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 .
Applicant’s amendment filed January 2, 2026 has been entered. Claim 16 is new. Claims 1-10 and 16 are pending.
The previous objection to the disclosure and rejection of claim 4 under 35 U.S.C. 112(b) are withdrawn in light of Applicant’s amendment filed January 2, 2026.
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 1-4, 6-10 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Waksman et al. ((WO 2019/122336).
Regarding claims 1 and 8, Waksman et al. disclose a method of making a creamer composition comprising plant protein, the method comprising the steps of: (a) preparing an aqueous solution comprising 1-8% by weight of plant protein (i.e., having a pH between 6.5 and 9); (b) emulsifying a vegetable oil (i.e., triglyceride) in the aqueous solution to obtain an emulsion; (c) heating the emulsion at a temperature of 81°C for 40 sec; (d) homogenizing the heated emulsion at 180/50 bar; and (e) drying the emulsion to obtain a powdered creamer composition (p. 12/L 18- p. 13/L33).
Waksman et al. disclose the plant protein has a median molecular weight comprised in the range of between 900 and 12,000 Daltons (i.e., fractionated plant protein – p. 13/L32-33). Waksman et al. disclose the plant protein can be in the form of an isolate, powder or flour (i.e., dry form – p. 3/L6-15).
Waksman et al. disclose adding an emulsifier to the aqueous solution . Waksman et al. disclose wherein the emulsifier is lecithin (p. 4/L31-p. 5/L2).
Regarding claims 2 and 4, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. disclose wherein the plant protein is selected from soy protein, rice protein, pea protein, chickpea protein, potato protein, canola protein, hemp protein, oat protein, flaxseed protein, faba bean protein, lentil protein and combinations thereof (claim 9). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have used any of the proteins to arrive at the present invention with a reasonable expectation of success.
Regarding claim 3, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. disclose that the performance of the powdered creamer is linked with the median molecular weight of the plant protein (p.22/L5-22 ). Waksman et al. explains that if the median molecular weight is too high or too low then the performance of the powdered cream are impaired and flocculation is observed (p. 22/L5-12). Given Waksman et al. disclose using plant proteins have a molecular weight in a specific range and the importance of molecular weight, it would have been obvious to have used a particular fraction of a plant protein that had been fractionated by any method, including air classified, and arrive at the present invention.
Regarding claim 6, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. disclose adding citric acid, a water soluble ingredient, to the aqueous solution (p. 12//L26-30). Given Waksman et al. disclose citric acid is water soluble and mixed with the aqueous solution, it necessarily follows it would be dissolved in the solution.
Regarding claim 7, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. also disclose wherein sodium bicarbonate is added to the aqueous solution (i.e., before applying thermal treatment – p. 12/L6-116).
Regarding claim 9, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. disclose homogenizing the plant protein mixture to form an emulsion, the reference is silent with respect to the emulsion average particle size. However, one of ordinary skill in the art would have been motivated to adjust, in routine processing, the average particle size of the emulsion to obtain a homogenous emulsion that remains stable until the emulsion is heated and homogenized in step (d).
Regarding claim 10, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. disclose mixing nitrogen into the homogenized and heated emulsion shortly before drying (p. 13/L12-14).
Regarding claim 16, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. disclose the plant protein may be in any suitable form (e.g., protein isolate or a protein powder- p. 3/L6-15).
Claims 5 is rejected under 35 U.S.C. 103 as being unpatentable over Waksman et al. ((WO 2019/122336) as applied to claim 1, and further in view of LaFirenza (US 2013/0108770).
Regarding claim 5, Waksman et al. disclose all of the claim limitations as set forth above. Waksman et al. is silent with respect to sodium ascorbate.
LaFirenza teaches a non-dairy creamer ([0010]) comprising an antioxidant wherein the antioxidant is added to prevent and/or reduce oxidation and preserve flavor and appearance of the product during refrigerated and/or unrefrigerated storage ([0030]). LaFirenza teaches wherein the antioxidant may include salts of ascorbic acid, such as sodium ascorbate ([0030]).
Waksman et al. and LaFirenza are combinable because they are concerned with the same field of endeavor, namely, non-dairy creamers. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added sodium ascorbate to the aqueous solution of Waksman et al. to obtain a product with reduced oxidation and preserved flavor and appearance during storage.
Response to Arguments
Applicant's arguments filed January 2, 2026 have been fully considered but they are not persuasive.
Applicant submits “Waksman fails to disclose or suggest the protein type (i.e. dry fractionated plant protein), the explicit pH control, and the two-stage homogenization sequence.” Applicant finds “Waksman is centered on wet-extracted/hydrolyzed proteins and a single homogenization step.”
Regarding pH, given Waksman et al. disclose mixing plant protein in water as presently claimed, inherently the mixture would exhibit a pH in the neutral range claimed of 6.5 to 9.
Here, claim 1 does not require a two stage homogenizer. Rather, claim 1 requires two distinct homogenizing steps. Waksman et al. disclose a process with two homogenizing steps: : (a) preparing an aqueous solution comprising 1-8% by weight of plant protein (i.e., having a pH between 6.5 and 9); (b) emulsifying a vegetable oil (i.e., triglyceride) in the aqueous solution to obtain an emulsion; (c) heating the emulsion at a temperature of 81°C for 40 sec; (d) homogenizing the heated emulsion at 180/50 bar; and (e) drying the emulsion to obtain a powdered creamer composition (p. 12/L 18- p. 13/L33).
Applicant submits “dry fractionated plant protein” refers to protein separated from plant material using dry mechanical processes. Applicant explains the process of dry fractionated preserves the native structure and functional properties of the protein. Applicants argues the data and examples in the application demonstrate that creamers prepared from dry fractionated protein exhibit superior stability compared to those made from proteins obtained by wet extraction or extensive hydrolysis as disclosed in Waksman et al.
In this case, the disclosure of the present invention does not define a “dry fractionated plant protein.” Therefore, the recitation has been given the broadest reasonable interpretation; any dry plant protein composition that has been purified (or fractionated) to some extent would meet the claim limitation.
Even if the disclosure clearly defined “dry fractionated plant protein”, as evidenced by Assatory et al. (“Dry fractionation methods for plant protein, starch and fiber enrichment: A review”, Trends in Food Science & Technology, Volume 86, April 2019, pp. 340-351) the process of producing dry fractionated plant proteins and the resulting differences in functionality have been discovered. Applicants have not demonstrated unexpected properties associated with the use of “dry fractionated plant protein” versus any other plant protein product when used to make a coffee creamer.
With regards to unexpected properties, it is not clear how the comparison of Examples 3 and 5 of the present disclosure represent a comparison with the prior art. For example, example 3 states a method of making a creamer using a commercial faba concentrate. The example is not sued to compare the creamer made with a faba concentrate (60% protein Vitessence Pulse 3600) and that of the prior art. Moreover, it is not clear if the Vitessence Pulse 3600 product is that of the present invention or some other commercial product. Example 4 demonstrates the use of the faba based creamer in example 3 in a cappuccino. No comparison is made. Lastly, Example 5 shows how aggregating of a plant-based creamer in coffee is affected by the acidity of the coffee and the hardness of the water used to prepare the coffee. In example 5 a chelation agent and acidity regulator are used to improve flocculation stability of plant-protein based creamers. No comparison between “dry fractionated plant proteins” and that of the prior art were made.
While Waksman et al. disclose hydrolyzed protein, the reference also discloses embodiments where the plant protein is not pre-treated to hydrolyze the protein (see “in one embodiment of the invention, the plant protein has been hydrolysed to an extent of protein hydrolysis comprises in the range of between 5 to 99%”-p. 4/L21-22). Waksman et al. does not require the plant protein be hydrolyzed (e.g., see claim 1).
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