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 preliminary amendment filed on 4/16/24. Claims 2-3,6,8,10-13,16-20,22,24,26,28 and 30 are amended and claims 4-5,7,9,14-15,21,23,25,27,29 and 31-32 are cancelled. Claims 1-3,6,8,10-13,16-20,22,24,26,28,30 are pending.
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 1,12,28, 30 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.
In claim 1: step (i) is vague and indefinite. The step recites “combining an oat flour composition with a base to produce a first aqueous mixture”; however, the step does not require any source of liquid. Thus, it’s unclear what is intended by “ aqueous mixture”. Step (ii) is vague and indefinite. The step recite “ separating into a solid fraction and liquid fraction. However, it’s unclear what would be considered as liquid fraction. While step(i) recites “ aqueous mixture”, there is no recitation of any source of liquid. Step (iii) has the same problem as step (ii).
Step 12 is vague and indefinite because it’s not clear what is intended. The step recites “ removing a fat/oily fraction from the liquid fraction. But, it is not clear what this liquid fraction is and there is no defining of the liquid fraction containing fat/oil. Thus, it’s not clear what the step encompasses.
Step 28 is vague and indefinite. The step recites separating a second liquid fraction from the solid fraction. However, it’s unclear where this second liquid fraction comes from. It’s unclear what is intended by the second liquid fraction because there is no liquid cited in the solid fraction.
In claim 30, the limitation “ second liquid fraction” has the same problem as claim 28.
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) 1,3,6,8,10-13,16-20,22,24,26,28,30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lenz ( 5525151) in view of Singh ( 6818246), Zhou ( CN 108977484) and the “ Oat and Chocolate Flavoured Protein Drink”.
For claims 1,3, Lenz discloses a method for making an oat composition. The method comprises the steps preparing an aqueous slurry comprising water, oat flour and a base to provide the slurry with a pH in the range of 9.5-10.5, separating the aqueous slurry into insoluble solid fraction, insoluble liquid fraction and soluble fraction which is the same as the liquid fraction because the fraction is soluble in the water, combining the soluble liquid fraction with an acid to give a pH of 6-6.5 and treating the fraction to obtain oat composition. ( see col. 4 line 61 through col. 5 line 25, col. 6 lines 38-67, example 1)
For claim 6, Lenz discloses the base is selected from sodium carbonate, sodium hydroxide, calcium hydroxide, etc.. ( see col. 7 lines 54-60)
For claim 8, Lenz discloses treating oat flour with an enzyme. Lenz discloses the enzyme is combined with the oat prior to separation. ( see col. 7 lines 60-65)
For claim 10, Lenz discloses the aqueous slurry contains the oat flour in amount of about 1% to about 15%. ( see col. 7 lines 10-14)
For claim 11, Lenz discloses separating the soluble fraction from insoluble solid fraction by centrifugation, filtering, sieving etc.. ( see col 8 lines 27-45)
For claim 12, Lenz discloses to obtain maximum yield of soluble oat protein by dissociating the oat fat from the oat protein in the aqueous solution. ( see col. 8 lines 62-67, col. 9 lines 1-10)
For claim 13, Lenz discloses the initial aqueous suspension comprises about 10-70% protein, from 0-3% fat and about 5-35 of insoluble which is considered solid content. (see col. 5 lines 53-65)
For claim 16, Lenz discloses phosphoric acid is used to adjust pH to 6-6.5. ( see example 1)
For claim 19, Lenz discloses the final aqueous solution comprises 0-1% soluble oat fat. ( see col. 10 lines 16-27)
Lenz does not disclose the steps (iv-v) of ultrafiltering and combining as in claim 1, the treating with enzyme prior to step(i) as in claim 8, the fat content as in claim 13, the step as in claims 17-18, the characteristics as in claim 19, the steps as in claim 20, the ingredients as in claim 22, the step as in claims 24,26,28,30.
Singh discloses a process of making soy protein concentrate. Singh teaches to treat suspension with ultrafiltering using a membrane having specific molecular weight cutoff. ( see col. 3 lines 15-27)
Zhou discloses a method of extracting oat polypeptide. Zhou teaches an enzymolysis process with ultrafiltration membrane wo obtain ultrafiltrate having specific molecular weight cutoff. ( see abstract, example 1)
The article disclose oat drink flavored with sugar, cocoa powder, vitamin, gum etc..
Lenz discloses treating the solution after treatment with acid but does not specifically disclose ultrafiltration and collecting a retentate. However, Lenz does disclose ultrafiltration as a separating method and collect soluble oat protein having molecular weight of less than about 30000. The molecular weight is depended on the extent of the enzyme treatment. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use ultrafiltration as the last step of forming the oat composition and to collect specific retentate fraction depending on the type of soluble oat fragments wanted in the oat composition. As shown in Singh and Zhou, ultrafiltration is known to be used to separate suspension into different retentate and permeate fractions depending on the molecular cutoff of the membrane with smaller molecular passing through the membrane. It would have been obvious to combine the collected oat fraction with additional ingredients as shown in the art when desiring to add flavorings and taste to the oat composition. This would have been an obvious matter of preference. It would have been obvious to one of ordinary skill in the art to determine the time of starting the enzyme treatment depending on the extent of hydrolysis desired. This parameter can readily be determined by one skilled in the art through routine experimentation. The fat content in the product depends on the degree of removal of the fat and the use of defatted oat or regular oat. It would have been obvious to one of skill in the art to obtain any varying amount of fat depending on the fat content desired. It would have been within the skill of one in the art to determine the molecular weight cutoff of the membrane and the passing of small molecular depending on the fraction of oat protein desired. The solid , protein , mineral and fiber content can vary with the fraction of soluble oat protein collected and this can vary depending the oat composition wanted. This parameter can readily be determined by one of ordinary skill in the art through routine experimentation. Lenz disclose to treat the oat with enzyme to cause hydrolysis. It would have been obvious to one of ordinary skill in the art to extent the treatment with the soluble protein fraction before filtering depending on the degree of hydrolysis and the fragmented oat protein desired to be collected. Heat treating food products by pasteurization or sterilization is known in the art. It would have been obvious to one of ordinary skill in the art to heat treat the oat composition to ensure stability of the product for storage. It would have been obvious to one skill in the art to repeat the treatment on the separated solid fraction and combine with the collected fraction when desiring to ensure all the possible proteins and desirable solids are obtained.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lenz in view of Singh and Zhou as applied to claims 1,3,6,8,10-13,16-20,22,24,26,28,30 above, and further in view of Feng ( CN 111685183).
Lenz does not disclose the oat flour as in claim 2.
Feng discloses Australian oat flour comprises 10-15% protein, 7-10% fiber and 7-10% fat. ( see page 3)
Lenz discloses to use oat flour. It would have been obvious to one of ordinary skill in the art to use any known oat flour such as the one disclosed in Feng.
Conclusion
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February 6, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793