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 of Claims 1-2, 5-7, 9-10, 28, 30, 33, 35-36, and 40-41 in the reply filed on March 9, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 22, 24, and 34 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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 6-7 and 9-10 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.
With respect to Claim 6, The recitation of “The complex according to claim 3” is indefinite due to the cancelation of claim 3. For the purposes of examination, the recitation will be interpreted as “The complex according to claim 2”. Due to their dependency on claim 6, claims 7 and 9 are also rejected, and claim 10 is rejected due to the dependency on claim 9.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-2, 28, 33, 35, 36, and 40-41 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cagnac (US 2018/0271119 A1).
With respect to Claim 1, Cagnac teaches a composition that can be used in acidic foods, comprising a phycocyanin, that can be a phycobiliprotein [0006] comprising an α and β-subunit protein. [0011] The subunit can be a variety of polypeptides, [0038] and the composition can be added to an acidic liquid as the coloring composition. [0070] The invention taught by Cagnac reads on a composition comprising at least one phycobilin and at least one protein or polypeptide. Additionally, the composition taught by Cagnac reads on the limitations of being soluble in water and acidic conditions. Therefore, Cagnac anticipates the invention recited in claim 1.
With respect to Claim 2, Cagnac teaches a composition that can be used in acidic foods, comprising a phycocyanin, that can be a phycobiliprotein [0006] comprising an α and β-subunit protein. [0011] The subunit can be a variety of polypeptides, [0038] and the phycocyanin complex can be in aqueous form in an acidic environment. [0058] The invention taught by Cagnac reads on a complex comprising at least one phycobilin and at least one protein or polypeptide. Additionally, the composition taught by Cagnac reads on the limitations of the polypeptide being soluble in water and acidic conditions.
The recitation that the complex is “obtainable by mixing the at least one protein, polypeptide and/or peptide with a composition comprising” is considered a product-by-process limitation. According to MPEP 2113 I, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself”. Additionally, the term “obtainable” does not exclude obtaining the complex recited by alternative means.
Therefore, Cagnac anticipates the invention recited in claim 2.
With respect to Claim 28, Cagnac teaches the invention recited in claim 2, as described above. Additionally, the phycocyanin is derived from Galdieria sulphuraria. [0018]
With respect to Claim 33, Cagnac teaches the invention recited in claim 2, as described above. Additionally, Cagnac teaches that the complex is stable in acidic conditions. [0058]
With respect to Claim 35, Cagnac teaches the invention recited in claim 2, as described above. Additionally, Cagnac teaches the complex can be used to add color to food compositions. [0068]
With respect to Claim 36, Cagnac teaches the invention recited in claim 2, as described above. Additionally, Cagnac teaches that the complex can be added to a food product resulting in a pH of 2.95. [0118]
With respect to Claim 40, Cagnac teaches the invention recited in claim 2, as described above. Additionally, Cagnac teaches adding the complex to a food product in the form of a beverage in order to impart a blue color. [0120] Additionally, Cagnac teaches that the invention provides a more stable blue color over time. [0077]
With respect to Claim 41, Cagnac teaches a composition that can be used in acidic foods, comprising a phycocyanin, that can be a phycobiliprotein [0006] comprising an α and β-subunit protein. [0011] Additionally, the composition can be formed into a ready-to-use form [0064] that reads on a kit comprising the phycobilin and the protein.
MPEP 2112.01 III states, “Where the only difference between a prior art product and a claimed product is printed matter that is not functionally related to the product, the content of the printed matter will not distinguish the claimed product from the prior art”. The recitation of “instructions of how to mix, prepare and/or use said ingredients” amounts to nonfunctional printed matter and does not patentably contribute to the limitations of the instant claim.
Claims 2 and 5-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Batista et al. (Rheological characterization of coloured oil-in-water food emulsions with lutein and phycocyanin added to the oil and aqueous phases, Food Hydrocolloids)
With respect to Claim 2, Batista et al. teaches a composition comprising phycocyanin and pea protein isolate in an aqueous mixture that is used as a food coloring. [Abstract] the phycocyanin taught in Batista et al. reads on the phycobilin and the pea protein isolate reads on the at least on protein recited in the instant claim. Therefore, Batista et al. anticipates the invention recited in claim 2.
With respect to Claims 5 and 6, The pea protein isolate taught in Batista et al. reads on the at least one protein being of plant origin, wherein the protein is obtained from plant seeds, such as peas. Therefore, Batista et al. anticipates the invention recited in claim 5 and 6.
Claims 9-10 and 30 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Batista et al. (Rheological characterization of coloured oil-in-water food emulsions with lutein and phycocyanin added to the oil and aqueous phases, Food Hydrocolloids) as evidenced by Lu et al. (Composition, physiochemical properties of pea protein and its application in functional food, Critical Reviews in Food Science and Nutrition).
With respect to Claims 9 and 10, Batista et al. teaches the invention recited in claim 6, as described above, but does not explicitly teach the pea protein isolate composition as far as the class of proteins is concerned.
Lu et al. teaches a study of the protein content of pea protein isolates, revealing that pea proteins comprise globulin, albumin, prolamin, and glutelin. [Abstract] Therefore, the pea protein isolate taught in Batista et al. would have comprised the proteins taught in Lu et al., which reads on the protein classes recited in the instant claim. Additionally, Lu et al. teaches that pea protein isolates comprise albumin, and peptides therein, and globulins, and peptides therein. [Table 1] Therefore, Batista et al. anticipates claims 9 and 10.
With respect to Claim 30, Batista et al. anticipates the invention recited in claim 2, as described above, but is silent to the exact composition of the pea protein isolate. According to Lu et al. pea protein isolate comprises globulin, albumin, prolamin and glutelin. [Abstract] Lu et al. also teaches the globulin is between 55-65% and the albumin is between 18-25%, and that both comprise peptides therein. [Table 1] This ratio lies within the range of ratios recited in claim 30. Therefore, the pea protein isolate of Batista et al. would also comprise at least one protein and at least one peptide within the ranges recited in the instant claim, thereby anticipating claim 30.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Batista et al. (Rheological characterization of coloured oil-in-water food emulsions with lutein and phycocyanin added to the oil and aqueous phases, Food Hydrocolloids) as evidenced by Lu et al. (Composition, physiochemical properties of pea protein and its application in functional food, Critical Reviews in Food Science and Nutrition), in view of Gorissen et al. (Protein content and amino acid composition of commercially available plant-based protein isolates, Amino Acids).
With respect to Claim 7, Batista et al. teaches the invention recited in claim 2, as described above. According to Lu et al. pea protein isolate comprises globulin, albumin, prolamin and glutelin, [Abstract] and that albumin and globulin comprise peptides therein. [Table 1] Both are silent to the use of potato protein.
Gorissen et al. teaches a study of the protein content of various protein isolates, including plant and animal, in the interest of determining the rheological and nutritional properties of said isolates. [Abstract] Gorissen et al. teaches a market interest in the determination of plant-based protein isolates [Pg. 1686, Par. 2], especially those currently available on the market, such as potato and pea protein. [Pg. 1686, Par. 3] Gorissen et al. teaches that the potato protein isolates and pea protein isolates have similar amounts of protein, [Fig. 1] wherein the essential amino acids are higher in potato as compared to pea. [Fig. 2]
Batista et al. and Gorissen et al. exist within the same field of endeavor in that they teach the use of plant protein isolates. Where Batista et al. teaches a specific composition comprising pea protein isolate for use in food compositions, Gorissen et al. teaches a number of suitable plant protein isolates that were widely available in the field of endeavor, including potato protein.
MPEP 2144.07 states, “The selection of a known material based on its suitability for its intended use supported a prima facie case of obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”. Additionally, MPEP 2144.06 II states, “In order to rely on equivalence as a rationale supporting an obviousness rejection, the equivalency must be recognized in the prior art, and cannot be based on applicant’s disclosure or the mere fact that the components at issue are functional or mechanical equivalents”.
Potato protein was known in the field of endeavor before the effective filing date of the instant invention, and Gorissen et al. teaches potato protein as an alternative to pea protein that comprises a similar amount of total protein, while comprising a greater amount of essential amino acids. It would have been obvious to substitute or supplement the pea protein with potato protein in order to add greater nutritional value to the composition taught in Batista et al.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Batista et al. in view of Gorissen et al. in order to produce the complex recited in claim 2, wherein the at least one protein is potato protein and the polypeptide and/or peptide is obtained from pea, thereby rendering claim 7 obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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