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 .
This office action was written in response to the Applicants Remarks filed 3/24/265. Claims 1-4, and 6 are pending and have been examined on the merits. Claim 5 has been cancelled. Claim 6 is new.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1, 4, and 5 by Triantafyllou (US 2015/0351432) have been withdrawn due to the amendment to claim 1 and the cancellation of claim 5.
The 102(a)(1) rejection of claim 5 by Fujioka (CA 3130907) has been withdrawn due to the cancellation of claim 5.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4, and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou (US 2015/0351432).
Regarding Claim 1: Triantafyllou discloses a method of making a liquid oat base of drink by treating an oat material, that has not been previously heat treated, with protein deamidase [abstract; 0019; 0024]. Triantafyllou discloses treating at a temperature of up to 65°C [0025] or 40 to 65°C [claim 28].
Although Triantafyllou does not explicitly disclose greater than 65°C to 75°C one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Triantafyllou overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 4: Triantafyllou discloses as discussed above in claim 1. Triantafyllou discloses that the oat drink can be oat milk [0002, 0003, 0048].
Regarding Claim 6: Triantafyllou discloses as discussed above in claim 1. Triantafyllou discloses treating at a temperature of up to 65°C [0025] or 40 to 65°C [claim 28]. Triantafyllou does not explicitly disclose that the temperature condition is greater than 70 to 75°C. However, it would have been obvious to one having ordinary skill in the art at the time of the invention to adjust the temperature for maintaining the activity of the enzyme, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Triantafyllou (US 2015/0351432) as applied to claim 1 above and in further view of Yamaguchi et al. (US 2004/0072318).
Regarding Claim 3: Triantafyllou discloses as discussed above in claim 1. Triantafyllou does not disclose that the protein deamidase is derived from Chryseobacterium proteolyticum; having 76% or more sequence identity to the instant Seq 1 or 2.
Yamaguchi discloses a protein deamidating enzyme Seq 12 having 95% sequence identity to Seq 1 and 2 of the instant invention [abstract; 0021; Seq 12 pg. 24-pg. 25]. Yamaguchi discloses that a number of plant proteins show poor solubility [0088]. Yamaguchi discloses treating plant proteins with a protein deamidating enzyme [0087; 0088]. Yamaguchi discloses plant proteins that are cereal grains [0084; 0098]. Yamaguchi discloses the reaction temperature at 5 to 80°C [0086].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Triantafyllou to include the Seq 12 of Yamaguchi as the protein deamidating enzyme of Yamaguchi is capable of increasing the solubility and functionality of plant proteins.
Although, Yamaguchi does not explicitly disclose that it exhibits heat resistance, the sequence identity is such that it would have been obvious that effectivity at high temperatures, since it discloses effectivity at 80°C and since “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Claims 1, 2, 4, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Fujioka (CA 3130907).
Regarding Claims 1 and 2: Fujioka discloses a method of making a vegetable milk liquid [abstract]. Fujioka discloses treating an oat material, that has not been previously heat treated, with protein deamidase [abstract; claim 12-15]. Fujioka discloses that effects vary with time and discloses a reaction temperature of 2 to 70°C [pg. 29, 0061]. Fujioka discloses the protein deamidase as derived from Chryseobacterium proteolyticum [pg. 6].
Although Fujioka does not explicitly disclose 65 to 75°C one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Fujioka overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 4: Fujioka discloses as discussed above in claim 1. Fujioka discloses that the oat drink can be oat milk [abstract; pg. 4, 0010].
Regarding Claim 6: Fujioka discloses as discussed above in claim 1. Fujioka discloses that effects vary with time and discloses a reaction temperature of 2 to 70°C [pg. 29, 0061].
Although Fujioka does not explicitly disclose greater than 70°C to 75°C, it does disclose 70°C, and is substantially close to that of the instant claims, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985),
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Fujioka (CA 3130907) as applied to claim 1 above and in further view of Yamaguchi et al. (US 2004/0072318).
Regarding Claim 3: Fujioka discloses as discussed above in claim 1. Fujioka does not disclose that the protein deamidase is derived from Chryseobacterium proteolyticum; having 76% or more sequence identity to the instant Seq 1 or 2.
Yamaguchi discloses a protein deamidating enzyme Seq 12 having 95% sequence identity to Seq 1 and 2 of the instant invention [abstract; 0021; Seq 12 pg. 24-pg. 25]. Yamaguchi discloses that a number of plant proteins show poor solubility [0088]. Yamaguchi discloses treating plant proteins with a protein deamidating enzyme [0087; 0088]. Yamaguchi discloses plant proteins that are cereal grains [0084; 0098]. Yamaguchi discloses the reaction temperature at 5 to 80°C [0086].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the method of Fujioka to include the Seq 12 of Yamaguchi as the protein deamidating enzyme of Yamaguchi is capable of increasing the solubility and functionality of plant proteins.
Although, Yamaguchi does not explicitly disclose that it exhibits heat resistance, the sequence identity is such that it would have been obvious that effectivity at high temperatures, since it discloses effectivity at 80°C and since “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Response to Arguments
The 102(a)(1) rejections of claims 1, 4, and 5 by Triantafyllou (US 2015/0351432) have been withdrawn due to the amendment to claim 1 and the cancellation of claim 5.
The 102(a)(1) rejection of claim 5 by Fujioka (CA 3130907) has been withdrawn due to the cancellation of claim 5.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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