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 status
Claims 1-14 field 07/24/2024 are pending in the application and are hereby examined on the merits.
Specification
The Abstract of the disclosure is objected to because there are more than 150 words and more than 15 lines of text in the instant Abstract. The abstract should be in narrative form and generally limited to a single paragraph preferably within the range of 50 to 150 words in length. The Abstract should not exceed 15 lines of text. Abstracts exceeding 15 lines of text or 150 words should be checked to see that they are as concise as the disclosure permits. The form and legal phraseology often used in patent claims, such as "means" and "said," should be avoided. The abstract should sufficiently describe the disclosure to assist readers in deciding whether there is a need for consulting the full patent text for details. Correction is required. See MPEP § 608.01(b).
Claim Objections
Claim 1 is objected to because of the following informalities: “NSI” in line 10 should be written out with full name “Nitrogen Solubility Index” for the first occurrence. 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.
Claims 1-4, 6-7, 9-10 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Tavernier, “Emulsion-templated liquid oil structuring with soy protein and soy protein: κ-carrageenan complexes”, Food Hydrocolloids 2017, 65, pages 107-120 (hereinafter referred to as Tavernier) in view of Keisuke JP2021052700A1 (cited in the IDS submitted 10/21/2024, English translation relied upon for reference, hereinafter referred to as Keisuke).
Regarding claims 1-4, 6-7, 9-10 and 12-13, Tavernier teaches an oil-in-water emulsion composition comprising water, a protein such as a soy protein isolate (SPI) and an oil (Abstract), wherein the amount of oil is 60% (page 109, section 2.3.1), and wherein the only protein source of the emulsion is SPI and contains no animal protein (page 109, section 2.3.1). Soy protein is derived from a legume. Further, Tavernier teaches that the emulsion is dried to make a solid fat substitute oil composition (e.g., oleogel) (Abstract; pages 109-110, Section 2.4.1).
Tavernier teaches that the SPI contains 91.41% protein (page 108, section 2.1), but is silent regarding that the SPI has an NSI of 80 or more, and an area ratio of 2000- 20000 Da being 30% or more (or 45-90%), an area ratio of 20000 Da or more being 70% or less, and an area ratio of less than 2000 Da being 45% or less in a measurement result of molecular weight distribution as recited in claims 1-3. What Tavernier teaches is that the protein is used as a structuring agent for the liquid oil and serves to stabilize the oil-in-water emulsion when adsorbed at the oil-water interface (Abstract; page 108, left hand column, 3rd para.; page 109, section 2.3.1.4; page 116, section 3.2.3; page 119, “Conclusion”).
Keisuke teaches that in general a vegetable protein such as soy protein has inferior emulsifying property and solubility to milk protein (0004), and to solve the deficiency associated with vegetable protein, Keisuke developed a soy protein isolate (0015) that has the following characteristics: protein solid content is 50% or more (for example, 70% or more; 0010; 0017), NSI is 67 or more (for example, 80 or more; 0010; 0018), and an area ratio of 10000 Da or more is 30 to 80%, an area ratio of 2000-10000 Da is 20 to 50%, and an area ration of less than 2000 Da is 15% or less in a measurement result of molecular weight distribution (e.g., gel filtration) (0010; 0019). Keisuke teaches that the SPI is obtained by molecular weight distribution adjustment through slightly degrading soy protein (0023). Keisuke teaches that the SPI can be used to make an emulsion (e.g., a plant-based cream substitute) that has satisfactory emulsifying property and emulsifying stability without the need to use a milk protein (0008-0009; 0026), suggesting that the SPI with the aforementioned characteristics has improved emulsifying properties over a regular SPI.
Both Tavernier and Keisuke are directed to using a SPI in an emulsion, and where Tavernier teaches using SPI to stabilize an emulsion, Keisuke teaches that SPI with aforementioned characteristics has improved emulsifying properties over a regular SPI. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Tavernier by substituting the SPI of Keisuke for the SPI of Tavernier with reasonable expectation of success, for the reason that Keisuke has established that SPI with the aforementioned characteristics has improved emulsifying properties over a regular SPI.
The protein content and the NSI as disclosed by Keisuke meet those as recited in claim 1. As for the molecular weight distribution, Keisuke teaches an area ratio of less than 2000 Da that meets the range as recited in claim 3. Further, since Keisuke teaches that an area ratio of 2000-10000 Da is 20 to 50%, then the area ratio of 2000-20000 Da will be necessarily bigger than 20 to 50% but less than 90%, and an area ratio of 20000 Da or more will be is less than 70%, given that an area ratio of less than 2000 Da is 15% or less and an area ratio of 10000 Da or more is 30-80% (for example, if the area ratio of less than 2000 Da is 15%, and the area of 2000-10000 Da is 50%, then the area ratio of greater than 10000 Da is 35% and the area ratio of greater than 20000 Da is less than 35%).
Further, Keisuke teaches that the SPI is obtained by molecular weight distribution adjustment through slightly degrading soy protein (0023), and also teaches that the molecular weight distribution of the plant protein affects the emulsifying properties and emulsification stability of the emulsion formed, for example, protein with more moderately degraded molecules than intact proteins and fewer highly degraded, low molecular weight peptides will contribute more to the emulsifying properties and emulsification stability of the emulsion (e.g., cream substitute) (0019). Therefore, one of ordinary skill in the art would have been motivated to manipulate the level of degradation so as to obtain an emulsion with satisfactory emulsifying properties and emulsification stability when the protein is added to the emulsion. As such, the molecular weight distribution as recited in claims 1-3 are merely obvious variants of the prior art.
On the limitation about the compressive load of the emulsion as recited in claims 1 and 4, the compressive load as a viscoelastic property would have been a parameter of the composition of the emulsion (e.g., amount of oil/water, and the type and the amount of protein). In the instant case, Tavernier teaches that the amount of oil is 60%, Tavernier further teaches that SPI in sufficiently high concentration of >2% is good stabilizer of the concentrated O/W emulsion (page 116, section 3.3). Note that such an protein amount is consistent with the protein content recited in the instant specification (para. 0017). Further, Keisuke teaches the same type of protein as in claim 1, therefore, it logically follows that the O/W emulsion as disclosed by Tavernier in view of Keisuke has the viscoelastic properties including the compressive load as recited in claims 1 and 4. See MPEP 2112.01 I, 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).
Claims 5, 8, 11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Tavernier in view of Keisuke as applied to claim 1 above, and further in view of Baune, “Analysis of protein‑network formation of different vegetable proteins during emulsification to produce solid fat substitutes”, Journal of Food Measurement and Characterization (2021) 15:2399–2416 (cited in the IDS submitted 10/21/2024, hereinafter referred to as Baune).
Regarding claims 5, 8, 11 and 14, Tavernier as recited above teaches an oil content of 60% for the emulsion, thus being silent regarding an oil content of 75% or more for the emulsion.
Baune teaches an O/W emulsion that is stabilized or emulsified by a protein such as SPI, and such an emulsion is further treated to make a gel; additionally, Baune teaches that the oil content in the emulsion can be up to 80% (Abstract; page 2399,m right hand column, 2nd para.; page 2400, the whole page.; page 2402, “Preparation of emulsion gels”).
Both Tavernier and Baune are directed to O/W emulsion that is stabilized by a protein (e.g., SPI), wherein the emulsion is further treated to make a gel. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Tavernier by increasing the content of the oil in the emulsion to as high as 80% with reasonable expectation of success, for the reason that prior art has established that an O/W emulsion that is stabilized by protein and is used for making a gel can have up to 80% oil.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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