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 claims 1-5,8,11,13,15,20 in the reply filed on 3/18/2026 is acknowledged.
Claims 22-26,29,32,33,35,41 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected method, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 3/18/2026.
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 8 is 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.
Regarding claim 8, it is unclear what is considered a “generic composition”. While some examples are provided in the spec, no clear definition is provided in order to determine the scope of the claim.
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.
Claim(s) 1,2,5,8,13,15,20 is/are rejected under 35 U.S.C. 103 as being unpatentable over O’Kelley(US 2005/0013917A1).
Regarding claim 1; O'Kelley discloses a carrier:filler food composition (para [0093]-[0098], disclosing a wrap with 3 flauquita (para [0055],tortilla) carrier and a mixed vegetable filling) comprising:
a, a carrier (para [0093], flauquita (para [0055],tortilla) carrier) and a filler (para [0094]-[0098], vegetable filling):
b greater than 20 percent of total calories from protein per serving (para [0122], Table disclosing wherein the protein provides more than 20 percent of the calories); and
C. less than 640 total calories per serving (para [0122], Table disclosing calories of 62 and vegetables are known to have a small number of calories).
Although O'Kelley does not specifically disclose wherein the amount of total protein provided by the carrier is greater than or equal to the amount of total protein provided by the filler, O'Kelley discloses that the tortilla carrier can be used for
providing a base for various fillings (Examples 2-7).
Therefore, it would have been obvious to a person having ordinary skill in the art to infer that a low protein filler can be used (such as vegetables para [0094]-[0098]), such that the amount of total protein provided by the carrier is greater than or equal to the amount of total protein provided by the filler; through routine experimentation.
Regarding claim 2; O'Kelley discloses a composition of claim 1 as discussed. O'Kelley does not specifically disclose wherein the carrier and filler are present at a carrier: filler protein ratio between 11 to 1:0. However, O'Kelley discloses the use of a variety of fillers (Examples 4,5,7).
It would have been obvious to adjust the amount of carrier and filling depending on the nutritional desires and tastes of the consumer since O’ Kelley teaches the benefits of added protein in carrier products.
Regarding claims 5 and 13, O'Kelley discloses a composition of claim 1 as discussed. O'Kelley further discloses wherein the carrier composition comprises 12.6 g from protein (para [0122], Table disclosing a tortilla with 12.6 g protein) and a wrap made with the tortilla and vegetables (para [0099], garden wrap).
O’Kelley teaches that the wrap provides 62 calories(para [0122]) and vegetables are known to have a small number of calories. Therefore, one of ordinary skill in the art would expect the composition to have between 50 to 640 calories.
Although O'Kelley does not specifically disclose wherein this composition comprises between 20 to 51 percent of calories from protein. However, it would have been obvious to adjust the protein content depending on the nutritional needs of the consumer since O’Kelley teaches the benefits of added protein to a carrier product.
Regarding claim 8; O'Kelley discloses a composition of claim 1 as discussed. O'Kelley further discloses wherein the carrier composition comprises 12.6 from protein (para [0122], Table disclosing a tortilla with 12.6 g protein) and a wrap made with the tortilla (para [0099], garden wrap).
According to the 112 rejection, it is unclear what is considered a “generic composition”. However, since O’Kelley teaches a high protein carrier and filler composition as recited in claim 1, one of ordinary skill in the art would expect the composition to have similar properties to the claimed invention, including the limitations of claim 8.
Regarding claim 15; O'Kelley discloses a composition of claim 1 as discussed. O'Kelley further discloses wherein the filler comprises vegetables( plant based product) and an oil-in -water emulsion (para [0098], vinaigrette or salad dressing).
Regarding claim 20; O'Kelley discloses a composition of claim 1 as discussed. O'Kelley further discloses wherein the carrier comprises a single slice of bread (para [0105]-[0111], disclosing a one slice Mexican Pizza comprising one slice of the carrier tortilla (flat bread).
Claim(s) 3,14, 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over O’Kelley(US 2005/0013917A1) in view of Corbion(US 2020/0015490A1).
Regarding claim 3; O'Kelley discloses a composition of claims 1,2 as discussed. O'Kelley does not disclose wherein the carrier comprises microbially produced protein. However, Corbion discloses an algal flour (abstract) to be used for making a carrier (para [0202], food composition, the algal biomass is used for producing bread) which has a high protein content (para [0148], high protein biomass from algae is another advantageous material for inclusion into food products).
As both O'Kelley and Corbion disclose the use of high protein
material for making carriers; it would have been obvious to a person having ordinary skill in the art to use the high protein algal biomass disclosed by Corbion in the carrier disclosed by O'Kelley, through routine experimentation; as it provides for better digestibility (Corbion, para [0195], at least 90 percent of the crude protein is digestible).
Regarding claim 4; O'Kelley in view of Corbion discloses a composition of claim 3 as discussed. Neither O'Kelley nor Carbion disclose wherein the carrier comprises at least 15 percent total protein by weight of microbially produced protein.
However, O'Kelley discloses the amount of protein in the carrier (para [0122], table disclosing 12 g protein); it would have been obvious to a person having ordinary skill in the art that this can be at least 15 percent total protein by weight of microbially produced protein through routine experimentation.
Regarding claim 11; O'Kelley discloses a composition of claim 1 as discussed. O'Kelley does not disclose wherein the PDCAAS of the carrier is a value selected from the group consisting of at least 0.8, at least 0.9 and at least 1.0.
However, Corbion discloses an algal flour (abstract) to be used for making a carrier (para [0202], food composition, the algal biomass is used for producing bread) which has a high protein content (para [0148], high protein biomess from algae is another advantageous material for inclusion into food products) that has
high digestibility (para [0195], at least 90 percent of the crude protein is digestible).
Although Corbion does not specifically disclose wherein the PDCAAS of the carrier is a value selected from the group consisting of at least 0.8, at least 0.9 and at least 1.0; the method for determining digestibility disclosed by Corbion (para [0109], digestibility can be evaluated using standard assays), it would have been
obvious to a person having ordinary skill in the art to infer that this can be such that the PDCAAS of the carrier is a value selected from the group consisting of at least 0.8, at least 0.9 and at least 1.0; through routine experimentation.
As both O'Kelley and Corbion disclose the use of high protein material for making carriers; it would have been obvious to a person having ordinary skill in the art to use the high protein algal biomass disclosed by Cerbion in the carrier disclosed by O'Kelley, through routine experimentation; as it provides for better digestibility (Corbion, para [0195]. at least 90 percent of the crude protein is digestible).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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