DETAILED ACTION
Background
The amendment dated March 11, 2026 (amendment) amending claims 1, 11 and 13-14, adding new claims 23-26 and cancelling claims 5, 18 and 21 has been entered. Claims 1-4, 6-8, 10-14, 16-17, 19-20 and 23-26 as filed with the amendment have been examined. Claims 5, 9, 15, 18 and 21 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 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 the 2nd to last line and in claim 11 at the last line, the recited weight percent (wt%) of sucrose and glucose syrup is indefinite because the claim does not provide a denominator or basis for the recited percentage. Is the wt.% amount of the sucrose and glucose syrup based on the total weight of water, the weight of the recited protein and water, the total weight of the plant based frozen dessert composition, the total weight of the recited plant protein mixture, the total weight of the recited plant based liquid, the total solids weight of the plant based frozen dessert, or some other total weight?
The Office interprets the claimed wt% of the sucrose and glucose syrup as being based on the total weight of the recited plant based liquid or plant based frozen dessert.
Claims 2-4, 6-8, 10, 12-14, 16-17, 19-20 and 23-26 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, 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. (Ventureira) in view of GB1508437 A to Finney et al. (Finney), of record.
All references to the text of Ventureira 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% of the sucrose and glucose syrup as being based on the total weight of the recited plant based liquid or plant based frozen dessert.
Regarding instant claims 1, 3, 8, 10-11 and 16, Ventureira at Example 9 on page 18 and the accompanying Table on page 35 discloses a method of making a plant based frozen dessert (claim 1) and the plant based frozen dessert made (claims 10-11). Ventureira discloses a method comprising adding sucrose (“a sugar”) to water and mixing (“adding sugar to the plant protein mixture”), adding a stabilizer Cremodan SE 30 (“one or more emulsifiers” in claim 1 and (iv) in claim 11) 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) a pH of 7 (“dissolving plant protein in water to form a plant protein mixture” having a pH between 6.7 and 8 as in claim 16) and made (at [76] on p. 13) by turboseparation (“dry fractionated plant protein” that is “made using air classification” in claim 3). Further, Ventureira discloses a method of adding and mixing in coconut oil to the plant protein mixture (“dispersing a fat phase in the plant protein mixture” as “coconut fat” in claim 8), followed by high pressure homogenization (“homogenizing the plant protein mixture to form an emulsion”), then pasteurization at 80 °C for 3 minutes (“applying a thermal treatment to the emulsion to form a plant based liquid”) and freezing the plant based liquid to form the plant based frozen dessert.
The Office considers the recited steps of dissolving the dry fractionated plant protein, adding a sugar, adding one or more emulsifier to form a plant protein mixture as including adding the plant protein, sugar and emulsifier to water in any order. Regardless of their order of addition, it would least have been obvious in Ventureira to change the order of performing process steps of dissolving plant protein, adding sugar and adding emulsifier in the absence of new or unexpected results. See MPEP 2144.04.IV.C.
Further, the Office considers the recited fat phase that solidifies at a temperature less than 30 °C in claims 1 and 11 to include the coconut oil or coconut fat of Example 9 of Ventureira.
Further and regarding instant claim 13, as shown in the Table accompanying Example 9 Ventureira discloses its plant based liquid and the plant based frozen dessert comprising 2.84 wt% of faba bean or legume plant protein, based on the total weight of the plant based liquid and plant based frozen dessert; and Ventureira discloses 8 wt% of the fat phase (claim 13), based on the total weight of the plant based liquid and plant based frozen dessert.
Still further, Ventureira does not disclose an example of adding sodium ascorbate, a sodium ascorbate alternative or a combination thereof dissolved in the plant protein mixture or the emulsion as in claim 1 and does not disclose a plant based frozen dessert comprising a (vi) sodium ascorbate, sodium ascorbate alternative or a combination thereof as in claim 11; further, Ventureira does not disclose an example of adding 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 and 11.
In addition, and regarding instant claims 4 and 6-7, Ventureira does not disclose an example of a plant based frozen dessert or plant based liquid comprising from 10 to 20 wt% of sucrose and glucose syrup, based on the total weight of the plant based frozen dessert or plant based liquid as in claims 1 and 11. Still further, Ventureira does not disclose an example of a sodium ascorbate in the plant protein mixture or emulsion as in claim 4; Ventureira does not disclose a plant based frozen dessert that includes sorbitol, glycerol or a combination thereof as in claim 6; and, Ventureira does not disclose any example of a step of adding a hydrocolloid to the plant protein mixture including carrageenan as in claim 7. However, at Example 9 in the accompanying Table Ventureira discloses its ice cream comprising 23.5 wt% of sucrose and glucose syrup, based on the weight of the plant based frozen dessert or liquid. Further, at [72] Ventureira discloses including vitamin C (“ascorbic acid”) or its salts as a nutrient and hydrocolloids including carrageenan to mask bitter nutrient flavors. The Office considers the claimed sodium ascorbate as including the ascorbic acid salts of Ventureira.
The ordinary skilled artisan in Ventureira would have found it obvious 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. Ventureira discloses that including carrageenan as an effective hydrocolloid and a vitamin C or its salts in its plant protein mixture or emulsion provides a desirable mixture for making an ice cream.
Finney at page 1, lines 50-65 discloses an ice cream comprising as a freezing-point depressant sorbitol and/or glycerol to improve sweetness, spoonability and softness at -20 °C. At Example 1 on page 2, Finney discloses the ice cream comprising glycerol as well as carrageenan and a monoglyceride emulsifier. At Example 2 on page 3, Finney disclose an ice cream comprising 14 wt% total of sucrose and glucose syrup and glycerol.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Finney for Ventureira to include in its plant based frozen dessert from 10 to 20 wt% sucrose and glucose syrup, based on the total weight of the plant based frozen dessert, and to include sorbitol and/or glycerol as in claim 6. Both references disclose frozen desserts comprising sucrose and glucose syrup. The ordinary skilled artisan in Ventureira would have desired to include sorbitol and/or glycerol as in Finney to improve its spoonability and softness while including the claimed amount of sucrose and glucose syrup with the sorbitol and/or glycerol to balance the added sweetness from the added polyols.
Regarding instant claims 2 and 19-20, Ventureira discloses at Example 9 field bean or faba bean protein (claims 19-20 as a “plant protein” that is “derived from a legume source” in claim 2). Further, the plant based frozen dessert of Example 9 of Ventureira comprises coconut fat (claim 20).
Regarding instant claim 12, the Office considers the plant based frozen dessert of Example 9 and the claimed plant based frozen dessert frozen at -4 °C to be substantially the same thing. Accordingly, absent a clear showing as to how the method of Ventureira differs from that as claimed, the Office considers the method of Example 9 of Ventureira to provide a plant based frozen dessert as a soft serve ice cream. See MPEP 2112.01.I.
Regarding instant claim 14, the plant based frozen dessert disclosed in Example 9 of Ventureira 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 Example 9 of Ventureira.
Regarding instant claim 17, Ventureira 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 as in claim 17. However, the homogenized emulsion and the frozen plant based frozen dessert of Example 9 of Ventureira 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 Ventureira differs from that of the emulsion and plant based frozen dessert as claimed, the Office considers the emulsion of Example 9 of Ventureira to an average particle size (d[3,2]) of between 0.5 and 3 µm. See MPEP 2112.01.I.
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. (Ventureira) in view of WO 2020/123915 A1 to Zhang et al. (Zhang), of record, and GB1508437 A to Finney et al. (Finney).
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 sucrose and glucose syrup as being based on the total weight of the recited plant based liquid or plant based frozen dessert.
Regarding instant claims 1, 3, 8, 10-11 and 16, Ventureira at Example 9 on page 18 and the accompanying Table on page 35 discloses a method of making a plant based frozen dessert (claim 1) and the plant based frozen dessert made (claims 10-11). Ventureira discloses a method comprising adding sucrose (“a sugar”) to water and mixing (“adding sugar to the plant protein mixture”), adding a stabilizer Cremodan SE 30 (“one or more emulsifiers” in claim 1 and (iv) in claim 11) and the rest of the sugar including glucose syrup to the plant protein mixture and mixing in a field bean protein isolate made (at [76] on p. 13) by turboseparation (“dry fractionated plant protein” that is “made using air classification” in claim 3) and having (at [82] on p. 14) a pH of 7 (“dissolving plant protein in water to form a plant protein mixture” having a pH between 6.7 and 8 as in claim 16). Further, Ventureira discloses a method of adding and mixing in coconut oil to the plant protein mixture (“dispersing a fat phase in the plant protein mixture” as “coconut fat” in claim 8), followed by high pressure homogenization (“homogenizing the plant protein mixture to form an emulsion”), then pasteurization at 80 °C for 3 minutes (“applying a thermal treatment to the emulsion to form a plant based liquid”) and freezing the plant based liquid to form the plant based frozen dessert.
The Office considers the recited steps of dissolving the dry fractionated plant protein, adding a sugar, adding one or more emulsifier to form a plant protein mixture as including adding the plant protein, sugar and emulsifier to water in any order. Regardless of their order of addition, it would least have been obvious in Ventureira to change the order of performing process steps of dissolving plant protein, adding sugar and adding emulsifier in the absence of new or unexpected results. See MPEP 2144.04.IV.C.
Further, the Office considers the recited fat phase that solidifies at a temperature less than 30 °C in claims 1 and 11 to include the coconut oil or coconut fat of Example 9 of Ventureira.
Further and regarding instant claim 13, as shown in the Table accompanying Example 9 Ventureira discloses its plant based liquid and the plant based frozen dessert comprising 2.84 wt% of faba bean or legume plant protein, based on the total weight of the plant based liquid and plant based frozen dessert; and Ventureira discloses 8 wt% of the fat phase (claim 13), based on the total weight of the plant based liquid and plant based frozen dessert.
Still further, Ventureira does not disclose an example of adding sodium ascorbate, a sodium ascorbate alternative or a combination thereof dissolved in the plant protein mixture or the emulsion as in claim 1 and does not disclose an example of plant based frozen dessert comprising a (vi) sodium ascorbate, sodium ascorbate alternative or a combination thereof as in claim 11; further, Ventureira does not disclose an example of a plant based frozen dessert comprising 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 as in claims 1 and 11.
In addition, and regarding instant claims 4 and 6-7, Ventureira does not disclose a plant based frozen dessert or plant based liquid comprising from 10 to 20 wt% of sucrose and glucose syrup, based on the total weight of the plant based frozen dessert or plant based liquid as in claims 1 and 11. Still further, Ventureira, does not disclose sodium ascorbate in the plant protein mixture or emulsion as in claim 4; Ventureira does not disclose a plant based frozen dessert that includes sorbitol, glycerol or a combination thereof as in claim 6; and, Ventureira does not disclose any example of a step of adding a hydrocolloid to the plant protein mixture including carrageenan as in claim 7. However, at Example 9 in the accompanying Table Ventureira discloses its ice cream comprising 23.5 wt% of sucrose and glucose syrup, based on the weight of the plant based frozen dessert or liquid. And, at [0072] Ventureira discloses including vitamin C (“ascorbic acid”) or its salts as a nutrient and hydrocolloids including carrageenan to mask bitter nutrient flavors.
The ordinary skilled artisan in Ventureira would have found it obvious 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 so that the hydrocolloid can mask any bitter flavor. Ventureira discloses that including carrageenan as an effective hydrocolloid in its plant protein mixture or emulsion provides a desirable mixture for making an ice cream.
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. Further, 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.
Finney at page 1, lines 50-65 discloses an ice cream comprising as a freezing-point depressant sorbitol and/or glycerol to improve sweetness, spoonability and softness at -20 °C. At Example 1 on page 2, Finney discloses the ice cream comprising glycerol as well as carrageenan and a monoglyceride emulsifier. At Example 2 on page 3, Finney disclose an ice cream comprising 14 wt% total of sucrose and glucose syrup and glycerol.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Zhang for Ventureira to dissolve in its oil in water emulsion or plant protein mixture in Example 9 a sodium ascorbate or a sodium ascorbate alternative antioxidant. Both references disclose frozen desserts containing plant protein mixtures of dry fractionated plant proteins as plant protein mixtures and emulsions. The ordinary skilled artisan in Ventureira would have desired to improve the taste of products comprising its plant protein mixture in water by including in the plant protein mixture or an emulsion thereof comprising a sodium ascorbate or sodium ascorbate alternative as in the milk of Zhang. In addition, the ordinary skilled artisan in Ventureira would have desired to retain the antioxidant in its plant protein mixture as in Zhang to preserve its phenolic content.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Finney for Ventureira to include in its plant based frozen dessert from 10 to 20 wt% sucrose and glucose syrup, based on the total weight of the plant based frozen dessert, and to include sorbitol and/or glycerol as in claim 6. Both references disclose frozen desserts comprising sucrose and glucose syrup. The ordinary skilled artisan in Ventureira would have desired to include sorbitol and/or glycerol as in Finney to improve its spoonability and softness while including the claimed amount of sucrose and glucose syrup with the sorbitol and/or glycerol to balance the added sweetness from the added polyols.
Regarding instant claims 2 and 19-20, Ventureira discloses at Example 9 field bean or faba bean protein (claims 19-20 as a “plant protein” that is “derived from a legume source” in claim 2). Further, the plant based frozen dessert of Example 9 of Ventureira comprises coconut fat (claim 20).
Regarding instant claim 12, the Office considers the plant based frozen dessert of Example 9 and the claimed plant based frozen dessert frozen at -4 °C to be substantially the same thing. Accordingly, absent a clear showing as to how the method of Ventureira differs from that as claimed, the Office considers the method of Example 9 of Ventureira to provide a plant based frozen dessert as a soft serve ice cream. See MPEP 2112.01.I.
Regarding instant claim 14, the plant based frozen dessert disclosed in Example
9 of Ventureira 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 Example 9 of Ventureira.
Regarding instant claim 17, Ventureira 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 as in claim 17. However, the homogenized emulsion and the frozen plant based frozen dessert of Example 9 of Ventureira 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 Ventureira differs from that of the emulsion and plant based frozen dessert as claimed, the Office considers the emulsion of Example 9 of Ventureira to an average particle size (d[3,2]) of between 0.5 and 3 µm. See MPEP 2112.01.I.
Claims 23-26 are rejected under 35 U.S.C. 103 as being unpatentable over WO20200193641 A1 to Ventureira et al. (Ventureira) in view of GB1508437 A to Finney et al. (Finney) as applied to claim 1 above, and, further in view of US2007/0128323 A1 to Tsujii et al. (Tsujii).
As applied to claim 1, Ventureira at [72], Example 9 on page 18 and the accompanying Table on page 35 as modified by Finney at page 1, lines 50-65, Example 1 on page 2 and Example 2 on page 3 discloses a method of making a plant based frozen dessert comprising dissolving a dry fractionated plant protein in water to form a plant protein mixture having a pH of between 6 and 9, adding a sucrose and glucose syrup, adding one or more emulsifiers, dispersing a fat phase in the plant protein mixture, homogenizing the mixture to form an emulsion and freezing the emulsion, wherein sodium ascorbate, a sodium ascorbate alternative or their combination is dissolved in the plant protein mixture or the emulsion.
Regarding instant claims 23 and 26, Ventureira as modified by Finney does not disclose applying a thermal treatment to its emulsion wherein the thermal treatment is conducted at a temperature from 110 °C to 150 °C as in claim 23, does not disclose 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 Ventureira as modified by Finney to conduct its thermal treatment is at a temperature from 110 °C to 150 °C as in Tsujii and 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 Ventureira and Tsujii disclose plant based frozen desserts comprising sodium ascorbate or sodium ascorbate alternative. The ordinary skilled artisan in Ventureira as modified by Finney would have looked to treat its plant protein emulsion at the claimed temperature for a brief time period as in Tsujii to preserve the antioxidants in its plant based frozen dessert. Further, the ordinary skilled artisan in Ventureira as modified by Finney 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.
Regarding instant claim 24, Ventureira as modified by Finney at Example 9 of Ventureira discloses 8 wt% of coconut oil fat, based on the total weight of the plant based frozen dessert. Further, the homogenized emulsion and the frozen plant based frozen dessert of Example 9 of Ventureira 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 Ventureira differs from that of the emulsion and plant based frozen dessert as claimed, the Office considers the emulsion of Example 9 of Ventureira to an average particle size (d[3,2]) of between 0.5 and 3 µm. See MPEP 2112.01.I.
Regarding instant claim 25, the plant based frozen dessert of Ventureira as modified by Finney in Example 2 of Finney comprises 15 wt% of sucrose and glucose syrup.
Claims 23-26 are rejected under 35 U.S.C. 103 as being unpatentable over WO20200193641 A1 to Ventureira et al. (Ventureira) in view of WO 2020/123915 A1 to Zhang et al. (Zhang), of record, and GB1508437 A to Finney et al. (Finney) as applied to claim 1 above, and further in view of US2007/0128323 A1 to Tsujii et al. (Tsujii).
As applied to claim 1, Ventureira at [72], Example 9 on page 18 and the accompanying Table on page 35 as modified by Zhang at page 5, lines 21-22, page 10, lines 24-28 and page 17, line 29 to page 18 and Finney at page 1, lines 50-65, Example 1 on page 2 and Example 2 on page 3 discloses a method of making a plant based frozen dessert comprising dissolving a dry fractionated plant protein in water to form a plant protein mixture having a pH of between 6 and 9, adding a sucrose and glucose syrup, adding one or more emulsifiers, dispersing a fat phase in the plant protein mixture, homogenizing the mixture to form an emulsion and freezing the emulsion, wherein sodium ascorbate, a sodium ascorbate alternative or their combination is dissolved in the plant protein mixture or the emulsion.
Regarding instant claims 23 and 26, Ventureira as modified by Zhang and Finney does not disclose applying a thermal treatment to its emulsion wherein the thermal treatment is conducted at a temperature from 110 °C to 150 °C as in claim 23, does not disclose 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 Ventureira as modified by Zhang and Finney to conduct its thermal treatment is at a temperature from 110 °C to 150 °C as in Tsujii and 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. All of Ventureira, Zhang and Tsujii disclose plant based frozen desserts comprising sodium ascorbate or sodium ascorbate alternative. The ordinary skilled artisan in Ventureira as modified by Zhang and Finney would have looked to treat its plant protein emulsion at the claimed temperature for a brief time period as in Tsujii to preserve the antioxidants in its plant based frozen dessert. Further, the ordinary skilled artisan in Ventureira as modified by Zhang and Finney 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.
Regarding instant claim 24, Ventureira at Example 9 of Ventureira discloses 8 wt% of coconut oil fat, based on the total weight of the plant based frozen dessert. Further, the homogenized emulsion and the frozen plant based frozen dessert of Example 9 of Ventureira 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 Ventureira differs from that of the emulsion and plant based frozen dessert as claimed, the Office considers the emulsion of Example 9 of Ventureira to an average particle size (d[3,2]) of between 0.5 and 3 µm. See MPEP 2112.01.I.
Regarding instant claim 25, the plant based frozen dessert of Ventureira as modified by Zhang and Finney in Example 2 of Finney comprises 15 wt% of sucrose and glucose syrup.
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 Medina as a primary reference and Zhang as a secondary reference combined with Medina 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 March 11, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 1-8, 10, 13 and 16-19 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 dry fractionated plant protein in claim 1 and the basis for the recited “wt% fat” in claim 13;
The rejections of claims 1-8, 11-14 and 16-22 under 35 U.S.C. 103 as being unpatentable over US 2014/0010947 A1 to Medina et al. in view of WO 2020/123915 A1 to Zhang et al..; and,
The rejection of claim 6 under 35 U.S.C. 103 as being unpatentable over US 2014/0010947 A1 to Medina et al. in view of in view of WO 2020/123915 A1 to Zhang et al. and GB1508437 A to Finney et al. (Finney).
The positions taken in Reply as regards any remaining rejection of cited art have been fully considered but are not found persuasive for the following reasons:
Regarding indefiniteness, the Office appreciates applicants effort at amending the claims. However, the amended claims 1 and 11 present a new wt% basis issue. If the claims were amended recite what is considered to be 100% of weight for determining the recited percentage, they would then be considered compliant with 35 USC section 112b.
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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