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 .
Status of the Application
The status of the claims stands as follows:
Claims currently under consideration: 1-16
Currently rejected claims: 1-16
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bishop et al. (U.S. 5,834,232).
Regarding claim 1, Bishop et al. discloses a “preparation” (i.e., a composition) comprising at least one high molecular rapeseed protein and transglutaminase (C9, L26-L29, where “rape seed protein” is interpreted as encompassing all proteins that occur in the plant, which would thus include at least one high molecular rapeseed protein).
The statement that the preparation is “for the production of a plant protein-containing food” is considered a statement of intended use that does not structurally limit the claimed preparation, and thus need not be disclosed in the prior art. MPEP 2111.02 II (“During examination, statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether or not the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art.”). Nonetheless, Bishop et al. discloses mixture as forming a plant protein-containing food (C9, L23-L41).
As for claims 2-6, the claim limitations are directed to the intended use of the preparation and do not structurally limit the claimed composition. As such, the disclosure of Bishop et al. (C9, L26-L29) anticipates the claims.
Claim 7 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bishop et al. (U.S. 5,834,232) as applied to claim 1 above, and as further evidenced by Logie et al. (U.S. 2004/0034200 A1).
Regarding claim 7, Bishop et al. discloses the preparation of claim 1, including that the foodstuff comprises “rape seed protein” (C9, L29). Logie et al. discloses rapeseed protein as comprising globulin ([0008]-[0009]), which has a molecular weight of at least 300,000 Da ([0120]). Since “rape seed protein” as disclosed in Bishop et al. is interpreted as encompassing all proteins that occur in the plant, producing a preparation wherein the high molecular rapeseed protein is rapeseed globulin is considered to be within the scope of the disclosure of Bishop et al.
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 8, 9, 12, 13, 15, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al. (U.S. 5,834,232).
Regarding claim 8, Bishop et al. discloses the preparation of claim 1.
Bishop et al. does not explicitly disclose the high molecular rapeseed protein as being at a concentration of 50.0-99.9 wt.% of the preparation.
However, Bishop et al. discloses “transglutaminase is added to such foodstuffs as…rape seed protein” (C9, L26-L29), which suggests that the amount of protein may range from 100% to some amount less than 100%. Bishop et al. also discloses: “The ratio of gelatin:transglutaminase will generally be within the range of 1320:1 to 20:1 by weight” (C7, L51-L53), which would be roughly 95.25% protein : 4.75% transglutaminase. MPEP 2144.04 IV C states: “Selection of any order of mixing ingredients is prima facie obvious.” Addition of transglutaminase to the protein at a concentration within the disclosed ratio, prior to the addition of any other ingredients or dilution with water, would result in a mixture having a protein concentration within the claimed range, which renders the range of a high molecular rapeseed protein concentration of 50.0 wt.% to 99.9 wt.% obvious.
As for claim 9, Bishop et al. discloses the preparation of claim 1.
Bishop et al. does not explicitly disclose the transglutaminase concentration as being in an amount of 0.01-1,000 U/g of the preparation.
However, Bishop et al. does teach: “The ratio of gelatin:transglutaminase will generally be within the range of 1320:1 to 20:1 by weight” (C7, L51-L53). Bishop et al. also states: “The concentration of transglutaminase within the solution will typically be from 0.125 mg/ml to 2.0 mg/ml, preferably at least 0.5 mg/ml, although the concentration can be adjusted to provide gels with low melting points or very high or low tensile strength.” (C7, L54-L58).
Although Bishop et al. does not disclose the transglutaminase concentration in terms of units per gram of the mixture, Bishop et al. effectively discloses the transglutaminase as being a result-effective variable subject to optimization depending on the desired characteristics of the resultant gelled product. MPEP 2144.05 II. The disclosed range of 0.125-2.0 mg/ml and the fairly broad range of concentrations relative to the protein of 1320:1 to 20:1 also likely overlap the similarly broad claimed range of 0.01-1,000 U/g of the preparation, even though the concentrations are expressed in different terms, with both ranges thought to essentially include all values ranging from the minimal effective value in terms of enzymatic activity to a maximal concentration that would likely be excessive. For all these reasons, the claimed range of 0.01-1,000 U of transglutaminase per gram of preparation is considered obvious to a skilled practitioner.
Regarding claim 12, Bishop et al. discloses a method for producing a plant protein-containing food comprising combining at least one high molecular rapeseed protein and transglutaminase (C9, L26-L29, where “rape seed protein” is interpreted as encompassing all proteins that occur in the plant, which would thus include at least one high molecular rapeseed protein).
Bishop et al. does not explicitly disclose combining foodstuffs recited in the list of suitable foodstuffs (C9, L26-L30).
However, MPEP 2144.06 I states: “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” Thus, combining foodstuffs in the recited list would be obvious, such that a method comprising adding the high molecular rapeseed protein and transglutaminase to a plant protein-containing composition, such as soy protein, wheat protein, or potato protein (C9, L28-L29), would be obvious.
As for claim 13, Bishop et al. discloses the plant protein-containing food as being a soybean protein-containing food (C9, L28).
As for claim 15, the previous rationale detailed in relation to claim 12 showed that combining the foodstuffs in the list at column 9, lines 27-29, would be obvious, including combining rape seed protein with any of soy protein, wheat protein, or potato protein. Combining proteins in any relative amount would be obvious, especially equal amounts of each, which renders the claimed relative concentration range of 0.0001-5 g high molecular rapeseed protein to 1 g of the remaining plant protein obvious.
As for claim 16, Bishop et al. discloses the method of claim 12.
Bishop et al. does not explicitly disclose the transglutaminase concentration as being in an amount of 0.01-1,000 U/g of the plant protein in the plant-containing food.
However, Bishop et al. does teach: “The ratio of gelatin:transglutaminase will generally be within the range of 1320:1 to 20:1 by weight” (C7, L51-L53). Bishop et al. also states: “The concentration of transglutaminase within the solution will typically be from 0.125 mg/ml to 2.0 mg/ml, preferably at least 0.5 mg/ml, although the concentration can be adjusted to provide gels with low melting points or very high or low tensile strength.” (C7, L54-L58).
Although Bishop et al. does not disclose the transglutaminase concentration in terms of units per gram of the mixture, Bishop et al. effectively discloses the transglutaminase as being a result-effective variable subject to optimization depending on the desired characteristics of the resultant gelled product. MPEP 2144.05 II. The disclosed range of 0.125-2.0 mg/ml and the fairly broad range of concentrations relative to the protein of 1320:1 to 20:1 also likely overlap the similarly broad claimed range of 0.01-1,000 U/g of the plant protein, even though the concentrations are expressed in different terms, with both ranges thought to essentially include all values ranging from the minimal effective value in terms of enzymatic activity to a maximal concentration that would likely be excessive. For all these reasons, the claimed range of 0.01-1,000 U of transglutaminase per gram of plant protein is considered obvious to a skilled practitioner. The plant protein other than the high molecular rapeseed protein is not required to be an any minimal amount, such that the relative concentration of transglutaminase to the high molecular rapeseed protein may roughly equivalent to the relative concentration of transglutaminase to the plant protein overall.
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al. (U.S. 5,834,232) in view of Baumer et al. (U.S. 2005/0220979 A1).
Regarding claim 10, Bishop et al. discloses the preparation of claim 1.
Bishop et al. does not specifically disclose the preparation as further comprising a dietary fiber, a fine powder textured protein, or a texture starch.
However, Baumer et al. discloses a fine powder textured soy protein product ([0021]).
It would have been obvious to one having ordinary skill in the art to combine a fine powder textured protein as taught in Baumer et al. with the composition of Bishop et al. First, Bishop et al. teaches a list of protein-containing food products that may be prepared but does not explicitly disclose combining those foodstuffs (C9, L26-L30). However, MPEP 2144.06 I states: “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” Thus, combining foodstuffs in the recited list would be obvious, such that a mixture comprising high molecular rapeseed protein and a plant protein, such as soy protein, wheat protein, or potato protein (C9, L28-L29), would be obvious. Since Bishop et al. does not provide any details regarding the preparation of such protein products, a skilled practitioner would be motivated to consult Baumer et al. for specific instruction. The teaching in Baumer et al. that a fine soy powder may be used in a variety of food products, including beverages and meat products ([0021]), renders the combination of fine soy powder textured protein as taught in Baumer et al. with the high molecular rapeseed protein product of Bishop et al. obvious to a skilled practitioner.
As for claim 11, Baumer et al. discloses the fine powder textured protein as having an average particle size of not more than 2,500 µm (specifically, 1-5 µm) ([0021]).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al. (U.S. 5,834,232) as applied to claim 12 above, and as further evidenced by Logie et al. (U.S. 2004/0034200 A1).
Regarding claim 14, Bishop et al. discloses the method of claim 14, including that the foodstuff comprises “rape seed protein” (C9, L29). Logie et al. discloses rapeseed protein as comprising globulin ([0008]-[0009]), which has a molecular weight of at least 300,000 Da ([0120]). Since “rape seed protein” as disclosed in Bishop et al. is interpreted as encompassing all proteins that occur in the plant, producing a plant protein-containing food wherein the high molecular rapeseed protein is rapeseed globulin is considered to be within the scope of the disclosure of Bishop et al.
Conclusion
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793