DETAILED ACTION
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.
Claims 1-19 and 21 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 is rejected for reciting the term glutaminase (E.C. 3.5.1.2). It is not clear whether the information in the parentheses is a preference or required classification.
Claim 1 is also rejected as it is in unclear what percentages refence in steps a) and b) (e.g., weight). It is also unclear what the dry matter is based on (e.g., oat raw material).
Claims 2-19 and 21 are rejected for being dependent on or relying on claim 1.
Claims 5-7 are also rejected as they also reference a percentage of material based on dry matter. It is also unclear what the percentage (e.g., weight) and dry matter is based on (e.g., oat raw material).
Claim 8 is also rejected as claim 8 recites that the oat raw material is an aqueous oat suspension treated with amylases. However, step b) of claim 1 recites that the aqueous oat suspension is prepared from the oat raw material. It is unclear what needs to be done in claim 8 in terms of the raw material and aqueous suspension so as to satisfy both step b) of claim 1 and also claim 8.
As to claim 10, the terms “wet form” and “dry form” are in parentheses. It is not clear whether the information in the parentheses is a preference or required. Claim 10 is also rejected as it is recited that the aqueous oat suspension is obtained by adjusting the dry matter. However, step b) of claim 1 recites that the aqueous oat suspension is prepared from the oat raw material. It is unclear what needs to be done in step b) of claim 1 and claim 10 in terms of the raw material and aqueous suspension so as to satisfy step b) of claim 1 as well as claim 10.
Claim 19 is rejected for reciting “using” the liquid and solid product. It is unclear how they are being used (i.e., as an ingredient for a sauce or paste, respectively, or some intermediate product).
Claim 19 is also rejected for reciting “miso-like”. The term “miso-like” in claim 19 is a relative term which renders the claim indefinite. The term “miso-like” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
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.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO 02/01963 (VADEHRA) (See IDS of 10/23/2024) in view of CN112438365. A translation for CN112438365 is provided with this Official Action.
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As to claim 21, VADEHRA teaches a process for making an vegetable protein based seasoning/condiment (pg. 1, lines 5-10).
VADEHERA teaches treating vegetable protein with exopeptidases, endopeptidase and glutaminases (pg. 4, lines 15-25). Step g) is taught at pg. 7, lines 15-20, wherein the enzyme is inactivated. Step h) is taught at pg. 7, lines 15-20 where is taught that the obtained product can be recovered by centrifugation. This would naturally result in a separation based on liquid and solid.
As to the pH, VADEHRA teaches that the pH can be selected based on the optimum pH of the enzyme used (e.g., 5-7.5) at pg. 7, lines 1-3.
VADHERA does not teach that the vegetable protein can be oat protein.
CN112438365 teaches providing an oat raw material (lines 34-40).
The result is a plant protein hydrolysate (lines 14-15) and the process has advantages in terms of refining time, energy consumption, enzymatic hydrolysis time, concentration time, artificial use, and final taste performance of the product, and has achieved beneficial technical effects.
Thus, it would have been obvious to one skilled in the art to use the oat protein product of CN112438365 in VADHERA, as CN112438365 teaches an improved plant protein product and process of obtaining the product.
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No US20150351432A1 (Triantafyllou ).
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Claim 21 is directed to an oat food additive/condiment that can be wet-milled and have a pH of 4.0 to 6.7 [0047], a starch content less than 5% and a protein content of at least 24%.
Triantafyllou discloses a wet-milled product with a solids content of 8-13%, a pH of 6.6, a protein content of at least 20% [0026]. The overall amount of starch is not taught. However, it is taught to degrade the starch [0026]. It would have been obvious to eliminate starch. The oat-based product is treated with glutaminase [0036] and the claimed product is silent as to the exact nature of the peptide/protein content.
Claims Free of Prior Art
Claims 1-19 are free of prior art. US20150351432A1 (Triantafyllou ) teaches a method for preparing an oat-based condiment/food additive [0001] by treating the oat-based condiment with glutaminase [0036]. However, Triantafyllou avoids treating the material with exo- and endo-peptidases [0029]. CN112438365 (a translation is also provided) teaches providing an oat raw material (lines 34-40) but does not teach a raw material with the same protein, starch or beta-glucan content or treating the material with exo- and endo-peptidases. United States Patent No. 6,036,983 (see IDS of 10/23/2024) does teach a process that treats an oat material with glutaminase, exopeptidases and endo peptidases but does not teach a raw oat material as claimed or treating the raw oat material to obtain the claimed amounts of protein and starch. There is also no recognition of treating the oat material with homogenization, wet milling or micro-fluidization.
Conclusion
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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/PHILIP A DUBOIS/ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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