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 is acknowledged of the amendment and response filed 11/10/2025. Claims 1-15 are pending in the application. Claim 7 was amended.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 6/29/2023 and 9/12/2025 were filed before the first office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Election/Restrictions
Applicant's election with traverse of Group I claims 1-6 in the reply filed on 11/10/2025 is acknowledged. The traversal is on the ground(s) that with amended claim 7 and claim 15 depending on claim 1, there would be no additional search burden on examination This is not found persuasive because a product made by the method in claim 7 can be made by methods other than the method in claim 7. For example, as detailed below, an oat protein isolate made by a different method meets the limitations in claims 1 and 2. The components in the “oat protein composition” in claim 1 are not known. An oat protein isolate is therefore not excluded. The shared technical feature in the groups, “oat protein composition” does not make a contribution over the prior art, and the claims are restrictable. The requirement is still deemed proper and is therefore made FINAL.
Claims 7-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions, there being no allowable generic or linking claim.
Claim Objections
Claim 2 recites “0,5 to 30%” and “ 0,5 to 20%”. Correction of typographical error “ 0,5” to “0.5” 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.
Claim 1 and dependent claims 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 1 recites a composition defined by protein content, chemical substitution, deamidation degree, solubility, molecular weight and the term “having” does not preclude components other than protein in the composition, as the requirement of protein content is “higher than 50%”, interpreted as a requirement of any value higher than 50% w/w of the composition. Further, “substantially” is a relative term. One of ordinary skill in the art would not be reasonably apprised of the scope of the composition. Appropriate correction is required.
Regarding claims 1-6, the phrase "for example" or “advantageously” or preferably renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d). Appropriate correction is required. For purposes of examination, the limitations following these phrases have not been considered.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-6 are rejected under 35 USC 102(a)(1) as being anticipated by Bruckner-Guhmann et al. (European Research and Technology (2018) 244:2095-2106) cited in an IDS.
Regarding claim 1 and 2, Bruckner-Guhmann discloses an oat protein composition (OPI, page 2096, Materials) having about 83% protein. No deamidation or chemical substitution step is disclosed. The composition therefore inherently meets the limitations of “deamidation degree” and “not substantially chemically substituted”. OPI has a solubility of about 73% (see Table 2) at pH 7 meeting the limitation of “above 50%.”
The molecular weight distribution (Fig 1(a) (b)) at pH 7 shows proteins of up to 6.5 kDa (65000 g/mol) in OPI.
Regarding claim 3, Fig 1 c) and (d) show OPI having a molecular weight distribution in the broadly claimed ranges.
Regarding claim 4, the deamidation degree for OPI is 0%,as no deamidation step is disclosed, meeting the claimed limitation.
Regarding claim 5, Table 2 shows a solubility of about between 67-80% for OPI at pH 7.
Regarding claim 6, OPI has about 83% protein (OPI, page 2096, Materials)
The oat protein composition in Claims 1-6 is unpatentable, being anticipated by Bruckner-Guhmann.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793