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 .
Status of Claims
Claims 1-3, 6-8, 10, 12-20 are pending. Claims 1-3, 6-8, 10, 12-15 are under examination. Claims 16-20 are withdrawn. Claims 4-5, 9 and 11 are cancelled. Any objections or rejections not repeated below have been withdrawn.
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.
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.
Claims 1-3, 6-8, 10 and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over McMindes et al. US 20140170283 and in view of Dake US 20150011500 (cited on IDS dated 02/25/2019).
Regarding claim 1, McMindes discloses a food product (restructured meat product; [0082]) in the form of “strips, steaks, cutlets, patties, cube-shaped kabobs, meat sticks, or sausages" [0109] including, inter alia, a meat block (animal meat from sheep, cattle, goats, pork, bison, and horses; [0082], [0085-0086]) and "a variety of flavorings, spices, antioxidants, or other ingredients to impart a desired flavor or texture or to nutritionally enhance the final food product" [0100]. However, the food product of McMindes does not include a poultry protein mix. It is noted, from the applicant remarks dated 01/02/2025, that the term “poultry protein mix” is limited to protein mix prepared from poultry sources, not other animals, or plants or insects.
Dake teaches a poultry protein mix (high protein composition prepared from poultry) in the form of powder (Abstract, [0005]). Dake discloses the poultry protein mix (composition) comprises one or more branched chain amino acids (BCAA) [0016]. Dake teaches the composition is added to one or more ingredients to achieve certain health benefits such as preventing or treating joint diseases and improved nutrition (Abstract, [0006]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified McMindes to have incorporated the teachings of Dake by adding the poultry protein mix composition to the meat block, because adding the poultry protein mix composition to one or more ingredients, such as a meat block, achieves certain health benefits such as preventing or treating joint diseases and improved nutrition, as recognized by Dake (Abstract, [0006]).
Neither McMindes nor Dake report the protein content of the meat block or poultry protein mix. However, McMindes teaches a meat block (animal meat) in a composition, where the meat block (animal meat) can be present in the composition at a wide range (Abstract, [0082], [0085]), and Dake teaches poultry protein mix (composition) to provide nutritional and health benefits (Abstract, [0006]), it would have been obvious to have utilized the powder composition of Dake in the formulation of McMindes in order to further improve the nutritional value of the composition taught by McMindes to provide the composition with a protein content as claimed, where the proteins from the poultry protein mix contribute more than 50% of the total protein content in the food product.
Further, applicant's attention is directed to In re Levin, 84 USPQ 232 p. 234
This court has taken the position that new recipes or formulas for cooking food
which involve the addition or elimination of common ingredients, or for treating them in
ways which differ from the former practice, do not amount to invention merely because it
is not disclosed that, in the constantly developing art of preparing food, no one else
ever did the particular thing upon which the applicant asserts his right to a patent. In all
such cases, there is nothing patentable unless the applicant by a proper showing further
establishes a coaction or cooperative relationship between the selected ingredients
which produces a new, unexpected, and useful function. In re Benjamin D. White, 17
C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A.
(Patents) 1144, 156 F.2d 189, 70 USPQ 221
Regarding the claim recitations, “wherein the meat block has a protein content lower than protein content of the poultry protein mix” and “the content of branched chain amino acids in said food product is higher than the content of branched chain amino acids in the meat block without the protein mix;” given that McMindes teaches their composition may contain other ingredients to impart a desired flavor or texture or to nutritionally enhance the final food product, to have utilized the poultry protein mix (composition) of Dake is not considered to be an unobvious contribution over the art. Noting the instant specification, paragraph [0015] states the protein mix may be prepared according to methods described in U.S. Patent application Nos. 14/325,694, which is the Dake publication. Thus, utilizing the poultry protein mix of Dake, which is the same poultry protein mix of the instant application, and adding it to the meat block of McMindes, which is substantially identical to the claimed meat block, would provide a protein content for poultry protein mix where the poultry protein mix has a higher protein content than the meat block and a branched chain amino acid content as claimed. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Regarding claim 2, McMindes discloses the food product can have a variety of shapes [0108], which include strips, sheets (steaks, patties) or cubes sticks [0109].
Regarding claim 3, Dake teaches the protein mix is prepared from poultry (high protein composition prepared from poultry) in the form of powder (Abstract, [0005]). McMindes discloses the meat block (animal meat) is prepared from a second organism, wherein the second organism is not poultry (beef, pork, sheep, cattle, goats, pork, bison, horses, buffalo, deer, elk, moose, reindeer, caribou, antelope, rabbit, squirrel, beaver, muskrat, opossum, raccoon, armadillo, porcupine, alligator, snake, saltwater and freshwater fish, catfish, tuna, salmon, bass, mackerel, pollack, hake, tilapia, cod, grouper, whitefish, bowfin, gar, paddlefish, sturgeon, bream, carp, trout, surimi, walleye, snakehead, or shark; [0082].
Regarding claims 6 and 7, the instant specification at [0015] states that protein compositions (meat powder and broth) may be prepared according to methods described in 14/325,694, which is the Dake publication. Therefore, the protein mix (composition) of Dake is considered to comprise at least 90% animal protein, as required by claim 6, and is considered to comprise one or more peptides having 10 or fewer amino acids, as required by claim 7.
Regarding claim 8, Dake discloses the protein mix (composition) further comprises one or more amino acids selected from the group consisting of leucine, isoleucine and valine [0016].
Regarding claim 10, the discussions of protein content contribution from the meat block and poultry protein mix from claim 1 also apply here for the protein content of the food product. Neither McMindes nor Dake report the protein content of the meat block or poultry protein mix, or the protein content for the food product. However, McMindes teaches a meat block (animal meat) in a composition, where the meat block (animal meat) can be present in the composition at a wide range from 0-95% by weight (Abstract, [0082], [0085]), and Dake teaches poultry protein mix (composition) to provide nutritional and health benefits (Abstract, [0006]), it would have been obvious to have utilized the powder composition of Dake in the formulation of McMindes in order to further improve the nutritional value of the composition taught by McMindes to provide the composition with a protein content of the food product as claimed, where the protein content of the food product is from about 20-80%. See In re Levin, 84 USPQ 232 p. 234.
Regarding claim 12, Dake discloses the protein mix is a dehydrated protein powder prepared from an animal source (high protein composition prepared from poultry in the form of powder (Abstract, [0005]).
Regarding claim 13, Dake teaches the protein mix is a concentrated broth prepared from an animal source (composition prepared from poultry in the form of broth, where the liquid has been concentrated; [0005], [0019]).
Regarding claim 14, McMindes discloses the food product is a strips, steaks, cutlets, patties, or generally cube-shaped for kabobs [0109]. Any one of a strips, steaks, cutlets, patties, or generally cube-shaped for kabobs is encompassed within the recited “meat snack.”
Regarding claim 15, the instant specification at [0015] states that protein compositions (meat powder and broth) may be prepared according to methods described in 14/325,694, which is the Dake publication. Additionally, McMindes teaches a meat block (animal meat) that can be present in a composition at a wide range 0-95% by weight and can be from a variety of meats (Abstract, [0082], [0085]), and is considered substantially identical to the claimed meat block. Therefore, the protein mix (composition) of Dake, which is identical to the claimed composition being prepared by the same method, is considered to have a protein content that is at least twice as high as the protein content of the meat block of McMindes, which is substantially identical to the claimed meat block. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Response to Arguments
Applicant's arguments filed 09/19/2025 have been fully considered but they are not persuasive.
Applicant argues, on pg. 5 of their remarks, that the secondary reference of Dake, which teaches the poultry protein mix, does not teach or suggest if the one or more ingredients that may be supplemented in to the poultry protein mix have higher or lower protein content than the poultry protein mix. Applicant states that the claimed limitation of the meat block having a protein content lower than the protein content of the poultry protein mix is not taught or suggested in the cited references. However, the Office disagrees for the following reasons.
As shown in the rejection above, the claim recitation, “wherein the meat block has a protein content lower than protein content of the poultry protein mix”; given that McMindes teaches their composition may contain other ingredients to impart a desired flavor or texture or to nutritionally enhance the final food product, to have utilized the poultry protein mix (composition) of Dake is not considered to be an unobvious contribution over the art. Noting the instant specification, paragraph [0015] states the protein mix may be prepared according to methods described in U.S. Patent application Nos. 14/325,694, which is the Dake publication. Thus, utilizing the poultry protein mix of Dake, which is the same poultry protein mix of the instant application, and adding it to the meat block of McMindes, which is substantially identical to the claimed meat block, would provide a protein content for poultry protein mix where the poultry protein mix has a higher protein content than the meat block as claimed. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
Further, regarding the argument that Dake does not teach or suggest the ingredients added to the poultry protein mix can have a higher or lower protein content, the fact that Dake doesn’t limit what the one or more ingredients that may be supplemented or added to the poultry protein mix shows that the poultry protein mix can be any ingredient. This includes a meat block, where the meat block has a lower protein content. Moreover, this argument is against the secondary reference individually. It is noted that one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Additionally, the test for obviousness is not whether the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Applicant argues, on pgs. 5-6 of their remarks, that claim 1 requires the content of branched chain amino acids in the food product to be higher than the content of branched chain amino acids in the meat block without the protein mix. Applicant states that there is no teaching in McMindes and Dake regarding the BCAA content of the food product and if it is higher than the content of BCAA in the meat block without the poultry protein mix. The Office disagrees for the following reasons.
As shown in the rejection above, utilizing the poultry protein mix of Dake, which is the same poultry protein mix of the instant application, and adding it to the meat block of McMindes, which is substantially identical to the claimed meat block, would provide a branched chain amino acid content as claimed. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)). Thus, McMindes in view of Dake is viewed as a food product comprising a content of branched chain amino acids higher than the content of branched chain amino acids in the meat block without the poultry protein mix.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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