DETAILED ACTION
Background
The amendment dated August 07, 2025 (amendment) amending claims 1 and 9 and canceling claims 8, 10 and 18 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 and 18 have been canceled. In view of the cancelation of claims 8, 10 and 18, all outstanding rejections of those claims have been withdrawn.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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 07, 2025 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
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 and the wt% for the fat in claim 7 are all indefinite for lacking a proper basis for determination. Is any claimed wt% a wt% of the total frozen confection, a wt% of total solids, or is it based on some other total weight?
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.
Claim 17 is indefinite and confusing as it recites up to 1 wt% of distilled monoglycerides while the total amount of emulsifiers claimed is only up to 1 wt% and the claimed emulsifiers comprise 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. Are the claim 17 emulsifiers the same as the claim 1 emulsifiers?
Claims 3-4, 9 and 11-15 are rejected as depending from a rejected base claim.
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, 11, 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), of record, and US 2009/0274798 A1 to Cox et al. (Cox), 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 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 protein that comprises a pulse 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 as a saturated mono- and diglyceride.
Regarding instant claims 4, 6 and 11-12, D’Agostino does not disclose or a weight ratio of pulse protein to milk protein is from 2:5 to 1:5 as in claim 4; further, does not disclose an amount 0.2 to 1 wt% of pulse protein as in claim 6; still further, does not disclose a pulse protein is selected from: bean protein, lentil protein, lupin protein, pea protein, soy protein, and mixtures thereof as in claim 11; and, D’Agostino does not disclose a frozen confection further comprising a cereal protein as in claim 12.
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 hydrolyzed proteins chosen from (at [0059]) dairy proteins (“milk protein”), (at [0060]) soy protein and a combination of soy protein with dairy or milk protein and cereal proteins as other protein materials. 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 pulse 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.
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 cereal protein, 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 cereal proteins and pulse 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, 9, 11-13, 16-17 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0021361 A to Mayes et al. (Mayes), of record, in view of US 2014/0030416 A to Sabbagh et al. (Sabbagh) and US 2009/0274798 A1 to Cox et al. (Cox).
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, 9 and 16-17 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”) as in claims 8 and 18. The Office considers the claimed distilled monoglycerides in claim 9 to include the mono and diglycerides of Table 1 of Mayes, and so considers Mayes to disclose including up to 0.4 wt% of distilled monoglycerides as in claim 17.
Mayes does not disclose a protein that comprises pulse protein and milk 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, 6 and 11, Mayes does not disclose a weight ratio of pulse protein to milk protein of from 2:5 to 1:5 as in claim 4; does not disclose a total amount of pulse protein of from 0.2 to 1 wt% as in claim 6; still further, does not disclose a pulse protein selected from bean protein, lentil protein, lupin protein, pea protein, soy protein, and mixtures thereof as in claim 11; and, Mayes does not disclose a frozen confection further comprising a cereal protein as in claim 12.
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 hydrolyzed proteins chosen from (at [0059]) dairy proteins (“milk protein”), (at [0060]) soy protein and a combination of soy protein with dairy or milk protein and cereal proteins as other protein materials. 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 pulse 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.
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 soy 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 pulse proteins as 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 12, Mayes does not disclose a frozen confection comprising cereal protein.
Sabbagh discloses dairy-analog frozen confection compositions comprising hydrolyzed proteins chosen from (at [0060]) soy protein and a combination of soy protein with dairy and any of barley, maize, oat, rice and wheat, all of which are cereal proteins as in claim 12.
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 cereal protein in its frozen confection. All references disclose frozen confections containing proteins and freezing point depressants. The ordinary skilled artisan working in Mayes would have desired to include the cereal protein of Sabbagh to improve the flavor of the frozen confection or as an alternative protein source to give it more body.
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 2019/0021361 A to Mayes et al. (Mayes).
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 comprising distilled monoglycerides as in claim 9 or from 0.4 to 1 wt% of distilled monoglycerides as in claim 17.
Mayes at [0056] and Table 1, on page 3 discloses 0.4 wt% mono and diglycerides (“emulsifier”) as in claims 8 and 18. The Office considers the claimed distilled monoglycerides in claim 9 to include the mono and diglycerides of Table 1 of Mayes, and so considers Mayes to disclose including up to 0.4 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 Mayes 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 emulsifiers of Mayes as Mayes 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 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 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.
Response to Arguments
In view of the amendment dated August 07, 2025, the following rejections have been withdrawn as moot:
The rejection of claim 10 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th 4. paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends;
The rejection of claim 10 under 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.; and,
The rejections of claims 1, 3-9, 11 and 17 under 35 U.S.C. 103 as being unpatentable over CN 106387287 A to Wu in view of US 2014/0030416 A to Sabbagh et al., as evidenced by JP 2007259760 A to Saito.
The positions taken in the remarks accompanying the amendment dated August 07, 2025 in regard to Wu have been considered but are moot because the new ground of rejection does not rely on Wu for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the remarks accompanying the amendment dated August 07, 2025 (Reply), the positions taken have been fully considered but they are not found persuasive for the following reasons:
The position taken in the Reply at pages 4-5 alleging that the data in the instant specification show that the frozen confections of the invention comprising a small amount of pulse protein in addition to milk protein are more resilient to temperature variations inherent in a frozen supply chain than ice creams which only comprise a milk protein, respectfully the Examples are not sufficient to overcome the art. The position attempts to equate all milk proteins in the Comparative sample while at the same time establishing that a pulse protein makes all the difference in a frozen confection. Either a kind of protein matters or it does not; Applicants cannot have it both ways! The presence of whey protein as in Mayes and D’Agostino has not been addressed. Further, the one worked example (Sample 1 vs. Sample A) relies on whether a plug forms in a frozen confection stored in a pouch and whether one Sample A was “icier than” another in appearance, the second of which is one subjective test without any check on its variation. Even to the extent these results were not subjective or subject to deviation, the forming of a plug on an otherwise acceptable sample does not appear to relate to an entire composition. Beyond this, the comparisons further fail to show an unexpected improvement as claimed over the art because they do not fairly address the whole claimed range of freezing point depressant molecular weights as in Mayes and do not address the emulsifier ACETEM or its equivalent as in Sample L of Cox.
Regarding the position taken in the Reply at pages 5-6 alleging that Sabbagh includes heavy cream and so does not disclose the claimed amounts of milk protein or the recited pulse-to-milk protein ratio, the assertion that Tables 24, 25 and 25 of Sabbagh do not disclose the pulse-to-milk protein ratio in those examples is respectfully not found convincing. Sabbagh itself discloses in Tables 24, 25 and 26 the actual % of total protein that is pulse protein, and discloses them to be 20, 30 and 40%, respectively of the total protein. Taking Table 24 for example, Sabbagh discloses a composition of 20 wt% pulse protein where the example includes 39.6 parts of soy protein containing SUPRO XF8020 and 380.4 parts of skim milk powder; this is not just 20 parts of the SUPRO XF8020 and 80 parts of the skim milk powder. Clearly, then Sabbagh recognizes that the protein containing ingredients in its frozen confection contain only a portion of protein; and Sabbagh calculates accordingly the pulse protein to milk protein weight ratio and reports it. In contrast to this, the Reply asserts without any evidence that the Examples in Tables 24, 25 and 26 of Sabbagh are outside the claimed weight ratios of 1:2 to 1:6 pulse protein to milk protein ratio because of the added heavy cream which does not have to have significant amounts protein. Arguments of counsel cannot take the place of evidence on the record. See MPEP 716.01(c).II.
Conclusion
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