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 .
The Amendment filed Nov. 3, 2025 has been entered. Claims 1-20 are pending. Claims 1-2, 4, 7, and 11-15 have been amended. Claims 16-20 are new.
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, 6-7, 10, 12 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Liu et al. (US 2019/0031728 A1; Jan. 31, 2019).
Regarding claim 1, Liu discloses a process for preparing a plant protein-containing composition ([0007]-[0016]) comprising
Wet milling a plant protein material having a protein content of 68% by weight protein ([0073], [0092]), thus falling within the claimed range of more than 20% by weight, to obtain a composition with a particle size of 10 um or less ([0092]: grinding disk gap of about 10 um), thus falling within the claimed range of less than 30 um,
Microfiltrating the composition of step a) ([0092]),
Ultrafitrating the composition of step b) ([0092]).
While Liu teaches using a grinding disk gap of about 10 um, which would necessarily result in some particle sizes of 10 um or less, Liu fails to specifically teach a particle size distribution d90 of less than 30 um as claimed. Liu further teaches that the typical range of the milled particle size of the raw material is 2-150 um ([0059]), which overlaps the claimed range of less than 30 um. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Further, it would have been obvious to one of ordinary skill in the art to vary the grinding conditions to result in a desired particle size distribution. Liu already teaches an overlapping particle size range ([0059]) and further teaches using a disk gap of 10 um ([0092]) and therefore one of ordinary skill in the art can vary the grinding time or disk gap size to result in a desired particle size distribution d90 as claimed. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claim 2, Liu teaches that the wet milling is conducted in water ([0092]: corn gluten meat containing 89.9% water), which is known in the art to have a pH of 7. As Liu does not teach any additional components in the wet milling phase, Liu is considered to teach that the wet milling step is conducted in water having a pH value of 7, thus falling within the claimed range of 6 to 11. Further, it would have been obvious to one of ordinary skill in the art to adjust the pH to result in a desired milling process.
Regarding claim 3, Liu teaches that the wet milling is conducted in a water-oil mixture ([0004]: corn gluten meal comprises about 6% by weight fat/oil).
Regarding claim 4, Liu teaches that the water-oil mixture contains about 6% by weight oil ([0004]), thus falling within the claimed range of less than 10% by weight.
Regarding claims 6 and 7, Liu further teaches an additional step d) of concentrating the composition obtained from step c) using ultrafiltration ([0092]: after microfiltration and ultrafiltration, Liu teaches a further step of filtering through a 20 nm pore size filter membrane to obtain a fourth permeate and retentate).
Regarding claim 10, Liu teaches a plant protein-containing composition obtained by the process of claim 1 as described above ([0092]).
Regarding claim 12, Liu teaches a food product comprising a plant protein-containing composition ([0027] in Liu).
Regarding claim 16, as stated above, Liu discloses wet milling a plant protein material having a protein content of 68% by weight protein ([0073], [0092]), thus falling within the claimed range of more than 35% by weight.
Regarding claim 17, as stated above with respect to claim 1, Liu teaches using a grinding disk gap of about 10 um, which would necessarily result in some particle sizes of 10 um or less, but fails to specifically teach a particle size distribution d90 of less than 2 um as claimed.
Liu, however, further teaches that the typical range of the milled particle size of the raw material is 2-150 um ([0059]), which overlaps the claimed range of less than 2 um. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Further, it would have been obvious to one of ordinary skill in the art to vary the grinding conditions to result in a desired particle size distribution. Liu already teaches an overlapping particle size range ([0059]) and further teaches using a disk gap of 10 um ([0092]) and therefore one of ordinary skill in the art can vary the grinding time or disk gap size to result in a desired particle size distribution d90 as claimed. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claim 18, Liu teaches that the wet milling is conducted in water ([0092]: corn gluten meat containing 89.9% water), which is known in the art to have a pH of 7. As Liu does not teach any additional components in the wet milling phase, Liu is considered to teach that the wet milling step is conducted in water having a pH value of about 7, which falls outside the claimed range of 8 to 9.5.
However, it would have been obvious to one of ordinary skill in the art to adjust the pH of the water to aid in the milling process. 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. "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)
Regarding claim 19, Liu teaches that the wet milling is conducted in a water-oil mixture ([0004]: corn gluten meal comprises about 6% by weight fat/oil). Liu teaches that the water-oil mixture contains about 6% by weight oil ([0004]), which is right outside the claimed range of less than 5% by weight.
However, it would have been obvious to one of ordinary skill in the art to adjust the amount of oil in the water-oil mixture depending on the desired composition of the plant protein material. 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. "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)
Regarding claim 20, Liu discloses a process for preparing a plant protein-containing composition ([0007]-[0016]) comprising
Wet milling a plant protein material having a protein content of 68% by weight protein ([0073], [0092]), thus falling within the claimed range of more than 50% by weight, to obtain a composition with a particle size of 10 um or less ([0092]: grinding disk gap of about 10 um), while the instant claim requires a range of less than 1 um,
Microfiltrating the composition of step a) ([0092]),
Ultrafitrating the composition of step b) ([0092]).
While Liu teaches using a grinding disk gap of about 10 um, which would necessarily result in some particle sizes of 10 um or less, Liu fails to specifically teach a particle size distribution d90 of less than 1 um as claimed. Liu further teaches that the typical range of the milled particle size of the raw material is 2-150 um ([0059]), which is right outside the claimed range of less than 1 um (i.e. 2 um vs. 1 um – would behave the same absent a showing otherwise).
It would have been obvious to one of ordinary skill in the art to vary the grinding conditions to result in a desired particle size distribution. Liu already teaches a small particle size of 2 um ([0059]), which is so close to the claimed particle size of 1 um, and therefore one of ordinary skill in the art can vary the grinding time or disk gap size to result in a desired particle size distribution d90 as claimed. This is merely routine experimentation that is well within the ordinary skill in the art.
Claims 5, 8-9, 11, and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Liu et al. (US 2019/0031728 A1; Jan. 31, 2019) as applied to claim 1 above, and further in view of Schweizer et al. (US 2017/0156367 A1; June 8, 2017).
Regarding claim 5, Liu teaches a step c) of ultrafiltration, but fails to further teach that the ultrafiltration is combined with diafiltration.
Schweizer also discloses a process for preparing a plant protein-containing composition using filtration methods ([0036]). Schweizer teaches that ultrafiltration and diafiltration are known useful membrane filtration methods that can be used in combination to remove unwanted particles and concentrate a product ([0036]).
It would have been obvious to one of ordinary skill in the art to additionally use diafiltration in step c) along with ultrafiltration in Liu depending on the particles to be separated and concentrated. Schweizer clearly teaches that ultrafiltration and diafiltration can be used in combination to result in a product have a desired concentration of proteins and therefore would predictably provide the same results in the process of Liu.
Regarding claims 8-9, 11 and 13, Liu teaches a method of preparing a plant protein-containing composition as described above, wherein the plant protein-containing material is corn, but fails to teaches that the plant protein-containing material can also be a pea protein concentrate or isolate.
As stated above with respect to claim 5, Schweizer also discloses a process for preparing a plant protein-containing composition using filtration methods ([0036]). Schweizer further teaches that the plant protein-containing material can be a pea protein concentrate or isolate ([0019], See Examples).
As Schweizer teaches a plant protein-containing composition, wherein the plant material can be a pea concentrate/isolate, it would have been obvious to one of ordinary skill in the art to have the plant protein-containing material of Liu be pea. This is a simple substitution of one know plant material for another in similar processes of producing a plant protein composition and would have been obvious to one of ordinary skill in the art to use a pea derived material in the process of Lui depending on the desired properties and nutrition as pea protein and corn protein comprise different nutritional value.
Regarding claim 14, as stated above, both Liu and Schweizer teach a food product comprising a plant protein-containing composition ([0027] in Liu, [0068] in Schweizer). Schweizer further teaches that the food product can be a beverage ([0046]).
It would have been obvious to one of ordinary skill in the art to have the food product of Liu be a beverage depending on the desired application, especially as Schweizer teaches that it is known in the art to incorporate a plant protein-containing composition into a beverage.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Liu et al. (US 2019/0031728 A1; Jan. 31, 2019) as applied to claim 12 above, and further in view of Zhang et al. (US 2018/0352833 A1; Dec. 13, 2018).
Regarding claim 15, as stated above, Liu teaches a food product comprising a plant protein-containing composition ([0027] in Liu). Liu, however, fails to teach that the food product is a meat analogue product.
Zhang teaches a method of producing a concentrated protein product using filtration, wherein the protein material can be a plant material, such as pea [0021]). Zhang further teaches that the concentrated protein product is used as a protein source in food, wherein food product can be a meat analogue ([0033]).
It would have been obvious to one of ordinary skill in the art to have the food product of Liu be a meat analogue depending on the desired application, especially as Zhang teaches that it is known in the art to incorporate a plant protein-containing composition into a meat analogue.
Response to Arguments
Applicant’s amendments have overcome the claims objection and 112(b) rejections from the previous Office Action and therefore they have been withdrawn.
Applicant’s amendments and arguments were found persuasive to overcome the 102 rejection and therefore it has been withdrawn. However, a 103 rejection remains.
With respect to the claimed particle size distribution, Liu teaches that the typical range of the milled particle size of the raw material is 2-150 um ([0059]), which overlaps the claimed range of less than 30 um. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Further, it would have been obvious to one of ordinary skill in the art to vary the grinding conditions to result in a desired particle size distribution. Liu already teaches an overlapping particle size range ([0059]) a and therefore one of ordinary skill in the art can vary the grinding time or disk gap size to result in a desired particle size distribution d90 as claimed. This is merely routine experimentation that is well within the ordinary skill in the art.
Applicant argues that the combination of the prior art does not gap-fill an absent teaching or suggestion of a composition with the claims PSD, however, as stated above, the claims PSD is merely an obvious variant over Liu and would have been obvious absent new or unexpected results. Applicant has not provided any discussion to show that the claims PSD produces new or unexpected results over the teaching in Liu that the typical range of the milled particle size of the raw material is 2-150 um ([0059]) and therefore this argument is not found persuasive.
Applicant’s arguments with respect to claim 5 on pages 8-9 are not found persuasive. Applicant argues that Schweizer generally discloses the use of diafiltration with ultrafiltration, but does not suggest that combining diafiltration with the preceding steps would result in the advantageous properties achieved by the claimed invention. Applicant states that the claimed sequential 3 step process achieves a synergistic effect.
This is not found persuasive as Liu teaches the claimed 3 step process as described above regarding claim 1. Liu even teaches an overlapping particle size. Therefore, the process of Lui would be expected to have similar synergistic effects. Further, applicant is arguing features that are not claimed. The claims do not require any type of removal of adverse flavors, astringency and soapiness. 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).
Additionally, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Especially as the particle size is an obvious variant over Liu and the prior art clearly recognizes that diafiltration can be used in combination with ultrafiltration.
Regarding applicant’s arguments with respect to the plant protein material being pea protein on page 9, again, applicant is arguing features which are not claimed. As Schweizer teaches a plant protein-containing composition, wherein the plant material can be a pea concentrate/isolate, it would have been obvious to one of ordinary skill in the art to have the plant protein-containing material of Liu be pea. This is a simple substitution of one know plant material for another in similar processes of producing a plant protein composition and would have been obvious to one of ordinary skill in the art to use a pea derived material in the process of Lui depending on the desired properties and nutrition as pea protein and corn protein comprise different nutritional value.
Regarding applicant’s argument with respect to claim 14 on page 9, again, applicant is arguing features which are not claimed. Both Liu and Schweizer teach a food product comprising a plant protein-containing composition ([0027] in Liu, [0068] in Schweizer). Schweizer further teaches that the food product can be a beverage ([0046]). It would have been obvious to one of ordinary skill in the art to have the food product of Liu be a beverage depending on the desired application, especially as Schweizer teaches that it is known in the art to incorporate a plant protein-containing composition into a beverage.
Applicant further argues on pages 9-10 with respect to claim 15, that the ability to form the claimed analogue meat structure is an unexpected result stemming from the unique properties of the plant protein composition obtained through the specific process recite in claim 1, which is a synergy not suggested by the prior art.
This is not found persuasive as the only difference between the prior art and claim 1 is the claimed PSD, which is an obvious variant over Liu. As stated above, Liu teaches that the typical range of the milled particle size of the raw material is 2-150 um ([0059]), which overlaps the claimed range of less than 30 um. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I) Further, it would have been obvious to one of ordinary skill in the art to vary the grinding conditions to result in a desired particle size distribution. Liu already teaches an overlapping particle size range ([0059]) a and therefore one of ordinary skill in the art can vary the grinding time or disk gap size to result in a desired particle size distribution d90 as claimed. This is merely routine experimentation that is well within the ordinary skill in the art.
Therefore, the claimed process is obvious over the prior art. There is nothing additional recited in claim 1 to suggest that the process of Liu would not result a desired meat analogue.
Applicant’s arguments with respect to new claims 16-20 are not found persuasive for the same reasons as stated above.
For the reasons stated above, a 103 rejection is maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791