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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) filed on 14 April 2026 and the Response and Amendment filed 13 March 2026 are acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-15
Withdrawn claims: 6-15
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1
New claims: None
Claims currently under consideration: 1-5
Currently rejected claims: 1-5
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 14 April 2026 has been entered.
Claim Objections
Claims 4 and 5 are objected to because of the following informalities:
The status identifiers for claims 4 and 5 are incorrect and should instead read “Previously presented”. See MPEP § 714(II)(C).
Appropriate correction is required.
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 are rejected under 35 U.S.C. 103 as being unpatentable over Tetrick et al. (WO 2013/067453 A1, cited on the IDS filed on 25 October 2022) in view of Senecot et al. (WO 2018/197822 A1, cited on the IDS filed on 25 October 2022, see translation provided).
Regarding claim 1, Tetrick teaches a composition comprising a pea (i.e., legume) protein isolate ([0073], [00152]) and a modified (i.e., pregelatinized) starch ([0098]) in a respective weight ratio comprised between 0.8:0.2 (i.e., 4:1) and 0.7:0.3 (i.e., 2.33:1), and not comprising any non-starch polysaccharide – Tetrick teaches compositions that can functionally replace the whole egg or part of the egg in baked goods and/or emulsions ([0006]). The compositions may be used to replace egg yolks ([0007]). Tetrick teaches that “the compositions provide about 1-30%, about 20-50%, about 30-70%, about 40-90%, about 60-100% of the emulsifying properties of a natural egg” ([0056]). Tetrick teaches an egg replacement composition comprising a ratio of 59% pea protein isolate and 41% modified starch (i.e., 1.44:1) to replace eggs in mayonnaise, and the composition does not require any non-starch polysaccharide (see Example 8, [00152]). While this ratio lies outside the claimed range, the disclosure is not limited to the embodiments of the examples. Tetrick also teaches that compositions of the invention can comprise about 1% to about 30% protein by dry weight or total weight ([0072]), and the proteins may include proteins, isolates and/or concentrates of peas and/or several other legumes ([0073]). Tetrick teaches that “extraction of pea protein from an off-the-shelf pea protein product results in better results compared to use of off-the-shelf pea protein product” ([0158]), indicating that purified pea protein in combination with the modified starch performs better than off-the-shelf pea protein compositions that comprise pea protein and other components. Tetrick further teaches that compositions can comprise about 0.5% to about 20% of one or more starches by dry weight or total weight ([0097]), and the starches may include pregelatinized starch ([0098]). Therefore, Tetrick teaches a composition comprising legume protein and a pregelatinized starch in a respective weight ratio of 1:20 to 30:0.5, or 1:20 to 60:1. The claimed range of between 4:1 and 2.33:1 lies inside the disclosed range of 1:20 to 60:1. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. See MPEP § 2144.05(I).
Tetrick does not teach that the composition specifically comprises legume albumin, but instead comprises pea protein isolate ([0073], [00152]).
However, Senecot teaches a pea albumin with improved emulsifying activity (abstract). Senecot teaches that the albumins according to the invention make it possible to achieve emulsifying values which are more than double those of the pea proteins of the prior art, and make it possible to envisage similar applications to those possible with albumins derived from egg or milk (p. 5, ¶ 12). The pea albumin of the invention has similar emulsifying activity to egg albumin, and much higher emulsifying activity than pea globulin (p. 5, Tables).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the pea protein isolate of Tetrick with the pea albumin of Senecot by simple substitution of one known element for another to obtain predictable results. See MPEP §2143(I)(B). First, Tetrick teaches a base composition that can functionally replace the whole egg or part of the egg in baked goods and/or emulsions ([0006]), exemplified by replacing egg (yolk) in mayonnaise (an emulsion) (see Example 8, [00152]). The composition comprises pea protein isolate and modified starch (Id.). Tetrick teaches that “the compositions provide about 1-30%, about 20-50%, about 30-70%, about 40-90%, about 60-100% of the emulsifying properties of a natural egg” ([0056]). Tetrick teaches that “extraction of pea protein from an off-the-shelf pea protein product results in better results compared to use of off-the-shelf pea protein product” ([0158]), indicating that purified pea protein in combination with the modified starch performs better than off-the-shelf pea protein compositions that comprise pea protein and other components. Senecot, as related to preparing emulsions, teaches a pea albumin that has similar emulsifying activity to egg albumin, and much higher emulsifying activity than pea globulin (p. 5, Tables), and that this property makes it possible to envisage similar applications of the pea albumin to those possible with albumins derived from egg or milk (p. 5, ¶ 12). Therefore, one of ordinary skill in the art could have substituted the pea protein isolate of Tetrick with the pea albumin of Senecot with the predictable result of the pea albumin providing a similar emulsifying activity of egg albumin, and improved emulsifying activity over pea globulin to the mayonnaise product, and in doing so would have arrived at the claimed invention.
The recitation, “substitute for egg yolk” in claim 1 is an intended use of the composition. A statement with regard to intended use is not further limiting insofar as the structure of the product is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II). In the present case there is no difference between the composition suggested in the prior art and the claimed composition.
The recitation, “said composition allowing identical results to egg yolk with prior rehydration of the albumin for a maximum of 15 minutes” in claim 1 is the recognition of a latent property of the composition. As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”. Since the cited prior art teaches the structure of the claimed composition, and “said composition allowing identical results to egg yolk” merely recognizes a latent property of the composition, the recitation is not limiting, and does not render the claim nonobvious.
The recitation, “with prior rehydration of the albumin for a maximum of 15 minutes” is a product-by-process limitation. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113.
Therefore, absent evidence of criticality regarding the presently claimed rehydration of the albumin for a maximum of 15 minutes in preparing the claimed composition and given that Tetrick in view of Senecot meets the requirements of the claimed composite, the cited prior art clearly meet the requirements of present claim 1.
Claim 1 is therefore rendered obvious.
Regarding claim 2, Tetrick and Senecot teach the composition according to claim 1.
Tetrick and Senecot also teach that the legume is selected from a list comprising peas and faba beans – Tetrick teaches a composition comprising a pea protein isolate ([0073], [00152]) or fava (i.e., faba) bean proteins ([0073]). Senecot teaches a pea albumin with improved emulsifying activity (abstract).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the pea protein isolate of Tetrick with the pea albumin of Senecot to arrive at a composition wherein the legume albumin is pea albumin with the same motivation and with the same expectation of success as described regarding claim 1 above.
Claim 2 is therefore rendered obvious.
Regarding claim 3, Tetrick and Senecot teach the composition according to claim 1.
Tetrick and Senecot also teach that the legume is a pea plant – Tetrick teaches a composition comprising a pea protein isolate ([0073], [00152]). Senecot teaches a pea albumin with improved emulsifying activity (abstract).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the pea protein isolate of Tetrick with the pea albumin of Senecot to arrive at a composition wherein the legume albumin is pea albumin with the same motivation and with the same expectation of success as described regarding claim 1 above.
Claim 3 is therefore rendered obvious.
Regarding claim 4, Tetrick and Senecot teach the composition according to claim 1.
Tetrick does not teach that the albumin has an emulsifying activity greater than 600 ml of corn oil per gram of albumin
However, Senecot teaches that the albumin has an emulsifying activity greater than 600 ml of corn oil per gram of albumin (abstract; p. 2, ¶ 11).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the pea protein isolate of Tetrick with the pea albumin of Senecot to arrive at a composition wherein the legume albumin has an emulsifying activity greater than 600 ml of corn oil per gram of albumin with the same motivation and with the same expectation of success as described regarding claim 1 above.
Claim 4 is therefore rendered obvious.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Tetrick et al. in view of Senecot et al. as applied to claim 1 above, and further in view of Moghaddam et al. (Moghaddam, M. Y., Mizani, M., Salehifar, M., & Gerami, A. (2013). Effect of Waxy Maize Starch (Modified, Native) on Physical and Rheological Properties of French Dressing During Storage. World Applied Sciences Journal, 21(6), 819-824. https://doi.org/10.5829/idosi.wasj.2013.21.6.14).
Regarding claim 5, Tetrick and Senecot teach the composition according to claim 1.
Tetrick also teaches that the starch is a cold-water soluble modified starch (i.e., a pregelatinized starch) derived from waxy maize.
The cited prior art does not teach that the pregelatinized starch has undergone a chemical acetylation modification.
However, Moghaddam teaches that, in a French salad dressing, acetylated distarch adipate produced from waxy maize starch provides a more stable and viscous emulsion than native waxy maize starch and hydroxypropylated distarch phosphate produced from waxy maize (abstract). The acetylated distarch adipate replaced the usual thickeners, xanthan and guar, and resulted in the best physical can rheological properties (abstract). French dressing is an oil-in-water emulsion containing vegetable oil, whole egg or egg yolk, vinegar, salt, sugar, tomato paste, thickening agents, flavoring agents, and spices (p. 819, col. 1, ¶ 1).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the composition of Tetrick with the teachings of Moghaddam to substitute the pregelatinized waxy maize starch with pregelatinized acetylated distarch adipate from waxy maize. First, Tetrick teaches a mayonnaise wherein the eggs are replaced with pea protein and cold-water soluble modified (i.e., pregelatinized) starch from waxy maize ([00152]). Mayonnaise is an oil-in-water emulsion ([0057]) and is broadly considered a salad dressing. Moghaddam teaches that acetylated distarch adipate from waxy maize provides superior emulsion stability and rheological properties over unmodified waxy maize starch in French dressing (abstract), a similar oil-in-water emulsion (p. 819, col. 1, ¶ 1). One of ordinary skill in the art would have been motivated to substitute the pregelatinized starch of Tetrick with a pregelatinized acetylated distarch adipate from waxy maize, as is claimed, in order to provide better emulsion stability and rheological properties to the mayonnaise product. One of ordinary skill in the art would have had a reasonable expectation of success in doing so given the findings of Moghaddam that acetylated distarch adipate showed the best physical and rheological properties, and also sensory properties, among the waxy maize starches tested, and that the acetylated distarch adipate performed these functions in place of xanthan and guar thickeners (abstract).
Claim 5 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 13 March 2026 have been fully considered, but they are not persuasive.
Applicant first argued that Example 6 of Senecot would not have motivated one of ordinary skill in the art to arrive at the presently claimed composition (p. 6, ¶ 1 – p. 8, ¶ 1). Applicant argued that the amended claims now introduce the rehydration time of a maximum of 15 minutes (p. 6, ¶ 1), and that combining the teachings of Tetrick with those of Senecot would not lead one of ordinary skill in the art to the claimed invention because Tetrick requires long rehydration times and Senecot is silent about rehydration times and consistency of egg substitutes (p. 6, ¶¶ 2-3). Applicant argued that compared to Example 6 of Senecot concerning a ready-to-drink formulation, the composition of the claimed invention is a composition substitute for egg yolk which is characterized by a rehydration time no lnger than 15 minutes, such rehydration time being sufficient to obtain identical results to egg yolk and not requiring additional steps such as heating and homogenization at high speed (p. 7, ¶ 5).
Applicant’s arguments have been considered, but they are not persuasive. The instant claims are toward a composition comprising a legume albumin and a pregelatinized starch in a respective weight ratio comprised between 0.8:0.2 and 0.7:0.3, and not comprising any non-starch polysaccharide. The recitation, “substitute for egg yolk” in claim 1 is an intended use of the composition. A statement with regard to intended use is not further limiting insofar as the structure of the product is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II). In the present case there is no difference between the composition suggested in the prior art and the claimed composition.
The recitation, “said composition allowing identical results to egg yolk with prior rehydration of the albumin for a maximum of 15 minutes” in claim 1 is the recognition of a latent property of the composition. As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”. Since the cited prior art teaches the structure of the claimed composition, and “said composition allowing identical results to egg yolk” merely recognizes a latent property of the composition, the recitation is not limiting, and does not render the claim nonobvious.
The recitation, “with prior rehydration of the albumin for a maximum of 15 minutes” is a product-by-process limitation. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113.
Therefore, absent evidence of criticality regarding the presently claimed rehydration of the albumin for a maximum of 15 minutes in preparing the claimed composition and given that Tetrick in view of Senecot meets the requirements of the claimed composite, the cited prior art clearly meet the requirements of present claim 1.
MPEP § 2145 states, “If a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc)”, and “[r]ebuttal evidence may include evidence of ‘secondary considerations,’ such as ‘commercial success, long felt but unsolved needs, [and] failure of others.’ Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 4459, 467. See also, e.g., In re Piasecki, 745 F.2d 1468, 1473, 223 USPQ 785, 788 (Fed. Cir. 1984) (commercial success). Rebuttal evidence may also include evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art. Rebuttal evidence may consist of a showing that the claimed compound possesses unexpected properties. Dillon, 919 F.2d at 692-93, 16 USPQ2d at 1901. 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)”. However, as provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant 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.’ Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Furthermore, “[e]vidence of unexpected results must be weighed against evidence supporting prima facie obviousness in making a final determination of the obviousness of the claimed invention. In re May, 574 F.2d 1082, 197 USPQ 601 (CCPA 1978).” See MPEP § 716.02(c)(I). “‘Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof.; In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967)”. See MPEP § 716.02(c)(II).
“Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. See MPEP § 716.02(d).
Applicant’s arguments toward process steps in preparing the claimed composition are insufficient to provide any evidence of criticality of the maximum 15-minute rehydration time. There is no showing that longer rehydration times do not result in the composition as claimed, and Applicant provides no evidence commensurate in scope with the claimed invention to support any unexpected results.
Applicant next argued that Senecot does not disclose or suggest compositions for specifically and functionally replacing egg yolk (p.8, ¶ 2- p. 9, ¶ 2). Applicant argued that Senecot aims to provide a pea albumin capable of emulsifying as well as milk proteins so as to replace such milk proteins, and does not specifically aim at replacing egg yolk in food compositions (p. 8, ¶ 1). Applicant argued that at most, Senecot discloses egg white, and egg white and egg yolk differ in their emulsifying capacity, demonstrated by the fact that it is not possible to make mayonnaise with egg white, thus one of ordinary skill in the art would not have replaced the pea protein isolate of Tetrick with the pea albumin of Senecot to arrive at the composition of claim 1 (p. 8, ¶ 2).
Applicant’s arguments have been considered, but they are not persuasive. First, as discussed above, the recitation, “substitute for egg yolk” in claim 1 is an intended use of the composition that does not limit the structure of the composition of the claim. Further, Tetrick teaches making a mayonnaise with the pea protein isolate in combination with modified starch as the egg yolk substitute (see Example 8, [00152]), and the amounts of protein and modified starch disclosed by Tetrick render the claimed ratio obvious as described in the rejection of claim 1 above. Therefore, the pea albumin does not need to have the same emulsifying properties as egg yolk. The pea albumin in combination with the modified starch should have the properties of egg yolk since this combination is the substitution for egg yolk in the mayonnaise. Applicant has provided no evidence that such combination is not a sufficient substitution for egg yolk.
Applicant further argued that the pea protein of Tetrick is different from the pea albumin of Senecot so replacing the first with the latter would not have been obvious for one of ordinary skill in the art (p. 9, ¶ 3 – p. 10, ¶ 2). Applicant argued that Tetrick discloses a pea protein isolate with a protein content of 80%, and Senecot discloses a pea albumin having a protein content as high as 94% (p. 9, ¶¶ 3-4). Applicant argued the pea protein isolate of Tetrick differs from the pea albumin of Senecot at least for its lower protein content, and, more particularly, for the presence of around 20% non-protein components, which influence the final compostion and its properties (p. 10, ¶ 1). Applicant asserted that it is well-known that non-protein components such as carbohydrates, fats, and fibers strongly influence not only the composition, but also the rheological and organoleptic properties of the food compositions to which they are added (Id.), and that one of ordinary skill in the art would have considered that the satisfactory results obtained with the composition of Tetrick are also due to the composition of the pea protein isolate and would have likely not changed its composition (p. 10, ¶ 2).
Applicant’s arguments have been considered, but they are not persuasive. Tetrick teaches that “extraction of pea protein from an off-the-shelf pea protein product results in better results compared to use of off-the-shelf pea protein product” ([0158]), indicating that purified pea protein in combination with the modified starch performs better than off-the-shelf pea protein compositions that comprise pea protein and other components. Therefore, the non-protein components of the pea protein isolate do not appear to be important in the compositions of Tetrick.
Therefore, Applicant’s arguments are not persuasive, and claims 1-5 are rejected under 35 U.S.C. § 103.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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