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 .
Election/Restrictions
Applicant’s election without traverse of Group I, Claims 1-18, in the reply filed on 12/27/2025 is acknowledged.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 4, 6-9, 12-13, and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Aoki (US 2003/0161910 A1).
Regarding Claim 1, Aoki teaches a method for producing a fermented food product from a pulse (fermented soybean foods Abstract)
the method comprising the steps of cooking the pulse (soybean is boiled Par. 0060-0061)
wherein the pulse is provided in the form of flattened pulse fragments (soybean may be in the form of crushed soybean or cracked soybean, whole, half, or cracked soybean Par. 0059). In Par. 0029 of the specification filed 11/03/2023, applicant describes the flattened pulse fragments are whole lupins which have been fragmented using any suitable technique. As such, the applied art teaches pulse fragments and are therefore assumed to be “flattened pulse fragments” as disclosed.
fermenting the cooked flattened pulse fragments under conditions whereby the fermented food product is produced (fermentation of boiled soybean Par. 0062-0063).
Regarding Claim 4, Aoki further teaches the flattened pulse fragments are cooked by blanching (boiling for 2 to 5 minutes Par. 0060). Aoki describes a blanching method as outlined in Par. 0041 of applicant’s specification filed 11/03/2023.
Regarding Claim 6, Aoki further teaches fermentation is caused by adding a fermentation starter to the cooked flattened pulse fragments (suspension of Rhizopus mold added to boiled soybean Par. 0061).
Regarding Claim 7, Aoki further teaches the fermentation starter is selected from one or more of the group consisting of: Rhizopus oligosporus, Rhizopus oryzae,Rhizopus arrhizus and Rhizopus stolonfer (Rhizopus oligosporus and Rhizopus stolonfer Par. 0057).
Regarding Claim 8, Aoki further teaches the fermentation starter and the cooked flattened pulse fragments are blended (suspension of Rhizopus added and mixe4d with boiled soybean Par. 0113).
Regarding Claim 9, Aoki further teaches fermentation occurs for between about 22 hours and about 30 hours (preferably 15 to 30 hours Par. 0063)
Regarding Claim 12, Aoki further teaches fermentation occurs in a mould (spread on stainless steel tray Par. 0062).
Regarding Claim 13, Aoki further teaches adding a pH reducing agent pre-fermentation (soybean soaked in acidic water Par. 0060).
Regarding Claim 15, Aoki further teaches the pulse is selected from one or more of the group consisting of lupins, soyabeans, chickpeas, lentils, beans, peas and peanuts (soybean Par. 0060).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Aoki in view of Lindsey (US 2006/0165870 A1).
Regarding Claim 2, Aoki teaches the limitations of claim 1 as well as the soybean may be in the form of crushed soybean or cracked soybean, whole, half, or cracked soybean (Par. 0059), but does not teach the flattened pulse fragments have a thickness of between about 0.5 mm and about 1.3 mm.
Lindsey, in the same field of endeavor, teaches flattened pulse fragments having a thickness of between about 0.40 and about 0.50 mm (flaked with a roller mill to a thickness between about 0.40 to about 0.50 mm Par. 0050).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to apply the flaking thickness of Lindsey to the invention of Aoki. One would have been motivated to make this modification to allow for production of a soybean meal with reduced fat (Lindsey Par. 0015).
Regarding flattened pulse fragments having a thickness of between about 0.5 mm and about 1.3 mm, Lindsey teaches a thickness of between about 0.40 to about 0.50 mm (Par. 0050, see above). As this range overlaps with the thickness of the instant specification, it would have been obvious to one having an ordinary skill in the art to modify Lindsey to have a thickness of between about 0.5 mm and about 1.3 mm. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. about 0.5 mm) from the taught range of between about 0.40 to about 0.50 mm (as seen above). In re Werthein, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding Claim 5, Aoki discloses the method of claim 1 as well as soybean is cooked (Par. 0060-0061), but does not teach the flattened pulse fragments are cooked by heating in an oven to about 1000C and at about 100% relative humidity.
Lindsey teaches the flattened pulse fragments are cooked by heating in an oven to about 1000C and at about 100% relative humidity (conditioned in a vertical stacked tray conditioner which steam is usually the heating media Par. 0028; from about 90 to about 1000C Par. 0030).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to apply the flaking thickness of Lindsey to the invention of Aoki. One would have been motivated to make this modification to allow for production of a soybean meal with reduced fat (Lindsey Par. 0015).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Aoki as evidenced by Koppert (“Soybean”)
Regarding Claim 3, Aoki teaches the flattened pulse fragments have a length of between 5mm and 11mm and a width of between 5mm and 11mm (soybean may be in the form of crushed soybean or cracked soybean, whole, half, or cracked soybean Par. 0059). As evidenced by Koppert, a soybean seed is 5-11 mm in diameter. Typically, a soybean seed is spherical. When cut in half, each half would therefore have two planes (X and Y planes) which would create a circular surface of the same diameter as the whole soybean seed, and the third plane (Z plane) would be halved. As the length and width are not defined in the disclosure, the examiner is setting the two planes which are circular to be the length and width. With this in mind, the halved soybean of Aoki would have a length of 5-11 mm and a width of 5-11 mm.
Regarding fragments having a length of between about 2.5mm and about 7mm, Aoki teaches a length of between 5mm and 11mm (Par. 0059 evidenced by Koppert, see above). As this range overlaps with the length of the instant specification, it would have been obvious to one having an ordinary skill in the art to modify Aoki to have a length of between about 2.5mm and about 7mm. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. between 5mm and about 7mm) from the taught range of between 5mm and 11mm (as seen above). In re Werthein, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding fragments having a width of between about 1.5mm and about 5mm, Aoki teaches a width of between 5mm and 11mm (Par, 0059, as evidenced by Koppert, see above). As this range overlaps with the width of the instant specification, it would have been obvious to one having an ordinary skill in the art to modify Aoki to have a width of between about 1.55mm and about 5mm. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. about 5mm) from the taught range of between 5mm and 11mm (as seen above). In re Werthein, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Aoki.
Regarding Claim 10, Aoki further teaches fermentation occurs at a temperature of 30 to 40 °C (Par. 0063).
Regarding fermentation at about 30°C, Aioki teaches 30 to 40°C (Par. 0063, see above). As this range overlaps with the temperature of the instant specification, it would have been obvious to one having an ordinary skill in the art to modify Aioki to have a fermentation temperature of about 30°C. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. about 30 °C) from the taught range of 30 to 40°C (as seen above). In re Werthein, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Regarding Claim 11, Aoki further teaches fermentation occurs at a humidity of 60% or more (Par. 0063).
Regarding a fermentation humidity of about 45-80%, Aioki teaches a humidity of 60% or more (Par. 0063, see above). As this range overlaps with the humidity of the instant specification, it would have been obvious to one having an ordinary skill in the art to modify Aioki to have a fermentation humidity of about 45-80%. It would have been prima facie case of obviousness to have selected the overlapping portion of the range (i.e. 60 to about 80%) from the taught range of 60% or more (as seen above). In re Werthein, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); See MPEP 2144.05 (I).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Aoki in view of Kato (JP 2004236523) cited in applicant’s IDS filed 12/19/2025.
Regarding Claim 14, Aoki teaches the method of claim 13, and teaches addition of acetic acid (Par. 0060), but does not teach the source of acetic acid, specifically the pH reducing agent is white rice vinegar.
Kato, in the same field of endeavor, teaches rice vinegar as the source of acetic acid (Par. 0024).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to apply the vinegar type of Kato to the invention of Aoki. Kato teaches the use of rice vinegar as the acetic acid for an aqueous solution used to soak soybeans (Par. 0024). As Aoki also teaches acetic acid in an acidic water soaking solution for soybeans, the modification would have been the selection of a known material based on its suitability for its intended use, and supports a prima facie obviousness determination. See MPEP 2144.07.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Aoki in view of Akatsuka (US 6,022,580).
Regarding Claim 16, Aoki teaches the method of claim 1, as well as the fermented food may be used as a powder, extraction or paste of the fermented food to enrich various foodstuffs (Par. 0071), but does not teach adding a colourant.
Akatsuka, in the same field of endeavor, teaches adding a colorant (tea, fruits, tomato, coffee, or cocoa powder Col. 5 lines 19-31)
It would have been obvious to one having ordinary skill in the art, at the time of filing, to apply the additives of Akatsuka to the invention of Aoki. One would have been motivated to make this modification to produce foods with a new flavor and deliciousness (Akatsua Abstract).
Regarding Claim 17, Aoki teaches the method of claim 1, as well as the fermented food may be used as a powder, extraction or paste of the fermented food to enrich various foodstuffs (Par. 0071), but does not teach adding a flavourant.
Akatsuka, teaches adding a flavorant (tea, fruits, tomato, coffee, or cocoa powder Col. 5 lines 19-31; a seasoning such as glycine,salt and/or a sweetener Col. 5 lines 42-48).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to apply the additives of Akatsuka to the invention of Aoki. One would have been motivated to make this modification to produce foods with a new flavor and deliciousness (Akatsua Abstract).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Aoki in view of Nair (US 2011/0206721 A1).
Regarding Claim 18, Aoki teaches the method of claim 1 It also teaches buckwheat as a fermented product (Par. 0097), as well as the fermented food may be used as a powder, extraction or paste of the fermented food to enrich various foodstuffs (Par. 0071), but does not teach one or more seeds selected from the following group are blended into the fermented food product: quinoa, amaranth, buckwheat, pumpkin seeds, hemp seeds and sunflower seeds.
Nair, in the same field of endeavor, teaches one or more seeds selected from the following group are blended into a fermented food product: quinoa, amaranth, buckwheat, pumpkin seeds, hemp seeds and sunflower seeds (the addition of quinoa or amaranth to embodiment 1 Par. 0132; embodiment 1 Par. 0122; ingredients thoroughly mixed Par. 0080).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to apply the additives of Nair to the invention of Aoki. One would have been motivated to make this modification to produce a product which may provide nutritional or health benefits (Nair Par. 0020).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIEL M RODGERS whose telephone number is (571)272-7857. The examiner can normally be reached Monday - Friday 9:00 am - 6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 5712703475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.M.R./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
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