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 .
Receipt is acknowledged of the Request for Continued Examination (RCE) under 1.114, the Amendment and Response, all filed 12/9/25.
Claims 1, 4-10, 12, 14-17 are pending in this action. Claims 2, 3, 11, and 13 have been cancelled. New claims 14-17 have been added. Claims 1, 4-10, 12, 14-17 are rejected.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/9/25 has been entered.
Withdrawn Rejections
The 103(a) rejections of claims 1-7, 9-13 over Vlasie et al. (WO 2019/234137) have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 8 over Vlasie et al. (WO 2019/234137) in further view of Smith (US 2012/0128832) has been withdrawn due to the amendments to claim 1.
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, and 14-17 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].
However, the claim 1 recitation of the improved property 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 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 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 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.
However, the claim 12 recitation of the improved property 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.
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
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.
Response to Arguments
The 103(a) rejections of claims 1-7, 9-13 over Vlasie et al. (WO 2019/234137) have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 8 over Vlasie et al. (WO 2019/234137) in further view of Smith (US 2012/0128832) has been withdrawn due to the amendments to claim 1.
Conclusion
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/Felicia C Turner/Primary Examiner, Art Unit 1793