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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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 1-3,8,-10 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.
In claim 1, it’s unclear what is intended by the parentheses around “ P1”, “P2” and “ P1:P2”.
Claims 2-3,8-10 have the same problem as claim 1.
Claim 10 is vague and indefinite because it’s unclear how the claim further limits claim 1 which already recites that the first plant protein is pea protein alone.
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.
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) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fondaco ( 2022/0279811 in view of Schimoler ( 2020/0029613).
For claims 1-3,5,6,7 Fondaco discloses plant-based frozen confection comprising fat in amount of 1-15%, sugar in amount of 10-30% and .4-10% plant protein comprising soy protein and fava bean protein in a weight ratio of 1:1 to 1:4. ( see paragraphs 0009,0015,0016)
For claim 4, Fandaco discloses the frozen confection has an overrun of 50-150%. ( see paragraph 0027)
For claim 8, Fandaco discloses the first protein which is soy is in amount at least .18 to no more than 2%. ( see paragraph 0011)
For claim 9, Fandaco discloses the amount of fava protein is at least .4% to no more than 3%.
Fandaco does not disclose pea protein as in claims 1 and 10.
Schimoler discloses frozen confection comprising plant protein. The preferred plant protein is pea protein. Schimoler discloses that the protein should enable the creation of a fine microstructure where the average bubble diameter is between 20-200 microns. ( see paragraphs 0018,0048)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the soy protein in Fandaco with pea protein disclosed in Schimoler as an obvious matter of substituting one ingredient for a known alternative that performs the same function. Schimoler discloses both soy protein and pea protein can be used in frozen confection and pea protein is preferred. Fandaco discloses the combination of soy protein and fava protein maintains the microstructure of the frozen confection and Schimoler discloses that pea protein enables the microstructure. One skilled in the art would have been motivated to do the substitution when desiring to avoid soy which is a known allergen. One skilled in the art can use pea protein in the amount and ratio used for soy protein because both are known to be used in frozen confection.
Conclusion
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September 22, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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