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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 9 February 2026 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the objections to the claims have been withdrawn; (2) the 112(b) rejection of claims 5 and 14 has been withdrawn; (3) the 112(d) rejection of claim 6 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-20
Withdrawn claims: 11-13 and 15-16
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1-3, 5-6, 14, and 17-18
New claims: 17-20
Claims currently under consideration: 1-10, 14, and 17-20
Currently rejected claims: 1-10, 14, and 17-20
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-10 and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Shi (CN 10132695 A, cited on the IDS filed on 15 March 2023) in view of Pickardt et al. (US 2012/0009287 A1, cited on the IDS filed on 25 July 2025).
Regarding claims 1 and 6, Shi teaches a process for producing a protein concentrate from oilseed, said process comprising the successive steps of:
a) providing oilseeds, said oilseeds being seeds from a plant of the genus Helianthus, said oilseeds being at least partially dehulled – “sunflower seeds are classified into the shelling machine for peeling, and the kernels and shells are separated…kernels are crushed into 6-8 petals by a crusher, and then enter the soaking tank” (p. 1, last 2 ¶s).
wherein said oilseeds are not extracted with hexane – Shi does not teach extraction with hexane.
b) washing said press cake by mixing it with a first acidic aqueous solution to obtain an aqueous-washed oilseed meal – Water extraction is performed at pH 3-8 (p. 2, ¶ 1). Acidic pH is defined as being below pH 7. Therefore, the claimed range of below 7 overlaps with the disclosed range of pH 3-8. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
c) washing said aqueous-washed oilseed meal by mixing it with a first alcohol solvent, to obtain a first alcohol-washed oilseed meal, wherein said first alcohol solvent is a hydrous or a non-hydrous alcohol – “The intermediate liquid separated by the centrifuge is mixed with edible alcohol…and then sent to the chlorogenic acid extraction pot...the extracted slurry is sent into centrifuge separation.” (p. 2, ¶ 6). The intermediate liquid represents the remnant of the oilseed meal after water washing.
d) separating said alcohol-washed oilseed meal from said solvent to obtain said protein concentrate – “The protein slurry and the chlorogenic acid solution are separated, the solvent is evaporated and reused…the protein slurry is separated by the separator…and sent to the drying section.” (p. 2, ¶ 6). The delivered protein slurry is spray dried to a powder (p. 2, ¶ 7).
Shi does not discuss providing the oilseeds in the form of a press cake, said oilseed being at least partially dehulled before being pressed, wherein said press cake is not extracted with hexane. Shi also does not discuss the alcohol concentration being above 75% w/w.
However, Pickardt teaches a method of obtaining protein preparations from sunflower seeds in which the sunflower seeds are dehulled and pressed up to a fat or oil content of the dehulled sunflower seeds in the range of 10-35% by weight (Abstract; [0145] – [0146])). The press cake is not extracted with hexane prior to any further treatment. Pickardt further teaches that the press cake is extracted with ethanol to produce a protein concentrate of about 59% protein in total solids/dry mass ([0165], Table 3-1, No. 5; [0097]). Regarding extraction with ethanol, paragraph [0055] of Pickardt states:
When using aqueous alcohol extraction using the extraction solvent is carried out in several extraction steps, whereby at least in the last transition from one to the next extraction step the alcohol content in the extraction solvent is increased to a maximum, i.e. up to the concentration of the aqueous azeotroph, e.g. 96% (v/v) in the case of ethanol, so that the alcohol concentration in the extraction mixture increases to over 90% (v/v). This allows particularly gentle subsequent drying due to the reduction in the proportion of residual water to be removed, which evaporates more slowly and at a higher temperature than alcohol.
As evidenced by the instant specification, the aqueous azeotrope of ethanol is 96% w/w (p. 9, line 31).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the method of Shi with the teachings of Pickardt to provide the oilseeds in the form of a press cake and to use ethanol at a concentration up to 96% w/w in obtaining a sunflower protein concentrate. MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Pickardt discloses that the claimed oilseed press cake is a suitable material from which to extract sunflower protein to produce a protein concentrate, it would have been prima facie obvious to provide a sunflower press cake as a starting material in the method of Shi.
Regarding the concentration of alcohol, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the method of Shi with the teachings of Pickardt to use the maximum concentration of ethanol (i.e., 96% w/w) in the alcohol extraction step. One of ordinary skill in the art would have been motivated to consult Pickardt because Shi does not discuss a specific concentration of alcohol. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Pickardt teaches the preparation of sunflower protein concentrates from press cake extracted with ethanol, in which the last extraction step uses the aqueous azeotrope of ethanol (i.e., 96% w/w) to facilitate gentler drying.
Therefore, claims 1 and 6 are rendered obvious.
Regarding claim 2, Shi teaches that said oilseeds are kernels – “sunflower seed kernels are crushed into 6-8 petals by a crusher, and then enter the soaking tank” (p. 1, final ¶). Claim 2 is therefore obvious.
Regarding claim 3, Shi and Pickardt teach the process of claim 1.
It is noted that the claim language, “wherein said press cake is obtained by cold pressing said oilseeds” does not recite a positive method step, and instead refers to the treatment of the oilseeds during a separate pressing process, the press cake of which is used as the starting material in the claimed method. As such, the recited claim language is a product-by-process limitation.
MPEP § 2113(I) states, “Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. ‘[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.’ In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).”, and “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979).”
The claimed method requires providing a press cake from oilseeds. One of ordinary skill in the art would not be able to ascertain whether or not the oilseeds in the press cake had been cold pressed.
Therefore, this feature cannot be given patentable weight in the method as claimed.
Where claim 1 is obvious, so too is claim 3.
Regarding claim 4, Shi teaches that the pH of acidic wash of step b) is adjusted to range from 4.4 to 5.2 – In the water extraction step, the pH is adjusted to a range from 3-8 (p. 2, ¶ 1). The claimed range of pH 4.4-5.2 lies inside the disclosed range of pH 3-8. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I). Claim 4 is therefore obvious.
Regarding claim 5, Shi teaches that step b) of said process is conducted only once as only one water extraction step is described (p. 2, ¶ 1). Claim 5 is therefore obvious.
Regarding claim 7, Shi teaches that said first alcohol solvent is ethanol – “The intermediate liquid separated by the centrifuge is mixed with edible alcohol [i.e., ethanol]…and then sent to the chlorogenic acid extraction pot...the extracted slurry is sent into centrifuge separation.” (p. 2, ¶ 6). Claim 7 is therefore obvious.
Regarding claim 8, Shi teaches that step c) of said process is repeated no more than once as only one alcohol wash/extraction step is described (p. 2, ¶ 6). Claim 8 is therefore obvious.
Regarding claim 9, Shi teaches that step c) is carried out at a pH of 6.5 ± 0.2 – In the protein extraction step, the pH is adjusted to a range from 3-7 for extraction (p. 2, ¶ 6). The claimed range of pH 6.3-6.7 lies inside the disclosed range of pH 3-7. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I). Claim 9 is therefore obvious.
Regarding claim 10, Shi teaches that said separating step comprises a drying step – The delivered protein slurry is spray dried to a powder (p. 2, ¶ 7). Claim 10 is therefore obvious.
Regarding claim 17, Shi teaches that the oilseeds are from sunflower. As provided by the instant specification, Heliathus annuus L. is the common sunflower, and almost all of the sunflower oilseed production is from common sunflower (p. 4, lines 22-30). Where Shi does not discuss another species of sunflower, the sunflower disclosed by Shi is considered to be the common sunflower, Heliathus annuus L. Claim 17 is therefore obvious.
Regarding claim 18, Shi and Pickardt teach the process of claim 3.
It is noted that the claim language, “wherein the temperature of the oilseeds during the cold pressing shall be maintained as of 80°C or less” does not recite a positive method step, and instead refers to the treatment of the oilseeds during a separate pressing process, the press cake of which is used as the starting material in the claimed method. As such, the recited claim language is a product-by-process limitation.
MPEP § 2113(I) states, “Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. ‘[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.’ In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).”, and “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product. See, e.g., In re Garnero, 412 F.2d 276, 279, 162 USPQ 221, 223 (CCPA 1979).”
The claimed method requires providing a press cake from oilseeds. One of ordinary skill in the art would not be able to ascertain whether or not the oilseeds in the press cake had been cold pressed at 80°C or less.
Therefore, this feature cannot be given patentable weight in the method as claimed.
Where claim 3 is obvious, so too is claim 18.
Regarding claim 19, Shi and Pickardt teach process of claim 1.
Shi does not discuss that said first alcohol solvent is an azeotrope.
However, Pickardt, as applied to claim 1, teaches that the aqueous azeotrope of ethanol is used in the ethanol extraction of sunflower seed press cake ([0055]).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use an azeotrope as the alcohol solvent with the same motivation and with the same expectation of success as described regarding claim 1 above. Claim 19 is therefore obvious.
Regarding claim 20, Shi and Pickardt teach process of claim 7.
Shi does not discuss that said ethanol is at a concentration of 96% w/w.
However, Pickardt, as applied to claim 1, teaches that the aqueous azeotrope of ethanol (i.e., 96% w/w) is used in the ethanol extraction of sunflower seed press cake ([0055]).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use 96% w/w ethanol with the same motivation and with the same expectation of success as described regarding claim 1 above. Claim 20 is therefore obvious.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Wnukowski et al. (US 2015/0073127 A1) in view of Pickardt et al. (US 2012/0009287 A1, cited on the IDS filed on 25 July 2025).
Regarding claim 14, Wnukowski teaches a process for producing a protein concentrate from oilseed (Abstract; Example 6, [0093] – [0097]; Table 6), said process comprising the successive steps of:
providing a press cake from oilseeds, said oilseeds being seeds from a plant of the genus Helianthus – “the process was performed with sun flower cake (after 1x pressing)” ([0093]).
wherein said press cake is not extracted with hexane – “To preserve the nativity of the proteins the meal used for the protein extraction originates preferably from non-hexane treated oilseed” ([0009]).
washing said press cake by mixing it with a first solvent to obtain a first solvent-washed oilseed meal – milled sunflower cake was suspended in process water with added sulfite, and extraction was performed ([0094]). Separation of fat, solids, and liquid phase was performed using a swing out centrifuge ([0095]). The aqueous fraction was concentrated and washed with deionized water ([0096]).
wherein the phytic acid content thereof is reduced by at least 40% dry matter w/w compared to the one of said press cake – The phytic acid of the washed concentrate is not disclosed for sunflower. However, in an analogous method using rapeseed, the phytate is not detectable in the washed concentrate as compared to 2.5% of dry matter in the oilseed cake ([0092], Table 5). One would expect similar results in when using sunflower seed cake. Moreover, Wnukowski teaches phytates and phenolics as anti-nutritional compounds to be removed during the process ([0061]). It would therefore have been obvious to wash the press cake sufficiently to remove as much phytic acid as possible.
and wherein the total content of phenolic compounds thereof is reduced by at least 30% dry matter w/w compared to the one of said press cake – Phenolics in the sunflower cake represented 1.1% dry matter, and in the washed concentrate, represented 0.26% dry matter. This is a reduction of 76%.
washing said first solvent-washed oilseed meal by mixing it with a second solvent, to obtain a second solvent-washed oilseed meal – “To 200 g washed concentrate…460 ml of ethanol…was added slowly under stirring. The mixture at 70% vol ethanol was centrifuged…the pellet was resuspended…and, after thorough mixing, centrifuged again.” ([0097]).
wherein the protein content thereof is increased by at least 15% dry matter w/w compared to the one of the press cake – Protein in the sunflower cake represented 30% dry matter, and in the washed concentrate after ethanol induced precipitation (EIP) and drying, represented 89% dry matter. This is an increase of 297%.
and wherein the fat content thereof is reduced by at least 50% dry matter w/w compared to the one of the press cake – Fat in the sunflower cake represented 32% dry matter, and in the washed concentrate, represented 5.7% dry matter. This is a reduction of 82%.
and separating said second solvent-washed oilseed meal from said solvent to obtain said protein concentrate – After washing with ethanol, “The pellet after crumbling with a spoon was dried.” ([0097]). Drying represents separating the meal from the solvent, and the dried product is the protein concentrate.
Wnukowski does not discuss the oilseeds being at least partially dehulled before being pressed.
However, Pickardt teaches a method of obtaining protein preparations from sunflower seeds in which the sunflower seeds are dehulled and pressed up to a fat or oil content of the dehulled sunflower seeds in the range of 10-35% by weight (Abstract; [0145] – [0146])).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the method of Wnukowski with the teachings of Pickardt to provide a sunflower seed press cake in which the oilseeds are at least partially dehulled before being pressed. MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Pickardt discloses that the claimed sunflower oilseed press cake, wherein the oilseeds are at least partially dehulled before being pressed, is a suitable material from which to extract sunflower protein to produce a protein concentrate, it would have been prima facie obvious to provide such a sunflower press cake as a starting material in the method of Wnukowski.
Claim 14 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 9 February 2026 have been fully considered, but they are not persuasive.
In regard to claim 1, Applicant first argued that Shi does not positively teach to use an acid pH per se since Shi teaches a pH ranging from 3-8, and pH 8 is an alkaline pH (p. 6, ¶ 5).
In response, the claimed acidic pH (pH less than 7) overlaps with the disclosed pH range of 3-8. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I). Additionally, given a range of pH 3-8, one of ordinary skill in the art would likely start in the middle of the range, or pH 5.5, which is an acidic pH. Applicant’s argument is therefore not persuasive.
Applicant next argued that the centrifugation step of Shi results in a supernatant, an intermediate liquid, and a slag (solid), and the alcohol is applied to the aqueous extracted intermediate liquid of Shi, and not the extracted solid as in the instant process (p. 6, ¶¶ 5-9 and p. 7, ¶ 3). In support of this argument, Applicant cited p. 8 of the instant specification that states “Once the acidic washing step has been carried out the resulting solid is an aqueous-washed sunflower meal.” (p. 6, final ¶).
In response, the broadest reasonable interpretation of oilseed meal includes any fractions thereof. The statement, “Once the acidic washing step has been carried out the resulting solid is an aqueous-washed sunflower meal” on p. 8, lines 25-27 of the instant specification is a description of one of the embodiments of the invention, and does not constitute the definition of an aqueous-washed oilseed meal that defines the scope of the claimed invention. Additionally, the intermediate fraction of Shi is described as “extracted slurry” and “protein slurry” (p. 2, ¶ 6), which indicates particulate matter from the meal. Moreover, the claims do not require that a solid fraction of the meal is present. Hence, Applicant has argued over features which are not claimed. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a solid fraction that is subjected to an ethanol wash) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Applicant’s arguments are therefore not persuasive.
Applicant next argued that there is no reason to combine Shi and Pickardt (p. 7, footnote 2).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the provided motivations for modifying Shi with the teachings of Pickardt provided in the rejection of claim 1 (i.e., Since Pickardt discloses that the claimed oilseed press cake is a suitable material from which to extract sunflower protein to produce a protein concentrate, and because Shi does not discuss a specific concentration of alcohol) are deemed to be appropriate. Applicant’s argument is therefore not persuasive.
In regard to claim 14, Applicant argued that Wnukowski does not teach washing the press cake in a solid state, but rather it is the liquid filtrate extracted from the cake which is treated with alcohol, whereas the second step of claim 14 is directed to a treatment of a washed oilseed meal using a solvent (p. 7, ¶ 6 – p. 8, ¶ 4; p. 8, footnote 3).
In response, the broadest reasonable interpretation of oilseed meal includes any fractions thereof. The claims do not require that a solid fraction of the meal is present. Hence, Applicant has argued over features which are not claimed. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the press cake remains in a solid state while the washing solution is intended to extract the antinutrients is applied and then removed) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Applicant’s arguments are therefore not persuasive.
Applicant next argued that there is no reason to combine Wnukowski and Pickardt (p. 8, footnote 4).
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the provided motivations for modifying Wnukowski with the teachings of Pickardt provided in the rejection of claim 14 (i.e., Since Pickardt discloses that the claimed dehulled oilseed press cake is a suitable material from which to extract sunflower protein to produce a protein concentrate) is deemed to be appropriate. Applicant’s argument is therefore not persuasive.
The rejections of claims 1-10, 14, and 17-20 under 35 U.S.C. § 103 are maintained.
Conclusion
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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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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