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 .
Claim Objections
Claim 7 is objected to because of the following informalities: Claim 7 should recite “guar gum”. 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.
Claim 6 is 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 6 recites the broad recitation 1o:90 to 80:20, and the claim also recites 40:60 to 65:35 which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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) 1-5, 7-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wen(US 2020/0107569) in view of Burcon(Burcon Introduces Nutratein(R) Plant Protein Ingredients - New Pea + Canola Protein Blends Provide Protein Quality Equivalent to or Exceeding Dairy and Meat).
Regarding claims 1,3,5,8,10, Wen teaches a ready to mix composition comprising 52% plant protein blend including pea protein, 10% dietary fiber, 11.40% creaming agent(maltodextrin and sunflower oil creamer), 3% vanilla flavor, 1% hydrocolloid(xanthan gum)(table 5).
Wen teaches that the composition comprises a protein blend which contains pea protein but does not specifically teach a combination of pea and rapeseed protein. However, Burcon teaches a composition containing a mix of canola(rapeseed) protein and pea protein. Burcon states “Burcon's blend of its proprietary Peazazz® pea protein and Supertein® canola protein, branded as Nutratein-PS™, with its clean flavour and high solubility, is the perfect protein blend for fortifying dairy-alternative beverages such as almond milk, or to formulate a standalone beverage with a nutritional value consistent with the gold standard of cow's milk”(p.1).
Burcon further teaches that the “The method accepted by the U.S. FDA, FAO and WHO for evaluating the nutritional quality of a protein is referred to as the PDCAAS score, or the protein digestibility corrected amino acid score, with the highest possible score being a 1.0. The protein in cow's milk and the protein in eggs are examples of proteins with a PDCAAS of 1.0. Peas have a PDCAAS score of less than 0.8, however, Burcon's blends of pea and canola protein have PDCAAS scores of 1.0, equaling the gold standard of dairy protein”(p.3).
It would have been obvious to use a blend of pea protein and rapeseed protein as the plant protein blend in Wen as taught in Burcon since a mix of pea protein and rapeseed protein provides nutrition similar to animal proteins and due to its clean flavor and high solubility. Wen teaches that the plant protein blend should be formulated to contain the necessary amino acids to be similar to animal proteins and have a PDCAAS score of close to 1. Therefore, it would have been obvious to adjust the ratio of pea protein and rapeseed protein in order to achieve a plant protein blend with a PDCAAS score of close to equal to 1.
Regarding claim 2, Wen teaches that the composition comprises 0.1% sweetener(table 5).
Regarding claim 4, Wen teaches a ready to mix composition comprising 52% plant protein blend including pea protein, 10% dietary fiber, 11.40% creaming agent(maltodextrin and sunflower oil creamer), 3% vanilla flavor, 1% hydrocolloid(xanthan gum).
Wen does not specifically teach 35 to 45% pea and rapeseed protein. However, as stated above it would have been obvious to use a mix of pea and rapeseed protein as taught in Burcon. It would have been obvious to adjust the total amount of protein to 35 to 45% based on the nutritional needs of the intended person.
Regarding claim 7, Wen teaches that the hydrocolloid can be in the form of guar gum(para 29).
Regarding claim 9, Wen teaches that the composition can comprise 0.2g of lecithin out of 51g total ready to mix composition, i.e. 0.39%(table 6).
Regarding claim 11, Wen teaches that the composition contains vitamins(para 29).
Regarding claim 12, Wen teaches that a single serving of ready to mix composition is 50g(table 1). It would have been obvious to pack each serving in a container in order to effectively sell and transport the product.
Regarding claim 13, Wen teaches that the composition does not contain soy or gluten(table 5, para 5).
Regarding claims 14-16, Wen teaches preparing a vanilla beverage composition by mixing the ready to mix composition with water(table 6).
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wen(US 2020/0107569) in view of Burcon(Burcon Introduces Nutratein(R) Plant Protein Ingredients - New Pea + Canola Protein Blends Provide Protein Quality Equivalent to or Exceeding Dairy and Meat) further in view of Willemsen(US2019/0150473A1).
Wen and Burcon are silent on the ratio of cruciferins and napins in the rapeseed protein. However, Willemsen teaches a high purity, high solubility, versatile rapeseed protein comprising 40 to 65% cruciferins and 35 to 60% napins, which equates to about a 1:1 ratio of cruciferins and napins. It would have been obvious to use the rapeseed protein in Willemsen with a 1:1 cruciferin to napin ratio in Wen and Burcon because it is high purity, high solubility, and is versatile.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/ Primary Examiner, Art Unit 1791
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