DETAILED ACTION
Background
The amendment dated May 12, 2026 (amendment) amending claims 1, 5-7 and 9 and canceling claim 11 has been entered. Claims 1, 3-7, 9, 11-17 and 19-20 as filed with the amendment have been examined. Claims 2, 8, 10-11 and 18 have been canceled. In view of the cancelation of claim 11, all outstanding rejections of those claims have been withdrawn.
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 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 (i.e., changing from AIA to pre-AIA ) 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, 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 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 1, 3-7, 13, 16 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0335042 A1 to D’Agostino (D’Agostino) in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh), and US 2009/0274798 A1 to Cox et al. (Cox), all of record.
Unless otherwise indicated, a percentage disclosed without units is interpreted to mean a weight % (wt%) and a mass % and a wt% are interchangeable.
The Office interprets the recited wt%s of freezing point depressants, protein, emulsifier and fat as being based on the total weight of the frozen confection.
Regarding instant claims 1, 3, 5, 7, 16 and 19-20, D’Agostino discloses in the Abstract a frozen confection and a method for dispensing it from a container. D’Agostino at Example at [0032]-[0033] and the accompanying Table discloses the frozen confection comprising 4.15 wt% skim milk powder (34 wt% milk protein- instant specification at page 5, lines 26-28) and 2.76 wt% of 30% whey protein concentrate or about 2.4 wt% milk protein (claim 5), 2 wt% sucrose (MW 360), 19.4 wt% dextrose monohydrate (MW 198) and 10 wt% glucose syrup (63 DE - MW ~286), 8 wt% coconut oil (“fat” as in claim 7) and 0.4 wt% emulsifier HP60. The Office considers recited freezing point depressants to include the sucrose (MW 360), dextrose monohydrate (MW 198) and glucose syrup (63 DE) of D’Agostino, which discloses 31.4 wt% of freezing point depressants (claims 16 and 19-20) as disclosed at page 2, lines 29-33 of the instant specification. Further, the freezing point depressants in the Example of D’Agostino comprise a mixture of 2 weights parts (pbw) sucrose (MW 360) 10 parts glucose syrup (DE 63, MW ~286) and 19.4 pbw dextrose monohydrate (MW 198) comprises a freezing point depressant having a number average molecular weight <M>n of [(19.4 X 198) + 2 X 360 + 10 X 286)]/31.4 or (3841.2 + 720 + 2860)31.4 or about 236.4 g mol-1 as in claims 1 and 3.
D’Agostino does not disclose a pulse protein that is a pea protein and does not disclose a weight ratio of pulse protein to milk protein of from 1:2 to 1:6; and, D’Agostino does not disclose an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof. However, D’Agostino in the Table of its Example discloses emulsifier HP60, which Cox at [0071] discloses to be a saturated mono- and diglyceride.
Regarding instant claims 4, 6 and 11, D’Agostino does not disclose a weight ratio of pulse protein to milk protein is from 2:5 to 1:5 as in claim 4; and, D’Agostino does not disclose an amount 0.2 to 1 wt% of pulse protein as in claim 6.
Sabbagh at Abstract discloses dairy-analog frozen confection compositions as (at [0003]) non-dairy or low-dairy frozen confections having improved flavor and texture comprising combinations of (at [0028]) hydrolyzed proteins and dairy proteins which are (at [0058]) plant proteins including pea protein. Further, at [0060] Sabbagh discloses protein combinations including cereal proteins as other protein materials in combination with (at [0059]) dairy proteins (“milk protein”) and still other proteins. Further, at [0093] Sabbagh discloses frozen confections including soft and hard ice creams which (at [0002]) can be dispensed from a container. At [0061] Sabbagh discloses an amount of soy protein material of from about 20% (1:4 of pulse protein to milk protein- claims 1 and 5) to about 40% (1:1.5 of pulse protein to milk protein) of the total protein used. Example 21 of Sabbagh at pages 26-27 and accompanying Tables 24 and 25 discloses frozen confections comprising, respectively 20% of soy protein (1:4 of pulse protein to milk protein), 30% of soy protein (1:3.33 of pea protein to milk protein) as in claims 1 and 5, and at Table 26 discloses 40% of soy or pulse protein and the rest as milk protein (1:1.5 of pulse protein to milk protein as in claim 1), and about 2.5 wt% total protein of which from 0.5 to about wt% are pulse protein as in claim 6. It would have been obvious in view of Sabbagh to formulate a combination of a milk protein and pea protein because Sabbagh discloses that combinations of dairy proteins and plant proteins including pea proteins make a desirable frozen confection.
Cox at Abstract discloses a frozen aerated product (frozen confection) including soy protein and (at [0044]) freezing point depressants like dextrose, wherein at [0015] destabilizing emulsifiers provide a good texture and meltdown behavior. At Table 2, Cox discloses lactic acid and acetic acid esters of monoglycerides, as Acetem and Lactem emulsifiers or emulsifiers selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids. Further, at Table 4 and Table 7, Cox discloses Lactem formulation I and Acetem formulation L which Cox discloses at [0079] as having superior meltdown behavior and resistance to change on exposure to melt conditions.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Sabbagh for D’Agostino to include in its frozen confection a pulse protein and a milk protein, with a pea protein as the pulse protein and, wherein the frozen confection comprises the milk protein in a weight ratio of pulse protein to milk protein of from 1:2 to 1:6 or in a weight ratio of pulse protein to milk protein is from 2:5 to 1:5 as in claim 4, and, further wherein a total amount of the pulse protein is 0.2 to 1 wt% as in claim 6. All references are drawn to dispensable frozen confection compositions that comprise proteins. The ordinary skilled artisan working in D’Agostino would have desired to include pea proteins in the amount of 0.2 to 1 wt% as in Sabbagh in the claimed weight ratio of a pulse protein to milk protein to provide a low dairy frozen confection having improved flavor and texture.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Cox for D’Agostino as modified by Sabbagh to use as its emulsifiers the claimed acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof. All references disclose frozen confections comprising emulsifiers and proteins. The ordinary skilled artisan in D’Agostino would have desired to improve the texture and meltdown behavior of its frozen confection by including the acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acid of Cox in its frozen confection.
Regarding instant claim 13, D’Agostino at [0033] discloses its container as a bag in a bottle which is a squeezable bag having (at [0027]) a nozzle (“product outlet”) and (in FIG. 1 (3)) a moveable wall.
Claims 1, 3-7, 13, 16 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0021361 A to Mayes et al. (Mayes) in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh) and US 2009/0274798 A1 to Cox et al. (Cox), all of record.
Unless otherwise indicated, a percentage disclosed without units is interpreted to mean a weight % (wt%) and a mass % and a wt% are interchangeable.
The Office interprets the recited wt%s of freezing point depressants, protein, emulsifier and fat as being based on the total weight of the frozen confection.
Regarding instant claims 1, 3, 5, 7, 16 and 19-20, Mayes discloses in the Abstract a frozen confection comprising 25 to 35 wt% of the frozen confection of freezing point depressants (claims 1, 16 and 19)) having a number average molecular weight <M>n of 200 g mol-1 to 250 g mol-1 (claims 1 and 3). The claimed 28 to 40 wt% of freezing point depressants in claim 20 overlap the disclosed 25 to 35 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, at [0046] Mayes discloses a frozen confection comprising from 0.5 to 8 wt% of protein, such as (at [0043]) milk protein (claims 1 and 5), and (at [0045]) from 1 to 15 wt% of fat (claim 7). Still further, Mayes at [0056] and Table 1, on page 3 discloses 0.4 wt% mono and diglycerides (“emulsifier”).
Mayes does not disclose a protein that comprises pulse protein and milk protein, wherein the pulse protein is a pea protein; further, does not disclose a weight ratio of pulse protein to milk protein of from 1:2 to 1:6; and, does not disclose an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof.
Regarding instant claims 4 and 6, Mayes does not disclose a weight ratio of pulse protein to milk protein of from 2:5 to 1:5 as in claim 4; and, Mayes does not disclose a total amount of pulse protein of from 0.2 to 1 wt% as in claim 6.
Sabbagh at Abstract discloses dairy-analog frozen confection compositions as (at [0003]) non-dairy or low-dairy frozen confections having improved flavor and texture comprising combinations of 9at [0028]) hydrolyzed proteins and dairy proteins which are (at [0058]) plant proteins including pea protein. Further, at [0060] Sabbagh discloses protein combinations including cereal proteins as other protein materials in combination with (at [0059]) dairy proteins (“milk protein”) and still other proteins. Further, at [0093] Sabbagh discloses frozen confections including soft and hard ice creams which (at [0002]) can be dispensed from a container. At [0061] Sabbagh discloses an amount of soy protein material of from about 20% (1:4 of pulse protein to milk protein- claims 1 and 5) to about 40% (1:1.5 of pulse protein to milk protein) of the total protein used. Example 21 of Sabbagh at pages 26-27 and accompanying Tables 24 and 25 discloses frozen confections comprising, respectively 20% of soy protein (1:4 of pulse protein to milk protein), 30% of soy protein (1:3.33 of pea protein to milk protein) as in claims 1 and 5, and at Table 26 discloses 40% of soy or pulse protein and the rest as milk protein (1:1.5 of pulse protein to milk protein as in claim 1), and about 2.5 wt% total protein of which from 0.5 to about wt% are pulse protein as in claim 6. It would have been obvious in view of Sabbagh to formulate a combination of a milk protein and pea protein because Sabbagh discloses that combinations of dairy proteins and plant proteins including pea proteins make a desirable frozen confection.
Cox at Abstract discloses a frozen aerated product (frozen confection) including soy protein and (at [0044]) freezing point depressants like dextrose, wherein at [0015] destabilizing emulsifiers provide a good texture and meltdown behavior. At Table 2, Cox discloses lactic acid and acetic acid esters of monoglycerides, as Acetem and Lactem emulsifiers or emulsifiers selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids. Further, at Table 4 and Table 7, Cox discloses Lactem formulation I and Acetem formulation L which Cox discloses at [0079] as having superior meltdown behavior and resistance to change on exposure to melt conditions.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Sabbagh for Mayes to include in its frozen confection each of a pulse protein as a pea protein in a weight ratio of pulse protein to milk protein of from 1:2 to 1:6, or in a weight ratio of pulse protein to milk protein of from 2:5 to 1:5 as in claim 4, or a total of from 0.2 to 1 wt% of a pulse protein as in claim 6. Both references are drawn to frozen confection compositions comprising generally proteins which include non-dairy and dairy proteins. The ordinary skilled artisan working in Mayes would have desired to include pea proteins as the pulse protein in Sabbagh in the amount of 0.2 to 1 wt%, and to include a pulse protein to milk protein in a weight ratio of from 1:2 to 1:6 or from 2:5 to 1:5 as in Sabbagh to lower the dairy component of its frozen confection and the health concerns it brings (see Sabbagh at [0003]) in the frozen confection of Mayes while providing a low dairy frozen confection having improved flavor and texture.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Cox for Mayes as modified by Sabbagh to include the claimed acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof. All references disclose frozen confections comprising emulsifiers. The ordinary skilled artisan in Mayes would have desired to improve the texture and meltdown behavior of its dispensable frozen confection by including the acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acid of Cox in the frozen confection.
Regarding instant claim 13, Mayes at [0047] discloses the frozen confection packaged in and designed to be dispensed from a container having a product outlet and a moveable wall.
Claims 9 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0335042 A1 to D’Agostino (D’Agostino) in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh) and US 2009/0274798 A1 to Cox et al. (Cox), as applied to claim 1 above, and further in view of US 2004/0001905 A to Campbell et al. (Campbell).
As applied to claim 1, D’Agostino at Abstract and [0032]-[0033] as modified by Sabbagh at Example 21 and Cox at Tables 4 and 7 discloses a frozen confection comprising from 20 to 40 wt% of a freezing point depressants having a number average molecular weight of from 200 to 275 g mol-1, from 0.5 to 10 wt% of milk protein and pulse protein in a weight ratio of pulse protein to milk protein is from 1:2 to 1:6, and 0.05 to 1.0 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof, with each wt% based on the total weight of the frozen confection.
D’Agostino as modified by Sabbagh and Cox does not disclose a frozen confection further comprising distilled monoglycerides as in claim 9 or from 0.4 to 1 wt% of distilled monoglycerides as in claim 17.
Campbell at Abstract discloses a frozen aerated product or frozen confection filled in a container with a movable wall, wherein at [0034] the frozen confection comprises from 20 to 40 wt% of a freezing point depressants having a number average molecular weight less than 250 g mol-1, and wherein the frozen confection at Example 3 and [0099]-[0107 and the accompanying Table discloses a frozen confection having 10 wt% of SMP or about 2-3 wt% milk protein about 0.40 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and about 0.7 wt% of a monoglyceride emulsifier. The Office considers the claimed distilled monoglycerides in claim 9 to include the monoglycerides in the Table of Example 3 of Campbell, and so considers Campbell as disclosing including 0.04 to 1 wt% of distilled monoglycerides as in claim 17.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Campbell for D’Agostino to include the claimed amount of distilled monoglycerides in its frozen confection. Both references disclose frozen confections that are dispensable. The ordinary skilled artisan in D’Agostino would have desired to include the claimed mixture of emulsifiers of Campbell as Campbell discloses them as desirable for making a dispensable frozen confection.
Claims 9 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0021361 A to Mayes et al. (Mayes) in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh) and US 2009/0274798 A1 to Cox et al. and further in view of US 2004/0001905 A to Campbell et al. (Campbell).
As applied to claim 1, Mayes at Abstract, [0046], [0056] and Table 1 as modified by Sabbagh at Example 21 and Cox at Tables 4 and 7 discloses a frozen confection comprising from 20 to 40 wt% of a freezing point depressants having a number average molecular weight of from 200 to 275 g mol-1, from 0.5 to 10 wt% of milk protein and pea protein as pulse protein in a weight ratio of pulse protein to milk protein is from 1:2 to 1:6, and 0.05 to 1.0 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof, with each wt% based on the total weight of the frozen confection.
Mayes as modified by Sabbagh and Cox does not disclose a frozen confection further comprising distilled monoglycerides as in claim 9 or from 0.4 to 1 wt% of distilled monoglycerides as in claim 17.
Campbell at Abstract discloses a frozen aerated product or frozen confection filled in a container with a movable wall, wherein at [0034] the frozen confection comprises from 20 to 40 wt% of a freezing point depressants having a number average molecular weight less than 250 g mol-1, and wherein the frozen confection at Example 3 and [0099]-[0107] and the accompanying Table discloses a frozen confection having 10 wt% of SMP or about 2-3 wt% milk protein about 0.40 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and about 0.7 wt% of a monoglyceride emulsifier. The Office considers the claimed distilled monoglycerides in claim 9 to include the monoglycerides in the Table of Example 3 of Campbell, and so considers Campbell as disclosing including 0.04 to 1 wt% of distilled monoglycerides as in claim 17.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Campbell for Mayes as modified by Sabbagh and Cox to include the claimed amount of distilled monoglycerides in its frozen confection. Campbell and Mayes disclose frozen confections that are dispensable. The ordinary skilled artisan in Mayes would have desired to include the emulsifiers of Campbell as Campbell discloses them as desirable for making a dispensable frozen confection.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0021361 A to Mayes et al. (Mayes) in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh) and US 2009/0274798 A1 to Cox et al. (Cox), as applied to claim 13 above, and further in view of US 2007/0275131 A1 to Bertini et al. (Bertini), of record.
As applied to claim 13, Mayes at Abstract, [0046], [0056] and Table 1 as modified by Sabbagh at Example 21 and Cox at Tables 4 and 7 discloses a frozen confection comprising from 20 to 40 wt% of a freezing point depressants having a number average molecular weight of from 200 to 275 g mol-1, from 0.5 to 10 wt% of milk protein and pea protein as pulse protein in a weight ratio of pulse protein to milk protein is from 1:2 to 1:6, and 0.05 to 1.0 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof, with each wt% based on the total weight of the frozen confection, wherein the frozen confection is packaged in a container comprising a product outlet and a moveable wall.
Mayes as modified by Sabbagh and Cox does not disclose that the container has a volume of 100 ml to 500 ml. as in claim 14 or that the frozen confection packed in the container has a mass of 50 g to 325 g as in claim 15.
Unless otherwise stated, the Office considers 1 ml equal to about 1 g.
Bertini at [0051] discloses flexible containers for soft frozen confections comprising (at [0021]) 2 to 8 wt% of proteins and (at [0022]-[0023]) freezing point depressants, wherein the container has a volume of 30 to 250 ml, which the claimed container volume of 100 ml to 500 ml and the claimed frozen confection packed in the container having a mass of 50 g to 325 g overlaps. See MPEP 2144.05.I.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Bertini for Mayes as modified by Sabbagh and Cox to make the container therein to have a volume of 100 ml to 500 ml or for the frozen confection packed in the container to have a mass of 50 g to 325 g. All references disclose frozen confections comprising proteins and freezing point depressants. The ordinary skilled artisan working with the container in Mayes would have desired to include a volume or mass of frozen confection contents as in Bertini to provide discrete individual portions, or portions of any size.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over US2015/0335042 A1 to D’Agostino (D’Agostino) in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh) and US 2009/0274798 A1 to Cox et al. (Cox), as applied to claim 13 above, and further in view of US 2007/0275131 A1 to Bertini et al. (Bertini), of record.
As applied to claim 13, D’Agostino at Abstract and [0032-[0033] as modified by Sabbagh at Example 21 and Cox at Tables 4 and 7 discloses a frozen confection comprising from 20 to 40 wt% of a freezing point depressants having a number average molecular weight of from 200 to 275 g mol-1, from 0. 5 to 10 wt% of milk protein and pea protein as pulse protein in a weight ratio of pulse protein to milk protein is from 1:2 to 1:6, and 0.05 to 1.0 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof, with each wt% based on the total weight of the frozen confection, wherein the frozen confection is packaged in a container comprising a product outlet and a moveable wall.
D’Agostino as modified by Sabbagh and Cox does not disclose that the container has a volume of 100 ml to 500 ml. as in claim 14 or that the frozen confection packed in the container has a mass of 50 g to 325 g as in claim 15.
Unless otherwise stated, the Office considers 1 ml equal to about 1 g.
Bertini at [0051] discloses flexible containers for soft frozen confections comprising (at [0021]) 2 to 8 wt% of proteins and (at [0022]-[0023]) freezing point depressants, wherein the container has a volume of 30 to 250 ml, which the claimed container volume of 100 ml to 500 ml and the claimed frozen confection packed in the container having a mass of 50 g to 325 g overlaps. See MPEP 2144.05.I.
As of the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Bertini for D’Agostino as modified by Sabbagh and Cox to make the container therein to have a volume of 100 ml to 500 ml or for the frozen confection packed in the container to have a mass of 50 g to 325 g. All references disclose frozen confections comprising proteins and freezing point depressants. The ordinary skilled artisan working with the container in D’Agostino would have desired to include a volume or mass of frozen confection contents as in Bertini to provide discrete individual portions, or portions of any size.
Allowable Subject Matter
The claim 12 frozen confection comprising from 20 to 40 wt% of a freezing point depressant having a number average molecular weight of from 200 to 275 g mol-1, from 0.5 to 10 wt% of pea protein and a milk protein in a weight ratio of the pea protein to milk protein of from 1:2 to 1:6; from 0.05 to 1.0 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof, with each wt% based on the total weight of the frozen confection, and, further comprising a cereal protein is not disclosed in or obvious over any art reference or combination thereof.
US2015/0335042 A1 to D’Agostino discloses in the Abstract a frozen confection and a method for dispensing it from a container, and at Example at [0032]-[0033] and the accompanying Table discloses the frozen confection comprising skim milk powder and whey protein with about 2.4 wt% milk protein, 2 wt% sucrose (MW 360), 19.4 wt% dextrose monohydrate (MW 198) and 10 wt% glucose syrup (63 DE - MW ~286), 8 wt% coconut oil (“fat” as in claim 7) and 0.4 wt% emulsifier HP60 which is a monoglyceride. While D’Agostino discloses a freezing point depressants having a number average molecular weight of about 236.4 g mol-1, D’Agostino does not disclose a frozen confection comprising pea protein of a mixture of a pulse protein and a cereal protein. Further, D’Agostino does not disclose a frozen confection comprising an emulsifier selected from the group consisting of acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof.
US 2019/0021361 A to Mayes et al. discloses in the Abstract a frozen confection comprising 25 to 35 wt% of the frozen confection of freezing point depressants having a number average molecular weight <M>n of 200 g mol-1 to 250 g mol-1. Further, at [0046] Mayes discloses a frozen confection comprising from 0.5 to 8 wt% of protein, such as (at [0043]) milk protein. Still further, Mayes at [0056] and Table 1, on page 3 discloses 0.4 wt% mono and diglycerides. Mayes does not disclose a frozen confection comprising any pulse or pea protein, or a frozen confection further comprising a cereal protein. Further, Mayes does not disclose a frozen confection comprising an emulsifier selected from the group consisting of acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof.
Sabbagh discloses at Abstract discloses dairy-analog frozen confection compositions as (at [0003]) non-dairy or low-dairy frozen confections having improved flavor and texture comprising combinations of (at [0028]) hydrolyzed proteins and dairy proteins which (at [0058]) include pea protein. Further, at [0060] Sabbagh discloses protein combinations including cereal proteins as other protein materials in combination with (at [0059]) dairy proteins (“milk protein”). Further, at [0093] Sabbagh discloses frozen confections including soft and hard ice creams which (at [0002]) can be dispensed from a container. However, Sabbagh does not disclose a frozen confection comprising a freezing point depressant having a number average molecular weight of from 200 to 275 g mol-1, a combination of a pea protein, milk protein and a cereal protein, and does not disclose an emulsifier selected from the group consisting of acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and mixtures thereof.
US 2009/0274798 A1 to Cox et al discloses a frozen aerated product (frozen confection) including soy protein and (at [0044]) freezing point depressants like dextrose, wherein at [0015] destabilizing emulsifiers provide a good texture and meltdown behavior. At Table 2, Cox discloses lactic acid and acetic acid esters of monoglycerides, as Acetem and Lactem emulsifiers or emulsifiers selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, which Cox discloses at [0079] as having superior meltdown behavior and resistance to change on exposure to melt condition. However, Cox does not disclose a frozen confection comprising a freezing point depressant having a number average molecular weight of from 200 to 275 g mol-1, or a frozen confection comprising a combination of a pea protein, milk protein and a cereal proteins.
US 2004/0001905 A to Campbell et al at Abstract discloses a frozen aerated product or frozen confection filled in a container with a movable wall, wherein at [0034] the frozen confection comprises from 20 to 40 wt% of a freezing point depressants having a number average molecular weight less than 250 g mol-1, and wherein the frozen confection at Example 3 and [0099]-[0107] and the accompanying Table discloses a frozen confection having 10 wt% of SMP or about 2-3 wt% milk protein about 0.40 wt% of an emulsifier selected from: acetic acid esters of mono- and/or diglycerides of fatty acids, lactic acid esters of mono- and/or diglycerides of fatty acids, and about 0.7 wt% of a monoglyceride emulsifier. Campbell does not disclose a frozen confection comprising a combination of a pea protein, milk protein and a cereal proteins.
Claim 12 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
In view of the amendment dated May 12, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 1, 3-7, 9, 11-17 and 19-20 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for in regard to the weight percent (wt%) for freezing point depressants in claims 1, 16 and 19-20, the wt% for proteins in claims 1, 5 and 6, the wt% for emulsifiers in claims 1 and 17; the wt% for the fat in claim 7; and the total amount of emulsifiers in claim 17;
The rejections of claims 9 and 17 under 35 U.S.C. 103 as being unpatentable over US2015/0335042 A1 to D’Agostino in view of US 2014/0030416 A to Sabbagh et al., US 2009/0274798 A1 to Cox et al. and US 2019/0021361 A to Mayes et al.; and,
The rejections of claims 9, 12 and 17 35 U.S.C. 103 as being unpatentable over US 2019/0021361 A to Mayes et al. in view of US 2014/0030416 A to Sabbagh et al. and US 2009/0274798 A1 to Cox et al.
Regarding the positions taken in the remarks accompanying the amendment dated May 12, 2026 (Reply), the positions taken have been fully considered but they are not found persuasive for the following reasons:
Regarding the position taken in the Reply alleging that D'Agostino and Mayes do not disclose any pulse or pea protein whatsoever, respectfully the rejection does not rely on D'Agostino and Mayes for the disclosure of a pulse or pea protein.
Regarding the position taken in the Reply alleging that Sabbagh does not provide any specific teaching or motivation to use pea protein, the Office respectfully disagrees and and that the Examples of Sabbagh's Tables 24-26 use soy protein, not pea protein
Regarding the position taken in the Reply that Sabbagh provides no teaching or expectation that pea protein would behave similarly to soy protein in a frozen confection, let alone provide the temperature stability benefits, respectfully Sabbagh at [0050] discloses generically a hydrolyzed protein including (at [0058]) pea protein to give a desirable frozen confection. The Office has no duty to find a specific property to provide a sound motivation to combine references. Even if a property in question were claimed, which it is not, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Regarding the position taken in the Reply that the invention has achieved results which were unpredictable and unexpected from the proposed combination of art, as demonstrated in the present application, the position taken amounts to a general argument of patentability. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997). See MPEP 2145.
Regarding the position taken in the Reply that Cox, does not teach pea protein and cannot make up for the deficiencies found in D'Agostino and Mayes, Cox was cited in regard to use of known emulsifiers to give desirable texture in a frozen confection. The positions taken regarding D'Agostino and Mayes have been addressed above. Because the position merely repeats positions already addressed and is taken as a general allegation of patentability. See 37 CFR 1.111(b).
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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