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 .
Specification
The disclosure is still objected to because of the following informalities: The first paragraph of Applicant’s specification was updated to include one of the patents granted in related earlier filed applications, but is still missing the other granted patent from the other prior-filed application.
Appropriate correction is required.
Priority
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 17/705127, still fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. In particular, the issue in both independent Claims 1 and 16 is the specific recitation of the two proportions of proteins: comprising a first proportion of now amended “primary plant-extracted proteins” and a second proportion of secondary proteins, and defining a target ratio of the first proportion of primary plant-extracted proteins to the second proportion of secondary proteins, defining a target ratio corresponding to a target functionality and a target flavor profile..”. The prior-filed application 17/705127 does not support this limitation of the first and second proportions of proteins defining a target ratio as claimed. Claim 16 is a method claim which still recites a first amount of now amended first plant-extracted protein type and a second amount of secondary proteins mixed at a protein ratio corresponding to a target functionality and a target flavor profile”, where such limitations are also not supported by the prior-filed application. Applicant is still reminded that the instant application is a CIP of the prior-filed application and has introduced subject matter of the two protein proportions defining a target ratio as claimed which is not present in the prior-filed application. Therefore, Claims 1-12 and 16-20 will not be granted priority back to the prior-filed application and will therefore get the earliest effective filing date of the instant application which is 3/24/2023. It is noted that the amendment to Claim 13 resulted in the claim being granted priority back to the prior-filed application and is now indicated as allowable.
Terminal Disclaimer
The terminal disclaimer filed on 7/10/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of USPN 12,357,002 and 12,274,272 have been reviewed and is accepted. The terminal disclaimer has been recorded. Therefore, the previously set forth ODP rejections have been withdrawn.
Allowable Subject Matter
Claims 13-15 are allowed. Claim 13 was allowed for the same reasons as set forth in the prior-filed application, now USPN 12,357,002. Claims 14 and 15 are allowed in light of incorporation of their dependence on Claim 13.
Claim Rejections – 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-12 and 16-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Amended independent Claims 1-12 and 16-20 now recite “primary plant-extracted proteins” instead of reciting “canola proteins”. Applicant’s specification does not specifically support the amended limitation and there is no apparent support for generic primary plant-extracted proteins, as Applicants specification only discloses canola proteins as the first proportion of proteins along with a proportion of generic secondary proteins. Therefore, Applicant’s claims as amended constitute new matter.
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 16-20 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.
Amended Claim 16 recites “a first plant-extracted protein type”. The addition of the word "type" to an otherwise definite expression extends the scope of the expression as to render it indefinite. See MPEP 2173.05(b) E. Furthermore, it is unclear what the word “type" is attempting to convey. Claims 17-20 are included in the rejection in light of their dependency to Claim 16.
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 1-6, 9, 10-12, 16, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Bowman et al. (USPA 2021/0045400), made of record by Applicant, in view of Schweizer et al. (USPN 2013/0209654).
Regarding amended Claim 1, Bowman teaches a non-dairy base mixture comprising a blend comprising a proportion of water, a proportion of salt, a proportion of calcium, a proportion of sweeteners, a proportion of starches, a proportion of plant-extracted proteins, a proportion of fats, an oil phase defining a volume of oil droplets dispersed throughout the aqueous phase, and configured to cooperate with the proportion of plant-extracted proteins to form an emulsion (Figure 1, at least and Paragraphs 7-10 and 14), where the emulsion excludes dairy proteins and forms non-dairy products excluding dairy proteins (Paragraphs 7-10 and 14). Bowman teaches the base mixture can be processed to form various dairy-alternative end products much like bovine milk, and teaches that the base mixture can include additional and/or substitute ingredients to achieve qualities (e.g. taste, texture, functionality) of any other traditional dairy product (Paragraph 14), therefore teaching or rendering obvious the claimed limitation of the emulsion being configured to form a consumable non-dairy product exhibiting the target functionality and the target flavor profile corresponding to a target dairy product. Bowman teaches the non-dairy products can be frozen non-dairy desserts and made with plant-based proteins such as potato proteins (Paragraphs 14 and 41), but fails to teach a first proportion of primary plant-extracted proteins and a second proportion of secondary proteins, defining a target ratio of the two proportions of proteins, the target ratio corresponding to a target functionality and a target flavor profile.
Schweizer teaches of protein analogues using plant-based proteins, and in particular teaches canola proteins that are used in plant-based frozen dessert mixes which are substitutes for dairy products (Paragraph 27). Schweizer teaches that generally, dairy analogue frozen dessert mixes can use various plant-based protein sources or combinations thereof, where suitable plant-based protein sources for such dairy analogue frozen dessert mixes include soy protein components (Paragraphs 30-33 and 37). Schweizer teaches the canola protein components can be successfully used to prepare frozen dessert mixes having positive taste and flavor properties and aftertaste, and can be used to replace, at least in part, other protein sources in non-dairy dessert mixes to provide non-dairy frozen desserts with positive taste attributes reported (Paragraphs 27, 37, 125, 146 and Claims 1-4). Therefore, Schweizer acknowledges the use of canola protein as a suitable plant-based protein source to provide a particularly desired target flavor profile and also target functionality in light of the successful functionality of canola proteins as the plant-based protein source in non-dairy frozen desserts.
Therefore, since Schweizer teaches the known use of multiple plant-based protein sources to prepare non-dairy frozen dessert mixes and frozen desserts thus produced, and teaches that canola proteins in particular are able to be replace at least in part other plant-based proteins to provide non-dairy frozen dessert mixes having positive taste and flavor properties and positive aftertaste attributes, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used canola proteins as the plant-based proteins to make non-dairy protein analogues including non-dairy frozen desserts, and to have used an optimal ratio of canola proteins to secondary proteins, excluding dairy proteins, in order to provide non-dairy frozen desserts having positive taste, flavor and aftertaste attributes. Based on the teachings of the prior art, it would have been well within the skill of one of ordinary skill in the art to determine the optimal ratio of canola and secondary plant-based proteins in a non-dairy frozen dessert mix in order to maximize positive taste attributes of the canola proteins, while still providing a completely non-dairy option for consumers.
Regarding amended Claim 2, Bowman in view of Schweizer teach various functionalities of the base mixture, wherein one such variation is the production of a non-functional plant-based mixture, to be consumed as a regular non-dairy milk substitute and one variation where the base mixture is made into a functional milk substitute for baking, cheese making, or made into other frozen desserts including ice cream, etc., and also teaches the base mixture is configured to exhibit features that correspond to taste, texture and characteristics of corresponding dairy products (Bowman, Paragraphs 14, 27, 80), therefore understood to have the target flavor profile and functionality corresponding to dairy milk.
Regarding amended Claim 3, Bowman in view of Schweizer are taken as cited above in the rejection of Claim 1 and teach and render obvious the successful use of canola proteins, as an example, as a primary plant-based protein source to prepare non-dairy frozen desserts having positive taste, flavor and positive after tastes, where the non-dairy frozen desserts are shown to be prepared with canola proteins and made into ice cream that had positive taste and flavor (Examples 5 and 6). Therefore, the proportion of canola proteins used is understood to be configured to exhibit a target functionality of being able to be used to prepare non-dairy frozen desserts, and the canola proteins would have been reasonably expected to possess a first set of binding, gelling and foaming properties based on being a protein. As set forth above, Bowman in view of Schweizer teach combinations of plant-based proteins can be used, therefore an amount of canola proteins would be used and an amount of secondary proteins would be used, where each would have their own known functionality and target flavor and volatile profile, in light of being different plant protein sources.
While Bowman in view of Schweizer does not specifically teach relative amounts of the combinations of plant-based proteins that can be used, and teaches that canola proteins in particular are able to be replace at least in part other plant-based proteins to provide non-dairy frozen dessert mixes having positive taste and flavor properties and positive aftertaste attributes, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used an optimal ratio of canola proteins to secondary proteins, while excluding dairy proteins, in order to provide non-dairy frozen desserts having positive taste, flavor and aftertaste attributes. Based on the teachings of the prior art, it would have been well within the skill of one of ordinary skill in the art to determine the optimal ratio of canola and secondary plant-based proteins in a non-dairy frozen dessert mix in order to maximize positive taste attributes of the canola proteins, while still providing a completely non-dairy option for consumers.
Regarding amended Claim 4, Bowman in view of Schweizer are taken as cited above in the rejection of Claim 1 for the base mixture comprising the claimed components, and teaches of proportions of the claimed components in order to form the emulsion to then prepare a variety of non-dairy products such as non-dairy frozen desserts (Bowman, Paragraphs 7, 14, 21), and teaches the base mixture comprises a proportion of water, a proportion of salt dissolved in the water and configured to solubilize proteins, a proportion of calcium dissolved in the water, plant-based proteins should be present in an amount of 2-8% by weight of the base mixture but the amount of protein can be varied to modify the protein concentration based on the final product (Bowman, Paragraph 21). Bowman in view of Schweizer teaches the proportions of the above discussed components of the base mixture can be adjusted depending on the end product (Bowman, Paragraph 21). The Examiner notes that many of the weight ranges for the recited components of the base mixture can be at 0%, thus not requiring their presence, and therefore only water, protein and fat are actually required as per the claimed ranges recited in Claim 4.
Schweizer teaches that dairy analogue frozen dessert mixes all typically comprise water, protein, fat, flavorings, sweetener and other solids along with stabilizers and emulsifiers, where the proportions of these components vary depending on the desired composition of the frozen dessert product (Paragraph 28), and generally teaches a fat level in a frozen dessert mix can range from about 0 to about 18% by weight (Paragraph 32), protein can range from about 0.1 to about 6% by weight (Paragraph 33), sweetener can range from about 0 to about 35% by weight (Paragraph 34), stabilizers used in amount of about 1 to about 3% by weight (Paragraph 35), where the amounts of fat, protein, sweetener and stabilizer meet the claimed ranges. Regarding the claimed amount of water in the base mixture, Schweizer teaches various examples of frozen dessert mixes having between 60-95% by weight water (Tables 1-5), therefore meeting the claimed amounts of water, protein and fat.
Therefore, in light of the teachings of the prior art and the known functionality of the claimed components in the base mixture, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amounts of the individual components in the base mixture in order to maximize the individual ingredient functionality and functionality between components in the base mixture, and depending on the particular end product desired. Given the guidelines discussed in the prior art, it would have been well within the skill of one of ordinary skill in the art to have adjusted the amounts of the claimed components of the base mixture, in order to provide functional base mixtures that can be used to prepare the various non-dairy products discussed by Bowman in view of Schweizer. Where "the difference between the claimed invention and the prior art is some range or other variable within the claims...Applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.” In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir.1990). MPEP 2144.05 III. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the claimed components of the base mixture involves only routine skill in the art. MPEP 2144.05 II.
Regarding amended Claim 5, Bowman in view of Schweizer teach preparing a volume comprising the blend of the base mixture, and Bowman in view of Schweizer in combination render obvious the proportion of plant-extracted proteins defining a target ratio corresponding to target functionality and target flavor profile of the consumable non-dairy product, in light of the teaching in Schweizer of using canola proteins in a non-dairy frozen dessert having positive taste, flavor and aftertaste. Bowman in view of Schweizer teach preparing other volumes of base mixture to make other non-dairy products (Bowman, Figure 1), where the same basic base mixture is used to prepare functionalized milk, frozen yogurt, soft cheese, hard cheese, etc. Bowman in view of Schweizer are taken as cited above and are also seen to render obvious the use of a second proportion of plant-extracted proteins having a third proportion of plant-extracted proteins and a fourth proportion of secondary proteins for the reasons set forth above, where this second proportion of plant-extracted proteins would also be expected to have a second target ratio corresponding to a second target functionality and second target flavor profile for the same reasons as set forth above, namely the use of canola proteins as exemplary plant-extracted proteins to prepare non-dairy products having positive taste and flavor profiles.
As set forth above, Bowman teaches the base mixture can be processed to form various dairy-alternative end products similar to bovine milk, and teaches that the base mixture can include additional and/or substitute ingredients to achieve qualities (e.g. taste, texture, functionality) of any other traditional dairy product (Paragraph 14).
Therefore, Bowman in view of Schweizer teach the second volume comprising a second blend of the base mixture components of water, salt, calcium, plant-extracted proteins, along with a second proportion of fats comprising a second volume of oil droplets dispersed through the second blend, configured to cooperate with the second proportion of plant-extracted proteins to form a second emulsion, excluding dairy products, and configured to form a second consumable, non-dairy product which would have its own target functionality and target flavor profile corresponding to a second target dairy product, in light of the use of the same base mixture to make other non-dairy products which would naturally have their own target functionality and flavor profile, while still corresponding to a particular dairy product.
Regarding amended Claim 6, Bowman in view of Schweizer teach using a proportion of starches configured to stabilize the aqueous phase and oil phase and to maintain components of the mixture in a homogenous suspension (Bowman, Paragraphs 7, 17 and 43). Therefore, in this way, the starches are also seen as stabilizing agents in the base mixture. The starches taught by Bowman in view of Schweizer are also seen to stabilize the proteins, where canola proteins as a plant-extracted protein are rendered obvious by the combination of Bowman and Schweizer, as Bowman in view of Schweizer teach the starches present in the aqueous phase stabilize the base mixture and prevent phase separation (Bowman, Paragraph 28), thereby stabilizing the components of the base mixture including proteins. It is also noted that Schweizer teaches stabilizers in the non-dairy base (Schweizer, Paragraph 35). Therefore, Bowman in view of Schweizer are seen to teach or render obvious the blend further comprising a first proportion of a first set of stabilizing agents configured to stabilize the first proportion of plant-extracted proteins, the first set of stabilizing agents corresponding to the target functionality, namely the stability of the base mixture to prevent phase separation. As set forth above, Bowman in view of Schweizer teach an emulsion configured to form a consumable, non-dairy milk exhibiting the target functionality and target flavor profile of dairy milk.
Regarding the limitation in amended Claim 6 of wherein the second proportion of plant-extracted proteins defines a second target ratio of the third proportion of plant-extracted proteins to the fourth proportion of plant-extracted proteins, exceeding the target ratio of the first proportion of plant-extracted proteins to the second proportion of plant-extracted proteins, Applicant’s Claim 6 is basically requiring different amounts of proteins in the first non-dairy product of a milk to a second non-dairy product of a non-dairy ice cream, which would have its own target functionality and target flavor profile corresponding to dairy ice cream. Bowman in view of Schweizer have been applied as set forth above in the rejection of Claims 1 and 5 to render obvious the optimization of the amount of a third proportion of plant-extracted proteins to a fourth proportion of secondary proteins in order to arrive at a non-dairy frozen dessert having the desired flavor, taste and after taste. Bowman in view of Schweizer are also taken as cited above for the teaching of varying the proportions of the components in the base mixture depending on the final product that is made and also teach the preparation of non-dairy products that have the taste, functionality of their dairy counterparts (Bowman, Paragraph 14).
Therefore, it is submitted by the Examiner that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amounts of the stabilizing agents and starches to stabilize a third proportion of plant-extracted proteins in the second blend in order to arrive at a second non-dairy consumable such as a non-dairy ice cream, having the desirable target functionality and flavor profile of a dairy ice cream, in light of the teachings and guidance set forth in the prior art.
Regarding amended Claim 9, Bowman in view of Schweizer are taken as cited above in the rejection of amended Claim 1 and teach and render obvious the limitation of a proportion of plant-extracted proteins defining a target ratio of the first proportion of primary plant-extracted proteins to the second proportion of secondary proteins. While Bowman in view of Schweizer does not specifically teach a target ratio of the first proportion of primary plant-extracted proteins to the second proportion of secondary proteins between one and two, Schweizer teaches that canola proteins in particular are able to be replace at least in part other plant-based proteins to provide non-dairy frozen dessert mixes having positive taste and flavor properties and positive aftertaste attributes. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used an optimal ratio of canola proteins to secondary proteins, while excluding dairy proteins, and to have more canola proteins than any secondary proteins used, in order to provide non-dairy frozen desserts having positive taste, flavor and aftertaste attributes. Based on the teachings of the prior art, it would have been well within the skill of one of ordinary skill in the art to determine the optimal ratio of canola and secondary plant-based proteins in a non-dairy frozen dessert mix in order to maximize positive taste attributes of the canola proteins as the exemplary primary plant-extracted proteins, while still providing a completely non-dairy option for consumers.
Regarding amended Claim 10, as set forth above, Bowman in view of Schweizer teach and render obvious optimizing the ratio of the primary plant-extracted proteins to any secondary proteins in order to provide non-dairy products having desirable taste, flavor and aftertaste. It is also submitted that using a proportion of canola proteins as part of the plant-based protein in the non-dairy frozen product would impart some amount of functionality due to the particular chemistry of the canola proteins. Secondly, it is noted that Applicant’s claims do not require what the secondary protein is. Therefore, it is submitted that whatever the secondary protein is would also impart some amount of functionality, flavor and taste to the non-dairy product, while keeping with the overall objective of Bowman in view of Schweizer to prepare non-dairy products where the base mixture can include additional and/or substitute ingredients to achieve qualities (e.g. taste, texture, functionality) of any other traditional dairy product (Paragraph 14).
Regarding amended Claim 11, Bowman in view of Schweizer are taken as cited above in the rejection of amended Claim 6 and teach and render obvious the set of stabilizing agents that are deemed to be configured to stabilize the primary plant-extracted proteins corresponding to a target functionality of providing stability to the emulsion, as set forth above. Therefore, the stabilizing agents are understood to be cooperating with the primary plant-extracted proteins in the consumable non-dairy product to maintain the target functionality of the consumable non-dairy product in light of the stability they are providing to the emulsion, and therefore any non-dairy products made from the emulsions. Regarding the limitation of the stabilizing agents configured to stabilize a first proportion of primary plant-extracted proteins in the emulsion during high temperature short time pasteurization of the emulsion, it is first noted that the claims only recite “stabilizing agents” without any specifics as to what the stabilizing agents are. In addition, since Bowman in view of Schweizer teach starches and stabilizing agents that have been asserted to stabilize the base mixture and the emulsion, one of ordinary skill in the art would have reasonably expected they would stabilize the emulsion during other processes, such as those claimed. Applicant’s claims are product claims and do not positively recite or require method steps such as those recited in Claim 11.
Regarding amended Claim 12, Bowman in view of Schweizer teach of the importance of micelle formation to generate some of the disclosed non-dairy food products (Bowman, Paragraph 14) and teach the base mixture includes a first proportion of a protein-starch blend including a first proportion of proteins and a first proportion of starches and configured to absorb water in the aqueous phase, form an interface between the aqueous phase and oil droplets of the oil phase to form an emulsion, and form micelles responsive to acidification of the emulsion (Paragraph 8), and teaches adding an acid to a third mixture, prior to blend the oil into the third mixture to promote micelle formation between proteins, starches and the oil droplets in the base mixture (Paragraph 12). Bowman in view of Schweizer teach and render obvious the use of canola proteins as the primary plant-extracted proteins and teach that canola proteins are known to also form micelles (Schweizer, Paragraphs 3-5). Since Bowman in view of Schweizer teach the micelle formation as claimed, the prior art is deemed to teach the process limitation of neutralization of polarity of the canola proteins in order to promote the micelle formation.
Regarding amended Claim 16, Bowman in view of Schweizer are taken as cited above in the rejection of amended Claim 1 and teach a method as shown in Figure 1, teaching mixing a first set of ingredients to generate a first mixture, the first set of ingredients comprising a volume of water, an amount of salt and an amount of calcium (Figure 1 and Paragraphs 11-14), mixing a second set of ingredients into the first mixture to generate a second mixture, the second set of ingredients comprising an amount of starches, protein, where the protein is plant-extracted proteins (Bowman, Figure 1 and Paragraphs 11-14). The limitation of starches configured to stabilize the amount of plant-extracted proteins has been taught or rendered obvious as set forth above in the rejection of Claim 6, the limitation of the plant-extracted proteins comprising a first amount of canola proteins and a second amount of secondary proteins mixed at protein ratio corresponding to a target functionality and target flavor profile has been taught or rendered obvious as set forth above.
Bowman in view of Schweizer further teach during a blending period B1 and regulating temperature of the second mixture within a first temperature range, (Bowman, Figure 1, @ t1 and @T1, signifying a time and temperature parameter for the B1, blending with the oil into the second mixture to form an emulsion comprising a dispersion of oil droplets within the water (Bowman, Figure 1, B1 blending with oil, followed by “emulsification”). Bowman in view of Schweizer teach during a pasteurization period succeeding the blending period pasteurizing the emulsion at temperatures within a second temperature range for a first duration (Bowman, Figure 1, P1, @t2 and @T2). Bowman in view of Schweizer further teach homogenizing the emulsion at temperatures within a third temperature range and over another duration of time to form a base mixture configured to form a consumable non-dairy product exhibiting the target functionality and flavor profile in light of the various products that are made from the base mixture as set forth above and disclosed in Figure 1 (Bowman, Paragraphs 11-13).
Regarding amended Claim 18, Bowman in view of Schweizer is taken as cited above in the rejection of amended Claim 16 for the claimed method and teaches or renders obvious mixing the second set of ingredients into the first mixture to generate the second mixture, the second set of ingredients comprising an amount of starches, plant-extracted proteins configured to stabilize the first amount of canola proteins at temperatures within the second temperature range (Bowman, Figure 1 and Paragraphs 11-14) and Bowman in view of Schweizer teach and render obvious the use of canola proteins. Bowman in view of Schweizer teach pasteurizing the mixture at a second temperature range of 150-200F for a set duration, where this mixture is pasteurized to eliminate harmful bacteria and other contaminants present in the mixture before undergoing further processing (Bowman, Paragraph 66). Since Bowman in view of Schweizer teach pasteurizing the mixture comprising plant-extracted proteins at a temperature within the clamed range, one of ordinary skill in the art would have reasonably expected the ingredient in the mixture, namely the starch components, would be capable of stabilizing the proteins at the temperatures used because the starch is discussed as providing stability to the emulsion. While Bowman in view of Schweizer do not specifically teach the claimed duration of less than 25 seconds, one of ordinary skill in the food processing art would recognize that optimizing time and temperature parameters for pasteurization would have been well within the skill of one of ordinary skill in the art, in order to ensure the mixture is pasteurized sufficiently to eliminate harmful bacteria and other contaminants. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the duration of the pasteurization step involves only routine skill in the art. MPEP 2144.05 II.
Regarding amended Claim 20, Bowman in view of Schweizer are taken as cited above in the rejection of Claim 16 and teach homogenizing to form a first volume of the base mixture configured to form the consumable non-dairy product exhibiting the target functionality and flavor profile, as Bowman in view of Schweizer teach homogenizing the emulsion to form a base mixture (Paragraph 11), and teaches in another example, following micelle formation, the mixture can be homogenized in order to prevent phase separation and form a functionalized none dairy base mixture which can be then packaged and served directly to consumers or may froth it for coffee products, bake with or make cheese with it in place of bovine milk (Bowman, Paragraph 16), therefore teaching forming a consumable nondairy product exhibiting target functionality and flavor profile in light of the various products that can be formed that would all have their own functionality and target flavor profile.
Bowman in view of Schweizer teach providing multiple mixtures of volume, salt and calcium to make a mixture and adding starch, protein, stabilizing agents as obviated above to stabilize the plant-extracted proteins, where Bowman in view of Schweizer teach and render obvious the limitation of the plant-extracted proteins comprising a third amount of primary plant-extracted proteins and a fourth amount of secondary proteins mixed at a protein ratio corresponding to a second functionality and target flavor profile, and teach regulating the temperature of the mixtures, blending volume of oil into the mixture to form another emulsion comprising a dispersion of oil droplets within the volume of water in the mixture, pasteurizing the emulsion at temperatures within a temperature range and duration, and homogenizing to form other volumes of a base mixture configured to form other consumable nondairy products exhibiting other target functionality and target flavor profile, as Bowman in view of Schweizer teach using the base mixture thus processed to make a variety of different nondairy products, with specific functionality and flavor profiles particular to each product (Bowman, Figures 1 and 2B). Therefore, in this way, Bowman in view of Schweizer teach making third and fourth mixtures of the base mixture and forming them into various consumable non-dairy products exhibiting particular target functionality and flavor profiles.
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Bowman et al. (USPA 2021/0045400), made of record by Applicant, in view of Schweizer et al. (USPN 2013/0209654), and further in view of Foster WO 2019140363).
Regarding amended Claims 7 and 8, Bowman in view of Schweizer are taken as cited above in the rejection of amended Claim 1 and teach and render obvious plant-extracted proteins and canola proteins as exemplary plant-extracted proteins, but do not specifically teach a proportion of chickpea proteins or rice proteins.
Foster teaches of plant protein concentrates as nutritional supplements is large and growing (Paragraph 3) and teaches the known practice of blending different protein sources together to provide complete amino acid profiles (Paragraph 6) and teaches of providing food grade plant protein concentrates from sources including chickpeas (Paragraph 7) and food products that include the plant protein sources (Paragraph 11), where exemplary foods include non-dairy liquid beverages, powders and yogurts and other foods to replace both animal proteins such as from dairy, and more allergenistic plant-proteins such as gluten and soy (Paragraphs 13 and 56). Foster also teaches that rice proteins are also important as a hypoallergenic plant-based protein (Paragraph 56). Therefore, it would have been obvious to one of ordinary skill in the art to have used other plant-based more allergen friendly proteins such as chickpeas and soy along with the canola proteins, in the non-dairy food products of Bowman in view of Schweizer.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Bowman et al. (USPA 2021/0045400), made of record by Applicant, in view of Schweizer et al. (USPN 2013/0209654), and further in view of Vega, et al. (2006).
Regarding amended Claim 17, Bowman in view of Schweizer are taken as cited above in the rejection of amended Claim 16 but fail to teach spray-drying a volume of the base mixture to transform it from liquid to solid, and packaging in the solid state for storage.
Vega teaches that emulsion stability is a relative, kinetic concept, and an alternative and convenient means of increasing the shelf-life of perishable emulsions is to transform them into dry powders, which is primarily done by spray drying (Page 383, Column 2, Paragraphs 1-2). Vega teaches that the drying process also minimizes the packaging and storage requirements and reduces shipping, and storage weight and costs (Page 384, Column 1, Paragraph 1). Therefore, the method steps of spray drying the emulsion to a solid form and packaging for storage would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in order to extend the shelf life of the liquid emulsion of Bowman in view of Schweizer and providing a more economical way of packaging and storing the emulsion.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Bowman et al. (USPA 2021/0045400), made of record by Applicant, in view of Schweizer et al. (USPN 2013/0209654), and further in view of Barata et al. (USPA 2019/0045826).
Regarding amended Claim 19, Bowman in view of Schweizer is taken as cited above in the rejection of amended Claim 18 for the claimed method and teaches or renders obvious mixing the second set of ingredients into the first mixture to generate the second mixture, the second set of ingredients comprising an amount of starches, plant-extracted proteins and stabilizing agents configured to stabilize the first amount of plant-extracted proteins at temperatures within the second temperature range (Bowman, Figure 1 and Paragraphs 11-14) and Bowman in view of Schweizer teach and render obvious the use of canola proteins as exemplary plant-extracted proteins. The limitation of stabilizing agents configured to stabilize the amount of plant-extracted proteins has been taught or rendered obvious as set forth above in the teaching of starches. Bowman in view of Schweizer teach pasteurizing the mixture at a second temperature range of 150-200F for a set duration, where this mixture is pasteurized to eliminate harmful bacteria and other contaminants present in the mixture before undergoing further processing (Bowman, Paragraph 66), which includes the method step of pasteurizing the emulsion at approximately 190F. Since Bowman in view of Schweizer teach pasteurizing the mixture comprising plant-extracted proteins at a temperature within the clamed range, one of ordinary skill in the art would have reasonably expected the ingredient in the mixture, namely the starch components, would be capable of stabilizing the proteins at the temperatures used because the starch is taught to stabilize the emulsion. While Bowman in view of Schweizer do not specifically teach the claimed duration of less than 20 seconds, one of ordinary skill in the food processing art would recognize that optimizing time and temperature parameters for pasteurization would have been well within the skill of one of ordinary skill int eh art, in order to ensure the mixture is pasteurized sufficiently to eliminate harmful bacteria and other contaminants. However, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the duration of the pasteurization step involves only routine skill in the art. MPEP 2144.05 II.
Bowman in view of Schweizer do not specifically teach where the amount of stabilizing agents comprise an amount of pectin.
Barata teaches of compositions comprising plant proteins that can be made into nutritional formulations including plant based creams, dessert creams, iced desserts, etc. (Paragraph 110) and teaches the known use of modified starch and pectin as stabilizers in such plant-based products (Paragraph 141). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used a known stabilizer such as pectin in a plant-based dessert for their art recognized stabilizing functionality.
Response to Arguments
The claim objection previously set forth has been withdrawn in light of Applicant’s amendments. Some of the previously set forth rejections have been withdrawn in light of priority claims accepted for Claims 13-15, thereby allowing these claims for the same reasons set forth in the allowance of the two prior granted patents. However, some of the priority issues are still outstanding, therefore requiring the maintenance of the prior art rejections for Claims 1-12 and 16-20 for the reasons set forth above. There is also now a question of a 112a rejection of amended claims as well. The Examiner has maintained the lack of priority granted back to Claims 1-12 and 16-20 because the ‘002 patent does not disclose first and second proportions of proteins and in target ratio for functionality as recited in Claims 1 and 16. To show this point in another way, Applicant’s instant PG publication includes 19 occurrences of a target ratio between two proportions of proteins and 51 occurrences of a discussion of first and second protein proportions. This is in stark contrast to the ‘002 patent (prior-granted patent) which includes zero occurrences of a discussion of two proteins in proportions or target ratios as recited in the claims. The above discussed claim limitations are not present in the ‘002 patent which is why Applicant’s instant application is a CIP of the ‘002 patent.
Regarding the maintained prior art rejections, Applicant's arguments have been fully considered but they are not persuasive for the following reasons. Applicant argues that the prior art does not reasonably teach or render obvious the claimed limitations of a first and second proportion of a primary plant-extracted protein and a generic secondary protein in a target ratio to correspond to a target functionality and flavor profile. The Examiner respectfully disagrees as the primary reference clearly teaches that plant-based proteins should be present in an amount of 2-8% by weight of the base mixture but the amount of protein can be varied to modify the protein concentration based on the final product (Bowman, Paragraph 21). Schweizer teaches that generally, dairy analogue frozen dessert mixes can use various plant-based protein sources or combinations thereof, where suitable plant-based protein sources for such dairy analogue frozen dessert mixes include soy protein components (Paragraphs 30-33 and 37). Bowman in view of Schweizer also teaches the proportions of the above discussed components of the base mixture can be adjusted depending on the end product (Bowman, Paragraph 21).
As previously set forth, Schweizer teaches that canola proteins in particular are able to be replace at least in part other plant-based proteins to provide non-dairy frozen dessert mixes having positive taste and flavor properties and positive aftertaste attributes. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used an optimal ratio of canola proteins representing the claimed primary plant-extracted proteins, to secondary proteins, and to have more canola proteins than any secondary proteins used, in order to provide non-dairy frozen desserts having positive taste, flavor and aftertaste attributes. Based on the teachings of the prior art, it would have been well within the skill of one of ordinary skill in the art to determine the optimal ratio of canola and secondary plant-based proteins in a non-dairy frozen dessert mix in order to maximize positive taste attributes of the canola proteins as the exemplary primary plant-extracted proteins, while still providing a completely non-dairy option for consumers.
Lastly, as previously set forth, Applicant’s claims do not require what the secondary protein is. Therefore, it is submitted that whatever the secondary protein is would also impart some amount of functionality, flavor and taste to the non-dairy product, while keeping with the overall objective of Bowman in view of Schweizer to prepare non-dairy products where the base mixture can include additional and/or substitute ingredients to achieve qualities (e.g. taste, texture, functionality) of any other traditional dairy product (Paragraph 14).
Therefore, the prior art teaches that it is well known in the art to adjust levels of proteins and to use combinations of proteins in order to arrive at a particular end product, which would dictate a particular flavor/functionality desired. This optimization of amounts of multiple protein sources would not appear to result in unexpected benefits in the resulting end products. Therefore, the Examiner is not persuaded of the patentability of Applicant’s claims at this time and the office action is made final and deemed proper at this time.
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.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 9/14/2026
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