DETAILED ACTION
Background
The amendment dated May 15, 2026 (amendment) amending claims 28 and 38, and adding new claims 50-59 has been entered. Claims 28-30, 32, 38-39 and 50-59 as filed with the amendment have been examined. Claims 1-27, 31, 33-37 and 40-49 have been canceled.
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 § 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.
Claims 28-30, 32, 38-39 and 50-59 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 28 recites steaming at a temperature of “up to 55-70 °C”, which is indefinite. Is the temperature recited that of the steaming medium or that of the pulse?
The Office interprets the recited steaming temperature broadly as being that of either the recited pulse or the recited steaming medium.
Claim 28 recites kilning to a “final temperature 55-85 °C”, which is indefinite. Is the temperature recited that of the kiln or that of the pulse?
The Office interprets the recited final temperature broadly as being that of either the recited pulse or the recited kiln.
Claim 57 recites a heat-treated geminated pulse that “maintains a protein solubility”, which is indefinite. Is the solubility in question maintained from an earlier time or is it maintained for some time after the end of treatment?
The Office interprets the recited heat-treated geminated pulse as maintaining a protein solubility for some time period after the end of treatment.
Claims 29-30, 32, 38-39, 50-57 and 59 are rejected as depending from a rejected base claim.
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 28-30, 32, 38-39, 50-51 and 57-59 are rejected under 35 U.S.C. 103 as being unpatentable over US2016/0044940 A1 to Bellaio et al. (Bellaio) in view of WO01/47364 A1 to Delrue et al. (Delrue), both of record.
Bellaio is equivalent to WO2014/147031 A1, of record.
The Office interprets the claimed steaming temperature in claim 28 broadly to include both the temperature of the steam itself and the temperature of the pulse substrate. And the Office interprets the recited final temperature broadly as being that of either the recited pulse or the recited kiln.
Further, the Office interprets the claimed kilning as including drying in any suitable enclosed space.
Regarding instant claims 28 and 31, Bellaio at [0045]-[0052] discloses a method of treating grains and (at [0001]) legumes (“pulses”), the method comprising (at [0008]) a) soaking the grains in an aqueous medium (“steeping”, and “wet steeping” as in claim 31); (at [0009]) b) draining the aqueous medium and (at [0010]) c) tempering the grains and allowing them to at least partially germinate (“germinating”); (at [0011]) d) hydrothermally treating the grains at a relative humidity in the range from 60% to 100% (“steaming”) for a time of from 0.25 h to 4 h (“steaming for 5-25 min”), and at a temperature in the range from 60 °C to 100 °C, which the claimed 55-85 °C in claim 28 overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. Further, at [0048]-[0050] Bellaio discloses a method further comprising air-drying the steamed, germinated pulses with forced air (“kilning”) at 50-80°C, which the claimed final temperature of a kiln at 55 to 85 °C overlaps. The ordinary skilled artisan in Bellaio would have found it obvious to steam its pulse seed at the claimed temperature and for the claimed time period as well as to kiln it at or to the claimed final temperature because Bellaio discloses that the claimed steaming temperature and time and the claimed kiln temperature a desirable for providing an improved germinated seed product.
Further, Bellaio does not provide an example wherein the method comprises treating a pulse; and, Bellaio does not disclose kilning by a stepwise temperature increase to a final temperature of a kiln or of the pulse or give an example wherein steaming is followed by kilning at 55-85 °C. In addition, Bellaio does not indicate that its steeping achieves a moisture content of 40-60 % (w/w), based on the total weight of the pulse seeds. However, the ordinary skilled artisan in Bellaio would have found it obvious to treat any pulse using the methods disclosed because Bellaio discloses at [0001] that legumes are a desirable grain for use in the method and discloses (at [0042] and [0044], respectively) the desirability of germinating at 18-24 °C and for the claimed period of 24 to 72 hours which are preferred steeping conditions as disclosed in the instant specification at page 15, lines 3-9. Accordingly, the heat-treated geminated pulse product of Bellaio and that as claimed appear to be substantially the same thing. Accordingly, absent a clear showing as to how the steeped pulse seed of Bellaio differs from that as claimed, the Office considers the pulse seeds of [0042] and [0044] of Bellaio to have the claimed 40 to 60 % (w/w) moisture content, based on the total weight of the pulse seed as claimed. See MPEP 2112.01.I.
Delrue at page -3-, lines 27-32 discloses malted (germinated) seeds, such as (at page -4-, lines 2-10) legumes or pulses processed to reduce the microbial level in the seeds and insure more consistent product quality. In Example II on the bottom of page -14-, Delrue discloses steaming wherein the product or substrate temperature is 60 °C, followed (at page -15-) by steeping, germinating and then kilning in a malting unit at 62 to 83 °C. Further, Delrue at page -15- lines 19-22 discloses kilning by a stepwise temperature increase to a final temperature of a kiln or of the pulse to a final temperature of the pulse or the kiln of 83 °C.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Delrue for Bellaio to kiln dry its heat-treated geminated pulses by a stepwise temperature increase to a final temperature of a kiln or of the pulse at 55-85 °C. Both references disclose a germinated seed or pulse having a reduced microbial load (see Bellaio at [0006]) by steam treating and then drying them. The ordinary skilled artisan in Bellaio would have desired to steam treat its pulse seed to reduce the amount of microbes in the pulse seed, followed by drying them in the stepwise manner claimed and to the final temperature claimed to insure consistent quality in the product as in Delrue.
Regarding instant claims 29-30, Bellaio at [0058] discloses methods further comprising dehusking (“dehulling” - claim 29) a pulse and milling the pulse (claim 30).
Regarding instant claim 38, at [0052] Bellaio discloses drying the pulse to from 10 to 14 wt%, based on the total weight of the pulse, a range which the claimed 10% (w/w) or less overlaps. See MPEP 2144.05.I. Further, at [0006], Bellaio discloses that its methods reduce the microbial load in the pulses without destroying their sensorial or flavor properties or their nutritional quality; and [0060] Bellaio discloses milling a dried pulse. The ordinary skilled artisan in Bellaio would have desired to dry its pulse to the claimed moisture content because Bellaio discloses that drying a heat-treated geminated pulse to the claimed moisture content is desirable to increase its resistance to microbial activity and to facilitate milling.
Regarding instant claim 39, at [0058] Bellaio discloses as pulses fava beans or Vicia faba, peas or Pisum sativum, mung bean or Vigna sp., chickpeas or Cicer arietinum, lentils or Lens culinaris, lentils or Lupinus sp., and runner beans or Phaseolus sp.. The ordinary skilled artisan in Bellaio would have found it obvious to treat any of the legumes it discloses as desirable for use in its disclosed steeping, germinating, steaming and kilning methods.
Regarding instant claim 50, the method of Bellaio as modified by Delrue at page -15-, lines 9-22 of Delrue and Bellaio at [0049] discloses drying by kilning for 12-24 hours.
Regarding instant claim 51, the method of Bellaio as modified by Delrue at page -15-, lines 9-22 of Delrue discloses a series of stepwise temperature increases in its kilning. Whether a final temperature as claimed is a kiln temperature or a pulse temperature, the kilning of Bellaio as modified by Delrue includes a first and second hold temperature operation and a first and second temperature increase operation. If the final temperature is interpreted as that of the kiln, then each of the first and second periods are temperature hold periods and the interval between where the temperature is increased are first and second temperature increase periods. If the final temperature is that of the pulse, then each of the first and second periods are, as the pulse heats up first and second temperature increase periods, and the interval during each period after the pulse has reached its highest temperature in that period represents a temperature hold period.
Regarding instant claims 57-59, the heat-treated geminated pulse of the method of Bellaio as modified by Delrue appears to be the same thing as the claimed heat-treated geminated pulse. Accordingly, the steeped pulse product of Bellaio and the steeped pulse as claimed appear to be substantially the same thing. Accordingly, absent a clear showing as to how the heat-treated geminated pulse of Bellaio differs from that as claimed, the Office considers heat-treated geminated pulse of Bellaio at [0045]-[0052] of Bellaio as modified by Delrue at page -15-, lines 9-22 to be a heat-treated geminated pulse wherein following the kilning, the heat-treated germinated pulse maintains a protein solubility of at least 70% of total protein as in claim 57; and to be a heat-treated geminated pulse, wherein following the kilning, the heat-treated germinated pulse maintains has a lipase activity of 1 µmol/min/g dry matter (dm) or less as in claims 58 and 59. See MPEP 2112.01.I.
Claim 51 is rejected under 35 U.S.C. 103 as being unpatentable over US2016/0044940 A1 to Bellaio et al. (Bellaio) in view of WO01/47364 A1 to Delrue et al. (Delrue) as applied to claim 28, above, and further in view of CN107495385 A to Luo et al. (Luo).
All references to Luo refer to its Clarivate machine translation, a copy of which is included with this Office action.
All recited temperatures are interpreted broadly as being both a pulse temperature and a process step temperature.
As applied to claim 28, Bellaio at [0001] and [0045]-[0052] as modified by Delrue at page -4-, lines 2-10 and page -15-, lines 10-22 discloses a method of preparing a heat-treated geminated pulse, the method comprising steeping, germinating, steaming at a temperature of up to 55-70 °C for 5-25 min, and, after the steaming, kilning by a stepwise temperature increase to a final temperature of a kiln or of the pulse being in the range of from 55 to 85 °C, wherein the steeping is performed to achieve a moisture content of 40 to 60 wt%, based on the total weight of the pulse seeds.
Bellaio as modified by Delrue does not disclose a method comprising kilning wherein the kilning includes, in order: a first temperature hold operation, a first temperature increase operation, a second temperature hold operation, and a second temperature increase operation. However, the Office considers a newly increased temperature period to be, for the pulse a temperature increase operation and the period after which a pulse is heated has reached a given temperature to comprise a temperature hold operation.
Luo at Abstract on page 2 discloses a method of soaking or stepping, geminating and drying a seed or pulse via an efficient method, wherein at Example 9 on page 10 Luo discloses the method of producing a pea having a high moisture content, followed by a first drying stage of 5 hours at 32 °C, a second drying stage of 4 hours at 50 °C and a third drying stage of 1.5 hours at 80 °C. The Office considers the first drying stage of Luo to be a first temperature hold operation; further, considers the beginning of the second drying stage to be a first temperature increase operation for the pulse; considers the second drying stage of Luo to be a second temperature hold operation; and considers the beginning of the third drying stage of Luo to be a second temperature increase operation for the pulse.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Luo for Bellaio as modified by Delrue to dry its heat-treated geminated pulse in a kiln by a stepwise temperature increase wherein the kilning includes, in order: a first temperature hold operation, a first temperature increase operation, a second temperature hold operation, and a second temperature increase operation. All references disclose steeping, germinating and drying a pulse to produce a more stable, nutritionally enhanced product. The ordinary skilled artisan in Bellaio as modified by Delrue would have desired to dry its heat-treated geminated pulse via kilning by a stepwise temperature increase to a final temperature of a kiln or of the pulse wherein the kilning includes, in order: a first temperature hold operation, a first temperature increase operation, a second temperature hold operation, and a second temperature increase operation as in Luo to temper the pulse and then effectively dry the pulse and enhance its flavor without overheating the pulse.
Allowable Subject Matter
The following is an examiner’s statement of reasons for allowance:
Claims 52-56 are allowable over the art because none of the cited references or references of record disclose kilning a heat-treated geminated pulse by a stepwise temperature increase to a final temperature of a kiln or of the pulse, further wherein the kilning by the stepwise temperature increase includes alternating temperature increase and temperature hold operations, such that each temperature increase operation is performed for 1-3 hours and each temperature hold operation is performed for 4-6 hours.
The closest art of US2016/0044940 A1 to Bellaio et al. (Bellaio), WO01/47364 A1 to Delrue et al. (Delrue), CN 104286729 A to Zhao et al. (Zhao), WO 2018/025061 A1 to Vignola et al. (Vignola) and CN107495385 A to Luo et al. (Luo), whether taken alone or in combination do not anticipate or render obvious claim 52
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Claims 52-56 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
In view of the amendment dated September 29, 2025, the following rejections have been withdrawn as moot:
The rejection of claim 38 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the limitation "10% (w/w) or less”.
Regarding the positions taken in the remarks accompanying the amendment dated May 15, 2026 (Reply), the Office has fully considered the positions and finds them not persuasive for the following reasons:
Regarding the position taken in the Reply at page 6, that Bellaio as modified by Delrue do not disclose kilning its pulse seeds or kilning by a stepwise temperature increase to a final temperature of a kiln or of the pulse, respectfully Delrue at page -15-, lines 9-22 discloses a series of stepwise temperature increases in its kilning wherein the temperature is increased in each successive period such that the temperature of a pulse would first be increased and then hold steady throughout the period. Both Bellaio at [0001] and [0058] and Delrue at page -4-, lines 2-9 disclose treating a pulse.
Regarding the position taken in the Reply at pages 6-7 alleging unexpected results from the Examples in the instant specification, this is not found persuasive because none of the comparatives addresses a heat-treated geminated pulse as a comparative, much less a steam treated pulse, and so fails to address the closest prior art. Bellaio at [0058] generally discloses a steamed pulse; likewise, Delrue at page -5-, lines 18-21 generally discloses the desirability of steaming and, at page -15-, lines 9-22, discloses kilning to dry and form its product via a series of stepwise temperature increases in a kiln. And Delrue generally discloses at Abstract and claim 1 a heat-treated geminated pulse having a reduced microbial load.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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