DETAILED ACTION
Background
The amendment dated July 20, 2026 (amendment) amending claims 1, 11 and 13-14, adding new claims 27-28 has been entered. Claims 1-4, 6-8, 10-14, 16-17, 19-20 and 23-28 as filed with the amendment have been examined. Claims 5, 9, 15, 18 and 21-22 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 Objections
Claim 27 is objected to because of the following informalities:
In claim 27, at line 2 after “basis” insert -- of the total weight of the dry fractionated plant protein--.
Appropriate correction is required.
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 1-4, 6-8, 10-14, 16-17, 19-20 and 23-26 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.
In claim 1, at lines 4-5, in claim 11 at lines 14-15 and in claim 28 at lines 3-4, the recited protein content in weight percent (wt%) is indefinite because the claim does not provide a denominator or basis for the recited percentage. Is the protein content wt.% an amount based on the total dry weight of the dry fractionated plant protein, or an amount based on the total dry weight of the plant protein mixture?
The Office interprets the claimed protein content in wt% as reciting a wt%, based on the total weight of the recited dry fractionated plant protein.
In claim 27, at lines 4-5, in claim 11 at lines 14-15 and in claim 28 at lines 3-4, the recited starch content in weight percent (wt%) on a dry basis is indefinite because the claim does not provide a denominator or basis for the recited percentage. Is the starch content wt.% an amount based on the total dry weight of the dry fractionated plant protein, or an amount based on the total dry weight of the plant protein mixture?
Claims 2-4, 6-8, 10, 12-14, 16-17, 19-20, 23-26 and 28 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 1-4, 7-8, 10-14, 16-17, 19-20, 23-25 and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over DE202020000946 U1 to Doehler GMBH (Doehler) in view of US 2014/0010947 A1 to Medina et al. (Medina), of record, and WO2020/0193641 A1 to Ventureira et al. (Ventureira), of record.
Unless otherwise indicated, the Office considers a disclosure of "sugar" in any art reference to mean table sugar or sucrose. The Office interprets the claimed wt% of the dry fractionated plant protein as being a wt% of the plant protein material, based on the total weight of the recited plant based liquid.
Unless otherwise disclosed, all references to a % without units is interpreted to mean a weight % (wt%), and which is interpreted as equivalent to a mass%.
All references to the text of Doehler refer to the Clarivate machine translation, a copy of which is provided with this Office action. All references to Ventureira refer to the Clarivate machine translation, a copy of which was provided with a prior Office action.
Unless otherwise indicated, the Office considers a disclosure of “sugar” in any art reference to mean table sugar or sucrose.
The Office interprets the claimed wt% protein content in the recited dry fractionated plant protein as being the wt% of protein, based on the total weight of the recited dry fractionated plant protein.
Regarding instant claims 1-2, 8, 10-11, 13, 19-20 and 28, Doehler at Abstract on page 1 discloses a plant based frozen dessert (claims 10-11). And at page 3, 4th to 6th full paragraphs, Doehler discloses a method making a plant based frozen dessert (claim 1) from a plant based liquid (claim 28) which comprises forming the plant based liquid and freezing the plant based liquid to form the plant based frozen dessert. At pages 4 and 5, Doehler discloses examples including compositions (i) almond ice cream, (ii) coconut ice cream and (iii) oat ice cream and (iv) rice ice cream including plant based liquid compositions comprising, in 1000 weight parts from 30-60 weight parts of a pea plant protein concentrate (3 to 6 wt%, based on the total weight of the plant based liquid of a plant protein – claims 1, 11 and 28) comprising a protein content of 53 wt%, based on the total weight of the dry fractionated plant protein (claims 1, 11 and 28, as a “legume source” in claim 2, and as a pea protein in claims 19 and 20), coconut oil (73, 75, 100 and 100 parts, respectively, or 7.5 -10 wt% as coconut fat (claim 8 as a fat phase), wherein the plant protein mixture comprises from 8.25 to 10.75 wt% fat, based on the total weight of the plant based frozen dessert in (claim 13), sucrose and glucose, citrus fibers, salt and the remainder of water. Doehler discloses in its oat and rice ice cream Examples (iii) and (iv) the plant protein mixture, plant based liquid and plant based frozen dessert comprising sucrose crystalline (105 parts or 10.5 wt%) and glucose powder (45 parts or 4.5 wt%), and the rest water (claims 1, 11 and 28).
Further and regarding instant claim 23, in the method of making the plant based frozen dessert as in claim 1 Doehler discloses mixing all components together (“dissolving a plant protein in water to form a plant protein mixture”), dispersing a fat phase in the plant protein mixture”), heating the plant based mixture to 50-60 ° C flash heating the mixture at 82-120 °C for 20-40 seconds (“applying a thermal treatment to the emulsion to form a plant based liquid” as in claim 1), multi-stage homogenizing from 200 bar / 20 bar to 150 bar / 30 bar (“homogenizing the plant protein mixture to form an emulsion”); cooling the mixture to 10 °C, maturing the composition for 24 h at 4 - 6 °C, and freezing to a pasty mass (“plant based frozen dessert”) that can be filled into any shape, and further freezing as shock freezing to -38 °C and hardening for 24 h at -18 °C to make a hard plant based frozen dessert. The recited applying a thermal treatment at 110 to 150 °C as in claim 23 overlaps the 82-120 °C disclosed in the method of page 3 of Doehler. 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. The ordinary skilled artisan in Doehler would have found it obvious to apply a thermal treatment to its emulsion because Doehler discloses that a thermal treatment at the claimed temperature produces a desirable plant based frozen dessert.
The Office considers the recited fat phase that solidifies at a temperature less than 30 °C in claims 1, 11 and 28 to include the coconut oil or coconut fat of the Examples on pages 4-5 of Doehler.
The Office considers the recited emulsion as including any metastable liquid as in oil in water dispersion and a plant based mixture dispersed for any period of time, regardless of the presence of an emulsifier.
The Office considers the order of adding any of a sugar, adding one or more emulsifiers and adding sodium ascorbate or a sodium ascorbate alternative.
The Office considers the recited steps of homogenizing to form an emulsion and applying a thermal treatment to an emulsion as including any order of processing. Regardless of their order, it would least have been obvious in Doehler to change the order of performing process steps of homogenizing a plant protein mixture which is a dispersion and applying a thermal treatment thereto in the absence of new or unexpected results. See MPEP 2144.04.IV.C.
Further, Doehler does not disclose a dry fractionated plant protein, or one having a protein content of 50 to 70 wt%, based on the total weight of the dry fractionated plant protein as in claims 1, 11 and 28; further, Doehler does not disclose one or more emulsifiers or adding one or more emulsifiers as in claims 1, 11 and 28. Still further, Doehler does not disclose adding sodium ascorbate, a sodium ascorbate alternative or a combination thereof dissolved in the plant protein mixture or the emulsion as in claim 1, or in a plant based liquid as in claim 28; further, Doehler does not disclose a plant based frozen dessert comprising a (vi) sodium ascorbate, sodium ascorbate alternative or a combination thereof as in claim 11 and; further, Doehler does not disclose adding or plant based liquids or plant based frozen desserts a sodium ascorbate alternative including vitamin C, calcium ascorbate, vitamin C palmitate, fruit juices rich in vitamin C, acerola extract, sodium bisulfite, iodine, potassium iodide, sorbic acid, potassium sorbate, sodium sulfite, sodium hydrogen sulfite, sodium metabisulfite, potassium metabisulfite, calcium sulfite, calcium hydrogen sulfite, or a combination thereof in a plant protein mixture as in claims 1, 11 and 28.
In addition, and regarding instant claims 3, 4, 7, 20 and 23, Doehler does not disclose a sodium ascorbate in the plant protein mixture or emulsion as in claim 4; Doehler does not disclose any example of a step of adding a hydrocolloid to the plant protein mixture including carrageenan as in claim 7; Doehler does not disclose one or more emulsifiers that include a monoglyceride as in claim 20; and Doehler does not disclose dissolving the sodium ascorbate, sodium ascorbate alternative, or a combination thereof in the plant protein.
Medina at Abstract and [0044] discloses a plant based frozen dessert mix comprising plant proteins including plant concentrates which the Office considers as including about 60 wt% protein, based on the total weight of the plant protein. Example at [0105]-[0106] and accompanying Table 2 discloses a plant based frozen dessert and a method comprising dispersing a pea protein in water to form a plant protein mixture and making a plant based; followed by dispersing oil; adding polysorbate 80 ("one or more emulsifiers" in claims 1, 11 and 28); and, (at [0107]) homogenizing the plant protein mixture to form an emulsion the plant based liquid. Further, at [0108] Medina discloses freezing the plant based liquid to form the plant based frozen dessert. Medina at [0049] discloses as a suitable pulse protein a ground and air-classified pulse protein ("dry fractionated plant protein") as desirable to solubilizing the plant protein. Medina at [0045] discloses adding sugar alcohols; at [0046] discloses monoglycerides as suitable emulsifiers and carrageenan as a suitable stabilizer; and at [0076] discloses adding antioxidants as ascorbic acid.
Ventureira at Example 9 on page 18 and the accompanying Table on page 35 discloses a method of making a plant based frozen dessert comprising adding sucrose to water and mixing, adding a stabilizer Cremodan SE 30 and the rest of the sugar including glucose syrup to the plant protein mixture and mixing in a field bean protein isolate having (at [82] on p. 14). Further, Ventureira discloses at [72] including vitamin C (“ascorbic acid”) or its salts as a nutrient and hydrocolloids including carrageenan together to mask bitter nutrient flavors. The Office considers the claimed dissolving the sodium ascorbate, sodium ascorbate alternative, or a combination thereof in the plant protein mixture prior to dispersing the fat phase in the plant protein mixture as in claim 23 as including the adding of carrageenan and sodium ascorbate disclosed in Ventureira.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Medina for Doehler to use a dry fractionated pulse or legume protein having a protein content of 50 to 70 wt%, based on the total weight of the dry fractionated plant protein as its protein concentrate to make its frozen dessert. Further, the ordinary skilled artisan would have found it obvious in view of Medina for Doehler to include one or more emulsifiers in its plant based liquid, including a monoglyceride as in claim 20, and for Doehler to include in its plant protein mixture a plant protein made by dry air classification as in claim 3. Both references disclose a plant based frozen dessert made from an emulsion of a plant protein concentrate and a method for making it by dispersion methods. The ordinary skilled artisan in Doehler would have desired to use a dry fractionated plant protein as in Medina both as a desirable plant protein that is less processed and to improve the solubility of its plant protein and would have desired to include emulsifiers, including monoglycerides to maintain shelf stability or texture over time.
The Office considers the plant based frozen dessert as claimed and that of Doehler as modified by Medina to be substantially the same thing. Accordingly, absent a clear showing as to how the freezing point of the plant based liquid in Doehler as modified by Medina differs from that of the plant based frozen dessert as claimed, the Office considers the plant based liquid of the Examples of Doehler as modified by Medina at [0044], [0046], [0049] and [0076] to have the claimed freezing point of greater than about -1.30C and less than about -0.46°C as in claims 1, method of making a plant based frozen dessert 11 and 28. See MPEP 2112.01.I
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Ventureira for Doehler as modified by Medina to include carrageenan as a hydrocolloid in its plant protein mixture or emulsion in the presence of water to activate the carrageenan in the water to make it effective as a hydrocolloid and, further to include its vitamin C or sodium ascorbate salt in its plant protein mixture or emulsion comprising the hydrocolloid so that the hydrocolloid can mask any bitter flavor of the vitamin C. Both references disclose a plant based frozen dessert made from an emulsion of a plant protein concentrate and a method for making it by dispersion methods. The ordinary skilled artisan in Medina would have desired to dissolve in its plant protein mixture a mixture of carrageenan as an effective hydrocolloid and a vitamin C or its salts as in Ventureira to mask bitter flavors and as a preservative for making a plant based frozen dessert.
The Office considers the claimed method of adding the sodium ascorbate or sodium ascorbate alternative to a plant based mixture or the emulsion as in claim 4 and the claimed method of dissolving the sodium ascorbate, sodium ascorbate alternative, or a combination thereof in the plant protein mixture prior to dispersing the fat phase in the plant protein mixture as in claim 23 to include the method of Example 9 of Ventureira.
Regarding instant claim 12, the Office considers the claimed soft serve ice cream in claim 12 to include the pasty mass disclosed in the method of Doehler at page 3.
Regarding instant claim 14, the plant based frozen dessert disclosed in the Examples of Doehler contains no animal products or animal derived products. The Office considers the claimed plant based frozen dessert that is devoid of animal products to include the plant based frozen dessert of the Examples of Doehler.
Regarding instant claim 16, the Office considers the plant protein mixture having a pH between 6.7 and 8 as including the compositions in the Examples on pages 4-5 of Doehler.
Regarding instant claims 17 and 24, Doehler does not provide an average particle size for its the emulsion or disclose an emulsion average particle size (d[3,2]) of between 0.5 and 3 µm. However, the high pressure homogenized emulsion disclosed at page 3 of Doehler by multi-stage homogenizing from 200 bar / 20 bar to 150 bar / 30 bar appears to be substantially the same thing as the claimed emulsion and homogenized plant based frozen dessert. Accordingly, absent a clear showing as to how the emulsion particle size of the plant based frozen dessert in Doehler differs from that of the emulsion and plant based frozen dessert as claimed, the Office considers the homogenized emulsion of the Examples made by the method at page 3 of Doehler to have an average particle size (d[3,2]) of between 0.5 and 3 µm. See MPEP 2112.01.I.
Further regarding instant claim 24, Doehler discloses in its example at pages 4-5 a plant based frozen dessert comprising about 7.5 wt%, based on the total weight of the frozen dessert of fat.
Regarding instant claim 25, Doehler discloses in its Example (iii) oat ice cream and (iv) rice ice cream method of making a plant based frozen dessert wherein the plant based liquid comprises 15 wt% of fat, based on the total weight of the plant based frozen dessert.
Regarding instant claim 27, the Office considers the composition of the protein concentrates in the Examples of Doehler as modified by Medina at [0049] and the claimed dry fractionated plant protein as being substantially the same. Accordingly, absent a clear showing as to how the starch content of the plant based frozen dessert in the Examples of Doehler as modified by Medina at [0049] differs from that of the plant based frozen dessert as claimed, the Office considers the plant based frozen dessert in the Examples of Doehler as modified by Medina at [0049] to have the claimed starch content of from 2 to 20 wt%, on the total weight of the dry fractionated plant protein on a dry basis. See MPEP 2112.01.I.
Claims 1-4, 7-8, 10-14, 16-17, 19-20 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over DE202020000946 U1 to Doehler GMBH (Doehler) in view of US 2014/0010947 A1 to Medina et al. (Medina) and in view of WO 2020/123915 A1 to Zhang et al. (Zhang), of record.
Unless otherwise disclosed, all references to a % without units is interpreted to mean a weight % (wt%), and which is interpreted as equivalent to a mass%.
All references to the text of Doehler refer to the Clarivate machine translation, a copy of which is provided with this Office action.
Unless otherwise indicated, the Office considers a disclosure of “sugar” in any art reference to mean table sugar or sucrose.
The Office interprets the claimed wt% protein content in the recited dry fractionated plant protein as being the wt% of protein, based on the total weight of the recited dry fractionated plant protein.
Regarding instant claims 1-2, 8, 10-11, 13, 19-20 and 28, Doehler at Abstract on page 1 discloses a plant based frozen dessert (claims 10-11). And at page 3, 4th to 6th full paragraphs, Doehler discloses a method making a plant based frozen dessert (claim 1) from a plant based liquid (claim 28) which comprises forming the plant based liquid and freezing the plant based liquid to form the plant based frozen dessert. At pages 4 and 5, Doehler discloses examples including compositions (i) almond ice cream, (ii) coconut ice cream and (iii) oat ice cream and (iv) rice ice cream including plant based liquid compositions comprising, in 1000 weight parts from 30-60 weight parts of a pea plant protein concentrate (3 to 6 wt%, based on the total weight of the plant based liquid of a plant protein – claims 1, 11 and 28) comprising a protein content of 53 wt%, based on the total weight of the dry fractionated plant protein (claims 1, 11 and 28, as a “legume source” in claim 2, and as a pea protein in claims 19 and 20), coconut oil (73, 75, 100 and 100 parts, respectively, or 7.5 -10 wt% as coconut fat (claim 8 as a fat phase), wherein the plant protein mixture comprises from 8.25 to 10.75 wt% fat, based on the total weight of the plant based frozen dessert in (claim 13), sucrose and glucose, citrus fibers, salt and the remainder of water. Doehler discloses in its oat and rice ice cream Examples (iii) and (iv) the plant protein mixture, plant based liquid and plant based frozen dessert comprising sucrose crystalline (105 parts or 10.5 wt%) and glucose powder (45 parts or 4.5 wt%), and the rest water (claims 1, 11 and 28).
Further and regarding instant claim 23, in the method of making the plant based frozen dessert as in claim 1 Doehler discloses mixing all components together (“dissolving a plant protein in water to form a plant protein mixture”), dispersing a fat phase in the plant protein mixture”), heating the plant based mixture to 50-60 ° C flash heating the mixture at 82-120 °C for 20-40 seconds (“applying a thermal treatment to the emulsion to form a plant based liquid” as in claim 1), multi-stage homogenizing from 200 bar / 20 bar to 150 bar / 30 bar (“homogenizing the plant protein mixture to form an emulsion”); cooling the mixture to 10 °C, maturing the composition for 24 h at 4 - 6 °C, and freezing to a pasty mass (“plant based frozen dessert”) that can be filled into any shape, and further freezing as shock freezing to -38 °C and hardening for 24 h at -18 °C to make a hard plant based frozen dessert. The recited applying a thermal treatment at 110 to 150 °C as in claim 23 overlaps the 82-120 °C disclosed in the method of page 3 of Doehler. 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. The ordinary skilled artisan in Doehler would have found it obvious to apply a thermal treatment to its emulsion because Doehler discloses that a thermal treatment at the claimed temperature produces a desirable plant based frozen dessert.
The Office considers the recited fat phase that solidifies at a temperature less than 30 °C in claims 1, 11 and 28 to include the coconut oil or coconut fat of the Examples on pages 4-5 of Doehler.
The Office considers the recited emulsion as including any metastable liquid as in oil in water dispersion and a plant based mixture dispersed for any period of time, regardless of the presence of an emulsifier.
The Office considers the order of adding any of a sugar, adding one or more emulsifiers and adding sodium ascorbate or a sodium ascorbate alternative.
The Office considers the recited steps of homogenizing to form an emulsion and applying a thermal treatment to an emulsion as including any order of processing. Regardless of their order, it would least have been obvious in Doehler to change the order of performing process steps of homogenizing a plant protein mixture which is a dispersion and applying a thermal treatment thereto in the absence of new or unexpected results. See MPEP 2144.04.IV.C.
Further, Doehler does not disclose a dry fractionated plant protein, or one having a protein content of 50 to 70 wt%, based on the total weight of the dry fractionated plant protein; further, Doehler does not disclose one or more emulsifiers or adding one or more emulsifiers as in claims 1, 11 and 28. Still further, Doehler does not disclose adding sodium ascorbate, a sodium ascorbate alternative or a combination thereof dissolved in the plant protein mixture or the emulsion as in claim 1, or in a plant based liquid as in claim 28; further, Doehler does not disclose a plant based frozen dessert comprising a (vi) sodium ascorbate, sodium ascorbate alternative or a combination thereof as in claim 11 and; further, Doehler does not disclose adding or plant based liquids or plant based frozen desserts a sodium ascorbate alternative including vitamin C, calcium ascorbate, vitamin C palmitate, fruit juices rich in vitamin C, acerola extract, sodium bisulfite, iodine, potassium iodide, sorbic acid, potassium sorbate, sodium sulfite, sodium hydrogen sulfite, sodium metabisulfite, potassium metabisulfite, calcium sulfite, calcium hydrogen sulfite, or a combination thereof in a plant protein mixture as in claims 1, 11 and 28.
In addition, and regarding instant claims 3, 4, 7, 20 and 23, Doehler does not disclose a sodium ascorbate in the plant protein mixture or emulsion as in claim 4; Doehler does not disclose adding a hydrocolloid to the plant protein mixture including carrageenan as in claim 7; Doehler does not disclose one or more emulsifiers that include a monoglyceride as in claim 20; and Doehler does not disclose dissolving the sodium ascorbate, sodium ascorbate alternative, or a combination thereof in the plant protein.
Medina at Abstract and [0044] discloses a plant based frozen dessert mix comprising plant proteins including plant concentrates which the Office considers as including about 60 wt% protein, based on the total weight of the plant protein. Example at [0105]-[0106] and accompanying Table 2 discloses a plant based frozen dessert and a method comprising dispersing a pea protein in water to form a plant protein mixture and making a plant based; followed by dispersing oil; adding polysorbate 80 ("one or more emulsifiers" in claims 1, 11 and 28); and, (at [0107]) homogenizing the plant protein mixture to form an emulsion the plant based liquid. Further, at [0108] Medina discloses freezing the plant based liquid to form the plant based frozen dessert. Medina at [0049] discloses as a suitable pulse protein a ground and air-classified pulse protein ("dry fractionated plant protein") as desirable to solubilizing the plant protein. Medina at [0045] discloses adding sugar alcohols; at [0046] discloses monoglycerides as suitable emulsifiers and carrageenan as a suitable stabilizer; and at [0076] discloses adding antioxidants as ascorbic acid.
Zhang at page 12, lines 20-26 discloses frozen plant based dessert products and plant-based dairy analogue milks or creams containing a plant protein source including (at page 10, lines 24-28) pulses or legumes, peas and beans, including horse beans (faba beans) as a plant protein source comprising (at page 5, lines 21-22) an air-classified ground pulse as a protein source made by simple processing. Further, at page 12, lines 9-16 Zhang disclose texturizing carrageenan and emulsifiers including monoglycerides. Zhang discloses at page 6, lines 25-27 antioxidant compositions for its plant proteins comprising sodium or calcium ascorbate. For example, Zhang discloses at page 17, line 29 to page 18, line 3 discloses combining ascorbic acid with water and its dry fractionated plant protein to make a milk as a plant protein mixture. Further, Zhang discloses at page 2, lines 12-15 that its method results in a plant protein having improved taste, texture and mouthfeel.
The Office considers the claimed dry fractionated plant protein having a protein content of 50 to 60 wt%, based on the total weight of the dry fractionated plant protein as including the dry fractionated plant protein of Zhang at page 5.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Medina for Doehler to use a dry fractionated plant protein having a protein content of 50 to 70 wt%, based on the total weight of the dry fractionated plant protein as its protein concentrate to make its frozen dessert. Further, the ordinary skilled artisan would have found it obvious in view of Medina for Doehler to include one or more emulsifiers and/ or stabilizers including carrageenan as in claim 7 in its plant based liquid, including a monoglyceride as in claim 20, and for Doehler to include in its plant protein mixture a plant protein made by dry air classification as in claim 3. Both references disclose a plant based frozen dessert made from an emulsion of a plant protein concentrate and a method for making it by dispersion methods. The ordinary skilled artisan in Doehler would have desired to use a dry fractionated plant protein as in Medina both as a desirable plant protein that is less processed and to improve the solubility of its plant protein, and would have desired to include emulsifiers, including monoglycerides and a carrageenan stabilizer to maintain shelf stability or texture over time.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Zhang for Doehler as modified by Medina to include its vitamin C or sodium ascorbate salt in its plant protein mixture or emulsion comprising the hydrocolloid so that the hydrocolloid can mask any bitter flavor of the vitamin C and to include a monoglyceride or one or more emulsifiers in the plant based liquid of Doehler as modified by Medina. All references disclose a plant based frozen dessert made from an emulsion of a plant protein concentrate and a method for making it by dispersion methods. The ordinary skilled artisan in Doehler as modified by Medina would have desired to dissolve in its plant protein mixture a mixture of carrageenan as an effective hydrocolloid and a vitamin C or its salts as in Zhang to mask bitter flavors and as a preservative for making a plant based frozen dessert and to include a monoglyceride as in Zhang to improve the texture of the product especially over time. In addition, the ordinary skilled artisan in Doehler as modified by Medina would have desired to retain the sodium ascorbate antioxidant in its plant protein mixture as in Zhang to preserve its phenolic content.
The Office considers the claimed method of adding the sodium ascorbate or sodium ascorbate alternative to a plant based mixture or the emulsion as in claim 4 and the claimed method of dissolving the sodium ascorbate, sodium ascorbate alternative, or a combination thereof in the plant protein mixture prior to dispersing the fat phase in the plant protein mixture as in claim 23 to include the method of mixing vitamin C with water at page 18, lines 1-3 of Zhang..
Regarding instant claim 12, the Office considers the claimed soft serve ice cream in claim 12 to include the pasty mass disclosed in the method of Doehler at page 3.
Regarding instant claim 14, the plant based frozen dessert disclosed in the Examples of Doehler contains no animal products or animal derived products. The Office considers the claimed plant based frozen dessert that is devoid of animal products to include the plant based frozen dessert of the Examples of Doehler.
Regarding instant claim 16, the Office considers the plant protein mixture having a pH between 6.7 and 8 as including the compositions in the Examples on pages 4-5 of Doehler.
Regarding instant claims 17 and 24, Doehler does not provide an average particle size for its the emulsion or disclose an emulsion average particle size (d[3,2]) of between 0.5 and 3 µm. However, the high pressure homogenized emulsion disclosed at page 3 of Doehler by multi-stage homogenizing from 200 bar / 20 bar to 150 bar / 30 bar appears to be substantially the same thing as the claimed emulsion and homogenized plant based frozen dessert. Accordingly, absent a clear showing as to how the emulsion particle size of the plant based frozen dessert in Doehler differs from that of the emulsion and plant based frozen dessert as claimed, the Office considers the homogenized emulsion of the Examples made by the method at page 3 of Doehler to have an average particle size (d[3,2]) of between 0.5 and 3 µm. See MPEP 2112.01.I.
Further regarding instant claim 24, Doehler discloses in its example at pages 4-5 a plant based frozen dessert comprising about 7.5 wt%, based on the total weight of the frozen dessert of fat.
Regarding instant claim 25, Doehler discloses in its Example (iii) oat ice cream and (iv) rice ice cream method of making a plant based frozen dessert wherein the plant based liquid comprises 15 wt% of fat, based on the total weight of the plant based frozen dessert.
Regarding instant claim 27, the Office considers the composition of the protein concentrates in the Examples of Doehler as modified by Medina at [0049] and the claimed dry fractionated plant protein as being substantially the same. Accordingly, absent a clear showing as to how the starch content of the plant based frozen dessert in the Examples of Doehler as modified by Medina at [0049] differs from that of the plant based frozen dessert as claimed, the Office considers the plant based frozen dessert in the Examples of Doehler as modified by Medina at [0049] to have the claimed starch content of from 2 to 20 wt%, on the total weight of the dry fractionated plant protein on a dry basis. See MPEP 2112.01.I.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over DE202020000946 U1 to Doehler GMBH (Doehler) in view of US 2014/0010947 A1 to Medina et al. (Medina) and WO2020/0193641 A1 to Ventureira et al. (Ventureira) as applied to claim 1 above, and further in view of GB1508437 A to Finney et al..
As applied to claim 1, Doehler at page 3, 4th -6th paragraphs and the Examples at pages 4-5 as modified by Medina at [0044], [0046], [0049] and [0076] and Ventureira at Example 9 on page 18, [72] and [82] on p. 14 discloses methods of making a plant based frozen dessert comprising forming a plant protein mixture by dissolving in water a dry fractionated plant protein having a protein content of 50-70 wt%, based on the total weight of the plant protein, adding from 10 to 20 wt% of a sucrose and glucose syrup, based on the total weight of the plant protein mixture, adding one or more emulsifiers, dispersing in the plant protein mixture a fat phase of a fat, homogenizing the mixture to form an emulsion and freezing the emulsion.
Doehler as modified by Medina and Ventureira does not disclose the plant based frozen dessert including sorbitol, glycerol, or a combination thereof.
Finney at page 1, lines 50-65 discloses an ice cream comprising as a freezing- point depressant sorbitol and/or glycerol to improve spoonability and softness at -20 °C. At Example 1 on page 2, Finney discloses the ice cream comprising glycerol as well as sucrose and corn sugar solids (glucose), carrageenan and a monoglyceride emulsifier.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Finney for Doehler as modified by Medina and Ventureira to include as a polyol a sorbitol, glycerol or their combination. All references disclose frozen desserts having improved mouthfeel, softness or smoothness and containing sucrose and glucose. The ordinary skilled artisan in Doehler as modified by Medina and Ventureira would have looked to include the sorbitol, glycerol or their combination of Finney in its ice cream to increase its spoonability and softness upon storing or to enable deep freezing of a soft serve ice cream without impairing its texture.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over DE202020000946 U1 to Doehler GMBH (Doehler) in view of US 2014/0010947 A1 to Medina et al. (Medina) and WO 2020/123915 A1 to Zhang et al. (Zhang) as applied to claim 1 above, and further in view of GB1508437 A to Finney et al.
As applied to claim 1, Doehler at page 3, 4th -6th paragraphs and the Examples at pages 4-5 as modified by Medina at [0044], [0046], [0049] and [0076] and Zhang at page 12, lines 9-16 and 20-26, page 10, lines 24-28, page 5, lines 21-22 and page 17, line 29 to page 18, line 3 discloses combining ascorbic acid with water and its dry fractionated plant protein to make a milk as a plant protein mixture. discloses methods of making a plant based frozen dessert comprising forming a plant protein mixture by dissolving in water a dry fractionated plant protein having a protein content of 50-70 wt%, based on the total weight of the plant protein, adding from 10 to 20 wt% of a sucrose and glucose syrup, based on the total weight of the plant protein mixture, adding one or more emulsifiers, dispersing in the plant protein mixture a fat phase of a fat, homogenizing the mixture to form an emulsion and freezing the emulsion.
Doehler as modified by Medina and Zhang does not disclose the plant based frozen dessert including sorbitol, glycerol, or a combination thereof.
Finney at page 1, lines 50-65 discloses an ice cream comprising as a freezing- point depressant sorbitol and/or glycerol to improve spoonability and softness at -20 °C. At Example 1 on page 2, Finney discloses the ice cream comprising glycerol as well as sucrose and corn sugar solids (glucose), carrageenan and a monoglyceride emulsifier.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Finney for Doehler as modified by Medina and Zhang to include as a polyol a sorbitol, glycerol or their combination. All references disclose frozen desserts having improved mouthfeel, softness or smoothness and containing sucrose and glucose. The ordinary skilled artisan in Doehler as modified by Medina and Zhang would have looked to include the sorbitol, glycerol or their combination of Finney in its ice cream to increase its spoonability and softness upon storing or to enable deep freezing of a soft serve ice cream without impairing its texture.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over DE202020000946 U1 to Doehler GMBH (Doehler) in view of US 2014/0010947 A1 to Medina et al. (Medina) and WO2020/0193641 A1 to Ventureira et al. (Ventureira) as applied to claim 25 above, and, further in view of US2007/0128323 A1 to Tsujii et al. (Tsujii), of record.
As applied to claim 25, Doehler at page 3, 4th -6th paragraphs and the Examples at pages 4-5 as modified by Medina at [0044], [0046], [0049] and [0076] and Ventureira at Example 9 on page 18, [72] and [82] on p. 14 discloses methods of making a plant based frozen dessert comprising adding from 14 to 19 wt% of a sucrose and glucose syrup, based on the total weight of the plant protein mixture, adding one or more emulsifiers, dispersing in the plant protein mixture a fat phase of a fat in the amount of 0.5 to 25 wt%, based on the total weight of the plant based frozen dessert, homogenizing the mixture to form an emulsion and freezing the emulsion having a , wherein sodium ascorbate, a sodium ascorbate alternative or their combination is dissolved in the plant protein mixture or the emulsion having an average particle size (d[3,2]) of between 0.5 and 3 µm.
Doehler as modified by Medina and Ventureira does not an example of a method wherein a secondary small molecule emulsifier is blended together with the fat phase before dispersing the fat phase in the plant protein mixture as in claim 26.
Tsujii at Examples 1 to 3 at [0070] and the accompanying Table discloses UHT heat-treating a homogenized soy protein plant protein mixture containing coconut oil (“fat phase”), sucrose and glucose and lemon juice, wherein the UHT treatment comprises treating at 120°C for 15 seconds prior to cooling and freezing to make ice cream. Further, at [0078] Tsujii discloses pre-emulsifying its coconut oil with soy lecithin (“small molecule emulsifier”) before dispersing the fat phase in its plant protein mixture.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Tsujii for Doehler as modified by Medina and Ventureira to blend a secondary small molecule emulsifier together with its fat phase before dispersing the fat phase in the plant protein mixture as in Tsujii. Both Doehler and Tsujii disclose plant based frozen desserts comprising emulsions. The ordinary skilled artisan in Doehler as modified by Medina and Ventureira would have desired to blend its fat phase with a small molecule emulsifier before incorporating it into a plant protein mixture as in Tsujii to enhance the stability of the resulting emulsion.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over DE202020000946 U1 to Doehler GMBH (Doehler) in view of US 2014/0010947 A1 to Medina et al. (Medina) and WO 2020/123915 A1 to Zhang et al. (Zhang), as applied to claim 1 above, and further in view of US2007/0128323 A1 to Tsujii et al. (Tsujii).
As applied to claim 25, Doehler at page 3, 4th -6th paragraphs and the Examples at pages 4-5 as modified by Medina at [0044], [0046], [0049] and [0076] and Zhang at page 12, lines 9-16 and 20-26, page 10, lines 24-28, page 5, lines 21-22 and page 17, line 29 to page 18, line 3 discloses methods of making a plant based frozen dessert comprising adding from 14 to 19 wt% of a sucrose and glucose syrup, based on the total weight of the plant protein mixture, adding one or more emulsifiers, dispersing in the plant protein mixture a fat phase of a fat in the amount of 0.5 to 25 wt%, based on the total weight of the plant based frozen dessert, homogenizing the mixture to form an emulsion and freezing the emulsion having a , wherein sodium ascorbate, a sodium ascorbate alternative or their combination is dissolved in the plant protein mixture or the emulsion having an average particle size (d[3,2]) of between 0.5 and 3 µm.
Doehler as modified by Medina and Zhang does not an example of a method wherein a secondary small molecule emulsifier is blended together with the fat phase before dispersing the fat phase in the plant protein mixture as in claim 26.
Tsujii at Examples 1 to 3 at [0070] and the accompanying Table discloses UHT heat-treating a homogenized soy protein plant protein mixture containing coconut oil (“fat phase”), sucrose and glucose and lemon juice, wherein the UHT treatment comprises treating at 120°C for 15 seconds prior to cooling and freezing to make ice cream. Further, at [0078] Tsujii discloses pre-emulsifying its coconut oil with soy lecithin (“small molecule emulsifier”) before dispersing the fat phase in its plant protein mixture.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Tsujii for Doehler as modified by Medina and Zhang to blend a secondary small molecule emulsifier together with its fat phase before dispersing the fat phase in the plant protein mixture as in Tsujii. Both Doehler and Tsujii disclose plant based frozen desserts comprising emulsions. The ordinary skilled artisan in Doehler as modified by Medina and Zhang would have desired to blend its fat phase with a small molecule emulsifier before incorporating it into a plant protein mixture as in Tsujii to enhance the stability of the resulting emulsion.
Response to Arguments
The positions taken in the remarks accompanying the amendment dated March 11, 2026 (Reply) in regard to the withdrawn indefiniteness rejections and the rejections citing Ventureira as a primary reference and rejections citing Finney or Zhang as a secondary reference combined with Ventureira has been considered but are moot because the new grounds of rejection do not rely on the references for any teaching or matter specifically challenged in the Reply.
In view of the amendment dated July 20, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 1-4, 6-8, 10-14, 16-17, 19-20 and 23-26 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the basis for the recited weight percent (wt%) of sucrose and glucose syrup;
The rejections of claims 1-4, 6-8, 10-14, 16-17 and 19-20 under 35 U.S.C. 103 as being unpatentable over WO20200193641 A1 to Ventureira et al. in view of GB1508437 A to Finney et al.;
The rejections of claims 1-4, 6-8, 10-14, 16-17 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over WO20200193641 A1 to Ventureira et al. in view of WO 2020/123915 A1 to Zhang et al. and GB1508437 A to Finney et al.;
The rejections of claims 23-26 under 35 U.S.C. 103 as being unpatentable over WO20200193641 A1 to Ventureira et al. in view of GB1508437 A to Finney et al. and, US2007/0128323 A1 to Tsujii et al.; and,
The rejections of claims 23-26 under 35 U.S.C. 103 as being unpatentable over WO20200193641 A1 to Ventureira et al. in view of WO 2020/123915 A1 to Zhang et al., GB1508437 A to Finney et al. and US2007/0128323 A1 to Tsujii et al.
Regarding the positions taken in the remarks accompanying amendment dated July 20, 2026 (Reply), the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
The positions taken in Reply as regards Zhang that one would not use a sodium ascorbate or sodium ascorbate alternative in a composition other than one comprising a protein concentrate assume that Zhang is limited to its examples and that the art provides no reason to add such an ascorbate absent ultrafiltered protein. However, the fact that the inventor 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. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In the present case sodium ascorbate or alternative provides antioxidant protection and the entirety of the art, including but not limited to Ventureira and Zhang also discloses the need to improve the flavor of plant based frozen dessert because of the presence of the plant protein regardless of its form.
The positions taken regarding an alleged impact of the claimed protein content on plant based frozen dessert characteristics amount to an assertion without data to support it. In any case, just as with inclusion of sodium ascorbate there are many reasons why the ordinary skilled artisan would choose to use the claimed dry fractionated plant protein, not least because it is less processed. In any case, arguments of counsel cannot take the place of evidence on the record. See MPEP 716.01(c).II.
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 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
