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 Response and Amendment after Non-Final Office Action filed 16 October 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the objections to the abstract of the specification and claims have been withdrawn; (2) the 112(b) rejections of the claims have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-15
Withdrawn claims: 1-15
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1, 4, and 5
New claims: None
Claims currently under consideration: 1-5
Currently rejected claims: 1-5
Allowed claims: None
NOTE: The status identifiers for claims 6-15 are incorrect and should instead read “Withdrawn” or “Withdrawn – currently amended”. See MPEP § 714(II)(C).
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. (EP 3614856 A1, cited on the IDS filed on 25 October 2022).
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 compositions that can functionally replace the whole egg or part of the egg in baked goods and/or emulsions ([0006]). 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 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 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, ¶ 3).
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. First, Tetrick teaches that the composition can functionally replace the whole egg or part of the egg in baked goods and/or emulsions ([0006]). 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, ¶ 3). One of ordinary skill in the art would have been motivated to do so in order to further improve the emulsifying capabilities and egg-like qualities of the composition of Tetrick with a reasonable expectation of success since Senecot discloses that their pea albumin has improved emulsifying values and would be suitable in applications where egg albumin is used (p. 5, ¶ 3).
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, ¶ 15).
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
Specification Objections:
Applicant has overcome the objections to the abstract by amendment. Accordingly, the objection has been withdrawn.
Claim Objections:
Applicant has overcome the objections to the claims by amendment. Accordingly, the objections have been withdrawn.
Claim Rejections – 35 U.S.C. § 112:
Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 1-5 based on amendment to the claims. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 16 October 2025 have been fully considered, but they are not persuasive.
Applicant first argued that the composition of Tetrick requires rehydration times of several hours to several days to achieve a thicker and stronger emulsion, and the reduced rehydration time of 15 minutes of the present invention confers to the claimed composition an undeniable advantage over the compositions of Tetrick (p. 6, ¶ 7 – pp. 8-9, bridging ¶). Here, Applicant has argued against Tetrick individually.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The rejections of claims 1-5 are based on the combination of references. Therefore, Applicant’s argument cannot be persuasive.
Moreover, rehydration time is not the subject of any of the elected claims 1-5. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant next argued that the skilled artisan aware of the long rehydration times of the compositions of Tetrick would not have consulted Senecot to solve this problem because Senecot does not belong to the field of egg substitutes and to compositions comprising said egg substitutes (p. 9, ¶ 2).
Applicant’s argument has been considered, but it is not persuasive. In response to applicant's argument that Senecot is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Senecot is analogous art because 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, ¶ 3). Thus, Senecot teaches applying the albumins of their invention to replacements/substitutes for egg.
Applicant next argued, “The Examiner insists that the skilled artisan would have been motivated to consult Senecot et al. to further improve the emulsifying capabilities and egg-like qualities of the composition of Tetrick et al. But the Applicant submits that the compositions disclosed in Tetrick et al. are stable emulsions. In fact, Tetrick et al. discloses that "the composition provides binding, moisturizing, leavening, and/or emulsifying properties similar to an egg" ([0008], [0015]). See also [0017] and [0056] of Tetrick et al. Thus, the compositions of Tetrick et al. do not require further stabilization by the addition of albumins with improved emulsifying capabilities and the skilled artisan would not have been motivated to replace the legume protein of Tetrick et al. with the pea albumin of Senecot et al.” (p. 9, ¶¶ 3-4).
Applicant’s argument has been considered, but it is not persuasive. The Examiner did not insist that “the skilled artisan would have been motivated to consult Senecot et al. to further improve the emulsifying capabilities and egg-like qualities of the composition of Tetrick et al.” The rejection reads, in pertinent part, “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…One of ordinary skill in the art would have been motivated to do so in order to further improve the emulsifying capabilities and egg-like qualities of the composition of Tetrick…” (Previous Office Action at ¶ 31 and hereinabove at ¶ 11). The motivation is not to consult Senecot for a way to improve emulsifying capabilities and egg-like qualities, but to apply the teachings of Senecot, as knowledge one of ordinary skill in the art would have had before the effective filing date of the claimed invention, to improve upon the emulsifying capabilities and egg-like qualities of the composition of Tetrick. Where Tetrick uses pea protein isolate in an egg substitute, and where Senecot teaches that pea albumin can be used to achieve emulsifying values which are more than double those of the pea proteins of the prior art and applying the pea albumins to applications using albumins derived from egg or milk (p. 5, ¶ 3), one of ordinary skill in the art would have been motivated to replace the pea protein isolate with pea albumins because of the disclosed superior performance of the pea albumins. It is also noted that Tetrick teaches that the emulsifying properties of their compositions provide anywhere in the range of 1-100% of the emulsifying properties of a natural egg ([0057]), leaving room for improvement.
Applicant next argued that even if the skilled artisan had consulted Senecot, the artisan would not have found the teachings or motivation to arrive at the presently claimed invention since Senecot is silent about both rehydration time and consistency of egg substitutes, and the albumins of Senecot are not described for their capacity to reduce rehydration time and improve the consistency of food products. Applicant argued that nothing in Senecot would suggest that the rehydration time could be reduced by replacing the legume protein of Tetrick with a pea albumin (p. 9, ¶ 5).
Applicant’s argument has been considered, but it is not persuasive. Applicant again has argued over features that are not claimed. Rehydration time is not the subject of any of the elected claims 1-5. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Nonetheless, arguendo, Senecot does indicate a rehydration time of 30 minutes in preparing a ready-to-drink beverage wherein the pea albumins are used in view of their emulsifying properties (p. 5, ¶¶ 14-22, “Example 6”). One of ordinary skill in the art would have recognized that this rehydration time is drastically less than those disclosed by Tetrick, and, therefore, a reduced rehydration time could have also been a motivation to instead use the pea albumin of Senecot based solely on the teachings of the cited references.
Applicant next argued that amended claim 1 recites 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. The claimed ratio is far from the ratio disclosed in Tetrick et al. (p. 9, ¶ 6 – p. 10, ¶ 1).
Applicant’s argument has been considered, but it is not persuasive. As described in the rejection regarding claim 1 hereinabove, Tetrick teaches amounts of protein and pregelatinized starch that encompass the claimed range of ratios. 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).
Applicant further argued that, absent hindsight, there is no reason for a skilled artisan to arrive at the instantly claimed invention from a reading of the cited documents (p. 10, ¶ 3 – p. 11, ¶ 2).
In response to applicant's argument that the Examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As described in the rejections and responses to Applicant’s arguments hereinabove, the cited prior art provides sufficient teachings, motivation, and expectation of success to establish a prima facie case of obviousness that one of ordinary skill in the art would have arrived at the claimed invention based on the knowledge that was within the level of ordinary skill in the art at the time.
Therefore, Applicant’s arguments are not persuasive, and claims 1-5 are rejected under 35 U.S.C. § 103.
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 James Shellhammer whose telephone number is (703) 756-5525. The examiner can normally be reached Monday - Thursday 7:30 am - 5:00 pm ET.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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