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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 21, 2025 has been entered.
Claims 1-16 are pending examination.
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 1-16 are rejected under 35 U.S.C. 103 as being unpatentable over Hultin et al. (US 6,288,216) in view of Ngapo et al. (“Capillary gel electrophoresis versus SDS PAGE of exudate from fresh pork” in Meat Science, 53 (1999), pp. 145-148).
Regarding claims 1, 2, 4-9, 11-16, Hultin et al. disclose a process for recovering protein from an animal muscle source of protein and the resulting protein composition wherein the process comprises the steps of: (a) mixing a particulate form of the animal tissue with an acidic aqueous liquid having a pH between about 2.5 and 3.5 to produce a protein rich solution; and (b) raising the pH of the recovered supernatant (wherein the supernatant comprises solubilized myofibrillar and sarcoplasmic proteins – see C3/L44-63) to between about 5.0 and about 5.5 to recover a protein product containing myofibrillar proteins and a significant proportion of the sarcoplasmic protein of the original muscle tissue proteins (Abstract, Figure 4, C1/L11-13, C3/L44-C4/L9, C4/L21-46). Hultin et al. disclose an optional, preliminary step of homogenizing the animal muscle (i.e. no need for a homogenization step -C4/L66-C5/L2).
While Hultin et al. disclose a process for recovering protein from a muscle source, the reference is silent with respect to purge.
Ngapo et al. teach exudate (i.e. purge) obtained from fresh meat is known to comprise both sarcoplasmic and myofibrillar proteins (Abstract, p. 147/3. Results and discussion, Table 1). Ngapo et al. teach that the exudate is mainly sarcoplasmic in origin (p. 147/3. Results and discussion). Given Ngapo et al. teach extrudate from fresh normal pork, intrinsically the extrudate would comprises sarcoplasmic protein in an amount of at least 75% of the total protein.
Hultin et al. and Ngapo et al. are combinable because they are concerned with the same field of endeavor, namely, proteins from animal meat. Given Hultin et al. teach a process of recovering protein from an animal muscle source of protein, since Ngapo et al. teach an animal muscle source of protein, i.e. purge, it would have been obvious to one of ordinary skill in the art at the time of the invention to have applied the method of Hultin et al. to a quantity of purge comprising sarcoplasmic and myofibrillar proteins to recover the proteins.
Given Hultin et al. disclose recovery of a protein product containing myofibrillar proteins and a significant proportion of the sarcoplasmic protein of the original muscle proteins from a low value meat product, since Hultin et al. disclose a recovery process substantially similar to that presently claimed, one of ordinary skill in the art would be motivated to try using similar low value meat sources for the process, including exudate, as taught by Ngapo, and would expect yields as presently claimed, i.e., protein product comprising at least about 75% or at least 85% sarcoplasmic proteins by weight of total protein.
Regarding claims 3 and 10, modified Hultin et al. disclose all of the claim limitations as set forth above. While Hultin et al. disclose that suitable animal protein sources or animal muscle tissue include fish, chicken, beef or lamb (C8/L49-54), the reference is silent with respect to pork. However, absent evidence to the contrary, given Hultin et al. disclose a process directed to isolating a protein component of animal muscle tissue generally, it would have been obvious to one of ordinary skill in the art to have used any animal protein source, including pork, and arrive at the present invention.
Response to Arguments
Applicant's arguments filed October 21, 2025 have been fully considered but they are not persuasive.
Applicant notes “[a]s previously show in the transcript and screenshots from the September 2,1 2023 Examiner Interview, Applicants has provided a side-by-side comparison which revealed that subjecting liquid purge tot the process described in Hultin did not achieve the claimed protein rich purge composition.”
Applicant explains that the video transcript and screen shots clearly demonstrate that a sample of whole muscle consistent with the teaching of Hultin et al. as well as a clear explanation of the separate sample of exudate (purge) extracted from muscle. Moreover, Applicant states the liquid sarcoplasmic proteins are discussed at timestamp 1:46 of the video transcript and is visible on page 9 of the video images. Applicant notes that the process of Hultin et al. was performed on both the solid muscle as well as the exudate to who the final products formed in each case.
In the transcript, the whole pork muscle in solid form is ground to give greater surface area (0:04). The ground pork muscle is subjected to squeeze out the sarcoplasmic proteins (0:17). The sarcoplasmic proteins are combined with water in a ratio of 1:9 as indicated in the Hultin et al. process (2:03). No precipitation forms (3:19).
As noted in the Final Office Action mailed April 21, 2025, the Examiner does not suggest mixing 1 part purge with 9 parts water. While Hultin et la. disclose mixing muscle tissue with water to solubilize protein and obtain a solution, the same steps would not be taken when using purge. The skilled artisan (e.g., a meat scientist) would understand the proteins in purge are solubilized and that a step of solubilizing the proteins in a dilution of water is not necessitated.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duane Smith can be reached at 571-272-1166. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759