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 .
Election/Restrictions
Applicant’s election of claims 1-7 in the reply filed on 12 August 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 8-11 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claims 2 and 3 are objected to because of the following informalities: Claim 2, line 1, replace “is” with “comprises”
Claim 3, line 2, “is comprising” should read “comprises”
Appropriate correction is required.
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.
Claim 5 is 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 5 recites the limitation "the sunflower oleosome concentrate" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which it depends, recites a sunflower oleosome fraction but does not recite a sunflower oleosome concentrate. For the purpose of examination, 5 will be interpreted as pertaining to the sunflower oleosome fraction of claim 1.
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 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Guth (US 2011/0081435 A1) in view of Wildermuth (Wildermuth et al. Chlorogenic Acid Oxidation and Its Reaction with Sunflower Proteins to Form Green-Colored Complexes, Comprehensive Reviews In Food Science and Food Safety, 2016, Vol 15, pp829-843).
Regarding claim 1, Guth discloses a method of making oleosome comprising compositions [0001]. Guth discloses the oleosome of the invention are obtained from plant seeds, including sunflower seeds [0032-0033]. Guth discloses the seeds are processed by mechanical grinding in a liquid phase which is preferably water [0034-0035]. Guth discloses the mechanical griding in water may be done by a variety of mills or an industrial homogenizer, which would result in a slurry [0036]. Guth discloses the pH during milling is maintained from 7.0-9.0, which overlaps with the claimed range of a pH of more than 7.2 [0038]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Guth discloses the oleosome fraction is separated from the aqueous phase [0040].
Guth does not disclose the addition of a reducing agent and/or acidulant.
Wildermuth, in the field of sunflower seed derivatives, discloses at high pH green pigmentation of sunflower proteins occurs due to oxidized chlorogenic acid (CGA) reacting with proteins (p829, RH col, para 1). Wildermuth discloses chlorogenic acid is a colorless compound that oxidizes into ortho CGA-Q (p832, RH col, last para).
Wildermuth further discloses methods to inhibit greening in sunflower include use of reducing agents and compounds that form colorless adducts with CGA-Q and hinder protein cross-linking and pigment formation, including ascorbic acid, allyl isothiocyanate, cysteine, glutathione, dithiothreitol and sodium bisulfite (p838, LH col, last para).
Wildermuth discloses the food industry prefers neutral ingredients in terms of sensory attributes, as they can be used in a wider range of food applications without having detrimental effects on quality (p830, RH col).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of producing sunflower oleosomes of Guth with the reducing agents of Wildermuth in order to produce a sunflower oleosome product that does not have green pigmentation and is therefore a more useful neutral ingredient for the food industry.
Regarding the order of steps, Guth in view of Wildermuth does not disclose the reducing agent is added during grinding or is added to the obtained sunflower seed slurry. However, the selection of any order of mixing ingredients is prima facie obvious in the absence of new or unexpected results. MPEP 2144.04 IV. C.
Regarding claim 2, Guth discloses an oil oleosome preparation obtained upon separation from the aqueous phase is washed at least once by resuspending the oleosome fraction in a liquid phase and centrifuging the resuspended fraction, which yields a washed oleosome preparation (isolating a sunflower oleosome concentrate) [0046]. Guth discloses the liquid phase for washing may be water [0047].
Regarding claim 3, Guth discloses the liquid phase is advantageously a buffer liquid phase which has a pH at which oleosomes are stable, pH 7.0-9.0, which overlaps with the claimed range of the aqueous solution of step c) having a pH of more than 7.2 [0047].
Guth does not disclose the aqueous solution for washing comprises a reducing agent or acidulant.
Wildermuth discloses at high pH green pigmentation of sunflower proteins occurs due to oxidized chlorogenic acid (CGA) reacting with proteins (p829, RH col, para 1). Wildermuth discloses chlorogenic acid is a colorless compound that oxidizes into ortho CGA-Q (p832, RH col, last para).
Wildermuth further discloses methods to inhibit greening in sunflower include use of reducing agents and compounds that form colorless adducts with CGA-Q and hinder protein cross-linking and pigment formation, including ascorbic acid, allyl isothiocyanate, cysteine, glutathione, dithiothreitol and sodium bisulfite (p838, LH col, last para).
Wildermuth discloses the food industry prefers neutral ingredients in terms of sensory attributes, as they can be used in a wider range of food applications without having detrimental effects on quality (p830, RH col).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combined the method of washing sunflower oleosomes of Guth with the reducing agents of Wildermuth in order to produce a sunflower oleosome product that does not have green pigmentation and is therefore a more useful neutral ingredient for the food industry.
Regarding the order of steps, Guth in view of Wildermuth does not disclose the reducing agent is added during the washing step. However, the selection of any order of mixing ingredients is prima facie obvious in the absence of new or unexpected results. MPEP 2144.04 IV. C.
Regarding claim 4, Guth discloses the seed maty be rinsed before grinding and it may be advantageous to imbibe the seeds for 15 minutes up to 2 days in a liquid phase before grinding to soften the cell walls and facilitate grinding [0034-0035].
Regarding claim 7, Guth in view of Wildermuth does not disclose the quantity of reducing agent added relative to the total dry weight of the sunflower seed slurry. However, it is known in the art that the quantity of reducing agent is a result effective variable. Wildermuth discloses methods to inhibit greening in sunflower include use of reducing agents and compounds that form colorless adducts with CGA-Q and hinder protein cross-linking and pigment formation, including ascorbic acid, allyl isothiocyanate, cysteine, glutathione, dithiothreitol and sodium bisulfite (p838, LH col, last para). Therefore, if you change the quantity of reducing agent you change the number of colorless adducts of CGA-Q and also the amount of green pigment in the composition. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Additionally, 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. MPEP 2144.05 II A. As such, the quantity of reducing agent recited in claim 7 is merely an obvious variant of the prior art.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Guth in view of Wildermuth as applied to claim 1 above, and further in view of Cargill (EP 3494796 A1).
Regarding claim 5, Guth does not disclose a heat treatment step or a dehydration step for the sunflower oleosome fraction.
Cargill, in the field of isolating oleosomes, discloses preparing oleosomes by separating a suspension of seeds and water, wherein the pH is between 7.4-7.5, and washing the oleosomes [0008]. Cargill discloses the seeds may be sunflower seeds [0013]. Cargill discloses the obtained oleosomes are heated, preferably pasteurized for a few seconds, meets the claim limitation of a heat treatment step. Cargill discloses the pasteurized oleosomes have improved oxidation stability [0031].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of making the oleosome composition of Guth with the pasteurization of oleosomes of Cargill since Cargill discloses the pasteurization step provides improved oxidation stability.
Regarding claim 6, Guth in view of Wildermuth does not disclose the sunflower sees are high oleic or mid oleic sunflower seeds.
Cargill, in the field of isolating oleosomes, discloses high oleic oleosomes can be sourced from high oleic seeds including sunflower seeds [0005] and [0013].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined the method of making the oleosome composition of Guth with the high oleic sunflower seeds of Cargill since both are drawn to methods of isolating oleosomes from sunflower seeds and Cargill discloses the high oleic sunflower seeds are appropriate for oleosome extraction.
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 and 4-6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-8 of copending Application No. 18/834,672 (reference application herein referred to as ‘672). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, ‘672, claim 1, discloses a process for preparing a sunflower oleosome concentrate and the process is comprising the steps, in order, of: a) Grinding sunflower seeds in the presence of an aqueous solution and obtaining a sunflower seed slurry having a pH in a range of from more than 7.2 to 9.0, and b) Isolating from the sunflower seed slurry a sunflower oleosome fraction.
‘672, claims 6 and 7, recites wherein a reducing agent and/or an acidulant is added during the grinding or a reducing agent and/or acidulant is added to the obtained sunflower seed slurry in step a) of the process.
‘672, claim 8, discloses wherein the reducing agent and/or an acidulant is selected from the group consisting of ascorbic acid, erythorbic acid, allyl isothiocyanate, cysteine, glutathione, dithiothreitol, sodium bisulfite, citric acid, malic acid, carnosic acid, any derivative thereof and any combination of two or more thereof.
Regarding claim 2, ‘672, claim 1, recites: washing the sunflower oleosome fraction at a pH in a range of from 6.6 to 7.0 and isolating the sunflower oleosome concentrate.
Regarding claim 4, ‘672, claim 4, recites: wherein the grinding of the sunflower seeds is preceded by soaking and/or washing of the sunflower seeds.
Regarding claim 5, ‘672, claim 5, recites: and the process is further comprising a step of subjecting the sunflower oleosome concentrate obtained in step c) to a heat treatment step and/or dehydration step.
Regarding claim 6, ‘672, claim 3, recites: wherein the sunflower seeds are sourced from high oleic and/or mid oleic sunflower seeds.
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 CARRIE GLIMM whose telephone number is (571)272-2839. The examiner can normally be reached Monday-Thursday 10:30-6:30 ET.
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/CARRIE GLIMM/Examiner, Art Unit 1793
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