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 .
This office action is in response to the application filed on April 10, 2024.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d) with a filing date of October 21, 2021. The certified copy of EP 21203975 has been filed in the present application, received on April 10, 2024.
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
The present application is a 371 National Stage Application of PCT/EP2022/079150 which has a filing date of October 19, 2022.
Status of Application
Claims 1-15 are pending. Claims 1-15 are presented for examination.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it is less than 50 words and contains the implied phrase of “The invention relates to.” A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Schmidt et al. (US PG Pub. 2020/0060310; cited on the IDS filed April 10, 2024) in view of Willemsen et al. (WO 2018/007493), herein after referred to as Schmidt and Willemsen, respectively.
Regarding claims 1, 3, 7, and 15, Schmidt discloses a protein bar ([0004]; claim 30) comprising 25-30 wt.% tapioca syrup that is used to bind the ingredients (i.e., a binder) [0099], water (claim 13), and a high-protein material (claim 1) that is pea protein (claim 4), wherein the pea protein is 45 wt.% of the protein bar [0034].
Schmidt it silent as to that the protein bar also comprises rapeseed protein. Schmidt does teach that the high-protein material can also be a mixture of pea protein and rice protein [0147].
Willemsen, in the same field of invention, teaches a food product comprising a rapeseed protein isolate (claim 10). Willemsen offers the motivation that the rapeseed protein isolate can be used in food application as a protein substitute where other plant proteins are used (p. 2 lines 34-38), particularly protein bars in order to increase the protein content (p. 6 lines 6-16). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the protein bar composition of Schmidt by replacing the rice protein of Schmidt with the rapeseed protein isolate of Willemsen, thereby arriving at the claimed invention. One would have been motivated to make this modification because rapeseed protein isolate is taught to be a suitable replacement for other plant proteins and for the benefit of increasing the protein content.
Regarding claim 2, Schmidt teaches that the ratio of pea protein to rice protein (modified by Willemsen to be rapeseed protein) is 65:35 [0147], which lies within the claimed range of 40:60 to 85:15.
Regarding claim 4, modified Schmidt teaches that the food product (i.e., protein bar) comprises a reaction flavor solid composition that is coated on the outside of the food product (i.e., comprises a coating) (Schmidt: [0141]).
Regarding claim 5, modified Schmidt teaches that the protein bar further comprises 2-5 wt.% of a vegetable oil (Schmidt: [0099]), which lies within the claimed range of 1-10 wt.%.
Regarding claim 6, modified Schmidt teaches that the food composition (i.e., protein) bar comprising a high-protein material from a plant source and an edible material (Schmidt: claim 1), wherein the plant source is pea (Schmidt: claim 4) and the edible material is a spice (Schmidt: claim 10). Thus, the food composition is gluten-free, which meets the claim limitation of comprising less than 20 ppm gluten.
Regarding claims 8 and 9, modified Schmidt teaches that the food composition (i.e., protein bar) further comprises an emulsifier and a sweetener (Schmidt: claim 10).
Modified Schmidt is silent as to the amount of each.
However, where 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). Since concentration of a component in a composition is a known variable that affects various properties of a resulting product, the amount of emulsifier and sweetener each is a result-effective variable. Therefore, one of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range through no more than routine optimization, as varying concentration of the emulsifier and sweetener would achieve recognized results. Moreover, generally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. See MPEP 2144.05.II. Thus, the teachings of modified Schmidt renders obvious the instant claim limitations.
Regarding claims 10 and 11, modified Schmidt teaches that the rapeseed protein comprises 40-65% cruciferins and 35 to 60% napins (Willemsen: claim 1), which overlaps with the claimed ranges. 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). See MPEP 2144.05.I.
Regarding claim 12, modified Schmidt teaches that the rapeseed protein comprises 40-65% cruciferins and 35 to 60% napins (Willemsen: claim 1), which is outside of the claimed ranges.
However, where 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). Since concentration of a component in a composition is a known variable that affects various properties of a resulting product, this is a result-effective variable. Therefore, one of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed ranges through no more than routine optimization, as varying the amounts of cruciferins and napins would achieve recognized results. Moreover, generally, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. See MPEP 2144.05.II. Thus, the teachings of modified Schmidt renders obvious the instant claim limitations.
Regarding claim 13, modified Schmidt teaches that the pea protein is an isolate (Schmidt: claim 3).
Regarding claim 14, modified Schmidt teaches that the food composition is made by mixing all of the ingredients (e.g., pea protein, rapeseed protein, water, and binder) and then formed via extrusion with a die (i.e., molding) (Schmidt: [0100]-[0101]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mateus et al., US PG Pub. 2014/0302200, teaches food products comprising pea protein and rapeseed protein.
Borders et al., US PG Pub. 2007/0014914, teaches pea and rapeseed protein isolates and protein bars.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MAURA E SWEENEY whose telephone number is (571)272-0244. The examiner can normally be reached M-F 8:00-5:00 EST.
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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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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791