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 Objections
Claim 1 is objected to because of the following informalities: “crips” should be –crisps--. Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5, 7-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by United States Patent Application Publication No. US 2012/0064209 (ARDISSON-KORAT, hereinafter “AK”).
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The claims are directed to a method for producing extruded chips by combining a “protein crisp ingredient mix” that provides protein with other ingredients to a form a dough. The dough is then extruded. AK teaches adding a protein crisp ingredient mix in the form of soy protein isolate [0053] to citric acid so to reduce the pH to 5.5 to about 6.3 [0042]. Soybean lecithin is also added [0053]. A dough is formed and extruded and dried to form an expanded product (i.e., crisp product) [0054] (See also, Figure 1). [0009] indicates that one can increase expansion which would reduce density. AK also teaches adding a protein crisp ingredient mix that comprises soy protein isolate [0053]. Thus, while claim 1 is silent as to the ingredients of dough composition, AK teaches the same ingredients for the dough as preferred by applicant (e.g., claim 2 of present application). Thus, AK teaches a method for producing extruded protein chips with the same ingredients as claimed. Given AK teaches an extruded product with the same ingredients, the product of AK must have the same properties. It is the Examiner’s position that the AK dough with at least one acidulant and lecithin would naturally have a reduced density as compared to that of a protein crisp made without at least one acidulant and the at least one lecithin component. Indeed, [0042] of AK where states, “It is believed that by manipulating the pH of the dough prior to extrusion, the acid may help control the undesired reactions during extrusion to produce a finished product with good color as well as good expansion.”
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AK teaches adding a protein crisp ingredient mix that comprises soy protein isolate [0053].
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As to claims 3-5, citric acid is used in amount of 0.5% [0041]- [0042].
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As to claims 7-8, soy lecithin is used [0053].
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Fiber and starch can be added [0034]- [0035].
Claim Rejections - 35 USC § 103
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 6 and 12-21 are rejected under 35 U.S.C. 103 as being unpatentable over AK.
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AK is cited for the reasons noted above. AK does not specifically teach adding an acidulant in an amount of at least 1.0% but does teach that enough acidulant needs to be added to lower the pH [0041]-[0042]. In this regard, it would have been obvious to vary the amount of acidulant added to obtain the desired pH.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
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As to the density, AK teaches in [0040] and Figure 4b that puffed protein with the claimed ingredients result in an improved product with a lighter density and greater expansion relative to protein products not produced in a manner as taught by AK. In this regard, it would have been obvious to provide a protein puff/crisp product with a lower density to obtain the expansion as desired.
The Patent Office does not have the facilities to test density. In this regard, applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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The claims are directed to a method for producing extruded chips with reduced density by combining a “protein crisp ingredient mix” that provides protein with other ingredients to a form a dough. The dough is then extruded. AK teaches adding a protein crisp ingredient mix with a variety of proteins. This includes using a casein protein product with 83% protein [0030] (See also Table 1).
AK does not specifically teach adding protein with at least 65% protein content to additional ingredients such as citric acid and lecithin. However, AK does teach adding citric acid [0042] to protein containing mixes. Soybean lecithin can also be added [0053]. Given AK teaches adding citric acid and lecithin to such protein containing mixtures and the desirability to use a protein crisp ingredient mix with at least 65% protein (see above), it would have been obvious to provide a dough with a protein crisp ingredient mix with at least 65% protein, an acidulant and lectin, as claimed,
A dough is formed and extruded to form an expanded product (i.e., crisp product) [0054] (See also, Figure 1).
[0040] and Figure 4b discuss and show an improved protein crips product with a lighter density and greater expansion relative to protein products not produced by the disclosed AK method. Given the improved density and expansion properties, it is considered that the dough of AK has a modified viscosity that allows one to obtain these properties.
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AK teaches adding a protein crisp ingredient mix that comprises soy protein isolate [0053].
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As to claims 15-16, the protein crisp ingredient mix of AK comprises a variety of proteins. This includes using a casein protein product with 83% by weight protein content [0030] (See also Table 1).
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As to claims 17-18, citric acid is used [0041].
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As to claims 19-20, soy lecithin can also be added [0053].
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As to the density, [0040] and Figure 4b discuss and show a protein crip product with an improved, lighter density relative to protein products not made by the disclosed method. In this regard, it would have been obvious to provide a protein crisp product with lighter density.
The Patent Office does not have the facilities to test density. In this regard, applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
Claim(s) 10 -11 is/are rejected under 35 U.S.C. 103 as being unpatentable over AK as applied to claim 1 above, and further in view of United States Patent Application Publication No. 2022/0007681 (STOUT).
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AK teaches a protein crisp product as evidenced above but silent as to the addition of pea protein and milling the product.
STOUT teaches that a puffed/crisp protein that can readily be ground or milled [0013] so that the powdered can be used in protein food products [0011]. Pea protein concentrate [0034] (i.e., that naturally contains pea fiber or starch) can be added. These puffed/crisp protein products are easily milled with excellent properties-both as crisps and as powders—for use as ingredients in food products. The products are also shelf-stable for extended periods of time [0026].
Thus, it would have been obvious to add pea protein concentrate and mill the product, as STOUT teaches such puffed protein products are easily milled with excellent properties-both as crisps and as powders—for use as ingredients in food product. The products are also shelf-stable for extended periods of time [0026].
Response to Arguments
Applicants’ arguments filed 7/17/2026 have been fully considered but they are not persuasive.
The replacement drawings were received on 7/17/2026. These drawings are acceptable.
The objection to claim 13 is withdrawn.
The rejections under 35 USC 112, second paragraph are withdrawn.
The rejection under 35 USC 102(a)(1) is maintained.
The applicant argues that ADSSON-KORAT (AK) teaches methods for producing protein-containing extruded snack products with a dense, foamy texture. It is argued that AK teaches the use of expansion controlling agents that "provide for dense, light-colored extruded snack products" with "smaller cell size diameters, which can be described as dense." Thus, applicant states that AK concludes that the opposite of what is claimed - i.e., a method of making a denser protein-containing extruded snack product, rather than a reduced-density one. In support of this statement, the applicant cites [0009].
However, [0009] of AK is as follows:
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AK teaches that the processing conditions can be further manipulated to increase expansion through the use of chelating agents to disrupt the matrix of the casein micelle and acids to lower the pH and impact the structure of the proteins. AK does not teach that acid and lecithin increase automatically the density of a product. In fact, the last sentence of [0009] indicates that one can increase expansion which would reduce density. [0035] indicates additional ingredients such as fiber, vitamins, minerals, other nutritional supplements and expansion controlling agents all impact density. These expansion agents include porous calcium carbonate and sodium hexametaphosphate. Moreover, it is noted that [0042] of AK where states, “It is believed that by manipulating the pH of the dough prior to extrusion, the acid may help control the undesired reactions during extrusion to produce a finished product with good color as well as good expansion.”
AK teaches adding a protein crisp ingredient mix in the form of soy protein isolate [0053] to citric acid so to reduce the pH to 5.5 to about 6.3 [0042]. Soybean lecithin is also added [0053]. A dough is formed and extruded and dried to form an expanded product (i.e., crisp product) [0054] (See also, Figure 1). Acids can be used in amount of 0.5% [0041]- [0042]. Thus, AK teaches a method for producing extruded protein chips with the same ingredients as claimed. It is the Examiner’s position that a dough with at least one acidulant and lecithin would naturally have a reduced density as compared to that of a protein crisp (i.e., produced with a similar dough) made without at least one acidulant and the at least one lecithin component.
Conclusion
Applicants’ amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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