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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 08/11/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the 35 U.S.C. §102(a)(1) rejections of claims 82, 84, and 91-92 over Keys have been withdrawn; and (2) the 35 U.S.C. §103 rejections of claims 80 and 86 over Keys have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 79, 81-85, 87-99
Withdrawn claims: 93-98
Previously cancelled claims: 1-78
Newly cancelled claims: 80, 86
Amended claims: 79, 87
New claims: 99
Claims currently under consideration: 79, 81-85, 87-92, 99
Currently rejected claims: 79, 81-85, 87-92, 99
Allowed claims: None
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.
Claims 79, 81-85, 88-92, and 99 are rejected under 35 U.S.C. 112(b) 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 79 recites that “a weight ratio of the second hydrocolloid to the third hydrocolloid is less than or equal to 1:0.5”. However, it is unclear as to which weight ratios are less than 1:0.5 (e.g., is 0.7:0.3 less than 1:0.5? is 1:2.5 less than 1:0.5?). Therefore, the claim is indefinite.
For the purpose of this examination, the range will be interpreted as meaning weight ratios wherein the third hydrocolloid is represented in the composition in an amount of at least 50 wt.% based on the weight of the second hydrocolloid.
Claims 81-85, 88-92, and 99 are rejected by reason of dependency from claim 79.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 79, 81, 83, 85, 87, 89-90, and 99 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kubota (WO 2022/020149; IDS citation).
Regarding claims 79 and 87, Kubota teaches a composition (corresponding to egg substitute) comprising: (a) a legume protein (corresponding to PurisTM Pea 870); (b) methylcellulose; (c) high acyl gellan gum; (d) low acyl gellan gum; and (e) salt (corresponding to sodium chloride) (page 8, Table 1). Since the composition of Kubota comprises methylcellulose, high acyl gellan gum, and low acyl gellan gum, the composition of Kubota comprises the claimed first hydrocolloid, second hydrocolloid, and third hydrocolloid, respectively. Kubota teaches that the composition comprises 0.6 wt.% high acyl gellan gum and 0.3 wt.% low acyl gellan gum (page 8, Table 1). Therefore, Kubota teaches a composition comprising a weight ratio of the second hydrocolloid to the third hydrocolloid is 1:0.5, which falls within the claimed ranges recited in present claims 79 and 87.
Regarding claims 81 and 83, Kubota teaches the invention as described above in claim 79, including the composition further comprises liquid in the form of water (page 8, Table 1) as recited in present claims 81 and 83.
Regarding claim 85, Kubota teaches the invention as described above in claim 79, including the legume protein comprises a pea protein (corresponding to PurisTM Pea 870) (page 8, Table 1).
Regarding claim 89, Kubota teaches the invention as described above in claim 79, including the composition does not comprise carrageenan (page 8, Table 1).
Regarding claims 90 and 99, Kubota teaches the invention as described above in claim 79, including the salt comprises a chloride salt containing a sodium cation and a chloride anion (corresponding to sodium chloride) (page 8, Table 1) as recited in present claims 90 and 99.
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 79, 81, 84, 88, and 91 are rejected under 35 U.S.C. 103 as being unpatentable over Keys (WO 2017/014806; IDS citation).
Regarding claim 79, Keys teaches a composition (corresponding to egg substitute) comprising: (a) a legume protein; (b) methylcellulose; (c) high acyl gellan gum; (d) low acyl gelling gum; and (e) salt [0005], [0007], [0011], [0013], [0068]-[0069], [0083]. Since the composition of Keys comprises methylcellulose, high acyl gellan gum, and low acyl gellan gum, the composition of Keys comprises the claimed first hydrocolloid, second hydrocolloid, and third hydrocolloid, respectively.
Keys teaches that the amount of high acyl gellan gum as a lower-temperature gelling hydrocolloid may be from greater than 0 wt.% to about 100 wt.%; and that the amount of low acyl gellan gum as a lower-temperature gelling hydrocolloid may be from greater than 0 wt.% to about 100 wt.% based on the total weight of the lower-temperature gelling hydrocolloid [0069]. This disclosure at least suggests a range of weight ratios of the second hydrocolloid (i.e., high acyl gellan gum) to the third hydrocolloid (i.e., low acyl gellan gum) which overlaps the claimed weight ratios (e.g., an amount of 50 wt.% of the second hydrocolloid and an amount of 50 wt.% of the third hydrocolloid provides a weight ratio of second hydrocolloid to third hydrocolloid of 1:1).
In regards to the overlapping range disclosed by Keys, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Regarding claims 81 and 84, Keys teaches the invention as described above in claim 79, including the composition further comprising a liquid, wherein the liquid comprises water and/or oil [0006], [0077] as recited in present claims 81 and 84.
Regarding claim 82, Keys teaches the invention as described above in claim 81, including the liquid is present at a concentration of about 85 wt.% to about 95 wt.% [0081], which encompasses the claimed concentration. The selection of a value within the encompassing range renders the claimed concentration obvious. MPEP 2144.05.I.
Regarding claim 88, Keys teaches the invention as described above in claim 79, including the legume protein may be present in an amount greater than 0 wt.% to an amount of about 50 wt.% [0054]. Keys teaches that an amount of methylcellulose (i.e., the claimed first hydrocolloid) in the composition may be 14-18 wt.% [00101]. Therefore, Keys at least suggests a range of weight ratios of first hydrocolloid to legume protein which overlaps the claimed weight ratios (e.g., an amount of 15 wt.% methylcellulose and an amount of 30 wt.% legume protein provide a weight ratio of methylcellulose to legume protein of 1:2). The selection of a value within the overlapping range renders the claimed weight ratio obvious. MPEP 2144.05.I.
Regarding claim 91, Keys teaches the invention as described above in claim 79, including the composition further comprises a starch [0050].
Claim 92 is rejected under 35 U.S.C. 103 as being unpatentable over Keys (WO 2017/014806; IDS citation) as applied to claim 79 above, in view of Ed (“Fortifying homemade plant-based milk”, 2014, Ed v. Food, https://edvfood.com/2014/12/28/fortifying-homemade-plant-based-milk/; previously cited).
Regarding claim 92, Keys teaches the invention as described above in claim 79, including the composition further comprises a liquid in the form of calcium-enriched plant-based milk [0080].
Keys does not teach that the composition further comprises calcium carbonate.
However, Ed teaches calcium fortification of plant-based milk with calcium carbonate (page 1, 1st paragraph under “Calcium”).
It would have been obvious for a person of ordinary skill in the art to have modified the calcium-enriched plant-based milk of Keys to be enriched with calcium carbonate as taught by Ed. Since Keys teaches the composition further comprises a liquid in the form of calcium-enriched plant-based milk [0080], but does not disclose a calcium-containing ingredient with which to enrich the plant-based milk, a skilled practitioner would have been motivated to consult an additional reference such as Ed in order to determine a suitable calcium-containing ingredient, thereby rendering the claimed calcium carbonate obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §102(a)(1) of claims 79, 81, 83-85, and 89-91 over Keys: Applicant’s arguments with respect to claim(s) 79, 81, 83, 85, 87, and 89-90 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s amendments, filed 08/11/2026, with respect to the rejection(s) of claim(s) 84 and 91 under Keys have been fully considered and are considered to overcome the anticipation rejections over Keys. Therefore, the rejections of claims 84 and 91 have been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Keys rendering claims 84 and 91 obvious.
Claim Rejections – 35 U.S.C. §103 of claims 80, 82, and 86-88 over Keys: Applicant’s arguments and amendments have been fully considered and are not considered to overcome the rejections.
Applicant canceled claims 80 and 86. Applicant amended claim 79 to recite that “a weight ratio of the second hydrocolloid to the third hydrocolloid is less than or equal to 1:0.5”. Applicant stated that the present inventors found that the presence of both high acyl gellan gum and low acyl gellan gum in the claimed weight ratio is advantageous in providing a composition having the desired flavor, texture, and visual appearance. Applicant stated that Figure 13B of the present specification shows that the claimed weight ratio always provided the desired properties, regardless of the total amount of high acyl gellan gum present in the composition, which was unexpected and could not have been predicted based on the disclosure of Keys (Applicant’s Remarks, page 4, 1st paragraph under heading beginning “Claims”- page 5, 1st paragraph).
However, the Examiner points out that Figure 13B only shows that the claimed weight ratios of high acyl gellan gum to low acyl gellan gum provides the desired properties when the amount of high acyl gellan gum in the composition is 0.36-0.585 wt.%. Therefore, the Applicant has not demonstrated that the claimed weight ratio provides the desired properties regardless of the total amount of high acyl gellan gum in the composition (e.g., 0.3 wt.%).
The Examiner also points out that Figure 13B provides results of a liquid egg substitute when the egg substitute is used as a scrambled egg (specification, page 59, 1st paragraph). The present claims do not require the composition to be an egg substitute at all, let alone be an egg substitute for scrambled egg. Figure 13B also only tests weight ratios of from 1:0.25 to 1:1.21 while the present claims (i.e., claims 79 and 87) recite weight ratios that are outside of this range. For at least these reasons, the claimed composition may not have any of the asserted desired properties.
Applicant then argued that Keys does not disclose an experimental example that functions as an egg substitute and the examples do not provide details of suitable proportions of high and low acyl gellan gums. Applicant argued that it is doubtful that a practitioner could produce any egg substitute composition based on the broad disclosure of Keys so that the claimed weight ratio of high and low acyl gellan gums is non-trivial and constitutes a major functional component of the hydrocolloid system in the claimed composition (Applicant’s Remarks, page 8, 2nd-3rd paragraphs).
However, in response to Applicant’s assertions that Keys does not disclose an experimental example that functions as an egg substitute, it is noted that the features upon which applicant relies (i.e., the composition to be an egg substitute) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). It is also noted that Keys is directed to compositions serving as egg substitutes including egg substitutes to be used as scrambled eggs (abstract).
In response to Applicant’s assertions that the examples of Keys do not provide details of suitable proportions of high and low acyl gellan gums, [0069] of Keys provides suitable proportions of high and low acyl gellan gums when Keys discloses that each of the high acyl gellan gum and low acyl gellan gum may be from about 0 wt.% to about 100 wt.% as the lower-temperature hydrocolloid in the composition. [0068] of Keys discusses the abilities of the gellan gums so that a skilled practitioner would understand how each type of gellan gum may be used in the composition. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I. Therefore, despite the breadth of the content ranges for each of the gellan gums disclosed by Keys, finding an optimum range of contents for the gellan gums within the range disclosed by Keys requires nothing more than the general knowledge and skill of a practitioner in the art.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims stand as written herein. The rejections of claims 80 and 86 are moot due to the cancellation of these claims.
Claim Rejections – 35 U.S.C. §103 of claim 92 over Keys and Ed: Applicant’s arguments have been fully considered and are considered unpersuasive.
Applicant argued that Ed does not overcome the aforementioned deficiencies of Keys (Applicant’s Remarks, page 8, 1st-2nd paragraphs under heading beginning “Claim 92”).
However, Keys has been shown to render the features of claims 82 and 87-88 obvious while Ed is continued to be relied on for its teachings regarding the additional features of claim 92.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims stand as written herein.
Conclusion
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.
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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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