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 Amendment filed May 8, 2026 has been entered. Claims 8-16 were previously withdrawn. Claims 17-31 are new. Claims 1-7 and 17-31 are pending examination.
The previous objection to the specification and rejection of claim 1-7 under 35 U.S.C. 112 (b) are withdrawn in light of Applicant’s amendment and remarks filed May 8, 2026.
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 17-19 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 17, the recitation “wherein the method is for producing a composition of oat proteins texturized in a dry process, rice proteins textured in a dry process, or legume proteins textured in a dry process” renders the claim indefinite. It is not clear if Applicants are intending to claim wherein the first and second plant proteins are both oat, rice or legume or where the first or second plant material is oat, rice or legume? With respect to the prior art, if the first or second plant proteins are oat, rice or legume, the limitations of claim 17 are satisfied.
Regarding claim 18, the recitation “wherein the plant proteins textured in a dry process are chosen between pea and faba bean proteins” renders the claim indefinite. It is not clear if Applicants intend to claim wherein the first and second plant material are both chosen between pea and faba bean protein or wherein the first or second plant material is chosen between pea and faba bean protein. With respect to the prior art, if the first or second plant proteins are pea or faba bean protein, the limitations of claim 18 are satisfied.
Regarding claim 19, the recitation “wherein the plant proteins textured in a dry process is pea proteins” renders the claim indefinite. It is not clear if Applicants intend to claim wherein the first and second plant material are both pea protein or wherein the first or second plant material is pea protein. With respect to the prior art, if the first or second plant proteins pea protein, the limitations of claim 19 is satisfied.
Claim Rejections - 35 USC § 103
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 1-7 and 17-31 are rejected under 35 U.S.C. 103 as being unpatentable over Sein et al. (WO 2021/009387) as evidenced by Barac et al. (“Profile and Functional Properties of Seed Proteins from Six Pea (Pisum sativum) Genotypes”, Int. J. Mol. Sci. 2010, 11, 4973-4990) and Roman et al. (“Evaluation of protein composition and functionality of lupin protein isolates extracted from different blue lupin (Lupinus angustifolius) cultivars”, Current Research in Food Science, 11, (2025), pp. 1-11).
Regarding claims 1, 6, 17-20-28 and 30, Sein et al. disclose a method for preparing a texturized vegetable protein comprising the steps of: (a) mixing 2-75% (w/w) rapeseed protein, from 10-95% (w/w) legume-derived protein, 2-50% (w/w) plant-based fiber and from 5-30% (w/w) water in an extruder; (b) heating the mixture in step (a) to a temperature of from 100°-180°C and extruding the heated mixture through an extrusion die to obtain an extruded product; and (c) drying the extruded product to obtain a texturized vegetable protein (p. 3/L5-29, p. 5/L30-31, p. 19/Example 5/L36-37).
Sein et al. disclose wherein the legume-derived protein is selected from the group consisting of lupin protein, faba bean protein and pea protein or combinations thereof (p. 4/L15-22, p. 10/L1-p.12/L6-Examples). Sein et al. disclose examples wherein the rapeseed protein is a rapeseed protein isolate in an amount ranging from 10-30% by weight of the protein component and the legume-derived component comprises a combination of pea protein isolate and faba bean protein flour or a combination of pea protein isolate and lupin protein isolate in an amount of 70-90% by weight of the protein component (p. 10/L1-p. 12/L6- table of compositions).
Therefore, when the legume-derived component comprises a combination of (a) pea protein isolate (a first material rich in plant proteins); and (b) lupin isolate (a second material rich in plant proteins) or fava bean protein (a second material rich in plant protein) in a ratio of, for example, 70:30, the limitation requiring a dry weight ratio of a first material rich in plant proteins to a second material rich in plant proteins ranging from 60/40 to 90/10 is satisfied.
Sein et al. disclose the pea protein isolate is from Cosucra (p. 10/L10). As evidenced by Barac et al., the solubility of Pisane™ (pea protein isolate from Cosucra, Belgium) at pH 7 is about 40% (p. 4975/2.1 Material, p. 4983/Figure 3).
Sein et al. disclose the lupin protein isolate is no. 10600 from ProLupin, Germany (p. 10/L13). As evidenced by Roman et al. lupin protein isolate number 10600 from ProLupin, Germany has a solubility at pH 7 of about 26% (p. 2/C2/2.3. Preparation of lupin flours and protein isolates from blue lupin seeds).
Given Sein et al. disclose a first material rich in plant proteins, i.e., pea protein isolate and a second material rich in plant proteins, i.e., lupin protein isolate or fab, inherently the protein materials would comprise protein an amount of greater than 80% by weight.
Regarding claim 2, Sein et al. disclose all of the claim limitations as set forth above. While Sein et al. disclose the legume-derived protein may be soybean derived, the reference does not require soybean. Sein et al. disclose the legume-derived proteins may be from pea, soybean, faba bean kidney bean green bean, haricot bean, pinto bean, mung bean, adzuki bean, chickpea, lupin, lentil and peanut (p. 4/L15-22).
Regarding claim 4, Sein et al. disclose all of the claim limitations as set forth above. Sein et al. is silent with respect to water-holding capacity of the lupin protein isolate.
However, given Sein et al. disclose a lupin protein isolate exhibiting a solubility of less than 30% at pH 7, inherently the protein isolate would have a water holding capacity of less than 4 grams per gram of isolate.
Regarding claims 5 and 29, Sein et al. disclose all of the claim limitations as set forth above. Sein et al. is silent with respect to the particle size of the materials rich in plant proteins as characterized by a Dmode.
Given Sein et al. disclose lupin protein isolate (no. 10600 from ProLupin, Germany) and pea protein isolate (Pisane™ from Cosucra, Belgium), inherently the materials would exhibit a Dmode in the broadly claimed range of between 150 microns and 450 microns, in a range of between 150 microns and 200 microns, or in a range of between 350 microns and 450 microns.
Regarding claims 7 and 31, Sein et al. disclose all of the claim limitations as set forth above. Sein et al. disclose the plant fiber may consist of mixtures of cellulose, hemicellulose, pectins and other non-starch polysaccharides or plant cell-wall biopolymers (p. 4/L23-31). Sein et al. is silent with respect to how much of the plant fiber is made up of polymers made up of cellulose, hemicellulose and pectin.
Given Sein et al. disclose pea fiber, faba bean fiber and lupin fiber (p. 4/L23-27), identical to the fiber disclosed in the present application, inherently the fibers would comprise the claimed range of polymers made up of cellulose, hemicellulose and pectins.
Response to Arguments
Applicant's arguments filed May 8, 2026 have been fully considered but they are not persuasive.
Applicant submits “Sein et al. does not disclose a first material rich in plant proteins having a solubility in water at pH 7 and 20⁰C greater than or equal to 30%, even when this document is read in light of Barac et al. Applicant explains the pea protein isolate from Cosucra, named Pisane refers to several product which differ from each other for their solubility (Annex 1 and 2). Applicant argues that because Schumacher et al. (Annex 2) shows Pisane™ B9, M9, C9 and LS all have a solubility at pH 7 of less than 30% (p. 5/Table 2), the pea protein isolate of Sein et al. cannot have a solubility of greater than or equal to 30%.
Barac et al., date published in 2010, teach pea protein isolate, Pisane™, from Cosucra having a solubility at pH 7 of about 40% (p. /Figure 3). Ebert et al. (“Survey of aqueous solubility, appearance, and pH of plant protein powders from carbohydrate and vegetable oil production”, LWT Food Science and Technology, 133, (2020), pp. 1-8) teach Pisane P9 and Pisane M9 having protein solubility of 42.4% and 49.6% respectively. While Ebert et al. reports crude protein solubility, if the protein content of the pea protein isolate is as low as 90% of the crude protein, the difference between crude solubility and solubility should be no more than a 10% difference. It is clear the results from Barac et al. and Ebert et al. are inconsistent with Schumacher et al. (Annex 2).
Here, a reasonable prima facie case of obviousness has been established. Ebert et al. establishes that types of Pisane™ pea protein isolate display the solubility required by claim 1. Moreover, Sein et al., as evidenced by Barac et al., establish that a type of pea protein isolate from Cosucra display the solubility required by claim 1. Note, there is no evidence on the record demonstrating the product of Sein et al. made with pea protein isolate and lupine protein (or fava bean protein) would not display the discloses properties (e.g., firmness) of the claimed textured plant protein product.
Applicant explains the product of Sein et al. requires fiber, 20-40% (w/w) on dry matter Applicant argues “one of ordinary skill in the art would not have been motivated to remove the plant-based fibers since they are escribed to be essential and to contribute to the firmness of the final textured legume protein composition.”
The Examiner does not suggest removing the fiber from the product of Sein et al. Here, as set forth above under the 103 rejection, Sein et al. disclose the claimed method using a first and second plant protein material to obtain a composition of plant proteins textured in a dry process.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
-Ebert et al. (“Survey of aqueous solubility, appearance, and pH of plant protein powders from carbohydrate and vegetable oil production”, LWT Food Science and Technology, 133, (2020), pp. 1-8) teach the solubility (pH 7) of pea protein isolates, Pisane P9 and M9 from Cosucra.
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 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
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