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 .
Status of the Application
Claims 1-16 filed in a preliminary amendment on 6/24/2024 are pending in the application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 6/28/2024 was filed before the first Office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 and dependent claims 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.
Claim 1 recites a process for preparation of a fermented plant-based composition comprising a step of providing a mixture comprising at least one vegetal protein isolate and at least one vegetal protein concentrate and fermenting the mixture with at least one lactic acid bacteria to obtain a fermented milk product. The open-ended transitional phrase “comprising” does not apprise one of ordinary skill in the art on the scope of the composition that is fermented. Furthermore, mixing a “protein isolate” and a “protein concentrate” differing in definition by a weight amount of as low as 1% protein content in a matrix with other ingredients would result in a mixture wherein the isolate and concentrate are mixed in and are not discrete units. It is unclear how this is different from a fermentation base containing a vegetable protein. One of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Dependent claims 2-16 are similarly indefinite. Appropriate correction is required.
Claims 2 and 3 recite heating steps without conditions. It is unclear how preheating differs from heating.
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.
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(s) 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Schmidt et al (US 20200060310A1) cited in an IDS.
Regarding claim 1 -4, 7, Schmidt discloses preparation of a plant-based yogurt composition comprising the steps of providing a mixture comprising at least one vegetal protein isolate and one vegetal protein concentrate. Example 12 [0216] : The following materials are mixed: almond milk, 68.7%; cashew milk, 21.9%; coconut cream, 3.35%; PURETASTE (70% protein/100 g product; mixture of 65% pea protein and 35% rice protein), 4.75%; dextrose, 1.15%; locust bean gum, 0.05%; pectin, 0.05%; and cultures, 0.02%; and yogurt is produced using conventional processes. The PURETASTE is by definition a protein concentrate and the mixture has two protein isolates. Using PURETASTE, beany and bitter off-flavors do not occur product and the product had good appearance, flavor, and mouth-feel.
Based on the disclosure in Schmidt it would have been obvious to one of ordinary skill in the art to add a mixture of vegetal protein concentrate and isolate to prevent the occurrence of beany and bitter flavors and produce a yogurt product with good mouthfeel with a reasonable expectation of success.
Regarding the heating step in 2 and 3, conventional yogurt processes with plant based milks include a heating step before culture addition and fermentation to inactivate enzymes, kill contaminant microbes, gelatinize starches, hydrate proteins more fully, improve emulsification, reduce sedimentation and increase viscosity before fermentation. This results in faster acid production, more reliable fermentation and better flavor development. One of ordinary skill in the art would have applied a heating step appropriately to improve the safety and quality of the yogurt product and enable uniform dispersion of added protein and fat, with a reasonable expectation of success.
Regarding claim 4 and 5, a concentration step using known methods such as filtration and centrifugation is routinely applied for concentrated Greek style yogurt and one would have applied these methods to a plat based yogurt to obtain a thicker yogurt composition , with a reasonable expectation of success.
Regarding claim 6, dilution of yogurt for example to make a yogurt drink is known. For example, Schmidt discloses a drinkable yogurt containing water, oat base (water, rolled oats), PureTaste™ powder dextrose, sunflower lecithin, locust bean gum, pectin, live and active cultures [0296].
Regarding claim 8 the culture in the composition comprises a lactic acid bacterial culture because the product is yogurt. Schmidt discloses that the culture comprises mixtures of lactic acid producing bacteria Lactobacillus bulgaricus and Streptococcus thermophilus. [0077]
Regarding claim 9-13, the yogurt product in Schmidt comprises plant milks which contain water, fat and protein which would along with the added protein from PURETASTE provide the claimed amounts water , fat and protein. One would similarly add a pH adjusting agent to obtain a desired degree of sourness and meet acceptable pH conditions for yogurt to support texture and dispersion of components.
Regarding claim 14, Schmidt discloses a pulse protein isolate that is a pea protein. One of ordinary skill in the art would have applied a method as in Schmidt to produce a plant-based alternative yogurt with a reasonable expectation of success.
Regarding claim15 and 16, a method as in Schmidt produces a plant-based alternative yogurt as claimed. One of ordinary skill in the art would have applied a method as in Schmidt to produce a plant-based alternative yogurt with a reasonable expectation of success.
Claims 1-16 are therefore prima facie obvious in view of the art.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793
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