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 with traverse of Group II (claims 16-23) in the reply filed on April 13, 2026 is acknowledged. The traversal is on the ground(s) that the groups of inventions share a single general inventive concept. This is not found persuasive because the common technical feature of “a deodorized legume raw material”. This technical feature is not a special technical feature as it does not make a contribution over the prior art as pointed in the restriction where plant based protein comprising food and beverage is taught and the protein base has hexanal content of 100 ppb or less and the protein is plant based protein including legume sources as taught by Zhang. Thus common general inventive concept of “deodorized legume raw material” is not a special technical feature as it does not make a contribution over the prior art. Further, note that claims 27-30 depend from claim 16 (and associated argument that “the system (Group III) is designed to carry out the process (Group II)), it follows that if claim 16 is found allowable, claims 27-30 will anyway be rejoined if they continue to require all limitations of claim 16.
The requirement is still deemed proper and is therefore made FINAL.
In this application claims 16-30 are pending, elected non-elected claims 24-30 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Groups I and III, and elected claims 16-23 are examined in this office action.
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 16-23 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.
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, claims 16 recites the broad recitation vacuum conditions in step iii) of “less than or equal to 123 mbar”, and the claim also recites multiple other ranges “less than or equal to 100 mbar”, “less than or equal to 50 mbar”, “less than or equal to 35 mbar”, “less than or equal to 15 mbar” and “less than or equal to 5 mbar” which is the narrower statement of the range/limitation.
Similarly claim 18 recites , legume material as the broad recitation “selected from peas”, and also recites “yellow split peas”, which is the narrower statement of the range/limitation.
The claim16 and 18 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.
For the purpose of this office action any pressure that falls below the atmospheric pressure (for claim 16) and any pea variety (for claim 18) would be considered pertinent.
Regarding claims 20, the phrase "typically" to recite a specific “chiller heat exchanger” type and regarding claim 22 “typically by air-classification milling” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are mere examples or are part of the claimed invention, i.e., the type of equipment and method steps prequalified by term “typically” are just suggested as possible options but are not recited as being required by the claim. See MPEP § 2173.05(d).
For the purpose of this office action any type of heat exchanger (for claim 20) and any classification method of milled product (claim 22) would be considered pertinent, as the types of equipment and method sets recited are just suggested as possible options, but are not recited as being required by the claim.
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 16-18 and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over Zhang (US 20220015387), hereinafter Zhang, in view of Lee (KR 20040034362 A), hereinafter Lee, further in view of Bows (US 20080138480), hereinafter Bows, and still further in view of Steinkraus (US 4496599), hereinafter Steinkraus.
A full English machine translation of Lee (KR 20040034362 A) reference is being provided with this office action, and all references to text of Lee are with respect to this provided English Machine Translation.
Regarding claim 16, Zhang (US 20220015387) teaches a process for deodorizing a legume raw material comprising starch, proteins and off-flavor compounds without denaturation the proteins (para 6 describes 'limit protein denaturation " as a goal), said method comprising the steps of:
i). contacting the legume raw material with an aqueous solution (para 28 describes "aqueous solution comprising plant protein is prepared from a source "where source may be "legumes") at a temperature ranging from about 50C. to about 400C (para 43 describes temperature for step is "not more than 85 0 F", i.e. not more than about 29.40C, which overlaps with the claimed range) leading to a hydrated legume material;
ii) blanching the hydrated plant and/or raw food material by heating the hydrated legume material at a high temperature for a period ranging from about 1 to about 30 seconds (para 59 describes "heating" to a high temperature and maintaining for 3 seconds followed by cooling to 1730 F"; i.e. 78.30F), thereby blanching the hydrated legume material;
iii) rapid cooling (rapid cooling is disclosed in para 60 which describes 'direct steam injection/infusion may be used to achieve a rapid increase in temperature and quickly cool down liquid") the blanched legume material by applying high vacuum (para 60 describes "sudden decrease in temperature of direct UHT creates a vacuum, and the vacuum flashing causes removal of the injected steam and other gases such as oxygen and off-flavor volatile compounds);
iv) removing the off-flavor compounds (such as by filtration, see para 63; also see para 64 which describes pressure and temperature may be adjusted); and
v) drying the legume material by setting aside the injected water steam containing the off-flavor compounds, leading to a dried and deodorized legume material (para 68 describes "protein base composition may be further dried or spray-dried to provide a high protein dried protein base composition at temperature of not more than 850 F);
Zhang does not teach that in step ii), blanching the high temperature is "between 60 0 C. and 121 0 C" but rather teaches the higher temperature is about 144.4 0 C (para 59 describes "heating to 2920F" i.e. 144.40C). However, it is known in the art that a heating food at higher temperature or keeping it at high temperature for extended periods of time can denature food nutrients such as proteins; e.g. Lee teaches that applying excessive heat to vegetables can cause "heat induced denaturation" (see para 31 of machine translation).
Thus, in a process where a natural food is subjected to heat, it is known in the art that temperature and time are known results effective variables that can be varied to limited "heat-induced denaturation" of critical natural food nutrients or other characteristics. As the high temperature and time for which it is maintained has been established as a results effective variable (as explained above), it would have been obvious to one of ordinary skill in art to modify Zhang so that the high temperature is a specific value/range, such as the claimed "between 600 C. and 1210C"; because it has been held that where the general conditions of the claims are discloses in the prior art, it is not inventive to discover the optimum or workable range by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) See MPEP 2144.05. It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Zhang to optimize temperature-time combination for the process, such as by decreasing the higher temperature during blanching (such as from 144.40C that is taught to about 1210C maximum that is required by the claim) while increasing the time (from the taught time of "maintaining for 3 seconds" to a longer time in the claimed window of "about 1 to about 30 seconds"). The ordinary artisan would have been motivated to modify Zhang for at least the purpose of achieving blanching by sacrificing time advantage (i.e. allowing increased process time) but gaining the advantage the food component constituents such as protein are not denatured.
Further, Zhang does not teach that in step iii), rapid cooling the blanched legume material by applying high vacuum is done "while agitating, said high vacuum presenting an absolute atmospheric pressure of less or equal to 123 mbar. .. and thus "protecting the legume from protein denaturation". Bows (US 20080138480) teaches in the context of drying vegetables which may also comprises legumes (para 152, especially last sentence) that are blanched (para 29), it is known to assist drying by agitating (para 25 describes "agitated drying system such as a rotating drum") and applying high vacuum, said high vacuum presenting "preferably between 70 mbar and 100 mbar" (para 152), which overlaps with the recited "an absolute atmospheric pressure of less or equal to 123 mbar". It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Zhang so that in step iii), rapid cooling the blanched legume material by applying high vacuum is done ''while agitating, said high vacuum presenting an absolute atmospheric pressure of less or equal to 123 mbar...". The ordinary artisan would have been motivated to modify Zhang for at least the purpose of reducing the moisture content of the food product without adding additional heat, and this extra drying helps in subsequent drying steps by reducing the load on the dryer (see para 152 of Bows which discloses reduction in moisture content "via a reduction of pressure" which allows "a portion of water to evaporate at pressure below 200 mbar or preferably between 70 mbar and 100 mbar using residual heat energy" which in turns "alleviates the load on subsequent drying steps").
Still further, Zhang does not teach that in step iv), removing the off-flavor compounds is specifically by "steam-stripping" that is "under the high vacuum by blending the cooled legume material by injecting water steam. said water steam presenting a temperature ranging from 300C. to 500C". Steinkraus (US 4496599) teaches that steam-stripping of legume materials (such as soybean) is also a known process to remove retained solvent which applies mild external heat at about 400C to 600C under vacuum (Col. 2, lines 65 — Col. 3, line 9), noting that above temperature range overlaps with the range "temperature ranging from 300 C. to 500 C" recited in the claim. It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Zhang so that the process of removing the off-flavor compounds is specifically "steam-stripping'
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that is done under typical conditions, i.e. "under the high vacuum by blending the cooled legume material by injecting water steam, said water steam presenting a temperature ranging from 300C. to 500C". The ordinary artisan would have been motivated to modify Zhang for at least the purpose of using an alternate known process for removing off-flavor compounds such as "steam-stripping" that uses high vacuum and it is known that at extremely reduced pressures, steam forms at lower temperatures, thus achieving the goal at temperatures that prevent denaturization of nutrients such as protein.
Regarding the overlapping of ranges between the invention and prior art (as described above), it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Regarding claim 17, Zhang teaches the process according to claim 16, but does not teach further comprising "at least one step vi), wherein the dried and deodorized legume material of step v) is hydrated and subjected to a new cycle of steam-stripping and drying according to steps iv) and v)".
However, the above is simply repetition of the process steps explained above as removing the dissolved off-flavor compounds. It would have been obvious to one of ordinary skill in the art to use the method as claimed, because such process is considered to be a duplication of parts that has no patentable significance unless a new unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960), MPEP 2144.04.
Regarding claim 18, Zhang teaches the process according to claim 16, wherein the legume raw material is selected from peas (para 28 describes legume that may be "pea"; also see para 12).
Regarding claim 20, Zhang teaches the process according to claim 16, wherein drying step v) is carried-out by condensation (Zhang teaches rapid cooling — see para 60; describing that "sudden decrease in temperature of direct UHT creates a vacuum, and the vacuum flashing causes removal of the injected steam" i.e. rapid cooling of steam causing condensation), noting that the limitation "typically with a chiller heat exchanger" is simply stating what may be an example of a type of heat exchanger but is not recited as being required by the claim.
Regarding claims 21-23, Zhang does not clearly teach the limitations of claims 21-23. However, Zhang teach that milling is a known process to create a powder of the legume raw material (para 41 discloses "the plant protein source may be milled"), and that fractionating the legume raw material flour into protein-rich fraction and a starch-rich fraction is also known (para 94 discloses " the first decentering was set at 1500 rpm to remove crude fiber and partially starch, and the second decentering was set at 3000 rpm to remove residual starch" and this produces separate "purified pea protein slurry") and further, that a large particle size is a disadvantage (para 7, especially Ist sentence; also see para 37) and that a preferred particle size is "a maximum dimension equal to or less than 10 µm" (para 71), which overlaps with the claimed "protein-rich fraction presents an average particle size of about 2 µm". It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Zhang to include the missing limitations of claim 21-23 to process the deodorized legume raw material flour in known ways to create protein rich powder that is deodorized; i.e. by further including the step of milling the deodorized and dried legume raw material into a deodorized legume raw material flour comprising starch and proteins of a target particle size of about 2 µm, and including the step of fractionating the deodorized legume raw material flour into a deodorized protein-rich fraction and a deodorized starch-rich fraction. The ordinary artisan would have been motivated to modify Zhang for at least the purpose of using known processes to produce deodorized protein-rich powder in desired small particle size that overcomes disadvantage of large particle size (para 7 of Zhang) and obtaining a product that is protein rich.
Regarding the overlapping of ranges between the invention and prior art (as described above), it is noted that in the case where the claimed ranges "overlap or lie inside the ranges disclosed by the prior art" a prima facie case of obviousness exists (In re Wertheim, 541 F2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang, Lee, Bows and Steinkraus, as applied to claim 16 above, and further in view of Tsukuda (US 20020142071), hereinafter Tsukuda.
Regarding claim 19, Zhang teaches the process according to claim 16, wherein step i) is carried-out by adding water to the legume raw material to create an aqueous solution, but does not teach that the process used for adding water is specifically "spraying the legume raw material with an aqueous solution'. Tsukuda (US 20020142071) teaches a process for adding water to a legume raw material further disclosing that such water may be added by spraying (see para 19 that describes "the powder is sprayed with an aqueous solution"). It would have been obvious to one of ordinary skills in the art at the time of the effective filing of the claimed invention to modify Zhang so that the process used for adding water is specifically "spraying the legume raw material with an aqueous solution". The ordinary artisan would have been motivated to modify Zhang for at least the purpose of using a known process to add water or water solutions during processing using equipment such as sprayers which are widely available.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791
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