DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The response filed November 21, 2025 has been entered. Claims 1-5 are pending.
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 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Keys et al. (US 2017/0020167) as evidenced by Yotsuzuka (“Curdlan”, Chapter 37 in Handbook of Dietary Fiber, 1st Edition, CRC Press, (2001), pp. 237-257).
Regarding claims 1 and 2, Keys et al. disclose liquid egg-substitute composition comprising a liquid activator, a protein source, a lipid source and a hydrocolloid system (Abstract, [0049]. [0059]-[0060]).
Keys et al. disclose the protein source may be any suitable plant-based protein, including almonds ([0058]). Keys et al. disclose the protein is present in the composition in an amount of about 0 wt% to about 20 wt% based on a total weight of the composition ([0060]).
Keys et al. disclose they hydrocolloid system includes a mixture of high-temperature and low-temperature gelling hydrocolloids and a gelling (or crosslinking) agent ([0072]). In one embodiment, Example A ([0114]) Keys et al. disclose the mixture of hydrocolloids accounts for about 2.6 to 3.8 wt% based on a total weight of the composition. Keys et al. disclose the mixture of hydrocolloids may include curdlan ([0075]). As evidenced by Yotsuzuka, curdlan is both a high-temperature and low-temperature hydrocolloid (gelation of curdlan occurs by heating in aqueous suspension wherein the high-set gel is formed by heating the curdlan suspension to greater than equal to 80°C or a low-set gel is created by heating the curdlan suspension to about 60°C and then cooling to below 40°C – p. 740/3. Gels). Given curdlan is both a high-temperature and low-temperature hydrocolloid, it would have been obvious to one of ordinary skill in the art to have used curdlan as the hydrocolloid in the hydrocolloid system or as one in a mixture of hydrocolloids in the hydrocolloid system.
While Keys et al. does not disclose the precisely claimed amounts of hydrocolloid, i.e., curdlan or almond protein, 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).
Regarding claim 3, Keys et al. disclose all of the claim limitations as set forth above. Keys et al. disclose the lipid is present in the composition in an amount of 0 wt% to about 20 wt% based on the total weight of the composition ([0010]).
Regarding claims 4 and 5, Keys et al. disclose all of the claim limitations as set forth above. Keys et al. disclose the liquid egg-substitute composition can be used as a whole in egg dishes including scrambled eggs, omelets, quiches, frittatas (i.e., heat coagulated products -[0111]). Keys et al. disclose a process of making scrambled eggs with the liquid egg-substitute composition by cooking the composition in a skillet over heat to yield a cooked product resembling “scrambled eggs” ([0114]).
Response to Arguments
Applicant's arguments filed November 21, 2025 have been fully considered but they are not persuasive.
Applicant argues “Keys and Yotsuzuka provide no reasonable expectation of success to arrive at the claimed invention.” Applicant submits “[n]o example in Keys employs curdlan.”
A reference may be relied upon for all that it would have reasonably suggest to one having ordinary skill in the art, including nonpreferred embodiments (MPEP §2123 I). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (MPEP §2123 II).
Applicant argues “one skilled in the art is not only faced with choosing the specific protein source from one long list of possible protein sources but would also have to choose a second component which is (i) far from being a preferred heat coagulable agent in Keys and (ii) not even an essential component in Keys but solely listed as a possible additional component.”
While Keys does disclose curdlan as an “essential component,” the reference clearly disclose curdlan can be added as an additional hydrocolloid. Here, even if Curdlan is not considered an equivalent to combination of a higher- and lower-temperature hydrocolloid, Keys et al. would still meet the claim limitation of claims 1 and 2 requiring curdlan in an amount ranging from 1 to 8 mass%. Keys et al. disclose the mixture of hydrocolloids accounts for about 2.6 to 3.8 wt% based on a total weight of the composition.
Moreover, note Keys et al. disclose carrageenan and gellan gum are considered not only part of the lower-temperature gelling hydrocolloids but also part of the “additive hydrocolloids.” In essence, Keys et al. disclose the interchangeability of curdlan and, for example, gellan gum as “additive hydrocolloids.”
Applicant submits “Yotsuzuka et al. donot disclose or suggest the use of curdlan in combination with extracted protein.”
Note that while Yotsuzuka et al. do not disclose all the features of the present claimed invention, Yotsuzuki et al. is used is applied as an evidentiary reference. Yotsuuki et al. provides the evidence to show curdlan is known both as a high-temperature and low-temperature hydrocolloid (gelation of curdlan occurs by heating in aqueous suspension wherein the high-set gel is formed by heating the curdlan suspension to greater than equal to 80°C or a low-set gel is created by heating the curdlan suspension to about 60°C and then cooling to below 40°C – p. 740/3. Gels).
Applicant submits “[t]he claims composition could only have been derived through hindsight.”
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant submits the “[p]resent claims provide surprising features over Keys and Yotsuzuka.” Applicant explains “[t]he inventors of the present invention have surprisingly identified the composition that resembles scramble eggs.”
Note, claim 1 is directed broadly to a liquid egg-substitute composition. Claim 1 does not require that the liquid substitute function to make scrambled eggs or simply coagulate. There is not evidence on the record demonstrating the unexpected properties of the combination of almond protein and curdlan versus a composition of Keys et al. comprising soy protein, gellan gum, methyl cellulose and carrageenan gum (see [0114]/Example A) as a liquid egg-substitute in, for example a cake.
Applicant remarks on the test results presented in the present disclosure. Applicant submits they “found that a heat-coagulated product having excellent appearance and texture (rated as “A”) could be obtained by using the protein extracted from almond as a plant base protein.” In addition, Applicant submits “[i]n Test Example 3 of the Application, it was found that substituting curdlan with gellan gum or agar resulted in the same outcome: a paste-like mass with no scrambled-egg-like appearance.”
Applicant’s remarks regarding unexpected properties are not persuasive.
Regarding the type of protein, while Applicant’s data show that an egg-substitute comprising 5 mass% almond protein and 3 mass% curdlan has a different appearance and texture perception to an egg-substitute comprising, for example 8 mass% pea protein and 3 mass% curdlan, the data is not necessarily commensurate in scope with the claims or fairly compared. It is not clear if the difference in appearance and texture are a result of the type of protein or the protein content (see where the almond protein is added in an amount of 5 mass% where is pea protein is added in an amount of 8 mass%). Moreover, as claimed, the liquid egg-substitute of claim 1 does not require emulsifier or lipid. It is not clear if the same data would result if the composition were free of lipid and emulsifier. Lastly, the appearance and texture scores are based on subjective evaluations. What might be favorable to one subject or consumer, may not be the same for another. Even if the subjects were trained, there is no specific information about how the Examples were evaluated. Did one subject evaluate the samples or did 100? Where the subjects trained to detect specific appearance and texture properties? Does the data represent statistically significant differences?
Regarding the type of hydrocolloid, Applicant merely reports that when gellan gum or agar is used as a replacement for curdlan, the heat-coagulated liquid egg-substitute does not exhibit a perceived roughness or a scrambled egg-like appearance. It is not clear the data is commensurate in scope with the claims. For example, are the same results observed when the liquid composition with gellan gum or agar comprises 5 mass% almond protein. Moreover, it is not clear how much curdlan (or gellan gum or agar replacement) is used in Example 7 and Example 8. Lastly, the appearance and texture scores are based on subjective evaluations. What might be favorable to one subject or consumer, may not be the same for another. Even if the subjects were trained, there is no specific information about how the Examples were evaluated. Did one subject evaluate the samples or did 100? Where the subjects trained to detect specific appearance and texture properties? Does the data represent statistically significant differences?
Applicant asserts “there is no teaching or suggestion in Keys that the combination of extracted protein of almond with curdlan would yield a synergistic improvement in heat coagulation and egg-like texture.”
Applicant has not demonstrated a synergistic effect of the claimed combination of almond protein and curdlan. Moreover, there is no evidence that the combination of, for example almond protein and gellan gum would not result in a synergistic effect, i.e. combine to product an effect greater than the sum of their individual independent effects.
Conclusion
THIS ACTION IS MADE FINAL. 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 ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759