DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8/26/2026 has been entered.
Claims 1-3, 8-17, 20-27 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Claim Objections
Claim 16 and 17 are objected to because of the following informalities: Claim 16 and 17 recite “the lecithin” and should properly read “the hydrolyzed lecithin”. 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 8-15 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.
Claims 8 recites a limitation “wherein the one of more proteins comprises one or more plant-based proteins”. Claims 9-15 recite various proteins pulse and cereal proteins. However, Claim 1 recites “one or more proteins…wherein the one or more proteins comprises canola proteins”. Canola is a plant protein, which is required by claim 8. It is therefore unclear whether canola protein is required in addition to the recited proteins of Claims 8-15.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 8-9, 11-12, 16-17, and 20-27 are rejected under 35 U.S.C. 103 as being unpatentable over White (US 20130129879) in view of Sternchemie Lipid Technology (https://www.sternchemie.com/wp-content/uploads/2021/06/PRESS-RELEASE-Sternchemie_SternPur-S-DH-50.pdf, June 2021).
Regarding Claims 1-3, White teaches a beverage (Abstract) comprising lecithin [0028] and canola protein [0007].
White teaches e.g. 6.5% of a plant protein [0164], which lies within the claimed range.
White teaches that the beverage has “improved” protein solubility [0105] but does not discuss the specific protein solubility.
However, where White speaks to the effects of improved protein solubility, e.g. improved mouthfeel [0105], one of ordinary skill would have been able to have adjusted the protein solubility to arrive at the amounts as claimed through no more than routine experimentation.
White does not address the viscosity of the beverage. However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the viscosity property as claimed.
White teaches the use of lecithin but does not specifically address plant-based, sunflower, or hydrolyzed lecithin.
Sternchemie Lipid Technology teaches that hydrolyzed sunflower lecithin (which is a plant-based lecithin) offers unusual stability for beverages (Page 2, Paragraph 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilized a hydrolyzed sunflower lecithin in the beverage of White. One would have been motivated to make such a modification since Sternchemie Lipid Technology teaches that hydrolyzed sunflower lecithin offers advantages for beverages.
Regarding Claim 8-9 and 11-12, White teaches the use of plant-based proteins such as pea and legume proteins [0007]. It would have been obvious to have utilized the pea and legume proteins in combination with canola protein, given that canola, pea, and legume proteins are all plant proteins, and White teaches the use of combinations of vegetable (plant) proteins.
Regarding Claims 16 and 17, White teaches the use of lecithin [0028] and oilseed proteins [0007]. White teaches the addition of e.g. 6.5% of a plant protein [0164] and 0.12% lecithin (Page 18, Example 15), which is a ratio of 1:54 of lecithin:protein, which lies within the claimed range.
Additionally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding Claims 20-22, White teaches the addition of oil such as sunflower oil [0028].
Regarding Claims 23 and 24, White teaches the addition of ascorbic acid [0028], sodium hydroxide [0040], sodium carbonate [0047], antifoaming agent [0088], and citric acid [0094]. Note that since Claim 24 recites species considered to be processing aids, the product of White is considered to contain processing aids, as claimed.
Regarding Claim 25, White teaches the addition of lecithin [0028] to a mixture which comprises canola proteins [0007] and water [e.g. 0094]. Note that the selection of any order of mixing ingredients is prima facie obvious. See MPEP 2144.04 IV C.
Regarding Claim 26, White teaches that the beverage is thermally processed [0214].
Regarding Claim 27, White teaches that the beverage is homogenized [0213].
Claims 10 and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over White in view of Sternchemie Lipid Technology as applied to Claim 1, above, and further in view of McCulloch (https://www.healthline.com/nutrition/best-vegan-protein-powder, August 2018).
Regarding Claims 10, 13, 14, and 15, White teaches the use of any vegetable protein [0007] but does not specifically address the use of a mixture of pulse protein and cereal protein.
McCulloch teaches that pea (which is a pulse) protein and rice protein are rich in branched-chain amino acids (Page 2, Paragraph 3 and Page 4, last paragraph), but pea protein is low in methionine (Page 2, Paragraph 2) and rice protein is low in lysine (Page 4, “Brown Rice Protein”, Paragraph 2).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize both pea protein and brown rice protein in the beverage of White. One would have been motivated to make such a modification to utilize plant-based proteins rich in branched-chain amino acids. One would have been additionally motivated to utilize a mixture of these proteins, since McCulloch teaches that the proteins have different amino acid profiles.
Response to Arguments
Applicant’s arguments filed 8/26/2026 have been fully considered but they are not found persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues (Page 2 of Remarks) that none of the working examples of White disclose canola protein, and White does not discuss difficulties known in the art (i.e. heat denaturation) regarding canola protein. Applicant additionally argues that Examiner’s argument that it would have been obvious to have adjusted protein solubility amount to impermissible hindsight.
This argument is not convincing. First, note that prior art is available for all teachings and not only preferred embodiments. See MPEP 2123. Second, Applicant has not claimed specific solubility behavior under elevated temperature. Where White teaches the use of canola in a beverage as claimed, and Sternchemie provides sufficient motivation to utilize a hydrolyzed lecithin in a beverage, the product of the combined prior art is interpreted to have the claimed properties. Third, where White teaches adjustment of the protein solubility and the resulting effects, one of ordinary skill would have been able to have adjusted the protein solubility to arrive at the claimed solubility. Lastly, while the claims require 5-15% of overall protein, the claims do not require that any particular amount of canola protein be present.
Applicant additionally cites data provided in the Specification as to unexpected results regarding the use of hydrolyzed lecithin and the resulting improved protein solubility (Page 7 of Remarks). Applicant additionally argues that insufficient motivation is provided to combine Sternchemie with White, since Sternchemie does not address the use in a 5-15% protein beverage comprising canola protein, or that hyrolyzed protein stabilizes the canola protein.
This argument is not convincing. Where White teaches the use of lecithin in a protein beverage, and Sternchemie teaches that hydrolyzed lecithin provides stability for protein-containing beverages, it would have been obvious to have utilized hydrolyzed lecithin in the beverage of White. Note that the motivation to utilize hydrolyzed lecithin is not required to be the same as that of the instant Application. See MPEP 2144 IV.
Applicant additionally argues that McCulloch does not address the combination of canola protein with pea and/or rice protein or methods for stabilizing those proteins during heat treatment.
This argument is not convincing. Mcculloch provides sufficient motivation (i.e. different amino acid profiles) to utilize pea and brown rice protein in the beverage of White. Note that the motivation to the claimed protein(s) is not required to be the same as that of the instant Application. See MPEP 2144 IV.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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