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 (claims 1-8 and 15-16) in the reply filed on 13 July 2026 is acknowledged.
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.
Claims 1-2, 4-8, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over by Krul et al (herein referred to as Krul, US 20130331315 A1).
With regard to Claim 1, Krul teaches a plant-based composition ([0026], [0072]) comprising a plant base comprising at least 5% w/w of plant protein ([0027], [0033], [0037], [0039]) and at least 1% w/w of fat ([0081], [0183], Example 16) at least one endoprotease ([0043]) and at least one exoprotease ([0045]).
The examiner acknowledges that all of these components in these concentrations are not disclosed in a singular embodiment within Krul however one of ordinary skill in the art would have been motivated to have combine the plant protein with the endoprotease and exoprotease to initiate a hydrolysis reaction which cleaves the protein material into polypeptide fragments ([0024]) and further combine with the fat to achieve the desired edible product ([0077]). Thus resulting in a food product that promotes weight management and satiety ([0007]).
With regard to Claim 2, Krul teaches substantially the same composition as presented in the instant claims. Therefore, the plant-based composition would inherently have a viscosity between 1 and 2000 mPa.s. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to Claim 4, Krul teaches the composition further comprises water ([0039]).
With regard to Claim 5, Krul teaches the pH and the temperature of the protein slurry are adjusted ([0040]). Krul teaches the pH of the protein slurry may be adjusted and monitored according to methods generally known in the art ([0040]). Krul teaches using food-grade sodium hydroxide to a pH adjusting agent ([0099]-[0103]).
With regard to Claim 6, Krul teaches the composition may further comprise at least one flavoring agent, at least one sweetener, at least one stabilizing agent, at least one coloring agent, and at least one vitamin ([0081]).
With regard to Claim 7, Krul teaches the composition comprises about 5% to about 95% plant protein ([0037]). Krul teaches embodiments wherein the composition comprises 5.75% fat ([0171], example 14).
With regard to Claim 8, Krul teaches the plant protein is soy protein ([0027]).
With regard to Claims 15 and 16, Krul teaches a plant based composition, specifically a plant based beverage comprising the plant-based composition ([0078]-[0079]).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Krul US 20130331315 A1) in view of Myllaerinen et al. (herein referred to as Myllaerinen, CN 111491522 A)
With regard to Claim 3, Krul is silent to the particle size distribution.
Myllaerinen teaches a plant-based food product ([0002]). Myllaerinen teaches the plant-based raw material is a powder with a particle size of 5 µm to 300 µm, preferably 10 µm to 275 µm. In one implementation, 90% of the particles are smaller than 150 µm ([0079]). See MPEP 2144.05(I) 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). Myllaerinen teaches appropriate particle size will also ensure the powder and the consistency in the method ([0078]).
It would have been obvious to one with ordinary skill in the art to modify Krul to include the particle size taught by Myllaerinen to ensure consistency throughout the method.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Gao et al. (herein referred to as Gao) teaches a method using an enzyme having both endo and exo-peptidase activities to produce a soy protein material
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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