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 1-12 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.
Regarding claim 1, upon further consideration the claim is rendered indefinite since the preamble recites “treating a pulse protein to produce a pulse protein gel”, but the body of the claim does not recite or otherwise indicate that the gel is obtained by steps (i)-(iii). It is unclear if the pulse protein gel is obtained by simply treating the pulse protein to said steps, or if further processing is required before the gel is actually formed. In the case of the prior, the rejection can be overcome by amending the body of the claim (e.g., after step (iii)) to positively recite that the pulse protein gel is obtained.
Claims 2-12 are rejected by virtue of their dependence on a rejected base claim.
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 1-2, 7, 10 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bußler et al. “Impact of thermal treatment versus cold atmospheric plasma processing on the techno-functional protein properties of Pisum sativum ‘Salamanca’.
Regarding claim 1, it is noted that limitations (i)-(iii) are separated by the term “or”, which indicates alternatives. For the sake of examination, alternative (i) is chosen.
Bußler et al. teaches treating pulse protein with atmospheric cold plasma (ACP) increases the water and fat binding properties in the protein rich pea flour to 113-116% (abstract). The treated protein is combined with water and increased solubility was observed page 171 right column). Since increased water binding is known to be a property associated with gels, since the process of Bußler et al. appears to be the same as that of the claimed process, and in view of the rejection under 35 USC 112(b) above, the process is construed to produce a pulse protein gel.
Regarding claim 2, Bußler et al. teaches pea (Pisum sativum) protein
Regarding claim 7, the CAP treatment is performed for 10 minutes (figure 1; tables 1-3).
Regarding claim 10, exposure to CAP increases the temperature of the protein up to 59.8oC (page 169 section 3.1).
Regarding claim 12, the claim recites alternatives. For the sake of examination, the alternative “below about 95oC” is chosen. The process heats the protein to a temperature of 59.8oC as stated for claim 10.
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.
Claims 3-6 and 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Bußler et al. as stated for claims 1-2 above, and in view of Fabre (US 4,287,219).
Regarding claims 3-6, Bußler et al. does not teach the protein is treated by shifting to alkaline pH in the claimed range and the claim duration of treatment.
Fabre teaches preparing vegetable proteins by adjusting the pH to between 9 and 13.5 to form the protein gel, the duration being from 2-3 minutes to multiple hours (column 6 line 67 to column 7 line 10).
The process of Bußler et al. combines the treated protein with water as stated above, which would have adjusted the pH to neutral.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Bußler et al. to shift the pH to the claimed range for the claimed duration and then to neutral in order to provide a spinnable gel as taught by Fabre, since there is no evidence of criticality or unexpected results associated with the claimed range, and since the values would have been used during the course of routine experimentation and optimization procedures.
Regarding claims 8-9, the combination applied to claims 3-6 above teaches treatment with both ACP and pH shift.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the process of Bußler et al. for the same reasons stated above.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Bußler et al. as stated for claims 1-2 and 10 above.
Regarding claim 11, the claim recites alternatives. For the sake of examination, the alternative “1.0 kPa” is chosen.
Bußler et al. does not teach a minimum gel compressive strength of 1.0 kPa without incorporation of additional cross-linking agent or non-pulse protein.
However, the process of Bußler et al. appears to be the same as that of the claimed process i.e., treatment of pea protein with ACP.
Absent evidence to the contrary, one of ordinary skill in the art would have reasonably expected the gel obtained by the method of the prior art to exhibit the same or similar properties, including compressive gel strength as claimed, to that obtained by the claimed method.
Response to Arguments
The declaration under 37 CFR 1.130 filed 6/3/2026 is persuasive. The rejection under 35 USC 102(a)(1) to Zhang et al. is withdrawn. However, upon further consideration, a new ground of rejection is made in view of Bußler et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRYAN KIM/Examiner, Art Unit 1792
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