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 .
The amendment filed 12/4/2025 has been entered. Claims 1, 3, 5-6, 9-12 are pending. Claims 3, 5, and 6 are withdrawn. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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.
Claim 9 is 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.
The term “substantially equal” in Claim 9 is a relative term which renders the claim indefinite. The term “substantially equal” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
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.
Claim 1, 9, 11, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ito (US 2010/0015318 A1).
Regarding Claim 1, Ito teaches a food comprising konjac material and water in a gel form with meat-like properties [0058]. The konjac material may be glucomannan [0051]. The composition comprises konjac material, dietary fibers, and an alkaline coagulant. The composition comprises 1: 10-100 parts konjac material to water, at 1:4-40 parts konjac material to dietary fiber [0011-0012], and 1:0.001-10 parts konjac material to alkaline coagulant [0055]. The composition therefore comprises 1-7% konjac material, or glucomannan, and 16-95% water. The amount of glucomannan and water overlap the claimed ranges.
Note that the composition with the maximum amount of konjac (or glucomannan) taught by Ito is 1 part konjac, 10 parts water, 4 parts dietary fiber, and .001 parts alkaline coagulant, which is an overall composition of 1/(1+10+4+.001) = 7% glucomannan. Similarly, the minimum amount of konjac (or glucomannan) taught by Ito is 1 part konjac, 100 parts water, 40 parts dietary fiber, and 10 parts alkaline coagulant, which is 1% glucomannan. Similarly, the composition with the maximum amount of water taught by Ito is 1 part konjac, 100 parts water, 4 parts dietary fiber, and .001 parts alkaline coagulant, which is 95% water. Similarly, the composition with the minimum amount of water is 1 part konjac, 10 parts water, 40 parts dietary fiber, and 10 parts alkaline coagulant, which is 16% water.
Note that the product of Ito comprising 70% moisture comprises at most 5% glucomannan, as addressed by Applicant in Remarks filed 12/4/2025.
Ito teaches that the gel has undergone freezing [0061]. Ito additionally teaches that the gel has undergone freeze drying and reconstitution [0062-0063].
Ito additionally teaches a gel that is frozen and then subsequently microwaved [0060-0061]. Ito teaches that such treatments produce a texture similar to meat [0059].
Note that since Ito teaches that the product is frozen, the product of Ito is interpreted to have undergone “freeze denaturation” as claimed in part (G).
Regarding (C) and (D), Ito teaches that the product may be shaped into “particle form” or “string form” [0015] but does not discuss the dimensions of the product. However, if the only difference between the prior art and the claims is a recitation of relative dimensions and a product having the claimed relative dimensions would not perform differently than the prior art product, the claimed invention is not patentably distinct from the prior art product. See MPEP 2144.04 IV A.
Regarding (E) and (F), Ito does not discuss the porosity or largest pore porosity of the gel. However, Ito teaches that such treatments such as heating (such as microwaving, [0060]), freezing, drying [0016], and reconstitution with water after drying [0017] produce a texture similar to meat [0059].
Given that Ito teaches a similar product to the instant Claims, with similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties of porosity and a largest pore porosity as claimed. Note that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See MPEP 2112.01 I.
Regarding part (H), Ito teaches the use of, e.g. processed starch, which is modified starch. Ito teaches that the starch: glucomannan ratio is 1-10:1 by weight [0056]. Ito therefore teaches 1-40% starch, which encompasses the claimed range.
Note that the composition with the minimum amount of starch taught by Ito is 1 part glucomannan, 100 parts water, 4 parts dietary fiber, 10 parts alkaline coagulant, and 1 part starch, which is 1% starch. Similarly, the composition with the maximum amount of starch taught by Ito is 1 part glucomannan, 10 parts water, 4 parts dietary fiber, .001 parts alkaline coagulant, and 10 parts starch, which is 40% starch.
Regarding Claim 9, Ito teaches that the food is intended as a substitute meat (Abstract) but does not specifically address a texture similar to shrimp.
However, given that Ito teaches a substitute meat product which teaches the compositional limitations of Claim 1, and additionally where Ito teaches a gel which has undergone freezing [0061], freeze drying and reconstitution [0062-0063] ads discussed in the instant Specification, there is an expectation that the product of the prior art have the property of a shrimp-like texture, as claimed. Note that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See MPEP 2112.01 I.
Regarding Claim 11, Ito teaches a food comprising konjac material such as glucomannan [0051], water [0058], alkaline coagulant [0055], processed starch (which is modified starch, [0056]), and dietary fibers [0011-0012]. Note that dietary fibers may be utilized as emulsifiers.
Note that since Ito teaches that these ingredients are appropriate for a food, it would have been obvious to one of ordinary skill to formulate a food consisting of the ingredients as claimed. One would have been motivated to make such a modification since Ito teaches that the claimed ingredients are appropriate for use in a food.
Regarding Claim 12, Ito teaches that the alkaline coagulant may be, e.g. calcium hydroxide [0055].
Allowable Subject Matter
Claims 10 and 13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 10 is not rejected. The prior art of Ito teaches a konjac gel comprising 70%-90% moisture with 1-5% konjac, or glucomannan.
Claim 13 is not rejected. The prior art of Ito teaches a konjac gel which requires an insoluble dietary fiber as an ingredient, which is not a salt, amino acid, seasoning, dye, or flavor.
Response to Arguments
Applicant’s arguments filed 12/4/2025 in regards to Claim 1 have been fully considered but they are not persuasive.
Applicant argues (Page 6 of Remarks) that the product of Ito is fully reconstituted with water, which would not achieve the porous structure of the claimed product.
This argument is not convincing. Applicant has not claimed a degree of reconstitution or a porous structure.
Applicant additionally argues that the product of Ito does not have a shrimp-like texture, since Ito teaches a muscle fiber-like texture similar to livestock meat.
This argument is not convincing. Note that Ito teaches a food with texture similar to, e.g. chicken meatballs [00198], which one of ordinary skill would understand to be a non-fibrous texture similar to shrimp. Additionally, note that Applicant has not claimed a specific texture in Claim 1.
Applicant additionally argues that Ito does not teach or suggest a moisture content, modified starch content, or a largest pore porosity or total porosity as claimed.
This argument is not convincing. Ito teaches the claimed limitations as discussed above in regards to Claim 1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791