [abstract; col. 2, lines 13-18]. Nielsen discloses pea protein, soy bean protein, faba bean and rapeseed protein as desirable substrates [col. 2, lines 42-52]. Nielsen discloses suspending the vegetable protein in water before treating with the enzymes [col. 3, lines 17-22]. Nielsen discloses that the phytase is added at 2 to 50,000 FYT/kg of vegetable protein (.002 to 50U/g FYT of vegetable protein) [col. 4, lines 40-44]. Nielsen discloses that the activity of One Phytase Unit (FYT) is defined as the amount of enzyme which under standard conditions (i.e. at pH 5.5, 37°C, 5.0mM sodium phytate as a substrate) liberates 1 µmol of phosphate per minute [col. 7, lines 35-40].
“Vlasie 2” discloses PAD applied to pea protein solution [pg. 4, lines 15-36; pg. 6, lines 1-8, 21-27; claims 1-4, and 14]. “Vlasie 2” discloses using PAD to modify and licorice, astringency, powdery, fullness, thickness or digestibility of protein powder [abstract; claim 14]. “Vlasie 2” discloses in addition to pea protein, soy protein and rapeseed protein [pg. 6, lines 21-27].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Vlasie to include the phytase at amounts as in Nielsen since these amounts are shown to provide a desired effect (increased solubility and improved hydrolysis) in vegetable proteins including pea proteins. It would have been obvious to utilize phytase having an activity as in Nielsen since it is a standard activity for phytase and would have been expected to provide enough enzyme activity in the desired dose to provide the desired effect when applied to protein.
Alternatively, regarding the subjection of pea protein to PAD, it would have been obvious to one of ordinary skill in the art to modify the method of Vlasie to include pea protein as in “Vlasie 2” since “Vlasie 2” discloses rapeseed, soy and pea protein as suitable alternatives and since Vlasie itself acknowledges pea protein as a suitable alternative to soy protein along with rapeseed.
Alternatively, regarding the inclusion of phytase in the treatment of the pea protein it would have been obvious to include phytase with the PAD hydrolysis since Nielsen discloses that phytase improves the solubility and the hydrolysis of vegetable proteins including pea proteins.
Regarding the amount of phytase in claim 1, although Nielsen does not explicitly disclose at least 2 FTU/g pea protein one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Nielsen overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 16: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses adding PAD to a protein isolate at .001 to 1 U PAD/g of protein [pg. 7, lines 15-18]. Vlasie discloses that the step of incubating the protein isolate with PAD can be performed at any suitable pH, time and enzyme concentration [pg. 6, lines 9-12].
Vlasie does not disclose wherein the PAD is added in an amount of 0.1% (w/w) enzyme to pea protein.
Although Vlasie does not disclose wherein the PAD is added in an amount of 0.1% (w/w) enzyme to pea protein, Vlasie does give a concentration of PAD to include in relation to the protein and does disclose that any suitable enzyme concentration can be used, therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the percentage of PAD for the intended application, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Further although the recited amounts of PAD added to the protein are not disclosed, "Knowing that an additive will cause a certain result (in this case, PAD causes improvement in taste and mouthfeel of vegetable protein products), one would specifically measure the result and control the amount of said additive added there to in relation to the amount of result as desired." In re Skoner, 186 USPQ 80
Regarding Claim 17: Vlasie as modified discloses as discussed above in claim 1. Vlasie does not disclose wherein the PAD is added in an amount of 0.2 grams enzyme per kilogram of pea protein.
Although Vlasie does not disclose wherein the PAD is added in an amount of 0.2 grams enzyme per kilogram of pea protein, Vlasie does give a concentration of PAD to include in relation to the protein and does disclose that any suitable enzyme concentration can be used, therefore it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the percentage of PAD for the intended application, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Further although the recited amounts of PAD added to the protein are not disclosed, "Knowing that an additive will cause a certain result (in this case, PAD causes improvement in taste and mouthfeel of vegetable protein products), one would specifically measure the result and control the amount of said additive added there to in relation to the amount of result as desired." In re Skoner, 186 USPQ 80.
Regarding Claim 18: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses modifying or preferably decreasing the thickness of food containing protein [pg. 5, lines 9-12]. Vlasie discloses that the term thickness refers to the firmness of a product in the mouth and the force needed to push the product in between the tongue and palate [pg. 5, lines 22-26]. The instant specification states that thickness refers to viscosity perceived in the mouth and that viscosity refers to that state of being thick, sticky and semi-fluid in consistency, due to internal friction [17/906,826 as filed pg. 8 lines 10-15]. Vlasie is therefore said to teach the limitation or alternatively renders obvious the reduction of viscosity.
Regarding Claim 19: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses improving flavor by reducing undesirable sensory attributes [pg. 3, lines 10-15; pg. 5, lines 30-38]. Vlasie discloses the modification or the reduction of flavors due to the presence of PAD [pg. 5, lines 30-38]. Vlasie discloses modifying or preferably decreasing the thickness of food containing protein [pg. 5, lines 9-12]. Vlasie discloses that the term thickness refers to the firmness of a product in the mouth and the force needed to push the product in between the tongue and palate [pg. 5, lines 22-26]. The instant specification states that thickness refers to viscosity perceived in the mouth and that viscosity refers to that state of being thick, sticky and semi-fluid in consistency, due to internal friction [17/906,826 as filed pg. 8 lines 10-15].
Regarding Claim 20: Vlasie discloses as discussed above in claim 1. Vlasie does not explicitly the addition of a hydrocolloid or stabilizer and therefore renders the claim obvious.
Regarding Claim 21: Vlasie discloses as discussed above in claim 7. Vlasie discloses incubating protein with PAD for 3.5 hours at 40°C [pg. 13, lines 5-10; claim 7]. “Vlasie 2” discloses incubating at 30 to 50°C [pg. 6, lines 9-17].
Regarding Claim 22: Vlasie discloses as discussed above in claim 1. Vlasie discloses utilizing 2% protein solution [pg. 12, lines 20-27]. “Vlasie 2” discloses that the solution contains at least 0.1% protein [pg. 5, lines 34-38] and that the protein can be pea protein [pg. 6, lines 21-27].
Regarding Claim 23: Vlasie discloses as discussed above in claim 1. Vlasie discloses the incubating pH at 5.5 to 8 [pg. 6, lines 9-15]. Vlasie discloses the incubating temperature of 30 to 50°C [pg. 6, lines 15-16].
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Vlasie et al. (WO 2019/234137), Nielsen et al. (US 5,989,600) and Vlasie et al. (WO 2019/233920) “Vlasie 2” as applied to claim 1 above and in further view of Smith (US 2012/0128832).
Regarding Claim 8: Vlasie discloses as discussed above in claim 1. Vlasie does not explicitly disclose that the drink further comprises one or more ingredients selected from the group consisting of a vitamin, a mineral, and an additional protein.
Smith discloses drinks and shakes containing plant protein including pea protein [abstract; 0008; 0009; 0011]. Smith discloses including vitamins and minerals and other sources of protein [abstract]. Smith discloses meeting the nutritional needs of athletic vegans and non-vegans [0007; 0008].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Vlasie to include vitamins and minerals in a pea protein drink as in Smith in order to provide enough vitamins, minerals, and protein for athletic vegans and non-vegans.
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Vlasie et al. (WO 2019/234137) in view of Nielsen et al. (US 5,989,600) and Vlasie et al. (WO 2019/233920) “Vlasie 2” as applied to claim 1 above and in further view of Jones “What Is Viscosity in Physics?” July 3, 2019 [1st-3rd pages].
Regarding Claim 18: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses modifying or preferably decreasing the thickness of food containing protein [pg. 5, lines 9-12]. Vlasie discloses that the term thickness refers to the firmness of a product in the mouth and the force needed to push the product in between the tongue and palate [pg. 5, lines 22-26]. The instant specification states that thickness refers to viscosity perceived in the mouth and that viscosity refers to that state of being thick, sticky and semi-fluid in consistency, due to internal friction [17/906,826 as filed pg. 8 lines 10-15].
However, viscosity refers to the thickness of a fluid and is a measure of how resistant a substance is to motion by applied force as disclosed by Jones [1st-3rd pages]. Therefore the effect of the PAD of Vlasie can be said to have viscosity lowering effects since it decreases the thickness of the food containing protein and since Vlasie refers to thickness as firmness in the mouth and force required to push the product. This is in line with the known concept of viscosity. Vlasie is therefore said to teach the limitation or alternatively renders obvious the reduction of viscosity.
Vlasie discloses the improvement in sensory attributes in contrast to protein that has not been treated with PAD [pg. 5, lines 30-38; pg. 6, lines 1-8].
Alternatively, regarding the reduced viscosity, if the prior art structure is capable of performing the intended use, then it meets the claim. Vlasie discloses that undesirable sensory attributes are reduced which improve the flavor and therefore Vlasie can be said to reduce flavor especially where the protein is to be used as a beverage.
Regarding Claim 19: Vlasie as modified discloses as discussed above in claim 1. Vlasie discloses improving flavor by reducing undesirable sensory attributes [pg. 3, lines 10-15; pg. 5, lines 30-38]. Vlasie discloses the modification or the reduction of flavors due to the presence of PAD [pg. 5, lines 30-38]. Vlasie discloses modifying or preferably decreasing the thickness of food containing protein [pg. 5, lines 9-12]. Vlasie discloses that the term thickness refers to the firmness of a product in the mouth and the force needed to push the product in between the tongue and palate [pg. 5, lines 22-26]. The instant specification states that thickness refers to viscosity perceived in the mouth and that viscosity refers to that state of being thick, sticky and semi-fluid in consistency, due to internal friction [17/906,826 as filed pg. 8 lines 10-15].
However, viscosity refers to the thickness of a fluid and is a measure of how resistant a substance is to motion by applied force as disclosed by Jones [1st-3rd pages]. Therefore the effect of the PAD of Vlasie can be said to have viscosity lowering effects since it decreases the thickness of the food containing protein and since Vlasie refers to thickness as firmness in the mouth and force required to push the product. This is in line with the known concept of viscosity. Vlasie is therefore said to teach the limitation or alternatively renders obvious the reduction of viscosity.
Vlasie discloses the improvement in mouthfeel and sensory attributes in contrast to protein that has not been treated with PAD [pg. 5, lines 30-38; pg. 6, lines 1-8].
Alternatively, regarding the reduction of pea flavor and reduced viscosity, if the prior art structure is capable of performing the intended use, then it meets the claim. Vlasie discloses that undesirable sensory attributes are reduced which improve the flavor and therefore Vlasie can be said to reduce flavor especially where the protein is to be used as a beverage and to reduce viscosity especially where it is said that the thickness is reduced.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Vlasie et al. (WO 2019/234137), Nielsen et al. (US 5,989,600) and Vlasie et al. (WO 2019/233920) “Vlasie 2” as applied to claim 1 above and in further view of Mai et al (US 2007/0014909).
Regarding Claim 24: Vlasie as modified discloses as discussed above in claim 1. Vlasie does not explicitly disclose further homogenizing the drink and heating the drink to at least 90°C to inactivate the enzymes.
Mai discloses a method of making a protein beverage [abstract]. Mai discloses treating plant proteins including pea, rapeseed, or soybean proteins [0027; claims 3, 13, 19, and 25]. Mai discloses treating with enzymes [0009; 0011]. Mai discloses homogenizing the ingredients [0058; 0119; 0126]. Mai discloses heating at about 82°C to about 94°C or about 85°C to about 95°C; or about 129°C to about 162°C to stop the enzymatic reaction and for pasteurization/sterilization [0012; 0014; 0092; 0103].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Vlasie to include the steps of homogenizing and heating the drink as in Mai in order to ensure a uniform beverage and to uniformly disperse the proteins in the drink and to further inactivate and pasteurize/sterilize the beverage in order to stop the enzymatic reaction and to ensure microbial stability of the beverage for consumers.
Regarding processing steps, Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F. 2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in absence of new or unexpected results); In re Gibson, 39 F. 2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.
Response to Arguments
On pages 7-9, the Applicants assert that in Example 3 of the instant specification, it is demonstrated that there is an unexpected synergy between PAD and phytase on viscosity in protein beverages. The Applicants assert that the viscosity was reduced in the presence of PAD alone, increased in the presence of phytase alone, and lowered in the presence of a combination of PAD and phytase; and that the combination showed a lower viscosity than non-enzyme treated proteins.
The Examiner disagrees. Applicants results show that PAD is responsible for decreasing the viscosity of the protein and that phytase does not. This is not an unexpected result. In the absence of unexpected results, it is not seen how the claimed invention differs from the teachings of the prior art. Applicant's claims are drawn to a combination of known components which produces expected results, see In re Kerkhoven 205 USPQ 1069 and In re Gershon 152 USPQ 602.
On pages 9-10, the Applicants assert that the office has not articulated why one of ordinary skill in the art would select the amount of phytase. The Applicants assert that Nielsen uses phytase for an entirely different purpose than the instant invention which Applicants assert is improving texture, taste, mouthfeel, or viscosity.
The Examiner disagrees. Vlasie speaks to the inclusion of PAD for the purposes of improving flavor, texture, viscosity, mouthfeel, etc, and speaks to phytase for precipitate removal. The removal of precipitate is related to texture and mouthfeel. Further, the method of Vlasie discloses PAD and phytase and that the method results in the improvement in texture and mouthfeel and viscosity of plant protein. It is maintained that Vlasie as modified renders the claims obvious.
On pages, 11-14, the Applicants assert that there was no reasonable expectation of success of the method working on pea protein.
The Examiner maintains that since Vlasie discloses pea protein and rapeseed as suitable alternative plant protein sources to soybean protein due to potential dietary intolerance to soybean protein, it would have been obvious to one of ordinary skill in the art to utilize pea protein in the alternative to rapeseed protein since both are disclosed as suitable alternatives to soy and further since Vlasie discloses an example of precipitating pea protein and that it is also suitable for rapeseed protein processing. Further, “Vlasie 2” discloses PAD applied to pea protein solution and also discloses in addition to the pea protein, utilizing soy protein or rapeseed protein. Thus further showing that it would have been obvious to modify process to include pea protein in the place of rapeseed or soybean.
On pages 14-15, the Applicants assert that the intended use characterization was improper. The Applicants assert that claim 1 recites active steps and that the limitation of the improves property defines the outcome from performing these steps.
The Examiner notes that although the intended use argument was made, this was in the alternative to the actual disclosure of the improved properties. Vlasie disclosed the features/improvements achieved by the claimed process and therefore met the claim limitations.
On pages 15-16, the Applicants assert that in claims 16 and 17, the unit mismatch defeats overlapping range argument. The Applicants assert that the claims specifically recite PAD in weight based units and that Vlasie uses activity units/g protein.
The Examiner notes that an overlapping argument was not made in the office action. The Examiner acknowledged the differences in the unit measurement. The Examiner relied on an optimization argument especially since Vlasie notes that any suitable enzyme amount can be used in order to achieve the desired effect on the plant protein/product. The Examiner maintains the rejection since it would have been obvious to modify the amount of PAD to achieve the desired result.
On pages 16-17, the Applicants assert that Smith does not remedy the deficiencies of the base rejection because it does not teach PAD, phytase, and improved texture, taste, viscosity, and mouthfeel. The Applicants assert that the addition of vitamins and minerals does not address the synergistic results.
The Examiner maintains the rejections and that Smith taught the limitations for which it was incorporated. The Examiner maintains that the limitations argued were already covered by the base rejection.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kohno et al. (US 2004/0247766) Kohno discloses a method of making a protein beverage [abstract]. Kohno discloses treating soybean protein with phytase [0012]. Kohno discloses homogenizing the ingredients and then heating up 95°C [0033; 0068; 0071].
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/ Primary Examiner, Art Unit 1793
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