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 .
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.
Claims 1-20 are 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.
Claims 1, 14 and 18 also claim a matrix-reinforcing component “derived from cellulose”, a “cellulose-based matrix”. It is unclear what materials would be considered to be “derived from cellulose” or “cellulose-based” to meet the claim. For example, cellulose is a polysaccharide consisting of glucose units. Is glucose considered to be “derived from cellulose” to meet the claim?
Claim 5 claims an “oil-based” flavoring. As with “based” above, it is unclear what would be considered an “oil-based” flavoring to meet the claim. Can the flavoring comprise any amount of oil, or must a certain amount of oil be present to be considered “oil-based.” Is the “oil-based” flavoring considered to be different from the oleoresin that is also recited in claim 5?
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shah et al. (WO 2017/147059) in view of Durbin et al. (WO 2016/049577).
Regarding claims 1, 14 and 18, Shah et al. teach a crisp food product comprising a foamed matrix, wherein the foamed matrix comprises a protein and a starch, and wherein the foamed matrix comprises aquafaba [0032, 0054].
In regard to claims 1, 14 and 18, Shah et al discloses “a method of making an air-stable edible solid foam product includes whipping a foamable mixture including at least one proteinaceous whipping agent derived from a plant source, at least one sweetener, and at least one flavoring agent to form a foamed mixture, and baking the foamed mixture to form the air-stable edible solid foam product ([0018]). Regarding claims 1, 14 and 18, Shah et al. teach a crisp food product comprising a foamed matrix, wherein the foamed matrix comprises aquafaba ([0032, 0054]).
Shah et al. are silent as to the addition of a cellulose derivative, a viscosity-increasing component, a starch or protein and a fat source.
Durbin et al. teach a food product comprising a foamed matrix, wherein the foamed matrix comprises a protein and a starch and is reinforced by a water-soluble material that is derived from cellulose ([0023, 0050]). The food product of Durbin further comprises a viscosity increasing and foam stabilizing component (e.g., gum) ([0050]), as well as a water binding starch and a fat source ([0041, 0055]).
Durbin et al. teach that the product may comprise a small amount of fat ([0055]), it would have been obvious to have included any of the claimed fats or oils with the reasonable expectation that a suitable crisp food product would have been provided. This would have required no more than routine experimentation, as Durbin teaches that fats are known to be included in stable whipped products.
Durbin et al. teach cellulose derivatives including methyl cellulose for inclusion in their food product ([0050]). Therefore, it would have been obvious to have included methylcellulose in modified Shah et al. where methylcellulose is known to be included in stable foamed compositions.
Durbin teaches that the food product may comprise starches that are fruit and vegetable starches, as well as potato starch, tapioca starch, and waxy (i.e., corn) starches ([0041-0042]). Therefore, it would have been obvious to have provided the food product of modified Shah et al. further comprising a starch as Durbin et al. starch was known to be included in foamed foodstuffs. This would have required no more than routine experimentation where starch is specifically taught by the prior art, and would have been expected to continue to provide a stable crisp food product.
Shah et al. teach a number of different legumes as protein extract sources [0032]. Therefore, it would have been obvious to have utilized an additional protein in the food product of modified Shah et al. as it is prima facie obvious to combine two products known to be suitable for a particular purpose to provide a third product that is also suitable for that purpose. MPEP § 2144.06 (I). Additionally, Durbin et al. teaches that the protein can be a combination of different types of protein ([0037]). Therefore, it would have been obvious to have provided the food product of modified Shah et al. further comprising a protein different than the protein of the foamed matrix as both Shah et al. and Durbin et al. provide motivation to provide a food product comprising different proteins.
Shah et al. teach their crisp food product comprising a flavoring compound ([0042]; e.g., Examples 1-4). The whipped food products of Durbin et al. are also taught to comprise a vegetable puree or juice concentrate [0027], as well as flavoring agents in the forms of liquids and powders, which is considered to render obvious dry flavoring, flavoring compound, as well as oil-based flavoring [0072]. Further, the inclusion of a flavoring as claimed would have been obvious to one of ordinary skill in order to impart the desired flavor to the resultant foodstuff.
Durbin et al. teach their food product comprising a puree [0027].
In regard to claim 2, Durbin et al. teach whey protein and pea protein ([0035]).
In regard to claim 3, Durbin et al. teach “[a]s used herein, the term "fat" includes fatty acid monoglycerides, diglycerides, and triglycerides as well as fatty acids themselves, in which the fatty acid component may be either saturated or unsaturated” ([0055]).
In regard to claim 4, Shah et al teach natural flavoring including strawberry, pineapple, mixed berry, blood orange, chocolate, chocolate cake flavorings, etc (Examples 1-6).
In regard to claim 5, Durbin et al. teach a vegetable puree or juice concentrate [0027], as well as flavoring agents in the forms of liquids and powders, which is considered to render obvious dry flavoring, flavoring compound, as well as oil-based flavoring [0072].
In regard to claim 6, Durbin et al. teach baking the foamed mixture to form the air-stable edible solid foam product ([0018]).
In regard to claims 7 and 16, Shah et al teach incorporating aquafaba first (see Examples).
In regard to claims 9 and 15, Shah et al teaches cooking at 155 °F (68.3 °C) [0075].
In regard to claim 10, Shah et al teaches hydrating the foamed product at about 32-40F ([0059]).
In regard to claim 11, Shah et al teaches whipping a foamable mixture (claim 18, [0018]).
In regard to claims 12 and 13, Durbin et al. teach “starch may be produced from corn, waxy corn, potato, rice, wheat, or tapioca, among others” ([0041]).
In regard to claims 8, 17 and 19, Durbin et al. teach whippable food product has less than 5% by weight fat and includes about 0.5% to about 30% by weight of a dietary fiber; about 50% to about 95% by weight of water; up to about 5% by weight of a protein; up to about 5% by weight of a food starch; up to about 5% by weight of an emulsifier; and up to about 5% by weight of a hydrocolloid (Abstract).
Further in regard to the temperature recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235(CCPA 1955) (MPEP 2144.05, II A).
Further, regarding the temperature ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to claim 20, Shah et al teaches incorporating flavoring into the foamed mixture (Examples). In regard to claim 20, Shah et al teach incorporating natural flavoring including strawberry, pineapple, mixed berry, blood orange, chocolate, chocolate cake flavorings into the foamed mixture (Examples 1-6).
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
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