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 in the reply filed on 07/16/2026 is acknowledged.
Status of Claims
Claims 3-4, 10-12, 18-20, 22-29, and 42-45 are cancelled. Claims 1-2, 5-9, 13-17, 21, 30-41 are pending. Claims 15-17, 21, 30-41 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07/16/206. Claims 1-2, 5-9, 13-14 are under examination.
Claim Objections
Claims 2, 5-9, 13-14 are objected to because of the following informalities:
Claims 2, 6-8, 13-14, the recitation “Claim 1” should be “claim 1”.
Claim 5, the recitation “process of any of Claim 1” should be “process of claim 1”
Claim 9, the recitation “Claim 6” should be “claim 6”.
Appropriate correction is required.
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) 1-2, 5-8, and 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ordonez in view of Ivanova, Murru and Chemsta.
Ordonez. Obtaining a protein concentrate from integral defatted sunflower flour. Bioresource Technology. Vol 78, 187-190. 2001.
Ivanova. Optimization of protein extraction from sunflower meal produced in Bulgaria. Bulgarian Journal of Agricultural Science, Vol. 18, No 2, 153-160, 2012.
Murru. Sunflower protein enrichment methods and potential applications. OCL, Vol 27, No. 17, 2020.
Chemsta. Sunflower Protein Technology. https://web.archive.org/web/20210414192356/https://www.chemstagroup.com/sunflower-protein/. Published April 14, 2021.
Ordonez teaches the alkaline hydration of defatted/deoiled sunflower seed flour with an aqueous solution. [1st paragraph, left column, page 188; Figure 1] The aqueous solution of Ordonez is sodium bisulfite solution, which is an Na salt. The process is at a pH of 10.5, which is above the claimed range of 7.5-10. Ordonez teaches the use of different temperatures: 20, 40 and 60C. The temperatures of Ordonez are within the claimed range of 18-60C, with 60C being a matching endpoint.
Regarding the pH, as noted above, the alkylation process of Ordonez includes a pH of 10.5. The process is at a pH of 10.5, which is above the claimed range of 7.5-10.
Ivanova teaches sunflower seed protein extraction with alkaline hydration of defatted/deoiled sunflower seed flour with a solution of NaCl, which is aqueous.[Influence of NaCl concentrations and pH on protein extractability section, pages 154-155] The aqueous solution used by Ivanova is NaCl, and the pH used are: 2.0, 4.0, 5.0, 6.0, 7.0, 8 and 10.0. The pH of 8.0 and 10.0 is within the claimed range of pH of 7.5-10, with 10 being the matching endpoint. Ivanoa notes that as the pH increases, along with concentration of NaCl protein extractability also increases. [Influence of NaCl concentrations and pH on protein extractability section, pages 156] In the instant case, Ivanova establishes that pH is a result effective variable.
It would have been obvious for one of ordinary skill in the art before the effective filing date to adjust the pH and concentration of the aqueous solution. One of ordinary skill in the art would have been motivated to do so to optimize protein extraction. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because adjustment of result effective variables is routinely practiced in the art.
Ordonez teaches separating the solids from the solution, which results in a liquid fraction. [2nd paragraph, left column, page 188]
Ordonez teaches precipitating the proteins at pH value of 4.5 at 3 different temperatures: 20, 40 and 60C. The pH value of 4.5 is within the claimed pH range of 4-6. The temperatures of Ordonez are within the claimed range of 18-60C, with 60C being a matching endpoint. [Table 2]
Ordonez teaches diluting the precipitate in distilled water. [3rd paragraph, page 188]
Ordonez teaches drying the protein. [3rd paragraph, page 188]
Ordonez does not teach that the flour is dehulled and desolvented. However, Muru teaches sunflower meal/flour that is dehulled, defatted, and desolventised. [2.1 Material used, and 2.4 Milling] Murru teaches that fully hulled sunflower seed meal has 1% oil/fat. [Table 1]
It was obvious for one of ordinary skill in the art before the effective filing date to use the flour of Murru in the process of Ordonez. One of ordinary skill in the art would be motivated to do so to extract protein. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because substitution of functional equivalents is routinely practiced in the art.
Ordonez does not teach homogenizing and sterilizing the protein precipitates.
Chemsta teaches homogenizing, sterilization and spray drying to produce sunflower protein. [5.0 Neutralizing, homogeneous, sterilization, flash evaporation, dry section] Chemsta teaches that such process improves the functionality of the sunflower protein.
It would have been obvious for one of ordinary skill before the effective filing date to apply the process of Chemsta to the protein precipitate of Ordonez. One of ordinary skill in the art would have bene motivated to do so to improve the functionality of the sunflower protein. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Chemsta establishes that homogenizing, sterilization and spray drying to produce sunflower protein can be achieved.
Regarding claim 2, as noted above, Murru teaches that fully hulled sunflower seed meal has 1% oil/fat. [Table 1].
Regarding claim 5, as noted above, the aqueous solution of Ordonez is sodium bisulfite solution, which is an Na salt. [1st paragraph, page 188]
Regarding claim 6, the aqueous solution of Ordonez is 0.25% sodium bisulfite solution, which is an Na salt. [1st paragraph, page 188] This is within the claimed range of 0.1-5%.
Regarding claim 7, Ordonez teaches adding 25 g of the flour in 250 ml of 0.25% sodium bisulfite solution. To calculate the solid concentration, the following equation is used: Slid concentration (w/v)=mass of solid/volume of solution=25g/250mL=0.1g/mL=100g/L=10% w/v. The 10% of Ordonez is within the claimed range of 10-20%, which 10% being matching endpoint.
Regarding claim 8, Ordonez teaches leaving the meal in the alkaline solution for 60 minutes. The 60 minutes is within the claimed time of 30-60 minutes, with 60 minutes being matching endpoint.
Regarding claim 13, Ordonez teaches washing the precipitates with water, which has a pH of 7, multiple times. [3rd paragraph, page 188]
Regarding claim 14, Ordonez teaches the process at a temperature that is at most 60C. The 60C of Ordonez overlaps with the claimed range of below about 60C, with 60C being the matching endpoint.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ordonez in view of Ivanova, Murru and Chemsta, as applied to claim 6, in further view of Homyak.
Homyak. US PreGrant Pub No. 20210274807.
Regarding claim 9, Ordonez does not teach the use of sodium hexametaphosphate to extract sunflower protein.
Homyak teaches the use of sodium hexametaphosphate to extract protein from plants, including from sunflower flour. [Claim 1, 0044, 0091, ]
It would have been obvious to one of ordinary skill in the art before the effective filing date to use sodium hexametaphosphate. One of ordinary skill in the art would have been motivated to do so to extract sunflower seed protein. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because the substitution of functional equivalents is routinely practiced in the art.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2, 5-9 and 13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 5-9, and 13-14. of copending Application No. 18/792418 (copending application). Although the claims at issue are not identical, they are not patentably distinct from each other because: Claim 14 of the copending application is directed toward the same extraction process as claim 1 of the instant application.
Claim 2 of copending application recites the same limitation as claim 2 of the instant application. Same can be said for claims 5-9 and 13 of copending application with claims 5-9 and 13 of the instant application, respectively.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Emily M Le whose telephone number is (571)272-0903. The examiner can normally be reached M-F, 8 am-4:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
