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 .
Response to Amendment
In applicant’s reply on 09/22/2025, the claims were amended. Based on these amendments, the rejections under 35 U.S.C. 112 have been withdrawn. The rejections under 35 U.S.C. 101 and 102 have been revised below.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-11 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e. a law of nature, a natural phenomenon, or an abstract idea) without significantly more. The claims recite “avian stem cells”, a product of nature. The claims do not recite additional elements which are sufficient to amount to significantly more than the judicial exception. The claimed invention is directed to non-statutory subject matter because the claims as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea.
With respect to Step 1 of the Subject Matter Eligibility Test, independent Claim 1 recites “a food product” thus satisfying Step 1 of the Patent Office’s Subject Matter Eligibility Test by reciting a statutory category.
With respect to Step 2A of the Subject Matter Eligibility Test regarding whether the claims are directed to a judicial exception (Prong 1), the claims do not satisfy this consideration as they are directed towards an abstract idea. Specifically, the claims are directed towards a product of nature, “avian stem cells obtained by in vitro culture of a continuous avian cell line isolated from embryo”. Naturally occurring avian stem cells would be indistinguishable from the claimed avian stem cells. They would inherently have the same physical/chemical characteristics of the claimed avian stem cells. Further, there is no evidence that the claimed “food component” changes the chemical or physical nature of the claimed avian stem cells. This food component can also be a natural element such as the mineral salts of claim 6.
With respect to Step 2A regarding whether the judicial exception is integrated into a practical application (Prong 2), the claimed invention’s avian stem cells in a food item is merely linking a judicial exception to a field of use. The Guidance states that if an element does no more than link a judicial exception to a particular field of use, the judicial exception may not be integrated into a practical application.
With respect to Step 2B, the Examiner evaluates whether the claim provides an inventive concept. The only component other than the judicial exception is a “food component”. Addition of a food component is well established in the art and is routine and conventional. It would not amount to a claim as a whole that is significantly more than the exception; therefore, the claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Following the Revised Patent Subject Matter Eligibility Guidance from the Office, Applicant’s invention is unpatentable under 35 USC § 101.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1, 3-5, 7, and 10-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Van Eelen (US 2006/0029922 A1).
Regarding Claim 1, Van Eelen teaches a food product (food product Par. 0015)
comprising avian stem cells obtained by in vitro culture of a continuous avian cell line isolated from embryo (in vitro produced cells, cells being selected from muscle cells, stem cells or somite cells Par. 0015; cells derived from chicken Par. 0018, chick embryo Par. 0024)
and at least one food component (nutritional additive Par. 0017).
Regarding Claim 3, Ven Eelen further teaches the avian stem cells are from duck and/or chicken (cells derived from chicken Par. 0018)
Regarding Claim 4, Ven Eelen further teaches the avian stem cells have been obtained by a method comprising at least one step of in vitro culture (in vitro 0015)
Regarding Claim 5, Ven Eelen further teaches which does not comprise an animal component in addition to the avian stem cells (cells being selected from muscle cells, stem cells or somite cells Par. 0015; nutritional additives such as vitamins and minerals Par. 0017; doesn’t teach any other required components)
Regarding Claim 7, Ven Eelen further teaches further comprising at least one supplementary food component selected from the group consisting of vitamins, minerals, fibers, fatty acids, amino acids, flavoring agents, colorants, antioxidants, sweeteners, flavor enhancers, acidifiers, preservatives, sequestrants, seasonings, sugar, prebiotics, salt, water, and antimicrobials (nutritional additives such as vitamins and minerals different from the at least one food component of claim 1; Par. 0017)
Regarding Claim 10, Ven Eelen further teaches in a form selected from the group consisting of a fresh product, a dried product, a frozen product, a product which has been cooked, pickled or smoked or in a form incorporated in a processed food product (fresh, precooked, dried or frozen form Par. 0016)
Regarding Claim 11, Ven Eelen further teaches packed in a commercial packaging suitable for distribution to an end consumer (final product exiting from the factory can be packaged in situ either in fresh, precooked, dried or frozen form Par. 0016)
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claims 2 and 9 are rejected under 35 U.S.C. 103 as being obvious over Ven Eelen.
Regarding Claim 2, Ven Eelen further teaches the avian cells are isolated from embryo (100% pure embryo muscle or somite cells Par. 0019). As Ven Eelen discloses stem cells as a potential cell type (cells being selected from muscle cells, stem cells or somite cells Par. 0015), it would have been obvious to one having ordinary skill in the art to also use stem cells which are isolated from embryo.
Regarding Claim 9, Ven Eelen further teaches a unit form of at least 50 grams (Claim 7), but does not teach a unit form of at least 15 grams.
As Van Eelen suggests, the product can be produced in unit sizes enabling ease of transport and storage (Par. 0016). With this in mind, it would have been obvious to one having ordinary skill in the art to choose a unit size that suits their preference and storage/transportation needs KSR, 550 U.S. at 416, 82 USPQ2d at 1395.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Van Eelen in view of Marga (US 9,332,779 B2).
Regarding Claim 6, Ven Eelen further teaches the food component is a mineral (mineral Par. 0017).
Ven Eelen does not teach the food component is selected from the group consisting of anti-foaming agents, emulsifiers, firming agents, gelling agents, humectants, mineral salts, stabilizers, thickeners, and texturizing agent.
Marga, in the same field of endeavor, teaches the food component is salt (Col. 8 lines 37-57). It would have been obvious to one having ordinary skill in the art to apply the salt of Marga to the mineral of Ven Eelen in the form of mineral salt. One would have been motivated to make this modification to enhance a desired taste or mask an undesirable taste (Marga Col. 8 lines 37-57).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Van Eelen in view of Eat for Health (“Lean Meat and Poultry, Fish, Eggs, Tofu, Nuts, and Seeds and Legumes/Beans”).
Regarding Claim 8, Ven Eelen further teaches organoleptic properties close to a meat product's organoleptic properties (structure and flavor of lean meat, can be used to replace current animal produced meat 0016).
Ven Elden does not teach wherein the meat product is selected from the group consisting of beef, buffalo, bison, calf, goat, ham, horse, kangaroo, lamb, moose, mutton, pork, bacon, rabbit, venison, chicken, duck, emu, goose, guinea fowl, ostrich, partridge, pheasant, pigeon, quail, and turkey.
Eat for Health teaches lean meats consisting of beef, buffalo, bison, calf, goat, ham, horse, kangaroo, lamb, moose, mutton, pork, bacon, rabbit, venison, chicken, duck, emu, goose, guinea fowl, ostrich, partridge, pheasant, pigeon, quail, and turkey (beef, lamb, kangaroo Pg. 1 section below “What’s in the Lean Meat and Poultry, Fish, Eggs, Tofu, Nuts and Seeds and Legumes/Beans Group?”). It would have been obvious to modify the method of Ven Elden with the meat type of Eat for Health. As Van Elden teaches a product which has the structure and flavor of lean meat (Par. 0016), one having ordinary skill in the art would be motivated to look to the art for sources of lean meat.
Response to Arguments
Applicant's arguments filed 09/22/2025 have been fully considered but they are not persuasive.
Applicant argues the filed amendment overcomes the rejection under 35 USC 101. The newly added limitation of the avian stem cells being obtained by in vitro culture of a continuous line of avian stem cells isolated from embryo does not inherently make it not a product of nature. Embryonic stem cells have the capacity to proliferate indefinitely given proper conditions. In applicant’s specification it appears the continuous line is maintained with the use of growth medium. Merely putting stem cells found in nature in proper conditions to maintain them to remain undifferentiated does not change the cells themselves from those found in nature. A showing of the manner of obtaining this continuous line may be persuasive if there is an impact of the cells themselves which would alter them from those found in nature.
Applicant argues Van Elden does not teach avian stem cells in the final product, but merely as a starting material. The invention of Van Elden does not require removal of undifferentiated stem cells from the final product, therefore it is well within reason that at least 2 stem cells would remain undifferentiated and would therefore satisfy the “comprising avian stem cells” aspect of the instant invention as claimed. As there is no concentration of stem cells in the claimed product the at least 2 stem cells of Van Elden renders this aspect obvious. Further, Par. 0018 of Van Elden teaches the cells may be derived from chicken, therefore the product may consist of avian stem cells.
Additionally, as seen in Par. 0015 and claim 1 of Van Elden, one could interpret Van Elden as having stem cells in the product, “a meat product, consisting of in vitro produced animal cells in a three dimensional form, said meat product being free of fat, tendon, bone and gristle, wherein said cells being selected from muscle cells, stem cells or somite cells”. Van Elden suggests that the product contains in vitro produced animal cells, of which the cells can be muscle cells, stem cells, or somite cells.
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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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792