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 .
Oath/Declaration
The Declaration under 37 CFR 1.132 filed 05/15/2026 was received and is considered herein. The office appreciates Dr. Lan Ban’s time, education and experience in this matter.
The Affidavit was considered and found to not be persuasive. Examiner’s response is discussed in detail below.
Response to Amendment
In applicant’s reply filed 05/15/2026, the claims and specification were amended. Based on these amendments, drawing objections and rejections under 35 U.S.C. 112 have been withdrawn. The rejections under 35 U.S.C. 103 have been revised below as well as rejections of the newly added claims.
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 1, 4, 6, 8-10, 16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over LaPlante (WO 2018/125920 A1) in view of Martin (“Twin Screw Extruders as Continuous Mixers for Thermal Processing: a Technical and Historical Perspective”).
Regarding claim 1, LaPlante teaches a method comprising: combining at least one of an insoluble protein and an insoluble fiber in an alkaline aqueous solution (intact protein source whether in powder form or aqueous suspension form is added to extruder Par. 0028; oat protein concentrate Par. 0029; KOH added to raise pH Par. 0039). It is noted that though LaPlante is silent regarding the solubility of the proposed proteins, applicant teaches oat protein as the insoluble protein below in claim 10, which suggests to one having ordinary skill in the art the oat protein concentrate of LaPlante is similarly insoluble.
with a divalent cationic compound that includes at least one of a magnesium containing divalent cationic compound and a manganese containing divalent cationic compound (minerals whether in liquid or powder form are added to extruder Par. 0041; minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044)
hydrolyzing at least of one of the insoluble protein and the insoluble fiber in the alkaline aqueous solution using heat (the protease component catalyzes the hydrolysis reaction of the intact protein source such that the emulsion formed within the extruder comprises hydrolyzed protein Par. 0045; heating the slurry Par. 0051).
LaPlante does not teach hydrolyzing using pressure. LaPlante does teach hydrolyzing in a twin screw extruder (Par. 0022).
LaPlante does not teach producing a hydrolysate having at least one improved organoleptic property over a hydrolysate hydrolyzed in an alkaline aqueous solution that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound.
Martin teaches within twin screw extruders the materials being processed must pass through a series of pressurized mixing regions (Pg. 5 Col. 2 Par. under “Screw Elements”). It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of LaPlante with the twin screw extruder of Martin. One would have been motivated to make this modification to use an extruder that lends itself to ease of scale-up and process optimization (Martin Abstract).
Regarding producing a hydrolysate having at least one improved organoleptic property over a hydrolysate hydrolyzed in an alkaline aqueous solution that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound, as the invention of modified LaPlante teaches the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar organoleptic properties.
Regarding claim 4, LaPlante further teaches an alkaline compound used to produce the alkaline aqueous solution is potassium hydroxide (KOH added to raise pH Par. 0039).
Regarding claim 6, LaPlante further teaches the magnesium containing divalent cationic compound is magnesium chloride (minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044).
Regarding claim 8, LaPlante further teaches the manganese containing divalent cationic compound is manganese chloride (minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044).
Regarding claim 9, LaPlante taught a protein in the above rejection of claim 1, as the protein and fiber were listed in the alternative in claim 1 and the fiber has not since been required (i.e. wherein the at least one of a protein and a fiber is a fiber) there is no further patentable weight regarding a fiber.
Regarding claim 10, LaPlante further teaches the insoluble protein is oat protein (oat protein concentrate Par. 0029).
Regarding claim 16, LaPlante teaches a method comprising: combining at least one of a protein and a fiber, and at least one of a magnesium containing divalent cationic compound and a manganese containing divalent cationic compound in an alkaline aqueous solution (intact protein source whether in powder form or aqueous suspension form is added to extruder Par. 0028; minerals whether in liquid or powder form are added to extruder Par. 0041; minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044; KOH added to raise pH Par. 0039)
hydrolyzing at least of one of the protein and the fiber in the alkaline aqueous solution using heat (the protease component catalyzes the hydrolysis reaction of the intact protein source such that the emulsion formed within the extruder comprises hydrolyzed protein Par. 0045; heating the slurry Par. 0051).
LaPlante does not teach hydrolyzing using pressure. LaPlante does teach hydrolyzing in a twin screw extruder (Par. 0022)
LaPlante does not teach producing a hydrolysate having at least one improved organoleptic property over a hydrolysate hydrolyzed in an alkaline aqueous solution that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound.
Martin teaches within twin screw extruders the materials being processed must pass through a series of pressurized mixing regions (Pg. 5 Col. 2 Par. under “Screw Elements”). It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of LaPlante with the twin screw extruder of Martin. One would have been motivated to make this modification to use an extruder that lends itself to ease of scale-up and process optimization (Martin Abstract).
Regarding producing a hydrolysate having at least one improved organoleptic property over a hydrolysate hydrolyzed in an alkaline aqueous solution that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound, as the invention of modified LaPlante teaches the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar organoleptic properties.
Regarding claim 18, LaPlante further teaches the magnesium containing divalent cationic compound is magnesium chloride (minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044).
Regarding claim 19, LaPlante further teaches the protein is insoluble (oat protein concentrate Par. 0029). It is noted that though LaPlante is silent regarding the solubility of the proposed proteins, applicant teaches oat protein as the insoluble protein below in claim 10, which suggests to one having ordinary skill in the art the oat protein concentrate of LaPlante is similarly insoluble.
Regarding claim 20, LaPlante taught a protein in the above rejection of claim 16, as the protein and fiber were listed in the alternative in claim 16 and the fiber has not since been required (i.e. wherein the at least one of a protein and a fiber is a fiber) there is no further patentable weight regarding a fiber.
Claims 2-3, 5, 7, 11-15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over LaPlante in view of Martin, further view of Lenderink (US 2,522,050) found in applicant’s IDS filed 04/02/2024.
Regarding claim 2, modified LaPlante teach the limitations of claim 1 above. LaPlante further teaches calcium as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of calcium hydroxide.
Martin does not teach calcium hydroxide.
Lenderlink, in the same field of endeavor, teaches calcium hydroxide as an alkaline earth salt to raise the pH of a solution (Col. 2 lines 8-62). It would have been obvious to one having ordinary skill in the art at the time of filing to apply the calcium hydroxide of Lenderlink as an added mineral used to adjust pH in the invention of modified LaPlante. One would have been motivated to make this modification because calcium hydroxide is very cheap and results in an albuminous product (Lenderlink Col. 2 lines 8-23).
Regarding claim 3, LaPlante teaches sodium as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of sodium hydroxide.
Martin does not teach sodium hydroxide.
Lenderlink teaches hydrolysis is assisted by bases such as alkaline earth hydroxides (Col. 2 lines 8-23). It would have been obvious to one having ordinary skill in the art to apply the alkaline earth hydroxides of Lenderlink to the sodium mineral of modified LaPlante. One would have been motivated to make this modification to produce a product with favorable albuminous properties (Lenderlink Col. 2 lines 8-23).
Regarding claim 5, LaPlante teaches magnesium as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of magnesium hydroxide.
Martin does not teach magnesium hydroxide.
Lenderlink teaches alkaline earth hydroxides (Col. 2 lines 8-23) as well as magnesium hydroxide (Claims 1-5). It would have been obvious to one having ordinary skill in the art to apply the alkaline earth hydroxide, magnesium hydroxide, of Lenderlink as the Magnesium mineral of modified LaPlante. One would have been motivated to make this modification to produce a product with favorable albuminous properties (Lenderlink Col. 2 lines 8-23).
Regarding claim 7, LaPlante teaches manganese as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of manganese hydroxide.
Martin does not teach manganese hydroxide.
Lenderlink teaches alkaline earth hydroxides (Col. 2 lines 8-23). It would have been obvious to one having ordinary skill in the art to apply the alkaline earth hydroxides of modified Lenderlink to the manganese mineral of LaPlante. One would have been motivated to make this modification to produce a product with favorable albuminous properties (Lenderlink Col. 2 lines 8-23).
Regarding claim 11, LaPlante teaches a method comprising: combining at least one of an insoluble protein and an insoluble fiber, and at least one of a magnesium containing divalent cationic compound and a manganese containing divalent cationic compound in an alkaline aqueous solution (intact protein source whether in powder form or aqueous suspension form is added to extruder Par. 0028; oat protein concentrate Par. 0029; minerals whether in liquid or powder form are added to extruder Par. 0041; minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044; KOH added to raise pH Par. 0039). It is noted that though LaPlante is silent regarding the solubility of the proposed proteins, applicant teaches oat protein as the insoluble protein below in claim 10, which suggests to one having ordinary skill in the art the oat protein concentrate of LaPlante is similarly insoluble.
hydrolyzing at least of one of the insoluble protein and the insoluble fiber in the alkaline aqueous solution using heat (the protease component catalyzes the hydrolysis reaction of the intact protein source such that the emulsion formed within the extruder comprises hydrolyzed protein Par. 0045; heating the slurry Par. 0051).
LaPlante teaches calcium as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of calcium hydroxide.
LaPlante does not teach hydrolyzing using pressure. LaPlante does teach hydrolyzing in a twin screw extruder (Par. 0022).
LaPlante does not teach producing a hydrolysate having at least one improved organoleptic property over a hydrolysate that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound.
Martin teaches within twin screw extruders the materials being processed must pass through a series of pressurized mixing regions (Pg. 5 Col. 2 Par. under “Screw Elements”). It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of LaPlante with the twin screw extruder of Martin. One would have been motivated to make this modification to use an extruder that lends itself to ease of scale-up and process optimization (Martin Abstract).
Martin does not teach calcium hydroxide, or producing a hydrolysate having at least one improved organoleptic property over a hydrolysate that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound.
Lenderlink, in the same field of endeavor, teaches calcium hydroxide as an alkaline earth salt to raise the pH of a solution (Col. 2 lines 8-62). It would have been obvious to one having ordinary skill in the art at the time of filing to apply the calcium hydroxide of Lenderlink as an added mineral used to adjust pH in the invention of LaPlante. One would have been motivated to make this modification because calcium hydroxide is very cheap and results in an aluminous product (Lenderlink Col. 2 lines 8-23).
Regarding producing a hydrolysate having at least one improved organoleptic property over a hydrolysate that does not include the at least one of the magnesium containing divalent cationic compound and the manganese containing divalent cationic compound, as the invention of LaPlante teaches the same method with the same components as the claimed invention, one having ordinary skill in the art would expect the inventions to have similar organoleptic properties.
Regarding claim 12, LaPlante further teaches magnesium as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of magnesium hydroxide.
Martin does not teach magnesium hydroxide.
Lenderlink teaches alkaline earth hydroxides (Col. 2 lines 8-23) as well as magnesium hydroxide (Claims 1-5). It would have been obvious to one having ordinary skill in the art to apply the alkaline earth hydroxide, magnesium hydroxide, of Lenderlink as the Magnesium mineral of modified LaPlante. One would have been motivated to make this modification to produce a product with favorable albuminous properties (Lenderlink Col. 2 lines 8-23).
Regarding claim 13, LaPlante further teaches the magnesium containing divalent cationic compound is magnesium chloride (minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044).
Regarding claim 14, LaPlante further teaches manganese as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of manganese hydroxide.
Martin does not teach manganese hydroxide.
Lenderlink teaches alkaline earth hydroxides (Col. 2 lines 8-23). It would have been obvious to one having ordinary skill in the art to apply the alkaline earth hydroxides of modified Lenderlink to the manganese mineral of LaPlante. One would have been motivated to make this modification to produce a product with favorable albuminous properties (Lenderlink Col. 2 lines 8-23).
Regarding claim 15, LaPlante further teaches the magnesium containing divalent cationic compound is manganese chloride (minerals suitable include magnesium, manganese, chloride, and combinations thereof Par. 0044).
Regarding claim 17, modified LaPlante teaches the limitations of claim 16 above. LaPlante further teaches calcium as an added mineral (minerals suitable for use include calcium, phosphorus, magnesium, iron, zinc, manganese, copper, sodium, potassium, molybdenum, chromium, chloride, and combinations thereof Par. 0044), but does not teach it in the form of calcium hydroxide.
Martin does not teach calcium hydroxide.
Lenderlink, in the same field of endeavor, teaches calcium hydroxide as an alkaline earth salt to raise the pH of a solution (Col. 2 lines 8-62). It would have been obvious to one having ordinary skill in the art at the time of filing to apply the calcium hydroxide of Lenderlink as an added mineral used to adjust pH in the invention of modified LaPlante. One would have been motivated to make this modification because calcium hydroxide is very cheap and results in an albuminous product (Lenderlink Col. 2 lines 8-23).
Response to Arguments
The Declaration under 37 CFR 1.132 filed 05/15/2026 is insufficient to overcome the rejections of claims 1, 4, 6, and 8-10 based upon LaPlante under 35 USC 103, and claims 2-3, 5 and 7 under LaPlante and Lenderick under 35 USC 103 as set forth in the last Office action because:
It is noted that the rejection of claim 1 has been amended above to address the newly added limitations, but any limitations previously rejected are maintained.
It is asserted that the method of hydrolysis of the present invention is distinct from that of LaPlante because the present invention uses chemical hydrolysis rather than the enzyme hydrolysis of LaPlante. It is not claimed that the hydrolysis mechanism is chemical hydrolysis and therefore as claimed, the invention is determined to be obvious in view of the applied art.
It is further asserted that the specific process conditions of LaPlante distinguish its invention from the present invention. The noted process conditions are not claimed and therefore as claimed, the invention is determined to be obvious in view of the applied art.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., chemical hydrolysis, specific operational conditions) are not recited in the rejected claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant's arguments filed 05/15/2026 have been fully considered but they are not persuasive.
Applicant argues LaPlante does not disclose all elements of claim 1, specifically heat and pressure for hydrolyzing. The rejection of claim 1 has been amended above to reflect the amended limitation of heat and pressure. The amended rejection relying on LaPlante in view of Martin discloses a process in which both heat and pressure are present during hydrolyzing and therefore the combination teaches claim 1 as claimed.
Applicant argues the extruder of LaPlante does not require pressure be applied during extrusion. As seen in the above rejection, LaPlante discloses use of a twin screw extruder. Newly applied Martin discloses a twin screw extruder in which the contents are under pressure. This combination renders obvious that one would modify the twin screw extruder of LaPlante to have a pressure element regardless of any potential inherency of pressure taught by LaPlante.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Berk (US 6,017,550) discloses a process of producing a hydrolyzed protein and fiber product (Abstract).
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 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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/A.M.R./ Examiner, Art Unit 1792
/VIREN A THAKUR/ Primary Examiner, Art Unit 1792
