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 II (claims 54 and 56) in the reply filed on 3/20/2026 is acknowledged.
Elected claims 54 and 56 are examined, and as they depend from claim 28, claim 28 is also being examined. Claims 1-5, 8, 10, 31, 35, 39-40, 42,, 48, 51, 53-53, , 89 and 108 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
The traversal is on the ground(s) that "a search of the prior art for the inventions articulated in the claims encompassed by at least Groups I and as described above can be made without serious burden" because "claims 54 and 56 (i.e., Group Il) are dependent on claim 28 and, thus, require all the limitations recited in claim 28". Based on the above observation, applicant concludes "the claims encompassed by the Group I and Il inventions are not independent and can be searched without serious burden". This argument is not persuasive. Whereas it is true that all limitations of claim 28 have to be considered (as it links to the inventions of elected claims 54 and 56 which depends from claim 28), it does not imply that all claims that depend from claim 28 (i.e. all other claims of Group l) would not present any burden. As such, the limitations of claim 28 will be considered, as it links to and is part of claim 54 and 56 due to dependence, but not all claims of Group l. However, this also implies that if claim 28 (the linking claim) becomes allowable, all claims that depend from claim 28 (such as all claims of Group l) are eligible for rejoinder (as explained on page 6, para 2 and last paragraph of Restriction Requirement of 9/24/2025).
The requirement is still deemed proper and is therefore made FINAL.
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.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Scholten (US 2022/0030907), hereinafter Scholten.
Regarding clam 28, Scholten (US 2022/0030907) teaches a powder comprising a protein (para 116 describes "dried protein material or concentrate" may be
"a powder") with a desired property, wherein the desired property is
an amino acid distribution profile of between 15% to 50% branched chain amino acids; i.e. BCAAs (para 9 describes "content of branched chain amino acids can be greater than 16% of total protein", which overlaps with the claimed range), or
a water holding capacity (WHC) selected from the group consisting of at least 80 grams (g) of water per 100 g of protein powder, at least 85 g of water per 100g of the protein powder, at least 90 g of water per 100g of the protein powder, at least 95 g of water per 100g of the protein powder, at least 100 g of water per 100g of the protein powder, at least 105 g of water per 100g of the protein powder, at least 1 10g of water per 100g of the protein powder, at least 1 15 g of water per 100g of the protein powder, at least 120 g of water per 100g of the protein powder, at least 125 g of water per 100g of the protein powder, at least 130 g of water per 100g of the protein powder and from 80 to 150 grams (g) of water per 100 g of protein powder [para 38 describes "the protein compositions of the invention can also have a water holding capacity
(WBC) value of less than 11.0 or less than 10.5 or less than 10.0 or less than 9.5 or less than 9.0, which overlaps with the claimed range — see Note
1 below], and
wherein the protein is obtained from a non-animal source (para 41 describes "the biomass from which the protein material of the invention is obtained" can be "algae" or "seaweed", which are plant sources; i.e. non-animal sources; also see para 116 that discloses "proteinaceous material from algal biomass").
Note 1: A protein with Water Holding Capacity (WHC) of less than 9.0 holds less than 9 grams of water for every 1 gram of protein; i.e. WHC of less than 9.0 equates of less than 900 grams of water per 100 g of protein powder, and as such it overlaps with the claimed ranges such as "at least 80 grams (g) of water per 100 g of protein powder".
Claims 54 and 56 are rejected under 35 U.S.C. 103 as being unpatentable over Scholten in view of NPL reference > Traynham et al, "Evaluation of Water-Holding Capacity for Wheat-Soy Flour Blends", J. Amer Oil Chem Soc, 2007 <, hereinafter Traynham. A copy of Traynham reference is included with this office action.
Regarding the overlapping of ranges between the invention and prior art composition it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Regarding claim 54, Scholten teaches a composition comprising a powder of claim 28, but does not clearly teach a composition comprising additionally "a flour"; i.e. does not teach a composition comprising "a flour and the powder of claim 28". However, compositions the combine flours with high protein powders are known in the art. For example, Traynham teaches a composition may comprise wheat flour blended with a soy protein product such as soyabean flour to increase nutritional quality of the flour (page 151, col. 2, especially see first two paragraphs of section titled "Introduction"). It would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to modify Scholten to create a composition comprising a flour that is mixed with the high protein powder of claim 28. The ordinary artisan would have been motivated to modify Scholten for at least the purpose of creating a low-cost plant-based high-protein flour for improved nutrition baked products.
Regarding claim 56, Scholten teaches the composition of claim 54, but does not teach wherein "the flour and the powder are present at a ratio of flour to powder that produces a WHC that is from 100% to 150% of the WHC of the flour alone". Traynham
(refer to Figure 2) teaches that water holding capacity (WHC) of a flour such as wheat flour only (i.e. when "percentage of soy flour" shown along x-axis is zero) is about 0.6 to 0.67 g water per gram of flour, and WHC generally increased with increasing amount of spy flour (see Figure 2), i.e. with increasing amount of protein powder. Given that the WHC of Scholten's powder is significantly greater than that of wheat flour (see Note 1 for claim 1 ), it follows that increasing the relative amount of the powder will increase the WHC of the mixture. Given that WHC is a known results effective variable and its dependence on relative quantity of the powder is also known (as explained above), varying the amount of the powder in the powder and flour mixture would not be cause for undue experimentation. "Where 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) see MPEP 2144.05. Therefore, it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to modify Scholten to adjust the ratio of flour to powder to achieve a target improvement in the WHC, such as the claimed "a WHC that is from 100% to 150% of the WHC of the flour alone". The ordinary artisan would have been motivated to modify Scholten for at least the purpose of creating a low-cost plant-based high protein flour for improved nutrition baked products having a target WHC optimized for specific baking products (see Traynham, page 152, col. 1, 3rd paragraph which explains this in context of baked product such as "bread").
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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