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 status of the claims stands as follows:
Pending claims: 79-98
Withdrawn claims: 93-98
Cancelled claims: 1-78
Claims currently under consideration: 79-92
Currently rejected claims: 79-92
Allowed claims: None
Election/Restrictions
Applicant’s election without traverse of Group I (claims 79-92) in the reply filed on 02/09/2026 is acknowledged.
Claims 93-98 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups II-III, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/09/2026.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
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 79, 81, 83-85, and 89-91 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by 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], [0069], [0083].
Regarding claims 81, 83, 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, 83, and 84.
Regarding claim 85, Keys teaches the invention as described above in claim 79, including the legume protein comprises a pea protein [0053].
Regarding claim 89, Keys teaches the invention as described above in claim 79, including the composition does not comprises carrageenan (corresponding to gellan gum being the low-temperature gelling hydrocolloid) [0062].
Regarding claim 90, Keys teaches the invention as described above in claim 79, including the salt is one or more selected from the group consisting of calcium lactate, chloride, magnesium lactate, propionate, and gluconate [0072].
Regarding claim 91, Keys teaches the invention as described above in claim 79, including the composition further comprises a starch [0050].
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 80, 82, and 86-88 are rejected under 35 U.S.C. 103 as being unpatentable over Keys (WO 2017/014806; IDS citation) as applied to claim 79 above.
Regarding claim 80, 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]; and the salt may be present in an amount from about 2 wt.% to about 7 wt.% [0083]-[0084]. This concentration of legume protein overlaps the claimed concentration; and this concentration of salt falls within the claimed concentration. Keys teaches that an amount of methylcellulose (i.e., the claimed first hydrocolloid) in the composition may be 14-18 wt.% [00101], which overlaps the claimed concentration. Keys teaches that an amount of gellan gum in the composition may be 6-10 wt.% [00101], wherein an amount of high acyl gellan gum as a lower-temperature gelling hydrocolloid may be from greater than 0 wt.% to about 100 wt.%; and wherein an 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]. These disclosures at least suggest that the amount of high acyl gellan gum (i.e., the claimed second hydrocolloid) may be from greater than 0 wt.% to an amount less than 10 wt.%; and that the amount of low acyl gellan gum (i.e., the claimed third hydrocolloid) may be from greater than 0 wt.% to an amount less than 10 wt.% based on the total weight of the composition. Therefore, Keys at least suggests amounts of second and third hydrocolloids which encompass the claimed amounts.
In regards to the encompassing ranges and overlapping ranges 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 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 85 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 86, 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 10 wt.% [0055]; and the salt may be present in an amount from about 0 wt.% to about 5 wt.% [0083], [0085]. This concentration of legume protein and this concentration of salt encompass the claimed concentrations. Keys teaches that an amount of methylcellulose (i.e., the claimed first hydrocolloid) in the composition may be 1.4-1.8 wt.% [00101], which overlaps the claimed concentration. Keys teaches that an amount of gellan gum in the composition may be 0.5-1 wt.% [00101], wherein an amount of high acyl gellan gum as a lower-temperature gelling hydrocolloid may be from greater than 0 wt.% to about 100 wt.%; and wherein an 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]. These disclosures at least suggest that the amount of high acyl gellan gum (i.e., the claimed second hydrocolloid) may be from greater than 0 wt.% to an amount less than 1 wt.%; and that the amount of low acyl gellan gum (i.e., the claimed third hydrocolloid) may be from greater than 0 wt.% to an amount less than 1 wt.% based on the total weight of the composition. Therefore, Keys at least suggests amounts of second and third hydrocolloids which encompass the claimed amounts. The selection of values within the encompassing and overlapping ranges renders the claimed concentrations obvious. MPEP 2144.05.I.
Regarding claim 87, Keys teaches the invention as described above in claim 79, including that an amount of high acyl gellan gum as a lower-temperature gelling hydrocolloid may be from greater than 0 wt.% to about 100 wt.%; and wherein an 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). The selection of a value within the overlapping range renders the claimed weight ratio 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 provides 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.
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/).
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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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/KELLY P KERSHAW/Examiner, Art Unit 1791