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 .
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 54-56, and 61 are rejected under 35 U.S.C. 102(1)(1) as being anticipated by Suh et al. (WO 9810665).
Regarding Claim 54: Suh discloses a treated plant protein having reduced manganese and magnesium [abstract; pg. 8, lines 9-14]. Suh discloses soy as a treated plant material and discloses manganese at less than 450 µg/g of protein [pg. 9].
Regarding Claim 55: Suh discloses as discussed above in claim 54. Suh also discloses a reduction of manganese at 31% ± 10 [pg. 10, Table 1].
Regarding Claim 56: Suh discloses as discussed above in claim 54. Suh discloses the application as applicable to plant protein in general especially those containing elevated levels of manganese, and isoflavones, and further discloses peanuts [pg. 10 lines 8-13].
Regarding Claim 61: Suh discloses a treated plant protein having reduced manganese and magnesium [abstract; pg. 8, lines 9-14]. Suh discloses soy as a treated plant material and discloses manganese at less than 450 µg/g of protein [pg. 9]. Suh discloses including the treated plant material in a food compositions namely livestock feed and infant formula, and nutritional products [pg. 8, lines 15-21; Ex. IV].
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 57 and 60 are rejected under 35 U.S.C. 103 as being unpatentable over Suh et al. (WO 9810665).
Regarding Claim 57: Suh discloses as discussed above in claim 54. Suh discloses the plant protein containing less than 450 ug/g manganese (less than 450 ppm) [pg. 10 lines 8-13].
Although Suh does not explicitly disclose 0 to 20 ppm 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 Suh 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 60: Suh discloses as discussed above in claim 54. Suh discloses soy as a treated plant material and discloses manganese at less than 450 µg/g of protein [pg. 9]. Suh therefore discloses a ratio of Mn to protein at .00045: 1 or alternatively 4.5: 10,000 or more.
Although Suh does not explicitly disclose a ratio of 1: 15,000 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 Suh overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claims 58 and 59 are rejected under 35 U.S.C. 103 as being unpatentable over Suh et al. (WO 9810665) as applied to claim 54 above and in further view of USDA Soy protein isolate 4/1/2019.
Regarding Claim 58: Suh discloses as discussed above in claim 54. Suh discloses an 11.4% ± 5.1 reduction of magnesium [Table 1]. However, Suh does not disclose the actual Mg content at between 0 to 1500ppm.
USDA discloses soy protein as containing 39mg /100g which is 0.039% [Pg. 1 and 2]. Suh discloses an 11% reduction in Mg. Since USDA discloses an average Mg content 0.39% then an 11.4% reduction would result in the Mg of Suh having about 0.034% (340 ppm)Mg.
Regarding Claim 59: Suh discloses as discussed above in claim 54. Suh discloses an 11.4% ± 5.1 reduction of magnesium [Table 1]. However, Suh does not disclose the actual protein:Mg ratio of at least 100.
USDA discloses soy protein as containing 39mg/100g which is 0.039% [Pg. 1 and 2]. Suh discloses an 11% reduction in Mg. Since USDA discloses an average Mg content 0.39% then an 11.4% reduction would result in the Mg of Suh having about 0.034% (340 ppm) Mg and therefore a ratio of .034:100g.
Although Suh as modified does not explicitly disclose a ratio of 100 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 Suh as modified overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claim 62 is rejected under 35 U.S.C. 103 as being unpatentable over Suh et al. (WO 9810665) as applied to claim 61 above and in further view of Ao et al. (US 2015/0305459).
Regarding Claim 62: Suh discloses as discussed above in claim 61. Suh does not explicitly disclose whether the food that contains its plant protein is a non-dairy composition.
Ao discloses plant proteins or non-dairy proteins in foods that are directed to those having milk allergies [abstract; 0051; 0052].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art having the teachings of Suh and Ao to modify the composition of Suh to include non-dairy foods as in Ao since Ao discloses that utilizing plant proteins in compositions are advantageous as making nutritional products available to those having milk allergies.
Conclusion
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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/Felicia C Turner/Primary Examiner, Art Unit 1793
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