DETAILED ACTION
Background
The amendment dated September 29, 2025 (amendment) amending claim 28, and canceling claims 31, 33-37 and 40-49 has been entered. Claims 28-30, 32 and 38-39 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.
Claim 38 is 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 38 recites a moisture content of a pulse after kilning of “10% (w/w) or less”. The recited weight% does not define the basis for or denominator for determining the percentage. Is the moisture content based on the total pulse weight or on the weight of pulse solids or on the weight of some other denominating weight?
The Office interprets the recited moisture content as being based on the total weight of the dried pulse.
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 and 38-39 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. Further, the Office interprets the claimed kilning as including drying in any suitable enclosed space.
Regarding instant claim 28, Bellaio at [0007]-[0011] 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] Bellaio discloses a method further comprising air-drying with forced air (“kilning”) the steamed, germinated pulses (at [0049]-[0050]) at 50-80°C , which the claimed drying 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 the claimed 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 regarding instant claim 28, Bellaio does not provide an example wherein the method comprises treating a pulse. Further, 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. And, further, Bellaio does not give an example wherein steaming is followed by kilning at 55-85 °C. 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, at [0042] and [0044], respectively, Bellaio discloses germinating at 18-24 °C and for a period of 24 to 72 hours which falls within preferred steeping conditions disclosed in the instant specification at page 15, lines 3-9. Accordingly, the steeped pulse product of Bellaio and the steeped pulse seed 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.
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 steamed pulse seeds at 55-85 °C. Both references disclose a germinated seed or pulse having a reduced microbial load (Bellaio at [0006]) by steam treating 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 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 a lower amount to increase its resistance to microbial activity or 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 desired to treat any of the legumes it discloses as desirable for the disclosed steeping, germinating, steaming and kilning methods
Response to Arguments
In view of the amendment dated September 29, 2025, the following rejections have been withdrawn as moot:
The rejections of Claims 31 and 34-35 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to recites the limitation "the pulse seeds" in claim 31; the weight % basis for a moisture content of a pulse of “40-60% (w/w)” in claim 31; and the broad range or limitation together with a narrow range or limitation in claims 34-35;
The rejections of claims 28, 30-31 and 33-38 under 35 U.S.C. 103 as being unpatentable over CN 104286729 A to Zhao et al.;
The rejections of claims 32 and 39 under 35 U.S.C. 103 as being unpatentable over CN 104286729 A to Zhao et al. in view of US2016/0044940 A1 to Bellaio et al.; and,
The rejections of claim 29 under 35 U.S.C. 103 as being unpatentable over either of CN 104286729 A to Zhao et al in view of WO 2018/025061 A1 to Vignola et al.
Regarding the positions taken in the remarks accompanying the amendment dated September 29, 2025 (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 4, the Office appreciates the good faith attempt to overcome the indefiniteness rejections. However, the percentage basis for the claims moisture content of the pulse is still indefinite. The basis can be any of the total weight of the wet pulse, pulse solids, hulled wet pulse or hulled pulse solids.
Regarding the position taken in the Reply at pages 6-7 that Bellaio does not disclose kilning its pulse seeds, the Office respectfully disagrees. The Office gives the claim language the broadest reasonable interpretation of the ordinary skilled artisan. See MPEP 2111.01. Contrary to position taken in the Reply, Bellaio at [0048] discloses drying by roasting, infrared roasting, and prefers air drying and drying under two or three of the several listed drying conditions. Particularly in disclosing roasting and air drying, Bellaio invokes circulating air and therefore invokes an enclosed space. The ordinary skilled artisan would readily view drying in an enclosed space to refer to kilning.
Regarding the position taken in the Reply at pages 6-7 that because Examples 15-16 of Bellaio do not disclose steam treating and kilning, therefore Bellaio does not disclose steaming and then kilning a pulse seed. Respectfully, this reading of Bellaio fails to properly consider Bellaio, taken as a whole. Bellaio discloses at [0122] its invention as comprising the combined steps of peroxide treatment and hydrothermal treatment (steaming) prior to drying.
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). The newly recited steaming for 5-25 min and kilning at 55 to 85 °C necessitated a new rejection.
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.
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/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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