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 without traverse of Group I, claim 1-15 in the reply filed on 08/07/2026 is acknowledged.
Claim 16 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 08/07/2026.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/21/2024 and 08/17/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 1, 12 and 13 are objected to because of the following informalities: in claim 1, “a packaged food product” in line 21 should be “the packaged food product” since antecedent basis have been established in line 1; and
in claim 12 and 13, the phrase “from 0.05wt% to 2.0wt%” in claim 12, and “0.1wt% to 3.0wt%” in claim 13, should have spacing between numerals and wt%. Appropriate correction is required.
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.
Claim 1-15 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.
Regarding claim 1, the preamble recites “consisting” line 1, however the claimed method recites “comprises the steps of” is confusing. It is not clear if the claim is open-ended or closed-ended; hence the claim is indefinite. For examination purpose, the claimed method is comprising, in other words “open ended” to include any components/ingredients, steps including the cited components and steps to meet the claims. Claim 2-15 are also rejected since the claims are depended upon the rejected claim 1.
Regarding claim 8, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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) 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Myllärinen et al. (US 2020/0390136) in view of Kwon et al. (JP 2011167190, Machine Translation).
Regarding claim 1, 5, 7, 8 and 9, Myllärinen et al. (Myllärinen) discloses a process of producing a plant-based food product (‘136, Fig. 1, [0026]) comprising providing a suspension (composition), wherein the suspension (composition) includes water, at least one based raw material and protein (plant protein containing ingredient) (‘136, [0036]). The at least one based raw material includes cereal, oats in meal or powder form (flour) (‘136, [0027], [0051]-[0052]); heating the suspension (‘136, [0043]) over 58°C for a maximum 30 minutes, which overlaps the cited range. In the case 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). With respect to claim 1 and claim 7, Myllärinen discloses the process comprising homogenizing (‘136, Fig. 1, upsteam to heat treatment) the suspension at 200 bar (‘136, [0090]) is in range with the cited range.
Myllärinen discloses the process comprising heat treating at a temperature range of 80 to 95°C for 1 min to 15 min (‘136, [0090]), which overleaps the cited range. In the case 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Myllärinen does not explicitly the heat treating gelatinizes the suspension (composition) however, Myllärinen discloses similar materials, water, protein (plant protein containing ingredient) and based raw material includes cereal, oats in meal or powder form (flour) in similar manner, heat treating at the temperature range of 80 to 95°C for 1 min to 15 min as claimed; therefore it is expected the heat treating step will provide the same characteristics claimed, particularly to gelantize Myllärinen’s suspension (composition).
With respect to claim 1 and claim 9, Myllärinen discloses the process comprising fermenting the suspension (composition) with an inoculation with cultures (‘136, [0045], [0054]-[0055]) without stirring, wherein the fermenting until the suspension (composition) reaching a pH of 4.5, which is in range with the cited range.
Myllärinen discloses the process comprising pasteurization (heat-treating) at 63 to 90°C for 30 seconds to 1 min (‘136, [0119]), which overlaps the cited range. In the case 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Myllärinen discloses the plant-based food product including yogurt beverage (shelf-stable fermented diary analogue) (‘136, [0026), [0092], [0100] is packaged (‘136, [0119]). Myllärinen does not explicitly disclose the packaging is hot filling into a flexible container. However, Kwon et al. discloses a method of making fermented beverage comprising hot filling to sterilizing temperature of 100°C (‘190, pg. 5, last paragraph) in a PET container (flexible container). Myllärinen and Kwon et al. are of the same field of endeavor of making fermented food product, beverage. It would have been obvious to one of ordinary skill in the art to be motivated to use Kwon’s hot filling step in Myllärinen’s process to provide a sterilize food production a convenient package for a consumer.
Regarding claim 2, modified Myllärinen’s plant-based food product is free from diary component (‘136, [0002], [0073]).
Regarding claim 3 and 4, modified Myllärinen discloses the protein (plant protein containing ingredient) (‘136, [0036]) is pea protein (‘136, [0095], [0125]) (protein concentrate/pulse proteins).
Regarding claim 6, modified Myllärinen discloses a protein content of the plant-based product is 0.5 to 20 wt.% based on total weight of the product (‘136, [0067]). Myllärinen does not discloses the range of 70% to 98% of its total protein from the protein (plant protein containing ingredient) (‘136, [0036]). However, it would have been obvious to one of ordinary skill in the art to adjust a total content of protein in the Myllärinen’s plant-based food product to include the cited amounts since Myllärinen teaches added protein to obtain a desired protein content (‘136, [0041]) is well in the preview of one skilled in the art.
Regarding claim 10, 11, 12, 13 and 14, modified Myllärinen discloses the process of adding potato starch or pectin (‘136, [0120]). With respect 12 and 13, modified Myllärinen does not discloses the cited ranges, however it would have been obvious to one of ordinary skill in the art to adjust an amount of potato starch or pectin (‘136, [0120]) to provide a desired thickness, viscosity in modified Myllärinen’s plant-based food product.
Regarding claim 15, Myllärinen does not explicitly a shelf life of the plant based food product including yogurt beverage (shelf-stable fermented diary analogue) (‘136, [0026), [0092], [0100], packaged (‘136, [0119]) however, Myllärinen discloses similar materials, water, protein (plant protein containing ingredient) and based raw material includes cereal, oats in meal or powder form (flour) in similar manner as claimed in claim 1; therefore it is expected the heat treating step will provide the same characteristics claimed, particularly to shelf life of at least 3 months at a temperature of 15°C to 40°C.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Brown et al. (US 2018/0327792) discloses a method of providing a fermented plant origin material to obtain food product, shelf-stable ([0022], [0023]) comprising fermenting ([0024]), heat treating ([0023], [0057]) to gelatinize ([0058]) and packaging ([0026]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/ Primary Examiner, Art Unit 1792
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