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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 submissions filed on August 2, 2025 has been entered.
Claim 28 has been cancelled and claims 24 and 35 are new. Claims 22-27 and 29-35 are pending examination.
Claim Objections
Claim 23 is objected to because of the following informalities: remove the term “a” from the phrase “a moist edible materials” in lines 5 and 6. Appropriate correction is required.
Election/Restrictions
Newly submitted or amended claims 31-35 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
The related inventions of claims 31 (and 34) are distinct from the invention of claim 22. The method of claim 22 is directed to a method of forming a deagglomerated expanded volume, coarse refined cellulose fiber product which has a different effect than the invention of claim 31 which is directed to a method of forming a non-animal ground meat analog in a food product. Similarly, the method of claim 22 has a different effect than the invention of claim 34 which is directed to a method of forming a deagglomerated expanded volume, coarse refined cellulose fiber meatless protein-containing product. See MPEP § 806.05(j).
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 31-35 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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 23-27 and 30 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.
Regarding claim 23, the recitation “further including the step of converting the deagglomerated expanded volume coarse refined cellulose fiber product to a final plant-only plant expanded volume, coarse refined cellulose fiber product by adding the deagglomerated expanded volume, coarse refined cellulose fiber product to a moist edible materials consisting essentially of plant-only based foods to form the final plant-only plant expanded volume, coarse refined cellulose fiber product” renders the claim indefinite. Given claim 22 from which claim 23 ultimately depends from is directed to a method of forming a deagglomerated expanded volume coarse refined cellulose fiber product, it is not clear how a final plant-only plant expanded volume, coarse refined cellulose fiber product is formed. Does applicant intend to claim a new method of producing a final plant-only plant expanded volume, coarse refined cellulose fiber product by converting moist edible materials to a deagglomerated expanded volume coarse refined cellulose fiber product?
Note, Applicants have constructively elected, by original presentation, the invention directed to a method of producing a deagglomerated expanded volume coarse refined cellulose fiber product. A new claim directed to a method of producing a final plant-only plant expanded volume, coarse refined cellulose fiber product would be considered a new invention (see MPEP § 821.03).
Regarding claim 24, the recitation “wherein the final plant-only plant expanded volume, coarse refined cellulose fiber product is a non-animal ground meat analog in a food product, where the presence of the final plant-only plant expanded volume, coarse refined cellulose fiber product enhances texture in the non-animal protein ground meat analog” renders the claim indefinite.
First, it is not clear if the final plant-only plant expanded volume coarse refined cellulose fiber product is a non-animal ground meat analog or is a food product comprising a non-animal ground meat analog wherein the non-animal ground meat analog is a final plant-only plant expanded volume, coarse refined cellulose fiber product.
Note, given claim 22 from which claim 24 ultimately depends from is directed to a method of forming a deagglomerated expanded volume coarse refined cellulose fiber product, it is not clear how a final plant-only plant expanded volume, coarse refined cellulose fiber product in a food product is formed. Does applicant intend to claim a new method of producing a food product by adding a final plant-only plant expanded volume, coarse refined cellulose fiber product to a food product?
Second, it is not clear what characteristics define “enhanced texture.”
Regarding claim 25, the recitation “A method of forming a coarse expanded refined cellulose fiber product . . . b) having average diameters of 1,000 to 10,000 microns” renders the claim indefinite. It is not clear if the entire product has the recited “average diameters” or if individual fibers within the product have the “average diameters.”
Claim 25 recites the limitation "the deagglomerated coarse expanded, refined cellulose fiber product" in lines 16 and 17. There is insufficient antecedent basis for this limitation in the claim. Claim 25 is directed to a method of forming a coarse expanded refined cellulose fiber product.
Regarding claim 26 the recitation “wherein protein in the non-animal protein ground meat analogs is sourced from grains, legumes, beans and/or mushrooms” renders the claim indefinite. It is not clear if the non-animal protein ground meat analogs must comprise protein or when they comprise protein, the protein is “sourced from grains, legumes, beans and/or mushrooms.”
Regarding claim 27, the recitation “wherein protein is combined into the coarse deagglomerated expanded volume to form a refined cellulose fiber enhanced product” renders the claim indefinite. First, there is no antecedent basis for the term “the coarse deagglomerated expanded volume in claim 23 from which claim 27 depends.
Moreover, it is not clear if Applicant intends to disclose a method of preparing a refined cellulose fiber enhanced product (claim 27), a deagglomerated expanded volume coarse refined cellulose fiber product (claim 22) or a final plant-only plant expanded volume, coarse refined cellulose fiber product (claim 23).
Claim 30 is rejected because the claim is dependent from a rejected base claim.
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 22, 25, 29 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Lundberg et al. (US 2015/0024108) in view of Anthon et al. (“Improved Firmness in Calcified Diced Tomatoes by Temperature Activation of Pectin Methylesterase”, J. Food Science, Vol. 70, Nr. 5, (2005), pp. C342-C346).
Regarding claims 22 and 25, Lundberg et al. disclose a process for manufacturing a highly refined cellulose fiber product, the method comprising the steps of: (a) soaking a raw fiber plant mass (e.g., citrus) in an aqueous saline solution at a temperature of about 100ºC for about 1 to 120 minutes, to obtain swelled raw fiber plant mass (i.e. expanded fiber structure-[0033]-[0035]); (b) drying the swelled raw fiber plant mass to obtain a highly refined cellulose product ([0024]-[0026]). Lundberg et al. disclose the raw fiber plant mass is provided in a suspension where the raw fiber plant mass ranges from 0.15 to 50% of the suspension (e.g., a ratio of water to raw fiber plant mass equal to 1:1-[0032]).
While Lundberg et al. is silent with respect to cooling, the person of ordinary skill in the art would have been motivated to cool the heated and soaked raw fiber plant mass to facilitate further handling.
While Lundberg et al. is silent with respect to deagglomerating the dried highly refined cellulose fiber product, the person of ordinary skill in the art would have been motivated to include a deagglomeration step to produce a product with uniform particle size.
Lundberg et al. disclose the highly refined cellulose fiber product of the invention consists essentially of soluble and insoluble fibers comprising cellulose, hemicellulose and lignin and pectin ([0036]).
Lundberg et al. is silent with respect to forming a reactive mixture by adding enzyme to the cooled swelled raw fiber plant mass, holding the reactive mixture at a temperature of 30-50ºC to crosslink pectin by intraparticle pectin crosslinking of the coarse fiber.
Anthon et al. teach the firmness of diced tomatoes (i.e., raw fiber plant mass) can be improved by heating the plant material in water at a temperature ranging from 50-70ºC for 10-30 minutes to activate endogenous pectin methyl esterase; and adding calcium (p.C343/Diced tomato heat treatments, PME activity, Figure 1). Anthon et al. teaches the pectin methyl esterase de-esterifies the pectin found in the plant material to increase the number of free carboxyl groups in the pectin. Anthon et al. teaches that the free carboxyl groups allow for calcium cross-linking and thus a firmer texture or structure (p.C345 /Texture effects).
Lundberg et al. and Anthon et al. are combinable because they are concerned with the same field of endeavor, fibrous compositions comprising cellulose and pectin. Given Lundberg et al. disclose a fiber composition comprising pectin, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have formed a reactive mixture of the highly refined cellulose fiber product and pectin methyl esterase; and heated the reactive mixture at a temperature ranging from 50-70ºC to activate the pectin methyl esterase, as taught by Anthon et al. with the purpose of cross-linking pectin and to modify the texture (i.e., increase firmness) of the highly refined cellulose fiber product of Lundberg et al.
Given the combination of Lundberg et al. and Anthon et al. describe a process substantially similar to that presently claimed, intrinsically the resulting refined cellulose product would exhibit the claimed average diameters and water retentivity.
Regarding claims 29 and 30, modified Lundberg et al. disclose all of the claim limitations as set forth above. Lundberg et al. disclose a process for manufacturing a highly refined cellulose fiber product from a raw fiber plant mass wherein the fiber plant mass is from citrus fruit pulp ([0012], [0024]-[0026], [0032]-[0035]). Given Lundberg et al. disclose raw fiber plant source, citrus pulp, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used citrus pulp source, including orange, lemon and/or lime and arrive at the present invention with a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed August 2, 2025 have been fully considered but they are not persuasive.
Applicants submits the “[t]he claims have been appropriately amended” to address the rejections of claims 23-26 and 31-33 under 35 U.S.C. 112(b).
Applicants are directed to the rejections of claims 23-27 and 30 under 35 U.S.C. 112(b) set forth above.
Applicant argues Lundberg et al. and Anthon et al. are non-analogous art. Applicant explains the present invention is directed to a dried. Applicant submits “[t]he process and objective of Anthon is to create a firmer mass with diced tomato, which remain fully hydrated.” “Anthon does not and cannot dry the diced tomato and retain the properties essential for a diced tomato.” Applicant submit “[t]here is no evidence, suggestion or mention in the Anthon process . . . of expanding, increasing material size or volume or the performance of any other functional fiber-size changing step as required in the current claims.
First, in this instance, the pending claims do not require a step of drying or that any specific ingredient or resulting product be dried.
Anthon et al. is considered analogous art because it concerned with the same field of endeavor as Lundberg et al., i.e., fibrous compositions comprising cellulose and pectin. Given Lundberg et al. disclose a fiber composition comprising pectin, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have formed a reactive mixture of the highly refined cellulose fiber product and pectin methyl esterase; and heated the reactive mixture at a temperature ranging from 50°-70°C to activate the pectin methyl esterase, as taught by Anthon et al, with the purpose of cross-linking pectin and modify the texture (i.e., increase firmness) of the high refined cellulose fiber product to Lundberg et al.
Note, while Anthon et al. does not disclose all the features of the present claimed invention (i.e., dried product), Anthon et al. is used as a teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely Anthon et al. teach the firmness of diced tomatoes (i.e., raw fiber plant mass) can be improved by heating the plant material in water at a temperature ranging from 50-70ºC for 10-30 minutes to activate endogenous pectin methyl esterase; and adding calcium (p.C343/Diced tomato heat treatments, PME activity, Figure 1). Anthon et al. teaches the pectin methyl esterase de-esterifies the pectin found in the plant material to increase the number of free carboxyl groups in the pectin. Anthon et al. teaches that the free carboxyl groups allow for calcium cross-linking and thus a firmer texture or structure (p.C345 /Texture effects), and in combination with the primary reference, discloses the presently claimed invention.
Applicants submit “they are uncertain of the intent of the comment on page 1- of the Office Action asserting some product defect in the product of Lundberg.”
On Page 13 of the response filed May 17, 2025, Applicant discussed the advantages of the coarse fibers of the claims over MC. Applicant also note report from the European Union discussing the potential toxicity of HPMC. The Examiner is unclear how this information is relevant to the prior art of record, Lundberg et al. Clarification is requested.
Applicant submits “[t]he date in the declaration apparently has been misconstrued.
It is not clear what component of the data has been misconstrued.
Applicants repeat the arguments filed May 17, 2025.
Applicants are directed to the Examiner’s response in the Final Rejection mailed July 1,
Conclusion
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.
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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