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 .
Application Status
Claim 1-30 are under examination.
Claim 1-30 are rejected.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/17/2024, 09/25/2024, 03/12/2025 and 07/16/2025, the submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 5, 14, 15 and 17 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 5, line 1-2 recite “…at least about 0.5% by dry weight” is indefinite. It is not clear was to what the weight is based upon, the water-in-oil emulsion particles or the composition.
Claim 14, line 1-2 recites “up to about 15% by dry weight” is indefinite. It is not clear was to what the weight is based upon, the water-in-oil emulsion particles or the composition.
Claim 15, line 1-2 recites “up to about 15% by dry weight” is indefinite. It is not clear was to what the weight is based upon, the water-in-oil emulsion particles or the composition.
The term “large subunit and small subunit” in claim 17, is a relative term which renders the claim indefinite. The terms “large” and “small” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
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.
Claim(s) 1-5, 10, 11, 16, 17, 23, 24, 25, 26, 27, 28, 29 and 30 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Vrljic et al. (US 2018/0027851 A1).
Regarding claim 1, 2, 3, 28, 29 and 30, Vrljic et al. (Vrljic) discloses a consumable product (composition) comprising particles (‘851, [0091], [0328], [0388]) within an emulsion (‘851 [0050]) containing isolated and purified plant protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) (‘851, [0016]), oil (lipid) (‘851 [0018]), lecithin (plant-based surfactant) (‘851, [0018], [0020], [0184]) in a bulk water phase (aqueous liquid) (‘851, [0146], [0149]). With respect to claim 29 and 30, Vrljic discloses the composition comprising citric acid (‘851, [0476]).
Regarding claim 4, Vrljic’s lecithin (plant-based surfactant) is soy oil (soybean) (‘851, [0021], [0050], [0180]).
Regarding claim 5, Vrljic’s lecithin is up to about 1% by weight in the consumable product (composition) (‘851, [0018]) which is in range with the cited range.
Regarding claim 10 and 11, Vrljic’s oil (lipid) (‘851 [0018]) comprising canola oil, which is expected to encompass liquid phrase at 25°C.
Regarding claim 16 and 17, Vrljic discloses isolated and purified protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) is 99% pure (‘851, [0109]) and does not disclose chlorophyll; and expected to contain large subunit and small subunit.
Regarding claim 23, Vrljic discloses the isolated and purified protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) (‘851, [0016]) is from a single plant species (‘851, [0111]).
Regarding claim 24, Vrljic discloses the isolated and purified protein with a pH from 3.5 to 5.5 (‘851, [0048]), which is in range with the cited range.
Regarding claim 25, 26, and 27, Vrljic discloses the composition comprising xanthan gum (plasticizer) (‘851, [0143], [0189]).
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.
Claim(s) 6, 7, 8, 9, 12, 13, 14, 15, 18, 19, 20, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Vrljic et al. (US 2018/0027851 A1).
Regarding claim 6 and 7, Vrljic discloses the claimed invention as discussed above. Vrljic discloses the purified plant protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) (‘851, [0016]). Vrljic does not discloses a characteristics of average zeta potential surface charge of the particles. It has been held that wherein the claimed and prior art products are identical or substantially identical in structure, a prime facie case of obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The prima facie case can be rebutted by evidence showing that the prior art product does not necessarily posses the characteristics of the claimed product. In re Best, 195, USPQ 430, 433 (CCPA 1977).
Regarding claim 8 and 9, Vrljic discloses the claimed invention as discussed above. Vrljic does not disclose the particles with an average diameter as cited in claim 8 and 9. It would have been obvious to one having ordinary skill in the art at the time of invention was made to adjust the diameter of the Vrljic’s particle diameter, since such a modification would have involved a mere change in the size of a component. A change in size generally recognized as being within the level of ordinary skill in the art. Gardner v. TEC Systems, Inc. 725 F.2d 1338, 220 USPQ 777 (Fed.Cir. 1984), cert. denied, 469 U.S. 830,225 USPQ 232 (1984).
Regarding claim 12 and 13, Vrljic discloses the claimed invention as discussed above. Vrljic does not disclose a ratio as cited in claim 12 and 13; however it would have been obvious to one of ordinary skill in the art to adjust the amount of Vrljic’s oil and water including the cited ratios to provide a desired stable emulsion, absent a clear and convincing or evidence to the contrary.
Regarding claim 14 and 15, Vrljic discloses the claimed invention as discussed above. Vrljic discloses the isolated and purified protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) in an amount at least 50% by weight of the protein content of the consumable product (composition) (‘851, [0110]), which overlaps the cited range of claim 14 and 15. In the case where the claimed ranges “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).
Regarding claim 18 and 19, Vrljic discloses the isolated and purified protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO). Vrljic teaches the protein with an amino acid sequences (‘851, [0046]). Vrljic does not teach the sequences set forth in claim 18 and 19. However, it would have been obvious to one of ordinary skill in the art to adjust Vrljic’s protein amino acid sequences including the cited sequences as a matter of amino acid preference, absent a clear and convincing or evidence to the contrary.
Regarding claim 20, 21 and 22, Vrljic discloses the isolated and purified protein, ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) can be isolated from any portion of plant (‘851, [0115]). Vrljic does not explicitly discloses the isolated and purified protein from Lemna genus as recited in claim 20, 21 and 22. However, it would have been obvious to one of ordinary skill in the art to be motivated to obtain the ribulose-1,5-bisphosphate carboxylase/oxygenase (RuBisCO) from any known source of plant including Lemna genus, as a matter of preference.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ERIK KASHNIKOW can be reached at (571)270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/HONG T YOO/Primary Examiner, Art Unit 1792