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 .
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 1, 2, 5, 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (USPN 5,367,055).
Regarding Claims 1, 2, 5, 6: Takahashi discloses a process for treating a zein (corn protein) containing raw material, which forms an extracted and purified zein (corn protein isolate) product, wherein the treatment process involves removing color from zein (corn protein) [abstract; column 2, lines 16-24; see Examples 3-5]. In Examples 1 and 2, Takahashi discloses a zein (corn protein) isolate which can have an a* hue value of -0.8 and a b* hue value of 11.4 [column 3, Table 1], as well as an L* hue value of 94.3 [Table 2]. Takahashi discloses a protein content of the corn protein at about 91.2%, about 90.8%, about 96.7% [Ex. 3, 4, 5]. Takahashi discloses a clear/transparent or light yellow corn protein solution [Ex. 1, 2, 3].
Regarding a* color value of claims 1 and 5, the amounts are substantially close to that of the instant claims at about -0.5 to 1.5 and about 0.3 to 0.3, one of ordinary skill would have expected compositions that are in such close proportions to those in prior art to be prima facie obvious and to have same properties. Titanium Metals Corp., 227 USPQ 773 (CAFC 1985).
Regarding Claim 9: Takahashi discloses as discussed above in claim 1. Takahashi does not disclose that the organic acid content is 4.25 g/kg or less.
However, “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (USPN 5,367,055) as applied to claim 1 above and in further view of Garbutt (US 4,018,936).
Regarding Claim 7: Takahashi discloses as discussed above in claim 1. Takahashi does not disclose the oil content of the gluten meal.
Garbutt discloses corn gluten that is treated and contains 0.13% or 0.44% fat [Ex. 8; col. 8, lines 1-7]. Garbutt discloses gluten treated to a higher purity level [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art that the treated gluten of Takahashi would have contained a negligible amount of fat/oil lower than 1% as in Garbutt since the gluten is isolated from the corn kernel and is treated in a way to remove other constituents or to remove it from other constituents.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (USPN 5,367,055) as applied to claim 1 above and in further view of Stewart et al. (US 2557397).
Regarding Claim 8: Takahashi discloses as discussed above in claim 1. Takahashi does not disclose the carbohydrate content of the corn gluten meal at 45g/kg or less (about 4.5% or less).
Stewart discloses a carbohydrate content of 2% in a treated gluten meal [Ex. 3].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to that the treated corn gluten of Takahashi would have had carbohydrate content of less than 4.5% as in Stewart since the corn gluten is treated to produce a more purified protein product.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (USPN 5,367,055) as applied to claim 1 above and in further view of Anderson (USDA article provided by Applicant).
Regarding Claim 10: Takahashi discloses as discussed above in claim 1. Takahashi does not disclose the aflatoxin content.
Anderson discloses aflatoxin content in corn being reduced from 1000 ppb to less than 10 ppb [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to treat the corn gluten in Takahashi as in Anderson in order to provide corn gluten having an aflatoxin content of less than 1ppb.
Although Anderson does not explicitly disclose 1 ppb or less one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Anderson overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Takahashi et al. (USPN 5,367,055) as applied to claim 1 above and in further view of JP 4750901.
Regarding Claim 11: Takahashi discloses as discussed above in claim 1. Takahashi does not discloses the sulfite content at less than about 150 ppm.
JP’901 discloses corn gluten containing sulfite at less than 30ppm [0007] . JP’901 discloses corn gluten meal as containing a high sulfite content and that it may cause problems in the health of people with sensitivity to chemical [0008].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to treat the corn gluten meal of Takahashi in a way to produce a lowered amount of sulfite/sulfur oxide especially where consumers have sensitivity to the compound.
Conclusion
11. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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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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/Felicia C Turner/Primary Examiner, Art Unit 1793
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