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
Claims 37-40 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 07/28/2026.
Applicant's election with traverse of claims 1-36 in the reply filed on 07/28/2026 is acknowledged. The traversal is on the ground(s) that “[t]he shared technical features are common to both Groups and make a contribution over the cited prior art, and therefore are special technical features” (Remarks filed 07/28/2026). This is not found persuasive because as discussed in the rejection below, Bernett (US 20170071229 A1) discloses a composition comprising plant-derived cream; mucilage; plant-derived protein; plant-derived milk; a plant-derived lactone enhancer; a plant-derived flavor enhancer; and a plant-derived nutrient enhancer. Bernett discloses a stabilizing agents that may include flax seed, mucilage, okra, quince, quince seed, etc ([0026]). Bernett does not specifically discloses that flax seed, okra, quince, or quince seed are the sources of mucilage. Another prior art reference to Tosif et al is made as a teaching of plant-originated mucilage from chia seed, okra seed, flaxseed, etc (Table 2 on page 8). The requirement is still deemed proper and is therefore made FINAL.
Priority
Applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d) is made to US application US63314543. A US application is not a foreign application for 35 U.S.C. 119.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites the limitation of a “diary ingredient”. This should be corrected to “dairy”.
Claim 8 recites the limitation of “plant seed mucilage comprises viscosity, .. water holding capacity and ...a foaming capacity...”. It is noted that viscosity, water holding capacity and foaming capacity are not a part of composition, but rather functional properties of plant seed mucilage. Hence, plant seed mucilage does not comprise viscosity, water holding capacity and a foaming capacity. The same rationale is applied to claim 16.
Appropriate correction is required.
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.
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) 1-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bernett (US 20170071229 A1) in view of Tosif et al (A Comprehensive Review on Plant-Derived Mucilage: Characterization, Functional Properties, Applications, and Its Utilization for Nanocarrier Fabrication).
Claim 1 recites the following limitations:
A plant-only composition for a food product, comprising:
about 5% to 40% weight by weight of a plant-derived cream;
about 0.5% to 10% weight by weight of a plant seed mucilage;
about 0.5% to 10% weight by weight of a fruit and/or vegetable mucilage;
about 2% to 20% weight by weight of a plant-derived protein;
about 15% to 60% weight by weight of a plant-derived milk;
about 0.1% to 10% weight by weight of a plant-derived lactone enhancer;
about 0.1% to 10% weight by weight of a plant-derived flavor enhancer; and
about 0.5% to 10% weight by weight of a plant-derived nutrient enhancer,
wherein the plant-only composition substitutes a diary ingredient in the food product.
Claim 33, 34 and 36 recite similar limitations. In regard to claims 1, 33, 34 and 36, Bernett discloses a protein-fortified frozen dessert formulation comprising a source of fat, a stabilizing agent, a sweetening agent, a protein mix, and a flavoring agent ([0009]-[0022]).
In regard to the source of fat, Bernett discloses coconut cream, coconut milk and combinations thereof ([0025]). In regard to the source of fat, Bernett discloses “the source of fat may be about 0-20% (w/w) of the aged mix” ([0017]).
Therefore, Bernett meets the limitations of “a plant-derived cream” and “a plant-derived milk”.
In regard to the recitation of a plant-derived protein, Bernett discloses a vegetable protein, soy protein, a soy protein concentrate, a soy protein isolate, a hydrolyzed soy protein, a rice protein, a pea protein, a hemp protein, and combinations thereof ([0028]). Bernett further discloses “the first protein mix may be about 2-13% (w/w) of the aged mix”, and “the second protein mix may be 2.5-25% (w/w) of the aged mix” ([0020], [0021]).
In regard to the recitation of a “plant-derived lactone enhancer”, it is noted that claim 21 further limits “plant-derived lactone enhancer” of claim 1 to “at least one of peach, carrot, apricots, raspberries, strawberries, pineapple, plums, celery, coconut, orange, filberts, peanuts or a combination thereof”. Bernett discloses a protein-fortified frozen dessert formulation comprising a flavoring agent. Bernett discloses “[t]he fruit flavoring may comprise orange, apple, grapefruit, pineapple, strawberry, raspberry, cranberry, lime, lemon, grape, peach, cherry flavor, and combinations thereof” ([0030]). Hence, by disclosing “[t]he fruit flavoring may comprise orange, apple, grapefruit, pineapple, strawberry, raspberry, cranberry, lime, lemon, grape, peach, cherry flavor, and combinations thereof”, Bernett meets the limitation of the “plant-derived lactone enhancer” as recited in claims 1 and 21.
In regard to the recitation of a “plant-derived flavor enhancer”, Bernett discloses:
[0029] The flavoring agents may comprise a cocoa powder, a chocolate, a chocolate chips, a flavor providing powder, a liquid flavor, a maple syrup, a maple sap, a fruit flavoring, a vanilla flavor, a caramel, peanut butter, bubble-gum, nuts, fruits, vegetables, cookies, brownies, pie crust pieces, wafer pieces, sugar cone pieces; cookie dough; candies; chocolate bar pieces; crunches, jams, purees, and combinations thereof.
[0030] The fruit flavoring may comprise orange, apple, grapefruit, pineapple, strawberry, raspberry, cranberry, lime, lemon, grape, peach, cherry flavor, and combinations thereof.
In regard to the recitation of a plant-derived nutrient enhancer, Bernett discloses strawberry, raspberry, cranberry, other berries ([0065], [0071]) and “a liquid vitamin and mineral blend” ([0108]).
In regard to the concentrations of a plant-derived lactone enhancer, a plant-derived flavor enhancer; and a plant-derived nutrient enhancer as recited in claims 1, 33, 34, 36 and 22, 24 and 26, Bernett discloses “the flavoring agent may be 0-20% (w/w) of the aged mix” ([0022]).
Further in regard to claims 1, 33, 34 and 36, Bernett discloses a stabilizing agents that may include flax seed, mucilage, okra, quince, quince seed, etc ([0026]). Bernett discloses that the stabilizing agent may be about 0-1.5% (w/w) of the aged mix ([0018]).
Bernett discloses a stabilizing agents that may include flax seed, mucilage, okra, quince, quince seed, etc ([0026]). In regard to claims 1, 33, 34 and 36 and claim 5, Bernett does not specifically disclose that flax seed, okra, quince, or quince seed are the sources of mucilage. Another prior art reference to Tosif et al is made as a teaching of plant-originated mucilage from chia seed, okra seed, flaxseed, etc (Table 2 on page 8). Tosif et al discloses that functional properties of mucilage include stabilizing, thickening, fat replacing, water holding, emulsion stabilizing, etc (Table 2 on page 8). Hence, one of ordinary skill in the art would have been motivated to modify Bernett in view of Tosif et al and to obtain mucilage from any conventional plant source including a plant seed mucilage, vegetable or fruit mucilage depending on the desired functional properties, availability and a personal preference of a consumer.
Further in regard to the concentration recitations, it is noted that:
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) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that 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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to claim 2, Bernett discloses coconut cream, coconut milk and combinations thereof ([0025]).
In regard to claim 3, Bernett discloses “the source of fat may be about 0-20% (w/w) of the aged mix” ([0017]).
The recitations of claim 4 are inherent characteristics of the coconut cream
In regard to claims 6 and 11, Bernett discloses that the stabilizing agent may be about 0-1.5% (w/w) of the aged mix ([0018]).
In regard to claim 7, Tosif et al discloses plant seed mucilage including flax seed mucilage (Table 2 on page 8). The recitations of claim 7 are inherent characteristics of flax seed mucilage. The recitations of claim 8 are inherent characteristics of plant seed mucilage.
Claim 9 is directed to a process for preparation of a flax seed mucilage. The instant claims are directed to the product comprising flax seed mucilage. The particular process for the preparation of a flax seed mucilage would not impart any patentable distinction to the claimed product.
In regard to claim 10, Tosif et al discloses okra mucilage, Basella Alba and spinach mucilage (Table 1 on page 3).
The recitations of claims 12 and 13 are inherent characteristics of the okra and fruit/vegetable mucilage.
In regard to claim 14, Bernett discloses a vegetable protein, soy protein, a soy protein concentrate, a soy protein isolate, a hydrolyzed soy protein, a rice protein, a pea protein, a hemp protein, and combinations thereof ([0028]).
In regard to claim 15, Bernett further discloses “the first protein mix may be about 2-13% (w/w) of the aged mix”, and “the second protein mix may be 2.5-25% (w/w) of the aged mix” ([0020], [0021]).
The recitations of claims 16 and 17 are inherent characteristics of the plant-derived protein and pea protein.
In regard to claim 18, Bernett discloses coconut milk ([0025]).
In regard to claim 19, Bernett discloses “the source of fat may be about 0-20% (w/w) of the aged mix” ([0017]).
In regard to claim 20, it is noted that hemp seed milk is not required in the claimed composition. Claim 20 merely further limits claim 18 by further reciting the characteristics of hemp seed milk.
In regard to claim 23, Bernett discloses:
[0029] The flavoring agents may comprise a cocoa powder, a chocolate, a chocolate chips, a flavor providing powder, a liquid flavor, a maple syrup, a maple sap, a fruit flavoring, a vanilla flavor, a caramel, peanut butter, bubble-gum, nuts, fruits, vegetables, cookies, brownies, pie crust pieces, wafer pieces, sugar cone pieces; cookie dough; candies; chocolate bar pieces; crunches, jams, purees, and combinations thereof.
[0030] The fruit flavoring may comprise orange, apple, grapefruit, pineapple, strawberry, raspberry, cranberry, lime, lemon, grape, peach, cherry flavor, and combinations thereof.
One of ordinary skill in the art would have been motivated to employ any flavoring based on the desired flavor profile and a personal preference of a consumer.
In regard to claim 25, Bernett discloses strawberry, raspberry, cranberry, other berries ([0065], [0071]).
In regard to claim 27, Tosif et al discloses plant seed mucilage including flax seed mucilage (Table 2 on page 8). Tosif et al discloses okra mucilage, Basella Alba and spinach mucilage (Table 1 on page 3). The recitations of claim 27 are inherent characteristics of the plant seed or fruit/vegetable mucilage.
In regard to claim 28, Bernett discloses liquid or gel composition (Examples).
In regard to claim 29-30, Bernett discloses a protein-fortified frozen dessert formulation ([0009]-[0022]).
The limitations of claims 31 and 32 are directed to the intended use of the composition.
In regard to claim 35, Bernett discloses:
[0016] the water may be about 40-60% (w/w) of the aged mix, [0017] the source of fat may be about 0-20% (w/w) of the aged mix, [0018] the stabilizing agent may be about 0-1.5% (w/w) of the aged mix, [0019] the sweetening agent may be about 0-35% (w/w) of the aged mix, [0020] the first protein mix may be about 2-13% (w/w) of the aged mix, [0021] the second protein mix may be 2.5-25% (w/w) of the aged mix, and [0022] the flavoring agent may be 0-20% (w/w) of the aged mix.
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
