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 .
The amendment filed 5/15/2026 has been entered. Claims 1-7, 10-11, 13, 17, 32-40 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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, 3-7, 11, 17, 33, and 40 are rejected under 35 U.S.C. 103 as being unpatentable over in view of Yoon (US 20230217935 A1).
Regarding Claims 1 and 33, Yoon teaches a leavened (i.e. puffed) food (Claim 3) that may comprise 1-75% fiber, 0-75% legume flour, 0-10% starch, and 0-95% of protein (Page 6, Table 2). The legume flour may be pea flour [0060] and the food starch may be pea starch [0079]. It would have been obvious to have utilized pea flour and pea starch in the composition of Yoon, since Yoon teaches their use. Yoon therefore teaches 100% of starch derived from peas, or pulses.
Regarding Part (4), given that Yoon teaches the edible portion of a pea (pulse), Yoon is interpreted to teach a “soluble carbohydrate being contained in…pulses”. Yoon additionally teaches 0-75% of pea flour, which lies within the claimed range.
Regarding Part (5), Yoon teaches 0-75% of legume flour and 1-75% of fiber, which is 51.4%, which overlaps the claimed range.
Regarding Parts (6) and (7), Yoon does not address the number-based average diameter of particles in an ultrasonicated, 2 mass% aqueous liquid dispersion in distilled water. However, given that Yoon teaches the composition as claimed, the product of Yoon is interpreted to have the claimed properties.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. See MPEP 2122.01 I.
Regarding Claim 3, Yoon teaches the addition of sweeteners (Page 6, Table 2) but does not require the addition of glucose or fructose. Yoon therefore teaches less than 30% of glucose and fructose to soluble carbohydrate.
Regarding Claims 4-5, Yoon does not address the lowering rate. However, given that Yoon teaches the composition as claimed, the product of Yoon is interpreted to have the claimed properties.
Regarding Claim 6, Yoon does not teach the density of the composition. However, given that Yoon teaches a leavened composition as claimed and teaches significant moisture loss in the baking process [0129], and given that the density of water is known to be 1 g/cm3, the product of Yoon is interpreted to have a density of less than 1 g/cm3, absent evidence to the contrary.
Regarding Claim 7, Yoon teaches 0-45 wt% of a fruit (Page 6, Table 2). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I.
Regarding Claim 11, Yoon teaches [0060] the use of peas (Pisum genera) and chickpeas (Cicer genera).
Regarding Claim 17, Yoon teaches 0-75% of grain powders (Page 6, Table 2), which encompasses wheat starch. Where Yoon teaches the use of grain powders, it would have been obvious to have utilized wheat starch in an amount as claimed, since wheat starch is a grain powder.
Regarding Claim 40, Yoon does not address the change of d90. However, given that Yoon teaches the composition as claimed, the product of Yoon is interpreted to have the claimed properties. As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. See MPEP 2122.01 I.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over in view of Yoon in view of Kubala (https://www.healthline.com/nutrition/oligosaccharides, April 2022)
Regarding Claim 2, Yoon teaches the composition as described above in regard to Claim 1 and additionally teaches the use of sweeteners at 1.8% [0131] but does not discuss the use of oligosaccharides.
Kubala teaches that oligosaccharides are used as sweeteners and provide prebiotic properties (Page 4, “Foods with added oligosaccharides”).
Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize oligosaccharides as the sweetener of Yoon. One would have been motivated to make such a modification since Kubala teaches that oligosaccharides are appropriate sweeteners for food use and provide prebiotic properties.
Claims 10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over in view of Yoon as applied to Claim 1, above, in view of Martens (“Pea Hull Fibre: Novel and Sustainable Fibre with Important Health and Functional Properties”, EC Nutrition 10.4 (2017): 139-148)
Regarding Claims 10 and 13, Yoon teaches the use of any suitable fiber source [0072] but does not address the use of fiber derived from peas.
Martens teaches that pea hull fibre derived from the seed coat of a pea (Page 139, last paragraph) offers physiological benefits for human health. Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize the seed coat part of a pulse for some or all of the dietary fiber of Yoon. One would have been motivated to make such a modification to utilize the health benefits of pea seed coat fiber.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over in view of Yoon as applied to Claim 1, above, taken with evidentiary reference of Yuan (“Compositional diversity in pea flour: Effects on functional properties”, DOI: 10.1016/j.crfs.2025.101285)
Regarding Claim 32, Yoon teaches the use of legume flour (Page 6, Table 2). Note that pea flour may comprise 51% starch and 35% protein (see evidentiary reference of Yuan, Abstract). Yoon therefore teaches a legume flour containing 10 mass% or more of starch, as claimed.
Claims 34, 35, and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Yoon as applied to Claim 1, above, in view of Brijwani (US 2017/0273337 A1).
Regarding Claims 34, 35, and 37, Yoon teaches the puffed food composition as discussed above in regard to Claim 1, but does not discuss the use of a soluble carbohydrate obtained from enzymatic decomposition of a pulse starch.
Brijwani teaches that a composition comprising pulses [0005] such as peas [0164] that has undergone enzymatic treatment [0165] results in a product with a reduced viscosity, improved texture, and better mouthfeel [0026]. Brijwani teaches that the process converts some amount of the starch present (including a pulse starch, [0438-0440] in the composition to monosaccharides and disaccharides [0485].
Note that where the instant claim teaches that pea starch can be enzymatically treated to yield glucose and maltose (which is a monosaccharide and a disaccharide), the composition of Brijwani is therefore interpreted to contain glucose and maltose as claimed.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify Yoon to include an enzymatically treated pulse starch as taught by Brijwani. One would have been motivated to make such a modification to improve the texture and mouthfeel of the resulting product.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Yoon as applied to Claim 1, above, in view of Yu (US 6248373 B1) and taken with evidentiary reference of Stroem-Hansen (WO 9600094 A1).
Regarding Claim 36, Yoon teaches the use of any suitable fiber source [0072] but does not address the use of fleawort seed coat subjected to enzymatic treatment.
Yu teaches that psyllium (which is the same as fleawort seed coat) is a known source of fiber suitable for food use (Column 2, Lines 55-67). Yu teaches that enzymatically treated psyllium husk reduces the manufacturing and handling difficulties compared to using unmodified psyllium (Column 3, Lines 38-39), such as unpleasant texture and mouthfeel (Column 2, Lines 27-34).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize an enzymatically treated psyllium husk in the composition of Yoon. One would have been motivated to make such a modification to utilize a product with reduced manufacturing and handling difficulties, and known to be a suitable fiber for food use.
Claims 38 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Yoon in view of Brijwani, Yu, and Martens.
Regarding Claims 38 and 39, Yoon teaches a leavened (i.e. puffed) food (Claim 3) that may comprise 1-75% fiber, 0-75% legume flour, 0-10% starch, and 0-95% of protein (Page 6, Table 2). The legume flour may be pea flour [0060] and the food starch may be pea starch [0079]. Yoon therefore teaches 100% of starch derived from peas, or pulses.
Regarding Part (4), Yoon teaches the puffed food composition as discussed above in regard to Claim 1, but does not discuss the use of a soluble carbohydrate obtained from enzymatic decomposition of a pulse starch.
Brijwani teaches that a composition comprising pulses [0005] such as peas [0164] that has undergone enzymatic treatment [0165] results in a product with a reduced viscosity, improved texture, and better mouthfeel [0026]. Brijwani teaches that the process converts some amount of the starch present (including a pulse starch, [0438-0440] in the composition to monosaccharides and disaccharides [0485].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify Yoon to include an enzymatically treated pulse starch as taught by Brijwani, and to include any amount of enzymatically treated starch, including 2 mass% or more. One would have been motivated to make such a modification to improve the texture and mouthfeel of the resulting product.
Regarding Part (5), Yoon teaches 1-75% of legume flour and 1-75% of fiber, which overlaps the claimed range.
Yoon teaches the use of any suitable fiber source [0072] but does not address the use of enzymatically treated fleawort seed coat and pulse seed coat as the source(s) of fiber.
Yu teaches that psyllium (which is the same as fleawort seed coat) is a known source of fiber suitable for food use (Column 2, Lines 55-67). Yu teaches that enzymatically treated psyllium husk reduces the manufacturing and handling difficulties compared to using unmodified psyllium (Column 3, Lines 38-39), such as unpleasant texture and mouthfeel (Column 2, Lines 27-34).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize an enzymatically treated psyllium husk in the composition of Yoon. One would have been motivated to make such a modification to utilize a product with reduced manufacturing and handling difficulties, and known to be a suitable fiber for food use.
Martens teaches that pea hull fibre derived from the seed coat of a pea (Page 139, last paragraph) offers physiological benefits for human health. Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize the seed coat part of a pulse for some or all of the dietary fiber of Yoon. One would have been motivated to make such a modification to utilize the health benefits of pea seed coat fiber.
Regarding Parts (6) and (7), Yoon does not address the number-based average diameter of particles in an ultrasonicated, 2 mass% aqueous liquid dispersion in distilled water. However, given that Yoon teaches the composition as claimed, the product of Yoon is interpreted to have the claimed properties.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7, 11, 16, 17, 32, and 33 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, 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.
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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