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 .
Election/Restrictions
Applicant's election with traverse of claims 1-6, 13-15 in the reply filed on 7/8/2025 is acknowledged. The traversal is on the ground(s) that there is not a serious search burden. This is not found persuasive because claims 7-10 recite specific properties of the oat protein concentrate and the oat beverage not found in the method claims
The requirement is still deemed proper and is therefore made FINAL.
Claims 7-10 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected products, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 7/8/2025.
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.
Regarding claim 1, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 17 recites the limitation "the physically separated insoluble fibers" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-3,13-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kvist(WO 2005/048735).
Regarding claims 1,13, Kvist teaches a process of producing an oat-based product, the process comprising(example 4, p.7, line 11-15):
providing an oat mixture;
hydrolyzing the oat mixture with an enzyme or a combination of enzymes; physically separating an insoluble material from the hydrolyzed oat mixture by decantation and/or sieving to form a soluble hydrolyzed oat mixture; and
applying membrane filtration to the soluble hydrolyzed oat mixture using a membrane having molecular weight cut-offs (MWCO) of 0.1 micron(which is greater than 100kDa), to obtain a retentate.
Regarding claim 2, Kvist teaches that the oat mixture is dehulled oats that are further milled to form a coarser fraction(i.e. oat flakes(example 1).
Regarding claim 3, Kvist teaches that the enzyme is amylase(example 4).
Regarding claim 14, Kvist teaches that the retentate comprises 4.6% protein(example 4). The instant spec states that the oat protein concentrate comprises “about 5-10wt% oat proteins”(p.14, line 4-6). Since 4.6% is about 5, the retentate is considered a protein concentrate.
Regarding claim 15, Kvist teaches dissolving 575g of oat mixture in 4L of water(4000g)(example 4). Therefore, the oat mixture comprises a solids content of 13%.
Claim Rejections - 35 USC § 103
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.
Claim(s) 4-6, 16-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kvist(WO2005/048735).
Regarding claim 4, Kvist does not specifically teach that the total amount of the enzyme used for hydrolyzing the oat mixture is from 0.05wt% to 0.3wt% of the oat raw material. However, since the purpose of the amylase enzyme is to break down the starches present into sugars, it would have been obvious to adjust the amount of the enzyme depending on the level of starches present and the activity of the enzyme.
Regarding claim 5, Kvist teaches that the heating the enzyme to inactivate the enzyme and further cooling at a temperature of 60C(example 1, the fibrous layer is dried at 60C after enzyme deactivation). Kvist does not specifically teach that it is heated to a temperature of 90C to 95C for 10 to 15 minutes. However, it would have been obvious to adjust the temperature and time of the process in order to effectively inactivate the enzyme, depending on the amount and activity.
Regarding claim 6, Kvist teaches membrane filtration(example 4) but does not specifically teach a ceramic membrane. However, it would have been obvious to adjust the type of membrane used in order effectively separate out the unwanted ingredients.
Regarding claim 16, Kvist teaches stirring the hydrolyzed oat mixture(example 4) but does not specifically teach homogenizing. However, it would have been obvious to homogenize the mixture to ensure that the enzyme is properly mixed with the oat mixture.
Regarding claim 17, Kvist teaches drying the the physically separated insoluble fibers in an oven(example 1) but does not specifically teach freeze drying the physically separated insoluble fibers. However, Kvist teaches freeze drying of the retentate in order to form a powder(example 1). It would have been obvious to freeze dry the physically separated insoluble fibers instead of drying in an oven since Kvist teaches that freeze drying is an acceptable form of drying liquid compositions.
Regarding claim 18, Kvist teaches that the permeate contains smaller molecules such as maltodextrins and glucose(example 4). It would have been obvious to steam or evaporate the permeate in order to collect the maltodextrins and glucose to be used byproducts.
Regarding claim 19. Kvist teaches forming a retentate containing protein and beta glucan(example 4). Kvist teaches that the retentate can be added to other food products such as fruit juice, yogurts, and ice cream(p.10-12), all which contain sugars.
Conclusion
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/KATHERINE D LEBLANC/ Primary Examiner, Art Unit 1791