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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/13/2026 has been entered.
Status of Claims
Claims 1-3, 6-8, 10, 12-21 are pending. Claims 1-3, 6-8, 10, 12-15 and 21 are under examination. Claims 16-20 are withdrawn. Any objections or rejections not repeated below have been withdrawn.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, 12-15 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over McMindes et al. US 20140170283 (cited on 892 form dated 07/21/2021) in view of Dake US 20150011500 (cited on IDS dated 02/25/2019) and Inklaar US 3617307 (cited on 892 form dated 07/21/2021).
Regarding claims 1, 10 and 21, McMindes discloses a food product (restructured meat product; [0082]), as required by claims 1 and 21. McMindes teaches the food product comprises a meat block (animal meat from sheep, cattle, goats, pork, bison, and horses; [0082], [0085-0086]), as required by claims 1 and 21, 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, as required by claims 1 and 21. 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), as required by claims 1 and 21, in the form of powder (Abstract, [0005]). Dake discloses the poultry protein mix (composition) comprises one or more branched chain amino acids (BCAA), as required by claims 1 and 21 [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 comprising one or more BCAA to the meat block as claimed, 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, as required by claims 1, 10 and 21. 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]). Therefore, 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, as required by claims 1 and 21, and where the protein content of the food product is from about 20-80%, as required by claim 10.
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 in claims 1 and 21, “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 in claims 1 and 21. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (MPEP §2112.01 (I)).
McMindes in view of Dake does not teach wherein the poultry protein mix further comprises a supplemented metabolite selected from the group consisting of creatine, creatinine… and combinations thereof, as required by claim 1. However, McMindes does teach the food product has "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] and Dake teaches one or more ingredients may be supplemented in the poultry protein mix (broth) to achieve certain health benefits [0006].
Inklaar teaches an additive for improvement of meat containing products (C1 L5-10). Inklaar discloses adding a protein mix (finely divided water soluble protein; Abstract, C1 L72-75) to meat products, wherein the protein mix comprises a supplemented metabolite (amino acids; Abstract, C1 L63-66) selected from the group consisting of creatine and creatinine (C3 L37-40). Inklaar discloses the protein in combination with amino acids, such as creatine and creatinine, greatly improve properties of meat protein containing products including the structure, flavor, palatal properties, shelf-life and stability (C1 L50-56 and L63-66).
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 in view of Dake to incorporate the teachings of Inklaar by having the poultry protein mix further comprise a metabolite as claimed, because protein in combination with amino acids, such as creatine and creatinine, greatly improve properties of meat protein containing products including the structure, flavor, palatal properties, shelf-life and stability, as recognized by Inklaar (C1 L50-56 and L63-66).
McMindes teaches the food product has a moisture content of 6-13% if dried, or a moisture content of 16-30% if not dried [0065]. Additionally, as discussed above, McMindes in view of Dake renders obvious the protein content of the food product from about 20% to about 80%. Thus, McMindes in view of Dake discloses the food product has a moisture protein ratio (MPR) ranging from 0.075:1 to 1.5:1. This range overlaps with the claimed range of 0.75:1 or less, as required by claim 21. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05(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 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 03/13/2026 have been fully considered but they are not persuasive.
Applicant’s arguments on pg. 5, with respect to claim 1 and the metabolite, have been considered but are moot because the new ground of rejection does not rely on any teaching or matter specifically challenged in the argument.
Applicant argues, on pgs. 5-6 of their remarks, that neither McMindes nor Dake teach a food product with a specific moisture protein ratio (MPR) of 0.75:1 or less as claimed. Applicant discusses the MPR of Dake, which may be between 999:1 and 1:999 [0017]. Applicant contends that substantial differences exist between new claim 21 and the teaching of the cited art, noting there would be no motivation for one skilled in the art to modify the MPR of Dake’s product to arrive at Applicant’s claimed MPR of 0.75:1 or less. However, the Office disagrees for the following reasons.
As discussed in the above rejection, McMindes in view of Dake does render obvious the claimed moisture protein ratio. McMindes teaches the food product has a moisture content of 6-13% if dried or a moisture content of 16-30% if not dried [0065]. Additionally, as explained above, McMindes in view of Dake renders obvious the protein content of the food product from about 20% to about 80%. Thus, McMindes in view of Dake discloses the food product has a moisture protein ratio (MPR) ranging from 0.075:1 to 1.5:1. This range overlaps with the claimed range of 0.75:1 or less, as required by claim 21. See MPEP 2144.05(I).
Conclusion
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/S.R.G./Examiner, Art Unit 1791
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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