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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 25, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-8, 10, 13-14, 16-20
Withdrawn claims:
1-7
Previously canceled claims:
9, 15
Newly canceled claims:
11, 12
Amended claims:
8, 18, 19
New claims:
None
Claims currently under consideration:
8, 10, 13-14, 16-20
Currently rejected claims:
8, 10, 13-14, 16-20
Allowed claims:
None
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]);
Helgason (US 2014/0023712 A1);
Roa (US 2020/0045994 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, Brunning, Helgason, and Roa.
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 homogenizing the second mixture at about 80/20 bars or less to form a mixture with lipid droplets having a maximum diameter greater than 1 micron.
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 homogenizing the second mixture at about 80/20 bars or less, Helgason teaches of an emulsion (Abstract) that can be used in ice cream (i.e., a frozen dessert; [0105]) homogenized using a two-stage homogenizer where the first stage is carried out at pressure of 0-3000 bar and the second state is 0-3000 bar ([0086]), which encompasses 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 as taught by Helgason. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious, see MPEP §2143(D).
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 the mixture having lipid droplets having maximum diameter greater than 1 micron, Roa teaches of protein concentrates used in ice cream (i.e., a frozen dessert; Abstract) with a median droplet size between 12 and 16 microns ([0028]). Thus, it logically follows that the maximum diameter of the droplets falls within the claimed range of “greater than 1 micron”.
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 to have a liquid droplet size as taught by Roa as this particle size was known to be organoleptically favorable for ice cream. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious, see MPEP §2143(D).
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 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]).
Regarding claim 18, Kelkar does not teach wherein the maximum diameter is greater than 6 microns.
Roa teaches of protein concentrates used in ice cream (i.e., a frozen dessert; Abstract) with a median droplet size between 12 and 16 microns ([0028]). Thus, it logically follows that the maximum diameter of the droplets falls within the claimed range of “greater than 6 micron”.
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 to have a liquid droplet size as taught by Roa. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious, see MPEP §2143(D).
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. §103 of claims 8, 10, 12-14, and 16-20 over Kelkar, WonderMill, Myers, Brunning, and Nakamara: Applicant’s arguments filed February 2, 2026 and February 25, 2026 have been fully considered but they are not persuasive.
Applicant argued that one of ordinary skill would not seek nutritional improvements for the oat flour of Kelkar because the oat flour is merely a bulking agent (Remarks, p. 6, ¶ 3-4).
This argument has been considered. However, the Examiner maintains that one of ordinary skill would have added the non-fractionated oat flour of WonderMill to the composition of Kelkar because WonderMill teaches that there are nutritional benefits to oat being in the whole grain state (p. 1, ¶ 2). Although the oat flour of Kelkar is primary used as a bulking agent, one of ordinary skill would recognize that there is still room for improvement of the nutritional qualities of the composition Kelkar.
Applicant further argued that WonderMill addresses a different objective than Kelkar. Applicant further argued that there is no natural connection between the two references (Remarks, p. 7, ¶ 1).
This argument has been considered. However, the Examiner maintains that one of ordinary skill would have consulted WonderMill regarding non-fractionated oats. Additionally, MPEP §2141.01(a)(I) states “In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. 103, the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). Note that "same field of endeavor" and "reasonably pertinent" are two separate tests for establishing analogous art; it is not necessary for a reference to fulfill both tests in order to qualify as analogous art. See Bigio, 381 F.3d at 1325, 72 USPQ2d at 1212.” WonderMill is analogous art because the reference is reasonably pertinent to the presence of non-fractionated oats.
Applicant further argued that that the obtaining lipid droplets with a maximum diameter greater than 1 micron and producing a creamy frozen dessert without graininess are not necessary results of the homogenization step (Remarks, p. 7, ¶ 2-p. 8, ¶ 1).
This argument has been considered. However, without acquiescing to the merits of the arguments, a new rejection has been made relying on Roa to teach the lipid droplet size. Thus, the argument is moot.
Applicant further argued that the Examiner falsely relied upon Kelkar to teach the particle size of claim 8 (Remarks, p. 8, ¶ 2).
This argument has been considered and is deemed persuasive. As such, the rejection has been withdrawn and a new grounds of rejection entered in view of Kelkar, WonderMill, Myers, Brunning, Helgason, and Roa.
Applicant argued that the other secondary references fail to remedy the deficiencies of Kelkar and WonderMill (Remarks, p. 8, ¶ 3-4).
This argument has been considered. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Examiner maintains that Myers and Brunnings is adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious.
The rejections of claims 8, 10, 13-14, 16-20 have been maintained herein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached M-Th 8:00a-4:00p, F 8:00a-1:00p ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Michele L Jacobson/Primary Examiner, Art Unit 1793
/A.S.H./Examiner, Art Unit 1793
Prosecution Insights