DETAILED ACTION
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on March 13, 2026 has been entered.
Claims 1, 2, and 4-10, 12-28 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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, 2, 4-8, and 12-28 are rejected under 35 U.S.C. 103 as being unpatentable over Tetrick (US 2014/0356507) in view of Di Stefano (“Plant RuBisCo: An Underutilized Protein for Food Applications”, DOI: 10.1002/aocs.12104, August 2018) and Rubisco Foods (https://web.archive.org/web/20200814012803/https://rubiscofoods.com/plant-protein/, reference is made to the provided archival version).
Regarding Claims 1, 2, 4-6 and 26-28, Tetrick teaches a composition comprising 10-30% plant protein isolates [0073], 0.5-15% gums such as xanthan gum [0011], and 0-15% of additives such as fiber [0010]. The amount of protein isolate overlaps the ranges of Claim 26 and touches the claimed range of Claim 27. The amount of additive encompasses the claimed range of Claim 28. The ratio of protein to gums overlaps the claimed range(s) of Claim 1. The composition is dried, as it requires reconstitution with water [0006].
Tetrick does not address the use of a RuBisCO protein isolate as the source of the plant protein.
Di Stefano teaches that RuBisCO proteins have high nutritional potential (Page 1064, Column 2, Paragraph 1) and may have superior functionality compared to conventional proteins such as soy protein (Page 1067, Column 1, Paragraph 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the composition of Tetrick to utilize a RuBisCO protein, as taught by Di Stefano. One would have been motivated to make such a modification since Di Stefano teaches that RuBisCO proteins have comparable nutritive and functional properties to conventional proteins.
Modified Tetrick discusses the use of RuBisCo protein as discussed above, but does not discuss sourcing from the Lemna genus.
Rubisco Foods teaches that RuBisCo proteins can be sourced from duckweed or lemna species (Page 1, Paragraph 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize a lemna species, as taught by Rubisco Foods, as the source of the protein in the composition of modified Tetrick. One would have been motivated to make such a modification since Rubisco Foods teaches that lemna species are a source of RuBisCo proteins.
Regarding Claim 7, Di Stefano teaches that RuBisCO protein should be decolorized to avoid affecting consumer acceptance (Page 1071, Paragraph 1). It would have been obvious to one of ordinary skill to utilize a decolorized RuBisCO protein in the composition of modified Tetrick, since Di Stefano teaches that doing so would avoid affecting consumer acceptance.
Regarding Claim 8, Di Stefano teaches that RuBisCo is comprised of large and small subunits (Page 1064, “Composition and Structure” – Page 1065, Column 1, Paragraph 1). It would have been obvious to utilize large and/or small subunits of RuBisCo, since RuBisCo is known to be comprised of large and/or small subunits.
Regarding Claims 12 and 13, Rubisco Foods teaches sourcing RuBisCo proteins from duckweed species but does not name the claimed species.
However, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize any species of duckweed, or lemna, since Rubisco Foods teaches the utilization of duckweeds in general. See MPEP 2144.08.
Regarding Claim 14, Tetrick teaches an additive such as fiber [0010].
Regarding Claim 15, Tetrick teaches the addition of salt, sugar, monosodium glutamate, spices, and sulfur compounds to the composition [0114].
Regarding Claim 16, Tetrick teaches the addition of bran [0101].
Regarding Claim 17, Tetrick teaches the addition of arrowroot starch [0014].
Regarding Claim 18, note that Claim 18 does not further limit Claim 14, since Claim 18 does not positively recite the soluble salt. Since Tetrick teaches a feature which meets the limitations of claim 14, the limitations of Claim 20 have also been met.
Regarding Claim 19, Tetrick teaches the addition of citric acid [0109].
Regarding Claim 20, note that Claim 20 does not further limit Claim 14, since Claim 20 does not positively recite the wax. Since Tetrick teaches a feature which meets the limitations of claim 14, the limitations of Claim 20 have also been met.
Regarding Claim 21, Tetrick teaches the addition of lecithin [0102-0103].
Regarding Claims 22, Tetrick teaches the addition of “artificial coloring agents”, which are synthetic ingredients [0112].
Regarding Claim 23, Tetrick teaches the addition of milk [0122].
Regarding Claim 24, Tetrick teaches the addition of nut flours [0088].
Regarding Claim 25, Tetrick teaches the addition of artificial flavorings [0114].
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Tetrick in view of Di Stefano and Rubisco Foods as applied to Claim 1, above, and further in view of Abad (US 20100017904 A1).
Regarding Claims 9-10, modified Tetrick teaches the addition of RuBisCo proteins but does not teach the specific protein sequences IDs as claimed.
Abad teaches sequences from RuBisCo protein isolates that match SeqID 1 and 2 of the claims (see search report dated 5/20/2025, Sequence ID 1, filename US-18-121-210A-1.rai, Result #1, Sequence ID 9836 of Abad, and Sequence ID 2, US-18-121-210A-2.rai, Result #1, Sequence ID 19517 of Abad)
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize any RuBisCo protein, including a RuBisCo protein with the sequence IDs as claimed, in the composition of modified Tetrick. One would have been motivated to make such a modification since Abad teaches that the claimed sequences are known RuBisCo protein sequences.
Response to Arguments
Applicant’s arguments filed 3/13/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues that the cited publications fail to recite each and every element of the claim; namely, a ratio of plasticizer to RuBisCO protein isolate.
This argument is not convincing. Tetrick teaches the use of plant proteins and the ratio of plasticizer to plant protein, and Di Stefano provides sufficient motivation to utilize a RuBisCO protein isolate as the plant protein of Tetrick.
Applicant additionally argues that Tetrick does not teach the claimed plasticizer-to-RuBisCO ratio, and does not teach or suggest the use of RuBisCO. Applicant additionally argues that arriving at the RuBisCO:plasticizer ratio would require exhaustive trial and error.
This argument is not convincing. Tetrick teaches the use of a wide variety of plant proteins and the claimed protein : plasticizer ratio, and DiStefano teaches the use of RuBisCO proteins in foods as replacements for conventional proteins in food applications. It would therefore be obvious to utilize a RuBisCO protein in the composition of Tetrick. Additionally, Tetrick teaches the protein:plasticizer ratio as claimed. To arrive at the claimed ratio would require only the substitution of the protein of Tetrick for a RuBisCO protein of the Lemna genus.
Applicant additionally argues that the combination of RuBisCO from Lemna provides unexpected functional properties.
This argument is not convincing. Applicant has not claimed specific functional properties. Additionally, the instant Specification only provides comparison against an animal whole egg and not, e.g., RuBisCO from other sources, other plant proteins, or a different amount of plasticizer. The showings in the Specification are therefore not commensurate in scope with the Claims and not sufficient to overcome the rejection over the prior art as set forth above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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