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 September 25, 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the objections to the claims have been withdrawn; (2) the 112(b) rejections of claims 8-14 have been withdrawn.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-8, 10-14, 16-20
Withdrawn claims:
1-7
Previously canceled claims:
15
Newly canceled claims:
9
Amended claims:
8, 11, 14
New claims:
16-20
Claims currently under consideration:
8, 10-14, 16-20
Currently rejected claims:
8, 10-14, 16-20
Allowed claims:
None
Claim Objections
Claim 19 is objected to because of the following informalities: “the” in line 1 should be “the”. Appropriate correction is required.
Cited Prior Art
The following prior art is cited in the subsequent 35 USC 103 rejections:
Kelkar (US 2020/0178556 A1);
WonderMill (“Best Oats for Making Oat Flour”, WonderMill, Grain Mill Wagon, published online May 10, 2012 [accessed online November 17, 2025] https://web.archive.org/web/20190224155709/https://www.grainmillwagon.com/making-oat-flour/);
Myers (Myers, Megan. “Get to Know Chickpea Flour”, Whole Foods Market, published April 20, 2016 [accessed online November 17, 2025] https://www.wholefoodsmarket.com/tips-and-ideas/archive/get-know-chickpea-flour);
Brunning (Brunning, Andy. “The science of making porridge”, Compound Interest, published online February 15, 2019 [accessed online July 21, 2025]);
Nakamura (US 2020/0045985 A1).
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 8, 10, 12-14, and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kelkar, WonderMill, Myers, and Brunning.
Regarding claim 8, Kelkar teaches of frozen confection products (Abstract) comprising:
About 5 to about 20% of a pulse ([0086]-[0088]). Kelkar teaches that vegetable protein of the invention may be chickpea protein. Although Kelkar does not teach that chickpea is a pulse, chickpea in known in the art to be a pulse. Evidence to support that chickpea is a pulse is provided by the instant specification. The instant specification teaches that chickpeas are a legume, which is a type of pulse (p. 6, l. 30- p. 7, l. 2). Kelkar teaches that the composition may comprise chickpea flour as a bulking agent ([0124]). Therefore, it would have been obvious to use chickpea flour as the pulse protein in Kelkar at an amount of about 5 to about 20%, which overlaps with the claimed range of “1 to 10 wt%”.
About 1% to about 6% of a vegetable protein ([0086]-[0088]). Kelkar also teaches that vegetable protein can include oat protein ([0022]). Kelkar also teaches that the composition may comprise oat flour as a bulking agent ([0124]). Therefore, it would have been obvious to use oat flour as the vegetable protein in an amount from about 1% to about 6%, which overlaps with the claimed range of “0.2 to 5 wt%”.
Kelkar also teaches mixing the ingredients together, homogenizing using a two-stage homogenizer, then pasteurizing (i.e., a thermal heat treatment).
Kelkar also teaches that the product has a smooth creamy texture ([0006]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Kelkar does not teach that the oat flour and chickpea flour are from non-fractionated oats and non-fractionated chickpeas, respectively; wherein the first mixture is heated to induce starch gelation; or wherein homogenization obtains large fat particle sizes to remain and produce a frozen dessert without graininess.
Regarding using non-fractionated oats for oat flour, WonderMill teaches that the best type of oats for oat flour are oat groats, which are whole oats that have had their husks removed (i.e., non-fractionated; p. 1, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kelkar with the use of non-fractionated oats to make the oat flour as taught by WonderMill. One of ordinary skill would have been motivated to make this modification because WonderMill teaches that the nutritional benefits are protected in the whole grain state (p. 1, ¶ 2).
Regarding using non-fractionated chickpeas for chickpea flour, Myers teaches that chickpea flour is made by grinding whole chickpeas (i.e., non-fractionated; p. 1, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kelkar with the use of non-fractionated chickpea flour as taught by Myers. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another art equivalent and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Regarding inducing starch gelation with heating, Brunning teaches that for oat starch, gelatinization (i.e., gelation) starts at around 60[Symbol font/0xB0]C (p. 2, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kelkar with the use of heating prior to homogenization to induce gelation of the oat flour as taught by Brunning. One of ordinary skill would be motivated to make this modification because Brunning teaches that if a mixture with oats doesn’t reach the temperature required for gelatinization, there is a grainy texture (p. 2, ¶ 4).
Although the cited prior art does not teach inducing gelation prior to homogenization, MPEP §2144.04(IV(C) states “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”, In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946). Therefore, it would have been obvious to heat the initial mixture prior to homogenization to induce gelation.
Regarding the limitation “to obtain large fat particle sizes to remain and give a creamy frozen dessert without graininess”, this is the necessary result of performing the method as claimed. Therefore, because the cited prior art teaches the method as claimed, obtaining large fat particle sizes to remain and give a creamy frozen dessert without graininess would necessarily follow. Evidence to support that this limitation is a necessary result is provided by the instant specification. P. 12, lines 9-11 states that the homogenization step allows large fat particle sizes to remain and results in a creamy structure without graininess.
Regarding claim 10, Kelkar does not teach wherein the mixture is heated to at least 70°C to induce gelation.
However, in the same field of endeavor, Brunning teaches that for oat starch, gelatinization (i.e., gelation) starts at around 60[Symbol font/0xB0]C (which overlaps with the claimed range of “at least 70[Symbol font/0xB0]C”, p. 2, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the step of heating while mixing in Earl with the use of a temperature range to induce gelation of the oat as taught by Brunning. One of ordinary skill would be motivated to make this modification because Brunning teaches that if a mixture with oats doesn’t reach the temperature required for gelatinization, there is a grainy texture (p. 2, ¶ 4).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 12 and 18, Kelkar teaches that the particle size of the present invention was target to be equal to or less than about 1500 microns ([0151]). It logically follows that the maximum diameter would thus be less than 1500 microns, which overlaps with the claimed range of “greater than 1 micron” (claim 12) and “greater than 6 microns” (claim 18).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 13 and 19, although the cited prior art does not teach the D4,3 of the lipid droplet size, this limitation is considered a necessary result of performing the method as claimed. One of ordinary skill would recognize that droplet size is a direct result of homogenization parameters. Because the cited prior art teaches the method as claimed, performing the method of the cited prior art would necessarily result in lipid droplet with a D4,3 of less than 100 microns (claim 13) or less than 20 microns (claim 19). Evidence to support that the droplet size is a necessary result is provided by the instant specification. P. 14, lines 1-5 states that the plant-based liquid obtained after applying a thermal treatment to the mixture may have a D4,3 particle size less than 100 microns or less than 20 microns.
Regarding claims 14 and 20, although the cited prior art does not teach the viscosity at 25[Symbol font/0xB0] with a shear rate of 100 s-1, this limitation is considered a necessary result of performing the method as claimed. Because the prior art teaches the claimed method, the resulting composition would necessarily have a viscosity higher than 0.001 Pa·s (claim 14) or 0.05 Pa·s (claim 20) at 25[Symbol font/0xB0] with a shear rate of 100 s-1. Evidence to support that the viscosity is a necessary result of performing the claimed method is provided by the instant specification. P. 14, lines 8-10 of the instant specification states that the plant based liquid composition obtained after applying a thermal heat treatment to form a plant based liquid composition had a viscosity greater than 0.001 Pa·s, preferably greater than 0.05 Pa·s at 25[Symbol font/0xB0] with a shear rate of 100 s-1.
Regarding claim 16, Kelkar teaches that after homogenization and pasteurization, the mixture is frozen using a freezer ([0149]).
Regarding claim 17, Kelkar teaches that the finished frozen product (i.e., after homogenization and heat treatment) can include one or more adjunct compositions, which can be flavorings ([0121]).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Kelkar, WonderMill, Myers, and Brunning as applied to claim 8 above, and further in view of Nakamura.
Regarding claim 11, the cited prior art does not teach wherein the second mixture is homogenized at a pressure of about 80/20 bars or less.
However, in the same field of endeavor, Nakamura teaches a process for producing milk products (Abstract) comprising homogenization with two stages at a pressure of 80 to 790 kg/cm2 for stage one an 10 to 100 kg/cm2 for stage two ([0026]), equivalent to 78.5-774.7 for stage one and 9.8-98.1 bar, which overlaps with the claimed range of “80/20 bars or less”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Kelkar with the use of two stage homogenization at the pressures taught by Nakamura. The claim would have been obvious because all claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective function, and the combination yielded nothing more than predictable results to one of ordinary skill in the art, see MPEP §2143(A).
Response to Arguments
Claim Objections: Applicant has overcome the objections to the claims based on amendments in the Claims. Accordingly, the objections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 8-14 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
With respect to the 112(b) rejection of claim 11, Applicant’s arguments are persuasive. The 112(b) rejection of claim 11 has been subsequently withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 8-10 and 12-14 over Earl, Bob’s, Brunning, and Seo: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated/obvious in view of Earl, Bob’s, Brunning, and Seo. However, upon further consideration, a new ground(s) of rejection is made in view of Kelkar, WonderMill, Myers, and Brunning.
The rejections of claims 8, 10-14 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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