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 .
DETAILED ACTION
Status of the application
Claims 1-18 are pending in this office action
Claims 1-18 have been rejected.
Claim Rejections - 35 USC § 112
3. 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.
4. Claims 1-20 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.
Regarding independent claim 1 recites "about 60 wt.% to about 100 wt. % legume”; and ' transglutaminase'. However, it is to be noted that if there is 100% legume how is there going to be any 'low oxidation transglutaminase' in the composition. This similar reason is applicable at least for independent claim 14 as well. This renders independent claims 1 and 14 indefinite.
Claims 10-12 recite “The snack product”. However, claims 10-12 depend on claim 8 which depends on independent claim 1. Independent claim 1, dependent claim 8 do not recite “A snack product. There is insufficient antecedent basis for this limitation in the claims 10-12. It is to be noted that independent clam 9 recites “A snack product”. Therefore, applicants may at least consider making claims 10-12 to depend on claim 9. However, other options may be to amend claims 1 and/or claim 8 to overcome 112 second paragraph (antecedent basis) rejection.
Claim Rejections - 35 USC § 103
5. 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.
6. 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 way the invention was made.
7. 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 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 non-obviousness.
8. Claim(s) 1, 2, 3, 5,8, rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 in view of Frank S et al. (EP 1190624 A2).
9. Regarding claims 1, 5, Corwin et al. discloses that plant protein -based food composition is legume (at least in [0068]), which plant protein can be present in an amount ranging from 15 to 85 wt. % (at least in Abstract and in [0056], [0066], [0068] and at least in Tables 2, 3 etc.) in the food composition which is battered composition for making patties, baked food product etc. for animal or human consumption (at least in[0066], [0068], [0076]) overlaps the claimed range amount of 60 wt.% to 100 wt.% legume protein of claim 1, showing prima facie case of obviousness. 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).
Corwin et al. also discloses transglutaminase in the food composition (at least in [0101], Tables 3, 10, 11).
Corwin et al. discloses plant-based protein from legume source (at least [0056]). Corwin et al. also discloses Transglutaminase (TG) enzyme can be used at different amounts which can be broad range values of TG (at least in [0101], [0111], [0113], Tables 3, 10, 11 of Corwin et al.). It is understood from broad disclosure that the amount of TG varies and is optimizable. If we consider, at least, black eyed pea, R1 and R2 samples have good quality with respect to cohesiveness, firmness and water retention property (at least Table 6) when total protein is about more than 60% by weight, black-eyed pea protein was 42.7% (R1) and 44.21% (R2) with TG 7.14% (R1) and 0.0015% (TG) (at least Table 3) (i.e. broad range TG enzyme) which overlaps claimed range values of claim 5. 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).
It is to be noted that Corwin discloses that the food composition which is battered composition for making vegetable patties, baked food product etc. for animal or human consumption (at least in [0066], [0068], [0076]) which would have obviously be made from dough composition.
However, more specifically, Corwin et al. is silent about the food product made from ‘dough composition’ having claimed range amount of legume protein and the range amount of transglutaminase enzyme containing dough in the dough composition.
Frank S et al. discloses that dough composition having legume protein flour containing transglutaminase can be used to make ‘dough composition’ which can be used for making food products including baked product and the dosage varies depending on the type of the flour (page 3, at least paragraphs 1-4). The amount of TG is broadly used from 5 TGU to 5000 TGU (at least paragraph 2, page 3) to serve as baking aid (page 3, paragraph 4) to provide a significantly improved bread volume by retaining bread volume, less stickiness of dough etc. (page 2, mid-section). It is within the skill of one of ordinary skill in the art to considered the optimized amount of TG from the disclosed range amount of 5-5000 TGU (at least paragraph 2, page 3) which will be present in weight percent range amount of the claimed amount of claim 5 in order to provide desired significantly improved bread volume by retaining bread volume, less stickiness of dough etc. (page 2, mid-section).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. with the teaching of Frank S et al. to include the amount of TG from the disclosed range amount of 5-5000 TGU (at least paragraph 2, page 3) which will provide desired significantly improved bread volume by retaining bread volume, less stickiness of dough etc. (page 2, mid-section).
Frank S et al. also discloses that the identical effect is known effect as it is disclosed by Frank S et al. (EP 1190624 A2) that the effect of transglutaminase in wheat batter is based on the formation of new connections between the amino acids’ glutamine and lysine of the flour proteins (at least on page 2, last but one paragraph).
Frank S. et al. also discloses that transglutaminase can be used for legume flour also to make dough which is used for making baked products and the dosage varies depending on the type of the flour (page 3, at least paragraphs 1-4).
Frank S et al. also discloses that the dosage of transglutaminase depends on the individual case according to the nature of the flour (page 2, paragraph 2 and page 3, at least paragraphs 2-4). Frank S et al. also discloses that the exact dosage can be determined by a specialist simple routine attempt depending on the respective flour used or the flour mixture can be easily determined (page 3, at least paragraph 3).
If we consider the disclosures of Corwin et al. and Frank S et al. the amount of transglutaminase (TG) enzyme depends on many factors and is optimizable.
Therefore, it is considered as the property of the transglutaminase enzyme, both the range amount of TG enzyme of claim 5 are optimizable.
Absent showing of unexpected results, the specific amount of TG enzyme is considered to confer patentability to the claims. As the amount of TG is variable depends on the amount of flour and nature of flour etc. (Frank S et al. page 2, paragraph 2 and page 3, at least paragraphs 2-4), that can be modified, among others, by adjusting the amount of TG enzyme with respect to the nature and amount of flour, and in combination with water, the precise amount of TG enzyme and soluble matter per 100 grams of the dough would have been considered effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of TG in Corwin et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired property of the dough” suitable for desired purpose e.g. to have desired firmness containing sheet form to make baked product etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable rrangeinvolves only routine skill in the art. (In re Aller, 105 USPQ 223).
10. Regarding claim 2, Corwin et al. discloses that the source of plant protein is e.g. chickpeas, lentil etc. (at least in [0056], [0068], [0099]).
11. Regarding claim 3, Corwin et al. discloses that the source of plant protein is e.g. chickpeas, lentil etc. and it can be in many types including whole seeds also (at least in [0056], [0068], [0099]).
12. Regarding claim 8, regarding the claim limitation of “wherein the dough has about 20 gm of soluble matter per 100 gm of the dough “as claimed in claim 8, as discussed for claims 1, 5 above, Corwin et al. discloses that such a legume containing vegetable patty with legume protein with TG , TG concentration can vary and can be within the range amount of about 0.13% ( R6 in Table 3, 10, 11) to about 7.13% (R1, Table 3, 10, 11). However, these are related to different amounts and proportions of proteins with the amount of TG to have different types of binding effect, nature of dough (e.g. firm for R1 and R2, [0113]) and best binding etc. (R3, R4, R6 in [0111]). Therefore, Corwin et al. discloses that these range amounts are usable for such a product which ranges between 0.13 to 7.00% by weight TG (at least [0101], [0111], [0113], Tables 3, 10, 11).
It is to be noted that claims 5, 8 are interrelated because one of ordinary skill in the art can optimize the amount of TG to achieve claimed “20 grams of soluble matter per 100 grams of the dough” because the amount of TG is inversely proportionate to the legume (e.g. chickpea) solubility by covalently cross-linking with the amino group of lysine in present in the legume protein as evidenced by applicant’s specification (in PGPUB at least in [0067]). The identical effect is known effect as it is also disclosed by Frank S et al. Frank S et al. discloses that the effect of transglutaminase in batter comprising wheat and legume flour is based on the formation of new connections between the amino acids’ glutamine and lysine of the flour proteins (at least on page 2, last but one paragraph).
As discussed above, Frank S. et al. also discloses that transglutaminase can be used for legume flour also to make dough which is used for making baked products and the dosage varies depending on the type of flour (page 3, at least paragraphs 1-4).
Therefore, it is considered as the property of the transglutaminase enzyme. As the disclosed legume protein and TG are identical to the claimed legume protein and TG enzyme, the disclosed range amount of TG enzyme which meet the claimed range amount of TG, it will have the claimed property including the property of 20 grams of soluble matter per 100 grams of the dough”.
Therefore, in this instance, it is within the skill of one of ordinary skill in the art to optimize water and TG amount to have desired dough consistency (in terms of percent soluble matter to achieve the claimed “20 grams of soluble matter per 100 grams of the dough” to make sheet form for its further use as claimed in claim 8.
Frank S et al. also discloses that the dosage of transglutaminase depends on the individual case according to the nature of the flour (page 2, paragraph 2 and page 3, at least paragraphs 2-4). Frank S et al. also discloses that the exact dosage can be determined by a specialist simple routine attempts depending on the respective used flour or the flour mixture can be easily determined (page 3, at least paragraph 3).Therefore, both the range amount of TG enzyme of claim 5 and “20 grams of soluble matter per 100 grams of the dough” are optimizable.
Absent showing of unexpected results, the specific soluble matter is considered to confer patentability to the claims. As the soluble matter is variables that can be modified, among others, by adjusting the amount of TG enzyme and in combination with water, the precise amount of TG enzyme and soluble matter per 100 grams of the dough would have been considered effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of TG in Corwin et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired consistency containing dough to make desired “20 grams of soluble matter per 100 grams of the dough” suitable for desired purpose e.g. to have desired firmness containing sheet form (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
13. Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 in view of Frank S et al. (EP 1190624 A2) as applied to claim 1 and further in view of Moon et al. KR 2010/0012361 A and as evidenced by Garay et al. US 2025/0255313 A 1.
14. Regarding claim 4, Corwin et al., in view of Frank S et al., are silent about "low oxidation transglutaminase". Moon et al. discloses that transglutaminase (TG) enzyme can be coated with palm oil [under "Second Process (Transglutaminase coating)] in order to make coated Transglutaminase, enzyme which provides long-term stability to be used in food also (page 2, Under Tech-problem). It is evidenced by Garay et al. that low oxidation TG refers to a TG preparation that includes other components to maintain the TG catalytic activity and to protect the TG against oxidation when used in the presence of oxygen in environments such as those when air is present (in PGPUB [0031]). Therefore, the disclosed coating provides stability because of protecting coated TG from air which would obviously protect from oxidation. Therefore, coated TG has "low oxidation property" to read on "low oxidation transglutaminase of claim 1.
One of ordinary skills in art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. in view of Frank S et al. to include the teaching of Moon et al. to make coated transglutaminase to protect from aerial oxidation to make "low oxidation" TG.
15. Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 as applied to claim 1 and further in view of Baumgartner et al. US 2006/0008563 A1.
16. Regarding "dough" formation and "dough is used to make a sheet" as claimed in claim 6, 7, it should be noted that the claim is drawn to a dough for claim 1 and its dependent claim 6 depends on claim 1. Therefore, whatever the dough is used for is considered as intended use.
17. Regarding claim 6, Corwin et al. discloses that the disclosed amounts of plant- based protein from legume source (at least in [0020], [0021]) and transglutaminase (Tables 1, 3) which meets claimed plant- based protein from legume source and also transglutaminase which are mixed with water ([0065]) and it can be in any desired shape including in sheet form to make desired type of food ([0066]) also.
Corwin et al. also discloses that slurry is put in a vacuum bag and sealed under vacuum or may be poured or pressed into a slab or a mold (at least in [0070]). It is to be noted that even if there is no explicit disclosure that dough is machined to make a sheet, however, it is within the skill of one of ordinary skill in the art to make desired slurry concentration in the form of dough in a way so that under vacuum (i.e. pressure) condition, in the sealable bag, or pressed into a slab or a mold (at least in [0070] last two lines), it takes its shape of desired thickness including the shape of a sheet of desired thickness. In this instance, the prior art structure can perform the intended use, therefore, it meets at least the claim limitation of "dough is used to make a sheet" as claimed in claim 6 and with desired thickness as claimed in claim 7.
However, more specifically, Corwin et al. does not explicitly disclose dough and sheet formation as claimed in claim 6.
Baumgartner et al. discloses that low carbohydrate, high protein mixture with water can be mixed to make dough can be made (Abstract) comprising 60-85% legume ([0019]), that can be sheeted form by reducing moisture content in dough composition ( Abstract, [0019]) forming and cutting said legume (e.g. can be soybean) to make low carbohydrate tortilla-like snack food snack product ( at least in Abstract and in claims 1- 5, 17 of Baumgartner et al.) to meet dough and sheet formation as claimed in claim 1 and sheet formation as claimed in claim 4 and "tortilla-style chip as claimed in claim 7. One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. to include the teaching of Baumgartner et al. to make dough from low carbohydrate high protein in order to make sheeted form ([0019]) forming and cutting said legume (e.g. can be soybean) to make snack product ( at least in claims 1-5, 17 of Baumgartner et al.) and this legume -based tortilla-like snack product (at least in Abstract).
Regarding the shape as sheet form as claimed in claims 6,7 and the claimed thickness as claimed in claim 7, it is optimizable.
Absent showing of unexpected results, the specific amount of water for desired consistency to make sheet form and the thickness of the sheet is not considered to confer patentability to the claims. As the consistency of dough is variables that can be modified, among others, by adjusting the amount of water, and the sheet thickness is variable, the precise amount would have been considered an effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of water for proper consistency to make sheet form with desired thickness in Corwin et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired dough with desired consistency and desired thickness to perform desired function to make desired snack product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
18. Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 in view of Baumgartner et al. US 2006/0008563 A1 as applied to claim 6 and further in view of Rowell et al. USPN 4054015 A.
19. Regarding claim 7, it is to be noted that Corwin et al, in view of Baumgartner et al. are silent about the claimed thickness of the sheet made from dough. However, it is within the skill of one of ordinary skill in the art to make desired thickness chip for desired purpose.
In addition, Baumgartner et al. discloses that the product can be made using an apparatus which is equipment from a traditional corn tortilla chip line (at least [0023] of Baumgartner et al.). Therefore, it would have been obvious that the disclosed tortilla chip line (in Baumgartner et al. [0023]) will have obvious the conventional thickness of a chip, and it is within the skill of one of the ordinary skills in the art to use the teaching of Baumgartner et al. to make desired thickness chips for desired purpose. It is also optimizable and addressed below.
However, more specifically, Corwin et al. in view of Baumgartner et al. are silent about thickness of the dough sheet.
Rowell et al. discloses that an apparatus has been employed successfully with tortilla chips with a thickness of about 3 mm (col 2 line 20).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. in view of Baumgartner et al. to include the teaching of Rowell et al. to consider "tortilla chip line" of Baumgartner et al. ([0023]) to fix at desired chip thickness including the disclosed 3 mm thickness as disclosed by Rowell et al. (col 2 line 20) in order to make chip product having conventional thickness for tortilla chip for customer's need.
Absent showing of unexpected results, the specific amount of chip thickness is not considered to confer patentability to the claims. As the thickness is variable that can be modified, among others, by adjusting the amount of tortilla chip line apparatus to make chips, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of thickness in Corwin et al. in view of Moon et al. and Baumgartner et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired thickness appropriate for chip product (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
20. Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 in view of Baumgartner et al. US 2006/0008563 A1.
21. Regarding claim 9, Corwin et al. discloses that plant protein -based food composition is legume (page 18, last paragraph), which plant protein can be present in an amount ranging from 15 to 85 wt. % (at least in Abstract and in [0020], [0021]).
Corwin et al. also discloses that the plant protein- based food contains oil in an amount from 6 to 28 wt.% relative to the total weight of the plant protein-based food (at least in [0043]).
Regarding the claim limitation of “deactivated transglutaminase” as claimed in claim 9, Corwin et al. also discloses that the plant protein-based food composition with other ingredients including transglutaminase ([0069]) which is processed by heating to make the final product, and this heating step inactivates transglutaminase enzyme ([0073]). Therefore, it meets claim limitation of "deactivated transglutaminase" of claim 9.
Corwin et al. does not explicitly disclose "snack" products.
Corwin et al. also discloses that slurry is put in a vacuum bag and sealed under vacuum or may be poured or pressed into a slab or a mold (at least in [0070]).
Baumgartner et al. discloses that low carbohydrate, high protein mixture with water can be mixed to make dough can be made (Abstract) comprising 60-85% legume ([0019]), that can be sheeted form by reducing moisture content in dough composition ( Abstract, [0019]) forming and cutting said legume (e.g. can be soybean) to make low carbohydrate tortilla-like snack food snack product ( at least in Abstract and in claims 1- 5, 17 of Baumgartner et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. to include the teaching of Baumgartner et al. to make dough from low carbohydrate high protein in order to make sheeted form ([0019]) forming and cutting said legume (e.g. can be soybean) to make snack product ( at least in claims 1-5, 17 of Baumgartner et al.) and this legume -based tortilla-like snack product (at least in Abstract).
22. Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 in view of Frank S et al. (EP 1190624 A2) as applied to claim 8 and further in view of Baumgartner et al. US 2006/0008563 A1.
23. Regarding claim 10, Corwin et al. discloses that the source of plant protein is e.g. chickpeas, lentil etc. (at least in [0056], [0068], [0099]).
24. Regarding claim 11, Corwin et al. also discloses that the plant protein- based food contains oil in an amount from 6 to 28 wt.% relative to the total weight of the plant protein-based food (at least in [0043]). 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).
25. Regarding claim 12, Corwin et al. discloses that the food product contains seasoning in an amount of 10 wt.% of the final product ([0045]), which meets claimed amount as claimed in claim 12.
It is to be noted that Corwin et al. also discloses that slurry is put in a vacuum bag and sealed under vacuum or may be poured or pressed into a slab or a mold (at least in [0070]).
However, Corwin et al., in view of Frank S et al., do not explicitly disclose "snack" products as claimed in claims 10-12.
Baumgartner et al. discloses that low carbohydrate, high protein mixture with water can be mixed to make dough can be made (Abstract) comprising 60-85% legume ([0019]), that can be sheeted form by reducing moisture content in dough composition ( Abstract, [0019]) forming and cutting said legume (e.g. can be soybean) to make low carbohydrate tortilla-like snack food snack product ( at least in Abstract and in claims 1- 5, 17 of Baumgartner et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. in view of Frank S et al. to include the teaching of Baumgartner et al. to make dough from low carbohydrate high protein in order to make sheeted form ([0019]) forming and cutting said legume (e.g. can be soybean) to make snack product ( at least in claims 1-5, 17 of Baumgartner et al.) and this legume -based tortilla-like snack product (at least in Abstract).
26. Claim(s) 13, 14, 16, 17, 18, is/are rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 and further in view of Frank S et al. (EP 1190624 A2).
27. Regarding claim 13, the rejection made for the common claim limitation of claim 1 is applicable here for claim 13.
Corwin et al. discloses that plant protein -based food composition is legume (at least in [0068]), which plant protein can be present in an amount ranging from 15 to 85 wt. % (at least in Abstract and in [0056], [0066], [0068] and at least in Tables 2, 3 etc.) in the food composition which is battered composition for making patties, baked food product etc. for animal or human consumption (at least in[0066], [0068], [0076]) overlaps the claimed range amount of 60 wt.% to 100 wt.% legume protein of claim 1, showing prima facie case of obviousness. 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).
Corwin et al. also discloses transglutaminase in the food composition (at least in [0101], Tables 3, 10, 11).
Corwin et al. discloses plant-based protein from legume source (at least [0056]). Corwin et al. also discloses Transglutaminase (TG) enzyme can be used at different amounts which can be broad range values of TG (at least in [0101], [0111], [0113], Tables 3, 10, 11 of Corwin et al.). It is understood from broad disclosure that the amount of TG varies and is optimizable. If we consider, at least, black eyed pea, R1 and R2 samples have good quality with respect to cohesiveness, firmness and water retention property (at least Table 6) when total protein is about more than 60% by weight, black-eyed pea protein was 42.7% (R1) and 44.21% (R2) with TG 7.14% (R1) and 0.0015% (TG) (at least Table 3) (i.e. broad range TG enzyme) which overlaps claimed range values of claim 5. 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).
It is to be noted that Corwin discloses that the food composition which is battered composition for making vegetable patties, baked food product etc. for animal or human consumption (at least in [0066], [0068], [0076]) which would have obviously be made from dough composition.
However, more specifically, Corwin et al. is silent about the food product made from ‘dough composition’ having claimed range amount of legume protein and the range amount of transglutaminase enzyme containing dough in the dough composition.
Frank S et al. discloses that dough composition having legume protein flour containing transglutaminase can be used to make ‘dough composition’ which can be used for making food products including baked product and the dosage varies depending on the type of the flour (page 3, at least paragraphs 1-4). The amount of TG is broadly used from 5 TGU to 5000 TGU (at least paragraph 2, page 3) to serve as baking aid (page 3, paragraph 4) to provide a significantly improved bread volume by retaining bread volume, less stickiness of dough etc. (page 2, mid-section). It is within the skill of one of ordinary skill in the art to considered the optimized amount of TG from the disclosed range amount of 5-5000 TGU (at least paragraph 2, page 3) which will be present in weight percent range amount of the claimed amount of claim 5 in order to provide desired significantly improved bread volume by retaining bread volume, less stickiness of dough etc. (page 2, mid-section).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. with the teaching of Frank S et al. to include the amount of TG from the disclosed range amount of 5-5000 TGU (at least paragraph 2, page 3) which will provide desired significantly improved bread volume by retaining bread volume, less stickiness of dough etc. (page 2, mid-section).
Frank S et al. also discloses that the identical effect is known effect as it is disclosed by Frank S et al. (EP 1190624 A2) that the effect of transglutaminase in wheat batter is based on the formation of new connections between the amino acids’ glutamine and lysine of the flour proteins (at least on page 2, last but one paragraph).
Frank S. et al. also discloses that transglutaminase can be used for legume flour also to make dough which is used for making baked products and the dosage varies depending on the type of the flour (page 3, at least paragraphs 1-4).
Frank S et al. also discloses that the dosage of transglutaminase depends on the individual case according to the nature of the flour (page 2, paragraph 2 and page 3, at least paragraphs 2-4). Frank S et al. also discloses that the exact dosage can be determined by a specialist simple routine attempt depending on the respective flour used or the flour mixture can be easily determined (page 3, at least paragraph 3).
If we consider the disclosures of Corwin et al. and Frank S et al. the amount of transglutaminase (TG) enzyme depends on many factors and is optimizable.
Therefore, it is considered as the property of the transglutaminase enzyme, both the range amount of TG enzyme of claim 13 is optimizable.
Absent showing of unexpected results, the specific amount of TG enzyme is considered to confer patentability to the claims. As the amount of TG is variable depends on the amount of flour and nature of flour etc. (Frank S et al. page 2, paragraph 2 and page 3, at least paragraphs 2-4), that can be modified, among others, by adjusting the amount of TG enzyme with respect to the nature and amount of flour, and in combination with water, the precise amount of TG enzyme and soluble matter per 100 grams of the dough would have been considered effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of TG in Corwin et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired property of the dough” suitable for desired purpose e.g. to have desired firmness containing sheet form to make baked product etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable rrangeinvolves only routine skill in the art. (In re Aller, 105 USPQ 223).
28. Regarding claim 14, Corwin et al. discloses that the source of plant protein is e.g. chickpeas, lentil etc. (at least in Table 1, [0068], [0099]).
29. Regarding claim 17, claim 17 depends on claim 13.
Claim 17 can be interpreted as the original protein can be 100% of the legume protein also. Corwin et al. discloses plant protein can be 15 to 85% by weight (at least in Abstract, [0020], [0021]), and it can be legume protein (at least in [0056]). Therefore, it meets claim 17.
30. Regarding claim 18, Corwin et al. discloses that the legume dough is made by mixing legume with water and making a kneading, pressing etc. to make shape wherein the sequential mixing steps and having shape is performed at a broad range temperature of 1-65 degree C also which includes room temperature also (at least in [0069]-[0071]), therefore, it meets claimed range of between about 65 degree F to 212 degree F” as claimed in claim 18. Corwin et al. also discloses that in one embodiment; the mixture can be heated to inactivate transglutaminase within the range amount of 80-120 degree C ([0073]). This also overlaps the claimed range amount of about 65-degree F to 212-degree F” as claimed in claim 18. Therefore, even if claim 18 is broad and does not claim deactivated transglutaminase, however, under both the conditions, it meets claim 18.
31. Claims 15, 16 are rejected under 35 U.S.C. 103 as being unpatentable over Corwin et al. WO 2023/228574 A1 and further in view of Frank S et al. (EP 1190624 A2) as applied to claim 13 and further in view of Baumgartner et al. US 2006/0008563 A1.
32. Regarding claim 15, the claim limitation of "dough is used to make a snack product" as claimed in claim 15, it should be noted that the claim is drawn to a dough for claim 13 and its dependent claims depend on claim 13.
Corwin et al. does not explicitly disclose "snack" products.
Corwin et al. also discloses that slurry is put in a vacuum bag and sealed under vacuum or may be poured or pressed into a slab or a mold (at least in [0070]).
Baumgartner et al. discloses that low carbohydrate, high protein mixture with water can be mixed to make dough can be made (Abstract) comprising 60-85% legume ([0019]), that can be sheeted form by reducing moisture content in dough composition ( Abstract, [0019]) forming and cutting said legume (e.g. can be soybean) to make low carbohydrate tortilla-like snack food snack product ( at least in Abstract and in claims 1- 5, 17 of Baumgartner et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Corwin et al. to include the teaching of Baumgartner et al. to make dough from low carbohydrate high protein in order to make sheeted form ([0019]) forming and cutting said legume (e.g. can be soybean) to make snack product ( at least in claims 1-5, 17 of Baumgartner et al.) and this legume -based tortilla-like snack product (at least in Abstract).
Regarding the oil absorption “about less than 30% by weight”, Corwin et al. discloses that the plant protein- based food contains oil in an amount from 6 to 28 wt.% relative to the total weight of the plant protein-based food (at least in [0043]).
If we interpret "oil intake" of claim 15 as "absorption of oil” when the final product is in oil e.g. during cooking, frying etc., then it can be considered as inherent property. The reason is the disclosed ingredients, and their amounts are identical to the claimed ingredients and meet the claimed range amounts of the ingredients, therefore, the disclosed product will have identical claimed property including the property of oil absorption (i.e. oil intake) as claimed in claim 15.
It is also optimizable because it depends on the duration of cooking and degree of absorption of oil which depends on nature of oil, source of protein etc.
Absent showing of unexpected results, the specific amount of time and temperature is not considered to confer patentability to the claims. As the amount of oil uptake is variable that depends on type of legume protein containing dough, thickness of dough sheet, frying condition etc. and can be modified, among others, by adjusting the frying condition e.g. amount of time and temperature of frying, and also time and temperature can be optimized because they have inverse relationship, the precise amount of time and temperature would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of time and temperature to have desired amount of oil uptake in Corwin et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. desired food product with desired controlled amount of oil content including less than about 30 wt.% (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
33. Regarding claim 16, Corwin et al. discloses that the food product contains seasoning in an amount of 10 wt.% of the final product ([0045]), which meets claimed amount of claim 16.
Conclusion
34. a) Takahiko (JP 2540919 B2, 1996) discloses soybean protein and amount of TG to produce deep-fried dough (at least in Example 2) but does not disclose claimed 60-100% by weight legume as claimed in claims 1,13.
b) NPL Al-Asmar et al. (Coatings 2019, vol 9, pages 1-14) discloses falafel from chickpea dough and dough contains TG (Abstract). However, percent protein in dough does not meet claimed range amount of legume protein, therefore, is not considered as primary prior art.
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
