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 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, 7-16,19,20 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 1,3,5,8,10,19,20 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 only 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) 6,17,18 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 40:60 to 65:35 ratio of cruciferins and napins. It would have been obvious to use the rapeseed protein in Willemsen with a 40:60 to 65:35 cruciferin to napin ratio in Wen and Burcon because it is high purity, high solubility, and is versatile.
Response to Arguments
Applicant's arguments filed 8/12/2026 have been fully considered but they are not persuasive.
The applicant argues that one would not substitute the protein blend of Wen for the two protein component of Burcon. However, Burcon provides specific reasons as to why one of ordinary skill in the art would want to employee such as blend.
Specifically, 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).
As such, the applicant has not shown that the composition of the claimed invention, including the pea to rapeseed ratio, has unexpected results as compared to the prior art. Therefore, one of ordinary skill in the art would have been motivated to adjust the amount of each protein in order to achieve the desired PDCAAS score and flavor. These benefits are the exact same as outlined by the applicant. Therefore, the claimed product does not appear to show anything unexpected.
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 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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