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 objected to because of the following informalities: The first paragraph of Applicant’s specification should be updated to include the patents granted in related earlier filed applications.
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, 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, independent Claim 1 recites a proportion of plant-extracted proteins: comprising a first proportion of canola proteins and a second proportion of secondary proteins, and defining a target ratio of the first proportion of canola proteins to the second proportion of secondary proteins, the target ratio corresponding to a target functionality and a target flavor profile..”, where such a limitation is not supported by the prior-filed application. Independent Claim 13 recites at least the limitations of “a proportion of stabilizing agents configured to stabilize the proportion of plant-extracted proteins in the emulsion”, where such a limitation is not supported by the prior-filed application. Independent Claim 16 is a method claim which recites at least “an amount of stabilizing agents configured to stabilize the amount of plant-extracted proteins the amount of plant-extracted proteins comprising a first amount of canola proteins 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 not supported by the prior-filed application. It is noted that many of the dependent claims also constitute subject matter that is not supported by the prior-filed application, examples, including: Claim 4 recites limitations about stabilizing agents which is not supported in the prior-filed application. Applicant is reminded that the instant application is a CIP of the prior-filed application and has introduced subject matter which is not present in the prior-filed application. Therefore, none of the instant claims will get the priority date of the prior-filed application and will therefore get the earliest effective filing date of the instant application which is 3/24/2023.
Claim Objections
Claim 3 is objected to because of the following informalities: for clarification purposes, the Examiner recommends keeping the language of Claim 3 in line with Claim 1 and changing line 2 of the claim to read “the first proportion of canola proteins” instead of “the proportion of canola proteins”. Appropriate correction is required.
Claim Rejections – 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 6 and 14 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.
Claim 6 recites in line 8, “third proportion of canola proteins to the fourth proportion of canola proteins and exceeding the target ratio of the first proportion of canola proteins to the second proportion of canola proteins”, and this is unclear because the second blend as recited in Claim 5 recites “a third proportion of canola proteins and a fourth proportion of secondary proteins”, not a fourth proportion of canola proteins. Additionally, there is no “second proportion of canola proteins” recited, as Claim 1 recites a “first proportion of canola proteins and a second proportion of secondary proteins”. Therefore, the metes and bounds of the claim are indefinite for search and examination purposes and for the purposes of search and examination, the Examiner will consider the limitations in the previous claims for the second and fourth proportion of proteins being secondary proteins in general.
Claim 14 recites in line 11 “a second proportion of canola proteins” and this is unclear because no first proportion of canola proteins or any specific proteins are recited in Claim 13, as Claim 13 generally recites “plant-extracted proteins”. In addition, this limitation is rendered indefinite in light of Claim 15 which further limits the plant-extracted proteins recited in Claim 13 comprising “a first proportion of canola proteins and a second proportion of secondary proteins”. Therefore, the Examiner is unclear whether Claim 14 is supposed to recite “a second proportion of canola proteins” or should have recited “a second proportion of plant-extracted proteins”. The metes and bounds of the claim are therefore indefinite for search and examination purposes.
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, 9-16, 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 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 canola proteins in particular or teach a first proportion of canola 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 the 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 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 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 a 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 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, 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). Bowman teaches an amount of sweetener can be configured to modify the taste and texture of the end product (Bowman, Paragraph 49). 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 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 canola 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 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 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, Bowman in view of Schweizer teach the second volume comprising a second blend of the base mixture components of water, salt, calcium, sweeteners, starches, 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 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. It is noted that starches and stabilizing agents are recited in overlapping amounts in Claim 5 and Claim 6 does not specify what are the stabilizing agents. The starches taught by Bowman in view of Schweizer are also seen to stabilize the proteins, where canola proteins 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 canola 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 Claim 6 of wherein the second proportion of plant-extracted proteins defines a second target ratio of the third proportion of canola proteins to the fourth proportion of canola proteins, exceeding the target ratio of the first proportion of canola proteins to the second proportion of canola proteins, Applicant is directed to the 112b rejection which highlights the indefinite nature of this limitation with regard to combinations of canola proteins and secondary proteins in the first and second blends. 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 canola 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 canola 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 Claim 9, Bowman in view of Schweizer are taken as cited above in the rejection of 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 canola 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 canola 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, while still providing a completely non-dairy option for consumers.
Regarding Claim 10, as set forth above, Bowman in view of Schweizer teach and render obvious optimizing the ratio of the canola 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 Claim 11, Bowman in view of Schweizer are taken as cited above in the rejection of Claim 6 and teach and render obvious the set of stabilizing agents that are deemed to be configured to stabilize the canola 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 canola 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 canola 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 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 plant-based 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 Claim 13, Bowman in view of Schweizer are taken as cited above in the rejection of Claim 6 and teach the base mixture comprising a proportion of water defining an aqueous phase, a proportion of salt and calcium dissolved in the aqueous phase, a proportion of sweeteners, a proportion of fats defining an oil phase comprising a volume of oil droplets dispersed throughout the aqueous phase, a proportion of plant-extracted proteins configured to form a barrier or an interface between oil droplets of the oil phase and the aqueous phase to form an emulsion, a proportion of starches configured to stabilize the emulsion, where the emulsion excludes dairy proteins and is configured to form a non-dairy product excluding dairy proteins (Bowman, Paragraphs 7-8, 14). 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. It is noted that starches and stabilizing agents are recited in overlapping amounts in Claim 5 and Claim 6 does not specify what are the stabilizing agents. The starches taught by Bowman in view of Schweizer are also seen to stabilize the plant-extracted proteins in the emulsion, 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 base mixture further comprising a proportion of stabilizing agents configured to stabilize the proportion of plant-extracted proteins in the emulsion.
Regarding Claim 14, Bowman in view of Schweizer are taken as cited above in the rejection of Claims 5 and 13 and teaches or renders obvious the first volume comprising the emulsion configured to form the consumable non-dairy product, and also teaches a second volume comprising second proportions of all the same components as set forth in the base mixture recited in Claim 13 as in the first volume in order to form a second emulsion which is configured to form a second non-dairy product, excluding dairy proteins (Bowman, Figure 1), where Bowman in view of Schweizer teach and render obvious the use of canola proteins.
Regarding Claim 15, Bowman in view of Schweizer are taken as cited above in the rejection of Claims 1, 3, and 13 and teach and render obvious the proportion of plant-extracted proteins comprises a first proportion of canola proteins and a second proportion of secondary proteins, as set forth above. Bowman in view of Schweizer teach and render obvious the successful use of canola proteins as a plant-based protein source to prepare non-dairy frozen desserts having positive taste, flavor and positive after tastes, where the non-dairy frozen dessert mixes 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 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, and would be used together in order to provide an emulsion being configured to form the consumable non-dairy product exhibiting a target functionality profile and target flavor profile.
While Bowman in view of Schweizer do not specifically teach a target ratio of the combinations of plant-based proteins that can be used, the prior art teaches that canola proteins in particular are able to 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, 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 frozen dessert option for consumers.
Regarding Claim 16, Bowman in view of Schweizer are taken as cited above in the rejection of 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 stabilizing agents configured to stabilize the amount of plant-extracted proteins has been taught or rendered obvious as set forth above in the rejection of Claim 14, 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 in the rejection of Claim 15.
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 Claim 18, Bowman in view of Schweizer is taken as cited above in the rejection of 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 and stabilizing agents 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. 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 rejection of Claim 14. 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 int eh 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 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 canola proteins and a fourth amount of secondary proteins mixed at a protein ratio corresponding to a second functionality and target flavor profile, as set forth above in the rejection of Claim 15 for the claim processing steps, 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 Claims 7 and 8, Bowman in view of Schweizer are taken as cited above in the rejection of Claim 1 and teach and render obvious plant-extracted proteins and canola 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 Claim 17, Bowman in view of Schweizer are taken as cited above in the rejection of 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 Claim 19, Bowman in view of Schweizer is taken as cited above in the rejection of 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 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. 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 rejection of Claim 14. 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.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-17 of U.S. Patent No. 12,357,002 in view of Schweizer et al. (USPA 2013/0209654). Claims 1-17 of the prior granted patent recite claims to a base mixture comprising the same components and functionality with the exception of not reciting the limitation of the first proportion of canola proteins and second proportion of secondary proteins, defining a target ratio corresponding to target functionality and flavor profile, as recited in the instant claims.
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 the 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 for the claims of the prior granted patent to have recited canola proteins as the plant-based proteins to make non-dairy products, and to have recited 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.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-20 of U.S. Patent No. 12,274,272 in view of in view of Schweizer et al. (USPA 2013/0209654). Claims 1-20 of the prior granted patent recite claims to a base mixture comprising the same components and functionality with the exception of not reciting the limitation of the first proportion of canola proteins and second proportion of secondary proteins, defining a target ratio corresponding to target functionality and flavor profile, as recited in the instant claims.
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 the 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 for the claims of the prior granted patent to have recited canola proteins as the plant-based proteins to make non-dairy products, and to have recited 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.
Conclusion
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 03/06/2026