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 .
The amendment filed 3/27/2026 has been entered. Claims 1-12 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
Claim Objections
Claims 8, 9, 10, 11, and 12 are objected to because of the following informalities: Claims 8 recites a limitation wherein “viscoelastic properties is increased than that” and should properly read “viscoelastic properties are more increased than that”.
Claim 9 recites a limitation wherein “the water retention is improved than that” and should properly read “the water retention is more improved than that”.
Claim 10 recites a limitation wherein “the syneresis is inhibited than that” and should properly read “the syneresis is more inhibited than that”.
Claim 11 recites a limitation wherein “the digestive property is improved than that” and should properly read “the digestive property is more improved than that”.
Claim 12 recites a limitation wherein “the fermentation time is shortened than that” and should properly read “the fermentation time is “the fermentation time is shorter than that”.
Appropriate correction is required.
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.
Claims 8 and 11 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 8 recites the limitation of “increasing” viscoelastic properties. It is unclear what is intended by this limitation. The term “viscoelastic properties” encompasses multiple physical properties of a material, e.g. storage modulus, loss modulus or relaxation time. For the purposes of examination, the limitation is interpreted as increased viscosity.
Claim 11 recites the limitation of an “improved digestive property” of the plant-protein-fermented food or beverage. It is unclear what is intended by the term “improved digestive property”, since digestive properties encompass a wide variety of food properties (e.g. nutritional composition or amenability to specific or restrictive diets)
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 1-12 are rejected under 35 U.S.C. 103 are being unpatentable over Yamaguchi (US 6121013) in view of Budolfsen (WO 96/03440).
Regarding Claims 1-4, Yamaguchi teaches the use of multi-copper oxidases such as laccase (Abstract) to cross-link proteins in foods such as yogurt (Column 1, Lines 12-18), which is a fermented food. Yamaguchi teaches that the proteins may be plant proteins (Column 3, Lines 50-51). Yamaguchi teaches that the method can be used to control viscosity or degree of gelling in a material (Column 3, Lines 64-67).
Yamaguchi teaches the addition of a polysaccharide (Column 4, Lines 1-5) but does not address the use of plant-cell-wall-derived polysaccharides.
Budolfsen teaches beet pectin (Page 6, Line 35 – Page 7, Line 1), which meets the claimed “plant-cell-wall-derived polysaccharide”, and laccase can be utilized to form gels (Page 17, Claims 1 and 4) which are useful for thickening and controlling viscosity in foods (Page 1, Lines 25-29).
Note that where Claims 2 and 3 teach that pectin derived from beets meets the limitation of a “plant-cell-wall derived polysaccharide”, the beet pectin of Budolfsen is interpreted to meet the limitation of a “plant-cell-wall-derived polysaccharide”.
Budolfsen teaches that the amount of laccase should “generally” be in the range of 1,000 kLACU/kg of polysaccharide, which is the same as 1 mg pectin/U. Note that where Budolsfen teaches a general range, the teaching of Budolsfen is interpreted to approach the claimed range. No material difference is expected between a composition comprising 1 mg/U of pectin as taught by Budolfsen and 0.5 mg/U as claimed. The Applicant’s claimed range is thus obvious over the prior art range. Note that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 I.
Additionally, Budolfsen teaches that the gel is formed via cross-linking of the polysaccharide (Page 4, Lines 16-25 and Line 5, Lines 14-15). Budolfsen additionally teaches that the enzyme acts as a catalyst in the oxidation of phenolic groups (e.g. the cross-linking reaction). Note that it is known in the art that the degree of cross-linking in a gel affects the gel properties. It is additionally known the art that the amount of catalyst for a reaction affects the speed of a reaction. one of ordinary skill would have been able to have adjusted the amount of laccase and pectin to arrive at the ratio as claimed through no more than routine experimentation.
It would therefore have been obvious to modify Yamaguchi to utilize the method of Budolfsen and add pectin in the amounts claimed to a fermented food with plant protein. One would have been motivated to make such a modification since both Yamaguchi and Budolfsen teach methods for controlling viscosity and gelling properties of a food.
Regarding Claim 5, Yamaguchi teaches that the substrate may be plant proteins (Column 3, Lines 50-51) in a solution (Column 3, Lines 59-60), which encompasses plant milk.
Regarding Claim 6, Yamaguchi teaches the production of yogurt (Column 1, Lines 12-18) comprising plant proteins (Column 3, Lines 50-51), which is a plant yogurt.
Regarding Claim 7, Yamaguchi teaches a method utilizing multi-copper oxidases such as laccase (Abstract) to cross-link proteins in foods such as yogurt (Column 1, Lines 12-18), which is a fermented food. Yamaguchi teaches that the proteins may be plant proteins (Column 3, Lines 50-51). Yamaguchi teaches that the method can be used to control viscosity or degree of gelling in a material (Column 3, Lines 64-67).
Yamaguchi teaches the addition of a polysaccharide (Column 4, Lines 1-5) but does not address the use of plant-cell-wall-derived polysaccharides.
Budolfsen teaches beet pectin (Page 6, Line 35 – Page 7, Line 1), which meets the claimed “plant-cell-wall-derived polysaccharide”, and laccase can be utilized to form gels (Page 17, Claims 1 and 4) which are useful for thickening and controlling viscosity in foods (Page 1, Lines 25-29).
Note that where Claims 2 and 3 teach that pectin derived from beets meets the limitation of a “plant-cell-wall derived polysaccharide”, the beet pectin of Budolfsen is interpreted to meet the limitation of a “plant-cell-wall-derived polysaccharide”.
Budolfsen teaches that the amount of laccase should “generally” be in the range of 1,000 kLACU/kg of polysaccharide, which is the same as 1 mg pectin/U. Note that where Budolsfen teaches a general range, the teaching of Budolsfen is interpreted to approach the claimed range. No material difference is expected between a composition comprising 1 mg/U of pectin as taught by Budolfsen and 0.5 mg/U as claimed. The Applicant’s claimed range is thus obvious over the prior art range. Note that a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05 I.
Additionally, Budolfsen teaches that the gel is formed via cross-linking of the polysaccharide (Page 4, Lines 16-25 and Line 5, Lines 14-15). Budolfsen additionally teaches that the enzyme acts as a catalyst in the oxidation of phenolic groups (e.g. the cross-linking reaction). Note that it is known in the art that the degree of cross-linking in a gel affects the gel properties. It is additionally known the art that the amount of catalyst for a reaction affects the speed of a reaction. One of ordinary skill would have been able to have adjusted the amount of laccase and pectin to arrive at the ratio as claimed through no more than routine experimentation.
It would therefore be obvious to modify Yamaguchi to utilize the method of Budolfsen and add pectin in the amounts claimed to a fermented food with plant protein. One would have been motivated to make such a modification since both Yamaguchi and Budolfsen teach methods for controlling viscosity and gelling properties of a food.
Regarding Claim 8, Budolfsen teaches that the for thickening and controlling viscosity in foods (Page 1, Lines 25-29). Note that where Budolfsen teaches thickening, Budolfsen teaches “increasing viscoelastic properties” as claimed (see above in regards to Claim interpretation).
Regarding Claims 9, 10, 11, and 12, modified Yamaguchi does not specifically address the property of water retention, inhibited syneresis, improved digestive properties, or shortened fermentation time.
However, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, and given that modified Yamaguchi teaches the method according to Claim 7, there is an expectation that the product of the prior art have the properties of water retention, inhibited syneresis, improved digestive properties, and shortened fermentation time as claimed. Note that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See MPEP 2112.01 I.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-12 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.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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