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
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 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.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 Aug. 11, 2025 has been entered. All arguments been fully considered.
Election/Restrictions
Claims 81 and 84-91 are allowable. Claims 61, 62, 64-77, 79, 82 and 83, previously withdrawn from consideration as a result of a restriction requirement, contain all the limitations of an allowable claim. Pursuant to the procedures set forth in MPEP § 821.04(a), the restriction requirement among inventions I, III and V, as set forth in the Office action mailed on Dec. 9, 2022, is hereby withdrawn and claims 61, 62, 64-77, 79, 82 and 83 are hereby rejoined and fully examined for patentability under 37 CFR 1.104. In view of the withdrawal of the restriction requirement, applicants are advised that if any claim presented in a divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application. Once the restriction requirement is withdrawn, the provisions of 35 U.S.C. 121 are no longer applicable. See In re Ziegler, 443 F.2d 1211, 1215, 170 USPQ 129, 131-32 (CCPA 1971). See also MPEP § 804.01.
Status of the Claims
Claims 61, 62, 64-77, 79, and 81-93 are currently pending.
Claims 81, 88 and 92 are amended.
Claims 1-60, 63, 78, 80 and 87 are cancelled.
New claim 93 has been added.
Claims 61, 62, 64-77, 79, and 81-93 have been considered on the merits.
Claim Amendment Suggestions
The following claim are made to improve clarity of the claims:
In claim 81 it is suggest to amend the phrase:
“a) a cell paste, the cell paste content in an amount of at least 25% by weight, and wherein the cell paste is made from substantially pure avian fibroblast cells cultivated in vitro and the cell paste comprises 5%-15% cells by dry cell weight”
so that it reads:
“a) a cell paste, the cell paste content in an amount of at least 25% by weight, and wherein the cell paste comprises avian fibroblast cells at a purity level of at least 80% by dry weight, wherein the avian fibroblast cells are derived from an in vitro culture
These suggestions are based on the description in the specification for “substantially pure” in 0034 of published application and to conform to typical claim language.
Claim Objections
The previous claim objections are withdrawn due to amendment. New claim objections are added due to amendment and rejoining of withdrawn claims.
The disclosure is objected to because of the following informalities: minor grammatical error in claims.
Claim 88 is objected to because of the following informalities: the first time an acronym is utilized in a claim-set, said acronym should be spelled out in its entirety followed by said acronym in parenthesis (e.g. Butylated hydroxyanisole (BHA); butylated hydroxytoluene (BHT); ethylenediaminetetraacetic acid (EDTA)).
Claims 61 and 79 are objected to because of the following informalities: The periods after the letters denoting the steps need to be removed. For example, in claim 1 "a." should be corrected to "a)" in line 1 of claim 61 and line 2 of claim 79. In other words, a claim should only contain one period. Please see MPEP 608.01(m).
Claim 61 is objected to in the recitation of “avian cells” in lines 1-4, and in the interest of improving claim form, it is suggested that the recited phrase be amended to recite “avian fibroblast cells” throughout the claim. This is to be consistent with claim 81 from which it depends from which recites avian fibroblast cells.
Claim 64 is objected to in the recitation of “system” which should be plural or “systems”.
Claim 65 is objected to in the recitation of the phrase “comprising insulin, transferrin and selenium factor”, and in the interest of improving claim form, it is suggested that the phrase be amended to “further comprises a growth factor, wherein the growth factor is selected from”.
Claim 70 is objected to in the recitation of the phrase “comprising a growth factor, the growth factor selected from”, and in the interest of improving claim form, it is suggested that the phrase be amended to “further comprises a growth factor, wherein the growth factor is selected from”.
Claim 71 is objected to because of the following informalities: the first time an acronym is utilized in a claim-set, said acronym should be spelled out in its entirety followed by said acronym in parenthesis (e.g. Coagulation Factor XI (FXI)).
Claim 72 is objected to in the recitation of the phrase “asugar”, and in the interest of improving claim form, it is suggested that the phrase be amended to “a sugar”.
Claim 73 is objected to in the recitation of “avian cells” in lines 1-3, and in the interest of improving claim form, it is suggested that the recited phrase be amended to recite “avian fibroblast cells” throughout the claim. This is to be consistent with claim 81 from which the claim ultimately depends from which recites avian fibroblast cells.
Claim 73 is objected to in the recitation of “a plant protein” in line 2, and in the interest of improving claim form, it is suggested that the recited phrase be amended to recite “a pulse protein” throughout the claim. This is to be consistent with claim 81 from which the claim ultimately depends from which recites a pulse protein.
Claim 76 is objected to in the recitation of “avian cells” in lines 1-3, and in the interest of improving claim form, it is suggested that the recited phrase be amended to recite “avian fibroblast cells” throughout the claim. This is to be consistent with claim 81 from which the claim ultimately depends from which recites avian fibroblast cells. Additionally, the term “cell” in in line 3 needs to plural or “cells”.
Claim 76 is objected to in the recitation of “a plant protein” in line 3, and in the interest of improving claim form, it is suggested that the recited phrase be amended to recite “a pulse protein” throughout the claim. This is to be consistent with claim 81 from which the claim ultimately depends from which recites a pulse protein.
For the sake of clarity and improved claim form claim 79 is suggested to be amended as follows:
“The food product of claim 81, wherein the food product is produced by a method comprising:
a) conditioning water with phosphates to prepare conditioned water;
b) hydrating the pulse protein isolate[[pulse protein;
c) contacting the cell paste and the hydrated pulse protein to produce a cell and protein mixture;
d) heating the cell and protein mixture in steps, wherein the steps comprise at least one of:
i) increasing the temperature of the cell and protein mixture to a temperature between 40-65°C;
ii) maintaining the temperature of the cell and protein mixture at a temperature between 40-65 °C for at least 15 minutes;
iii) increasing the temperature of the cell and protein mixture to a temperature between 60-85 °C to prepare a pre-cooking product;
iv) optionally, cooling the cell and protein mixture to a temperature of a temperature between 5-15 °C to prepare a pre-cooking product;
e) optionally, adding an oil at steps (i), (ii), (iii), (iv) or to the pre-cooking product; and
f) optionally, cooking the pre-cooking product to prepare the avian food product.”
Steps iii), iv), e) and f) appear to have been unintendedly deleted from the claim set during prosecution history and it suggested that they be brought back into the claim.
Appropriate corrections are appreciated.
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 65-71 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 65, line 1, the phrase "said growth medium" lacks sufficient antecedent basis and renders the claim and its dependents indefinite. There is no growth medium in claim 64 from which the claim depends from.
In claim 66, line 1, the phrase "wherein the growth factor comprises insulin" lacks sufficient antecedent basis and renders the claim and its dependents indefinite. There is no growth factor in claim 64 from which the claim depends from. It appears that it should instead depend from claim 54.
In claims 67-71, line 1, the phrase "the growth medium" lacks sufficient antecedent basis and renders the claim and its dependents indefinite. There is no growth medium in claim 64 from which the claim depends from.
Appropriate corrections are required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 74 and 82 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. C
Claim 74 recites the limitation of “wherein the pulse protein isolate is a pulse protein isolate.” The claims does not internally further limit a pulse protein isolate and Claim 81 from which the claim ultimate depends from requires a pulse protein isolate. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 82 recites the limitation of “wherein the pulse protein content is at least 5% by weight”. Claim 81 from which the claim ultimate depends from requires a pulse protein content of at least 15% by weight. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The claim rejections under 35 USC § 103 are withdrawn due to amendment.
Response to Arguments
Applicant’s arguments, see Remarks pg. 9-10, filed Aug. 11, 2025, with respect to the rejections under 35 U.S.C. § 103 have been fully considered and are persuasive. The rejection of claims 81-92 under 35 U.S.C. § 103 over Elfenbein, Savir and Brown has been withdrawn.
Allowable Subject Matter
Claims 61, 62, 64, 72, 73, 75-77, 79, 81, and 83-93 are allowed.
The following is an examiner’s statement of reasons for allowance:
none of Elfenbein, Savir or Brown teach a food product containing a cell paste that is made from substantially pure avian fibroblast cells and where the cell paste contains 5-15% cells by dry cell weight.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Conclusion
This application is in condition for allowance except for the following matters: amendments to overcome the claim objections and rejections under 35 USC § 112 (b) and (d).
Examiner Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EMILY ANN CORDAS whose telephone number is (571)272-2905. The examiner can normally be reached on M-F 9:00-5:30 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, Peter Paras can be reached on 571-272-4517. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EMILY A CORDAS/Primary Examiner, Art Unit 1632