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 April 17, 2026 is acknowledged. Claims 1-15 are pending in the application. Claims 14 and 15 are withdrawn from consideration (see below).
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-13 in the reply filed on April 17, 2026 is acknowledged. The traversal is on the ground(s) that the Office has not shown a requisite search burden. Restriction pursuant to 35 USC 121 is improper unless there is a serious search burden. The Office has not provided an appropriate explanation of separate classification (no classification of claims is provided), and has not cited any evidence showing that the present claims have achieved a separate status in the art (when classifiable together) or would require a different field of search.
This is not found persuasive. It is noted that 37 CFR 1.475(a) regarding the special technical feature (“requirement of unity of invention”) as outlined in the Requirement for Restriction of February 19, 2026 is appropriate for this application as opposed to 35 USC 121 (independent and distinct inventions with serious search and/or examination burden) as argued by Applicant since this application is a National Stage entry of PCT/EP2022/070353. Applicant is reminded that unity of invention analysis (not an independent and distinct analysis) is applicable in national stage applications submitted under 35 U.S.C. 371. See MPEP 823 and 1893.03(d).
The requirement is still deemed proper and is therefore made FINAL.
Claims 14 and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claims 2-9 and 13 are objected to because of the following informalities:
In claims 2, 3, and 4 at line 1, it is suggested to amend the uppercase “P” in “Protein” to lowercase form “protein” after “The” and before “isolate”.
In claim 5 at line 1, it is suggested to amend the uppercase “P” in “Protein” to lowercase form “protein” after “The” and before “isolate”.
In claim 5 at line 8, it is suggested to amend “determine” to “determining” after “and” and before “the”.
In claims 6, 7, 8, and 9 at line 1, it is suggested to amend the uppercase “P” in “Protein” to lowercase form “protein” after “The” and before “isolate”.
In claim 13 at line 1, it is recommended to amend the uppercase “F” in “Food” to lowercase form “food” after “A” and before “or”.
Appropriate correction is required.
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 4, 5, 12, and 13 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.
Claim 4 recites “rheology test 1” at line 3. It is unclear what is intended by this recitation. More specifically, the processing parameters of rheology test 1 are unclear and the metes and bounds of this claim language cannot be readily ascertained. Therefore, the scope of claim 4 is indefinite.
For the purpose of the examination, the recitation of “rheology test 1” at line 3 of claim 4 (emphasis added) is interpreted as “a rheology test” (emphasis added).
Claim 5 recites “rheology test 1” at lines 1-2, and this claim depends upon claim 4. For the purpose of the examination, the recitation of “rheology test 1” at lines 1-2 of claim 5 (emphasis added) is interpreted as “the rheology test” (emphasis added).
Claim 5 also recites “the following settings” at line 7, and this claim depends upon claims 1 and 4. This recitation lacks antecedent basis as there is no previous recitation of settings. Therefore, the scope of the claim is indefinite.
For the purpose of the examination, the recitation of “during steps 1 to 5 using the following settings: and determine the gel strength …in step 5.
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” at the end of claim 5 (emphasis added) is interpreted as “during steps 1 to 5, wherein
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, and determining the gel strength from …step 5” (emphasis added).
Claim 5 further recites “the complex modulus G* [Pa] from the linear viscoelastic region” at lines 8-9. It is unclear what is intended by this recitation. The recitation of "[Pa]" renders the claim indefinite because it is unclear whether the recitation within the bracket “Pa” is part of the claimed invention. Additionally, recitation of “the linear viscoelastic region” lacks antecedent basis as there is no previous recitation of a linear viscoelastic region. Therefore, the scope of the claim is indefinite
For the purpose of the examination, the recitation of “the complex modulus G* [Pa] from the linear viscoelastic region in step 5” at lines 8-9 of claim 5 (emphasis added) is interpreted as “the complex modulus G* from step 5”.
Claim 12 recites “other fine bakery products” at line 5. It is unclear what is encompassed by this recitation. More specifically, the phrase "other" renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by "other"), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “other fine bakery products” at line 5 of claim 12 (emphasis added) is interpreted as “fine bakery products”.
Claim 13 recites “other fine bakery products” at line 6. It is unclear what is encompassed by this recitation. More specifically, the phrase "other" renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by "other"), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “other fine bakery products” at line 6 of claim 13 (emphasis added) is interpreted as “fine bakery products”.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5 and 9-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kaae et al. US 20110034394 (hereinafter “Kaae”).
With respect to claim 1, Kaae relates to a protein isolate product (paragraphs [0060]-[0062]).
Regarding the recitation of comprising at least 80% of protein on dry weight comprising pea protein and rapeseed protein, wherein the ratio of pea protein to rapeseed protein is within the range of 70:30 to 95:5 (w/w) in claim 1, Kaae teaches a vegetable based proteinaceous product which is a combination of pea protein and rapeseed protein (100% protein), wherein the ratio of pea protein to rapeseed protein is around 70:30; 80:20; 90:10; or 95:5 (weight/weight) (paragraphs [0060]-[0062]).
With respect to claim 2, Kaae is relied upon for the teaching of the protein isolate as addressed above in claim 1.
Regarding the recitation of wherein the ratio of pea protein to rapeseed protein is within the range of 75:25 to 90:10 (w/w) in claim 2, Kaae teaches the ratio of pea protein to rapeseed protein is around 80:20 or 90:10 (weight/weight) (paragraph [0062]).
With respect to claim 3, Kaae is relied upon for the teaching of the protein isolate as addressed above in claim 1.
Regarding the recitation of wherein at least 80% (w/w) of the protein in the protein isolate consists of pea protein and rapeseed protein in claim 3, Kaae teaches a vegetable based proteinaceous product which is a combination of pea protein and rapeseed protein (100% protein) (paragraphs [0060]-[0062]).
With respect to claims 4 and 5, Kaae is relied upon for the teaching of the protein isolate as addressed above in claim 1.
Regarding the claim language of wherein the protein isolate in a 10% (w/w) aqueous solution has a heat-set gel strength with a complex modulus G* of at least 200 Pa according to a rheology test in claim 4 and wherein the rheology test comprises steps in claim 5, it is noted that this claim language relates to functional language. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Additionally, it is reasonable to assert that the protein product of Kaae comprises the claimed heat-set gel strength since Kaae teaches a product that is identical to the presently claimed product as addressed above in claim 1, the instant specification indicates the combination of rapeseed protein and pea protein gives good results and improved gelation capacity and gel strength of the heat-set gel (P3, L33-36; and P10, L34-P11, L8 of the instant specification), and there is no structural difference between the composition of claim 1 and the composition of Kaae. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 9, Kaae is relied upon for the teaching of the protein isolate as addressed above in claim 1.
Regarding the recitation of having an amount of moisture of less than 10% in claim 9, Kaae teaches the water content is no more than 10% by weight (paragraphs [0060]-[0062] and [0082]).
With respect to claim 10 and regarding the recitation of a product comprising the protein isolate as defined in claim 1 for manufacturing a food or beverage product in claim 10, Kaae teaches a product comprising the protein composition (paragraphs [0024]-[0026]), and Kaae is relied upon for the teaching of the protein isolate of claim 1 as addressed above (paragraphs [0060]-[0062]).
Further, the recitation of “for manufacturing a food or beverage product” at line 2 is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. Thus, the product of Kaae would be capable of performing the intended use, i.e. manufacturing a food or beverage product, as presently claimed since Kaae teaches a product that is identical to the presently claimed product as addressed above, and Kaae teaches the use of the protein product in a food product (paragraphs [0024]-[0026]).
With respect to claim 11 and regarding the recitation of a product comprising the protein isolate as defined in claim 1 for providing texture in a food or beverage product in claim 11, Kaae teaches a product comprising the protein composition (paragraphs [0024]-[0026]), and Kaae is relied upon for the teaching of the protein isolate of claim 1 as addressed above (paragraphs [0060]-[0062]).
Further, the recitation of “for providing texture in a food or beverage product” at line 2 is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. Thus, the product of Kaae would be capable of performing the intended use, i.e. providing texture in a food or beverage product, as presently claimed since Kaae teaches a product that is identical to the presently claimed product as addressed above, and Kaae teaches the use of the protein product in a food product (paragraphs [0024]-[0026]).
With respect to claim 12, Kaae is relied upon for the teaching of the product as addressed above in claim 10.
Regarding the recitation of wherein the food product is chosen from the group of listed components in claim 12, Kaae teaches food products such as sweets, desserts, ice cream, dressings, soups, convenience food, bread, cakes, milk replacer, etc., may be prepared (paragraphs [0024]-[0026] and [0046]).
With respect to claim 13 and regarding the recitation of a food or beverage product comprising the protein isolate as defined in claim 1 in claim 13, Kaae teaches a food product comprising the protein composition (paragraphs [0024]-[0026]), and Kaae is relied upon for the teaching of the protein isolate of claim 1 as addressed above (paragraphs [0060]-[0062]).
Regarding the recitation of optionally wherein the food product is chosen from the group of listed components in claim 13, Kaae teaches food products such as sweets, desserts, ice cream, dressings, soups, convenience food, bread, cakes, milk replacer, etc., may be prepared (paragraphs [0024]-[0026] and [0046]).
Claim 6 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kaae et al. US 20110034394 (hereinafter “Kaae”) as applied to claim 1 above, and as evidenced by Willemsen et al. US 20190150473 (hereinafter “Willemsen”).
With respect to claim 6, Kaae is relied upon for the teaching of the protein isolate as addressed above in claim 1.
Regarding the recitation of wherein the rapeseed protein comprises cruciferins and napins, optionally wherein the ratio of cruciferins to napins in the protein isolate is within the range of 10:90 to 95:5 (w/w) in claim 6, Kaae teaches the proteinaceous material is obtained from rapeseed within the Brassica family (paragraphs [0061]-[0062]). Evidence is provided by Willemsen. Willemsen is merely used to show protein from rapeseed within the Brassica family (Brassica napus and Brassica juncea) comprises cruciferins and napins (paragraphs [0005]-[0008]). Thus, Kaae, as evidenced by Willemsen, successfully meets the claimed limitation. A 35 U.S.C. 102 rejection over multiple references has been held to be proper when the extra references are cited to: (A) Prove the primary reference contains an "enabled disclosure;" (B) Explain the meaning of a term used in the primary reference; or (C) Show that a characteristic not disclosed in the reference is inherent. See MPEP 2131.01.
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 6-8 are rejected under 35 U.S.C. 103 as being unpatentable Kaae et al. US 20110034394 (hereinafter “Kaae”) as applied to claim 1 above, and further in view of Willemsen et al. US 20190150473 (hereinafter “Willemsen”).
With respect to claims 6-8, Kaae is relied upon for the teaching of the protein isolate as addressed above in claim 1.
Regarding the recitation of wherein the rapeseed protein comprises cruciferins and napins, optionally wherein the ratio of cruciferins to napins in the protein isolate is within the range of 10:90 to 95:5 (w/w) in claim 6, wherein the rapeseed protein comprises cruciferins and napins, wherein the ratio of cruciferins to napins in the protein isolate is within the range of 40:60 to 65:35 (w/w) in claim 7, and wherein the rapeseed protein comprises cruciferins and napins, wherein the ratio of cruciferins to napins in the protein isolate is within the range of 50:50 to 99:1 (w/w) in claim 8, Kaae does not expressly disclose these limitations.
Willemsen relates to rapeseed protein isolate comprising cruciferins and napins. The rapeseed protein comprises 40-65% cruciferins and 35-60% napins which is equivalent to a cruciferin to napin ratio of 40:60 to 65:35 and overlaps with the presently claimed ranges. Willemsen also teaches the rapeseed protein may be used in a food product (paragraphs [0001], [0015], [0017], and [0041]-[0042]). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Willemsen, to select the rapeseed protein isolate as the rapeseed proteinaceous material in the protein product of Kaae based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Kaae and Willemsen similarly teach rapeseed protein isolates and their use in food products, Willemsen teaches the use of the rapeseed protein isolate in the food gave good results and is a nutritional component providing excellent amino acid profile (paragraphs [0015] and [0041]-[0042]), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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