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 .
Election/Restrictions
Applicant’s election without traverse of Group II (12-14 and 16-24) in the reply filed on 13 May 2026 is acknowledged.
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 12 and 17-21 are rejected under 35 U.S.C. 103 as being unpatentable over Vezzani (WO 2016120234 A1) in view of Cichy et al. (herein referred to as Cichy, US 20190313653 A1) and Comer (US 4022919 A).
With regard to Claim 12, Vezzani teaches a method for the production of legume meal (abstract). Vezzani teaches the process improves the organoleptic proprieties of the legume meal (page 1 lines 5-7). Specifically Vezzani teaches the taste of the meal is improved (page 6 lines 1). Vezzani defines legume meal as meaning a finely divided product obtained from the grinding of legumes, which may be in the form of flour, semolina or fine granules, but it is also understood as meaning isolated proteins of legumes and legume fibers in the form of flour, semolina or fine granules (page 5 lines 16-20). Vezzani further teaches legumes include peas (page 6 lines 21-25).
However, Vezzani is silent to the pea flour specifically being a pea protein concentrate.
Comer teaches a method of removing bitter flavor and pea flavor from a pea flour (abstract). Comer teaches debittering pea protein concentrate (col 2 lines 29-36, lines 43-46) Comer teaches if the concentrate is to be mixed with other protein food products to increase the protein content, it must be debittered and the objectionable pea flavor must be removed (Col 2 lines 48-51)
Therefore, it would have been obvious to one with ordinary skill in the art to use pea protein concentrate as taught by Comer because Comer imparts reasoning for obviousness because the teaching shows that pea protein concentrate is known in the art to be successfully debitter at the time of filing, which means it was within the skill of one with ordinary skill in the art to use pea protein concentrate in the method taught by Vezzani on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious. Because Vezzani teaches the process improves the organoleptic proprieties of the legume meal, specifically the taste of the meal is improved, it would have been obvious to use pea protein concentrate for the method as taught by Vezzani because, as discussed above, it is well known in the art to that the objectionable pea flavor must be removed. One with ordinary skill in the art would recognize removing the objectable flavor is equivalent to improving the organoleptic properties. In addition, it is advantageous to use pea protein concentrates because the concentrate can be mixed with other protein food products to increase the protein content.
Vezzani teaches applying an aqueous fluid to a legume meal (page 3 lines 19-22). Vezzani teaches the ratio between the flow rate of water or aqueous solution fed into the
wet heat treatment reactor and the flow rate of legume meal fed into the wet heat treatment reactor is preferably between 1:10 and 1:2 (page 5 lines 10-13). Thus Vezzani reads on the ratio of the meal to water overlapping with the claimed range of 7:1 to about 12:1. See MPEP 2144.04(I) 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);
Vezzani teaches the temperature of the inner wall of the wet heat treatment reactor, wherein the above described step occurs (i.e., step a) is preferably kept at 100-250°C (page 4 lines 27-18). Therefore Vezzani reads such that the moistened meal would be heat-treated.
Further Vezzani teaches feeding the material into heat-treated material into a thermal dehydration and treatment reactor but is silent to milling the heat-treated material.
Cichy teaches the bean-based flour is produced by heat treating dry beans and then milling the beans in a pressure interference wave mill (abstract). Cichy teaches by using a pre-treatment protocol, in combination with the use of a recently-developed bean milling process, the resulting bean flour product unexpectedly/surprisingly does not exhibit the “beany” undesirable taste present in bean-based flours milled using conventional processes ([0006]).
Therefore, it would have been obvious to one with ordinary skill in the art to add a milling step to the process taught by Vezzani to further remove undesirable taste. Cichy further teaches pretreatment and milling technique can significantly affect the functional properties of flours generated including water absorption, particle size distribution, starch gelatinization protein content and solubility, and shelf life ([0016]). Thus one with ordinary skill in the art would deduce to optimize the milling process to achieve the desired function properties of the final product.
With regard to Claim 17, Vezzani teaches wherein the applying and heating steps take place in a hollow tube reactor (page 7 lines 15-30).
With regard to Claim 18, Vezzani teaches there is an average residence time of about 30 seconds inside the reactor (page 9 lines 3-5). Vezzani teaches with an average residence time of about 30 seconds the resulting heat-treated meal has a moisture content of 25.3% (page 9 lines 3-5). It would have been obvious to one with ordinary skill in the art to modify the heating time in the reactor to achieve the desired moisture content of the heat treated material. See MPEP 2144.05(II)(A) Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to Claim 19, Vezzani teaches drying the heat-treated material (page 8 lines 4-18, figure 1) wherein the air flow has a temperature between 140℃ and 190℃ (page 5 lines 5-7). See MPEP 2144.05(I) 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). Vezzani teaches embodiments in which the het-treated material is dried to a moisture content of 10% (page 9 lines 12-13, Example 1).
With regard to Claim 20, Vezzani teaches wherein the applying and heating steps take place in a hollow tube reactor (page 7 lines 15-30) and the reactor further comprises a rotor within the hollow-tube reactor (page 8 line 7) and wherein the rotational speed of the rotor of the wet heat treatment reactor is preferably set to 500-3000 rpm (page 4 lines 29-20) See MPEP 2144.04(I) 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);
With regard to Claim 21, Vezzani teaches wherein the applying and heating steps take place in a first hollow tube reactor (page 7 lines 15-30) and the material is further dried in a second hollow-tube reactor (page 8 lines 4-18, figure 1).
Claim 13-14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Vezzani (WO 2016120234 A1) in view of Cichy (US 20190313653 A1) Comer (US 4022919 A) and Pelgrom et al. (herein referred to as Pelgrom, “Pre- and post-treatment enhance the protein enrichment from milling and air classification of legumes”)
With regard to Claim 13, Vezzani teaches feeding the material into heat-treated material into a thermal dehydration and treatment reactor and Cichy teaches milling the heat-treated material. But the combination is silent to using a classifying mill.
Pelgrom teaches air classification is a milder and more sustainable method to obtain protein-enriched fractions than commonly used wet fractionation (abstract). Pelgrom teaches protein-enriched fractions can be obtained from starch-rich legumes such as pea by combined milling and air classification (1. Introduction).
Therefore, it would have been obvious to one with ordinary skill in the art to modify the combination of Vezzani and Cichy to include using classifying milling to separate at least part of the heat-treated material because it is a milder and more sustainable method compared to wet milling. In addition Pelgrom imparts reasoning for obviousness because the teaching shows that using a classifying mill to separate pea protein was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to utilize classifying milling to separate pea protein, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 14, Vezzani teaches feeding the material into heat-treated material into a thermal dehydration and treatment reactor and Cichy teaches milling the heat-treated material. But the combination is silent to using a classifying mill and the particle size distribution.
Pelgrom teaches air classification is a milder and more sustainable method to obtain protein-enriched fractions than commonly used wet fractionation (abstract). Pelgrom teaches protein-enriched fractions can be obtained from starch-rich legumes such as pea by combined milling and air classification (1. Introduction). Pelgrom teaches The moisture content of the milled legumes is known to affect the particles size during milling (3.1.2. Influence on milling). Pelgrom teaches particle sizes range from about 1 micron to about 100 micron (Figure 6 A). It would have been obvious to one with ordinary skill in the art, through routine experimentation, to modify the process parameters, such as moisture content, to achieve the desired particle size distribution. See MPEP 2144.05(II)(A) Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("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 of percentage ranges is the optimum combination of percentages.");
It would have been obvious to one with ordinary skill in the art to modify the combination of Vezzani and Cichy to include using classifying milling to separate at least part of the heat-treated material and achieve the desired particle size distribution because the classifying milling process is a milder and more sustainable method compared to wet milling.
With regard to Claim 16, Vezzani teaches feeding the material into heat-treated material into a thermal dehydration and treatment reactor and Cichy teaches milling the heat-treated material. But the combination is silent to using a classifying mill.
Pelgrom teaches air classification is a milder and more sustainable method to obtain protein-enriched fractions than commonly used wet fractionation (abstract). Pelgrom teaches protein-enriched fractions can be obtained from starch-rich legumes such as pea by combined milling and air classification (1. Introduction). Pelgrom teaches during air classification the powder particles are fluidized and contacted with a rotating classifier wheel. Small particles below the cut size are collected via the classifier wheel in the fine fraction, depending on the gas flow and the rotation speed of the classifier wheel (1. Introduction). Therefore, it would have been obvious to one with ordinary skill in the art to modify the rotational speed, through routine optimization, to achieve the desired separation of the small particles.
It would have been obvious to one with ordinary skill in the art to modify the combination of Vezzani and Cichy to include using classifying milling to separate at least part of the heat-treated material and achieve the desired particle size distribution because the classifying milling process is a milder and more sustainable method compared to wet milling.
Claims 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Vezzani (WO 2016120234 A1) in view of Cichy (US 20190313653 A1), Comer (US 4022919 A) and Lihme et al. (herein referred to as Lihme, US 10457704 B2)
With regard to Claims 22 and 23, Lihme teaches a process for the separation of pea protein (abstract). Lihme teaches separating pea protein from pea flour (col 3 lines 18-22). Lihme teaches an embodiment wherein the pea protein can further be denatured (col 11 embodiment 5). Therefore, if the protein can further be denatured one with ordinary skill in the art would recognize that the original pea protein extracted, as taught by Lihme, would not be denatured and therefore the process does not inherently denature the separated pea protein. Lihme teaches it is well known in the art to further use pea protein because it is an important source of protein for humans and animals (Col 1 lines 5-22).
Therefore, Lihme imparts reasoning for obviousness because the teaching shows the separating pea protein from a base pea flout was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to separate pea protein from a base pea flour and further process it, because it would have been obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Claim 24 are rejected under 35 U.S.C. 103 as being unpatentable over Vezzani (WO 2016120234 A1) in view of Cichy (US 20190313653 A1), Comer (US 4022919 A), Lihme (US 10457704 B2), and Feedipedia, “Pea Protein Concentrate”).
With regard to Claim 24, Lihme teaches separating pea protein from pea flour (col 3 lines 18-22). But is silent to using an air classifying process.
Feedipedia teaches pea flour with particles of various sizes and densities. Feedipedia teaches air classification separates the less dense protein fraction from the coarser starch fraction to produce a flour (“Description”).
Feedipedia imparts reasoning for obviousness because the teaching shows that separating pea protein from pea flour using an air classifying process was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to selected an air classifying process to separate pea protein from pea flour because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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