DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to the application filed on September 19, 2022. The earliest effective filing date of the application is September 17, 2021.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 July 31, 2026 has been entered.
Status of Application
The Request for Continued Examination has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 and 3 – 20
Previously cancelled claims: 2
Amended claims: None
Claims currently under consideration: 1 and 3 – 20
By not repeating the previously presented objection/rejection(s), it is sufficiently clear that said objection/rejection(s) are withdrawn.
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 1, 3 – 7, and 9 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over Saunders et al. (US 20120082767 A1 – IDS Filed on August 7, 2024).
Regarding claim 1, Saunders teaches a process for controlling oil and fat content in cooked food comprising the steps of:
mixing pea protein powder with water and an acid or a base to achieve a desired pH ([0056 – 0057]);
applying a pea protein composition to uncooked food ([0002]; [0007]); and
deep frying the food containing the pea protein composition with oil and/or fat ([0007]; [0052]).
Saunders teaches pea protein compositions with pH values of 2.8, 7.4, and 8.0 reduce the fat content of food by 34.7 wt%, 36.6 wt% and 32.3 wt%, respectively, relative to a control that did not have a pea protein composition applied before deep frying (i.e., cooking in oil – [0063]; Example 2, Table 1). Therefore, a pea protein composition of any pH between 2.8 – 8.0 would reduce the fat content in a fried food relative to a control that did not have a pea protein composition applied before deep frying (i.e., cooking in oil) by at least 20%.
The range of pea protein composition pH, 2.8 – 8, as disclosed by Saunders, overlaps with the claimed range of 4 – 6. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 3, Saunders teaches dipping the uncooked food into the pea protein composition ([0059]; [0063]).
Regarding claims 4 and 5, Saunders teaches applying the pea protein composition alone or in admixture with conventional food or nutritive additives such as breading or batter coatings, spice dry rubs, cracker meal, corn meal, or the like ([0047]).
Regarding claim 6, Saunders teaches the pea protein composition is a dry mix ([0007]).
Regarding claim 7, Saunders teaches the pea protein composition is an aqueous solution ([0007]).
Regarding claim 10, Saunders teaches a process for controlling oil and fat content in cooked food comprising applying a pea protein composition to uncooked food prior to cooking ([0002]; [0007]). Saunders teaches pea protein compositions with pH values of 2.8, 7.4, and 8.0 reduce the fat content of food by 34.7 wt%, 36.6 wt% and 32.3 wt%, respectively, relative to a control that did not have a pea protein composition applied before deep frying (i.e., cooking in oil – [0063]; Example 2, Table 1). Therefore, a pea protein composition of any pH between 2.8 – 8.0 would reduce the fat content in a fried food relative to a control that did not have a pea protein composition applied before deep frying (i.e., cooking in oil) by at least 20%.
The range of pea protein composition pH, 2.8 – 8, as disclosed by Saunders, overlaps with the claimed range of 4 – 6. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 11, Saunders teaches dipping the uncooked food into the pea protein composition ([0059]; [0063]).
Regarding claims 12 and 13, Saunders teaches applying the pea protein composition alone or in admixture with conventional food or nutritive additives such as breading or batter coatings, spice dry rubs, cracker meal, corn meal, or the like ([0047]).
Regarding claim 14, Saunders teaches the pea protein composition is a dry mix ([0007]).
Regarding claim 15, Saunders teaches the pea protein composition is an aqueous solution ([0007]).
Regarding claim 16, Saunders teaches the pea protein composition can contain flavorants such as garlic flavor (i.e., a plant-based extract – [0047]).
Regarding claim 17, Saunders teaches a process for controlling oil and fat content in cooked food comprising applying a pea protein composition to uncooked food prior to deep frying ([0002]; [0007]). Saunders teaches pea protein compositions with pH values of 2.8, 7.4, and 8.0 reduce the fat content of food by 34.7 wt%, 36.6 wt% and 32.3 wt%, respectively, relative to a control that did not have a pea protein composition applied before deep frying (i.e., cooking in oil – [0063]; Example 2, Table 1). Therefore, a pea protein composition of any pH between 2.8 – 8.0 would reduce the fat content in a fried food relative to a control that did not have a pea protein composition applied before deep frying (i.e., cooking in oil) by at least 20%.
The range of pea protein composition pH, 2.8 – 8, as disclosed by Saunders, overlaps with the claimed range of 4 – 6. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 18, Saunders teaches dipping the uncooked food into the pea protein composition ([0059]; [0063]).
Regarding claim 19, Saunders teaches applying the pea protein composition alone or in admixture with conventional food or nutritive additives such as breading or batter coatings, spice dry rubs, cracker meal, corn meal, or the like ([0047]).
Regarding claim 20, Saunders teaches the pea protein composition can contain flavorants such as garlic flavor (i.e., a plant-based extract – [0047]).
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Saunders et al. (US 20120082767 A1 – IDS Filed on August 7, 2024) as applied to claim 1 above and evidenced by Banerjee et al. (Garlic as an antioxidant: the good, the bad and the ugly. Phytother. Res., Vol. 17. pp. 97-106. (2003)).
Regarding claims 8 and 9, Saunders teaches the pea protein composition can contain flavorants such as garlic flavor ([0047]). One of ordinary skill in the art would understand garlic flavor comprises garlic, garlic extract, garlic powder, or garlic oil (i.e., plant-based extracts). As evidenced by Banerjee, garlic extract, garlic powder, and garlic oil are antioxidants (p. 101; 102, Garlic Powder – Aged Garlic Extract; Garlic Oil).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Saunders et al. (US 20120082767 A1 – IDS Filed on August 7, 2024) as applied to claim 10 above and evidenced by Banerjee et al. (Garlic as an antioxidant: the good, the bad and the ugly. Phytother. Res., Vol. 17. pp. 97-106. (2003)).
Regarding claim 16, Saunders teaches the pea protein composition can contain flavorants such as garlic flavor ([0047]). One of ordinary skill in the art would understand garlic flavor comprises garlic, garlic extract, garlic powder, or garlic oil (i.e., plant-based extracts). As evidenced by Banerjee, garlic extract, garlic powder, and garlic oil are antioxidants (p. 101; 102, Garlic Powder – Aged Garlic Extract; Garlic Oil).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Saunders et al. (US 20120082767 A1 – IDS Filed on August 7, 2024) as applied to claim 17 above and evidenced by Banerjee et al. (Garlic as an antioxidant: the good, the bad and the ugly. Phytother. Res., Vol. 17. pp. 97-106. (2003)).
Regarding claim 20, Saunders teaches the pea protein composition can contain flavorants such as garlic flavor ([0047]). One of ordinary skill in the art would understand garlic flavor comprises garlic, garlic extract, garlic powder, or garlic oil (i.e., plant-based extracts). As evidenced by Banerjee, garlic extract, garlic powder, and garlic oil are antioxidants (p. 101; 102, Garlic Powder – Aged Garlic Extract; Garlic Oil).
Response to Arguments
Applicant's arguments filed July 6, 2026 have been fully considered but they are not persuasive.
Applicant argues the claimed pH range, 4 to 6, is critical to the success of the invention (p. 5, paragraph 3; p. 6, paragraph 3).
Applicant’s argument has been carefully considered but it is not persuasive. As stated in the Final rejection filed on April 6, 2026, Saunders describes the relationship between the protein isolate pH and fat absorption during deep frying in [0063] and Example 2, Table 1. Most notably, the data of Saunders describes the fat absorption is reduced significantly (above 32 wt%) by a pea protein composition having a pH within the claimed range of 4 – 6 relative to a control that did not have a pea protein composition applied before deep frying. Therefore, there was a reasonable expectation of successfully reducing fat absorption by at least 20 wt% relative to a control that did not have a pea protein composition applied before deep frying by applying the pea protein composition of Saunders to uncooked food and deep frying.
Applicant argues the claimed pH range, 4 to 6, exhibits unexpected results (p. 5, paragraph 3).
Applicant’s argument has been carefully considered but it is not persuasive. As stated in the Final rejection filed on April 6, 2026, the results presented in the instant specification are not commensurate with the claims. The claims don't specify what kind of food, any other components of the coating, what oil the food is fried in, how long it's fried for, or whether it's deep fried, pan fried or stir fried. Because the examples in the specification are not commensurate with the claims, the evidence relied upon has not established that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance. See MPEP 716.02(b).
Applicant argues Sunders teaches away from the claimed pH of 4 to 6 (p. 6, paragraph 2).
Applicant’s argument has been carefully considered but it is not persuasive. MPEP 2145.X.D.I states "A prior art reference that "teaches away" from the claimed invention is a significant factor to be considered in determining obviousness. However, "the nature of the teaching is highly relevant and must be weighed in substance. A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." In this case, Saunders does not disparage the pH of 4 to 6 within the reference. While Saunders only conducted experiments at high and low pH, there is no disclosure in Saunders teaching away from the utilization of pHs between 2.8 and 7.4. Furthermore, there is no disclosure in Saunders that solubility inhibited fat absorption, only that the isoelectric point of pea protein is between a pH of 4 and 6 ([0042] [0045]). In fact, while Saunders teaches the protein isolate has the lowest solubility at a pH of 4 6, Saunders comments in [0042] that various pea protein compositions are prepared which behave differently intentionally, avoiding regarding low solubility as a positive or negative feature. Dry rubs, for example, may benefit from low solubility. Saunders does not teach away from using a pea protein isolate of pH 4 6. Therefore, according to the teachings of Saunders, one of ordinary skill in the art would have arrived at the claimed invention with a reasonable expectation of success, especially since the disclosure of Saunders shows all tested pHs have reduced oil absorption.
Applicant argues the Examiner has not fully considered the Kelleher Declaration (p. 7, paragraph 2).
Applicant’s argument has been carefully considered but it is not persuasive. The Kelleher declaration was addressed in the Final rejection filed on April 6, 2026. The Kelleher Declaration points to Exhibits I and II to provide evidence of nonobviousness of the claimed pH range. However, the data provided in Exhibits I and Il do not discuss the criticality of protein pH, nor practicality of protein solubility in the context of fat or oil absorption during cooking.
Conclusion
No claims are allowed.
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 LARK JULIA MORENO whose telephone number is (571)272-2337. The examiner can normally be reached 6:30 - 4:30 M - F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
