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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 5 August 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification: (1) the objections to the specification have been withdrawn
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-2, 4-14, and 16-21
Withdrawn claims: 10-14
Previously canceled claims: 3 and 15
Newly canceled claims: None
Amended claims: 1, 4, and 18-19
New claims: None
Claims currently under consideration: 1-2, 4-9, and 16-21
Currently rejected claims: 1-2, 4-9, and 16-21
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5 August 2025 has been entered.
Information Disclosure Statement
The information disclosure statement filed on 1 May 2024 fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each reference listed that is not in the English language. It has been placed in the application file, but the information referred to therein regarding non-patent literature documents 4, 6, and 7 on the form has not been considered. Other references on the form have been considered by the Examiner.
Claim Objections
Claim 6 is objected to because the status identifier is incorrect and should instead
read “Currently Amended”. The added text in claim 6 must also be presented with markings to indicate the changes that have been made relative to the immediate prior version. See MPEP § 714(II)(C).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 4 and 19 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention.
MPEP § 2163(I)(B) states, “To comply with the written description requirement of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, or to be entitled to an earlier priority date or filing date under 35 U.S.C. 119, 120, 365, or 386, each claim limitation must be expressly, implicitly, or inherently supported in the originally filed disclosure.”
Amended claim 4 recites the limitation, “wherein during all the steps of mixing the ingredients of the vegetarian burger, the temperature of the ingredients is kept in the range of -5°C to 30°C.” Amended claim 19 recites the limitation, “wherein during all the steps of mixing of the vegetarian burger, the temperature is kept in the range of -5°C to 30°C.”
In support of these limitations, Applicant pointed to p. 24, lines 19-21, which read:
An important advantage associated with the preparation of the vegetarian burger at near ambient temperature resides in the fact that oxidation of the unsaturated fatty acids in the liquid oil is effectively minimised.
and p. 25, lines 18-20, which read:
According to a particularly preferred embodiment, during step ii of the present process, the ingredients of the patty are kept at a temperature in the range of -5°C to 30°C, more preferably in the range of -3°C to 20°C, most preferably in the range of -2°C to 16°C.
Step ii of the present process is indicated on p. 21, lines 23-26 as:
ii. mixing the hydrated TVP pieces with methyl cellulose, plant protein concentrate, fat and water to produce a vegetarian dough, wherein the plant protein concentrate contains at least 50 wt.% plant protein selected from patatin and mung bean protein by weight of dry matter;
“The steps” is construed differently than “all the steps” because “the steps” can comprise any steps, whereas “all the steps” requires every step. Nowhere in the originally filed disclosure is there support for “wherein during all the steps of mixing the ingredients of the vegetarian burger, the temperature of the ingredients is kept in the range of -5°C to 30°C” or “wherein during all the steps of mixing of the vegetarian burger, the temperature is kept in the range of -5°C to 30°C.” It is noted that Example 1 on pp. 25-27 discloses preparing and mixing the ingredients at 7°C, and then cooling the dough mass to 1°C. This is insufficient disclosure for the limitations of claims 4 and 19 because Example 1 only provides support for a method consisting of the steps of the example for mixing at 7°C, not that each step is performed at the broader range of -5°C to 30°C as claimed.
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.
Claims 1-2, 4-9, and 16-21 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1 and 18 recite the phrase, “wherein the texturized fibrous vegetable protein provide[s] the vegetarian burger with a cohesiveness, eating quality and appearance similar to a meat-based burger, and wherein the oxidation of unsaturated fatty acids is minimized”. The terms “cohesiveness”, “eating quality”, “similar to”, and “minimized” are relative terms that render the claims indefinite. The terms “cohesiveness”, “eating quality”, “similar to”, and “minimized” are 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. The qualities of the vegetarian burger and the degree of oxidation of unsaturated fatty acids required by the claims have therefore been rendered indefinite by these terms. For purposes of examination, and as described in detail hereinbelow, these wherein clauses are non-limiting as they are a mere recognition of latent properties brought about by conducting the recited method steps.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance, claim 6 recites the broad recitation, “The process according to claim 1 whereby the hydrated TVP pieces of the vegetarian burger include TVP chunks having a weight of in the range of 20-800 mg”, and the claim also recites, “whereby preferably, the vegetarian burger contains 30-70% by weight of the vegetarian burger of the hydrated TVP chunks” and “whereby preferably the hydrated TVP chunks in the vegetarian burger contain, calculated by weight of the dry matter of the hydrated TVP chunks, 50-80 wt.% protein, 0-5 wt.% fat and 3- 30 wt.% dietary fiber”, which are the narrower statements of the limitation.
The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
It is noted that the form of claim 6 presented in the current amendment has been amended, without any indication thereto, to the version submitted as filed on 14 April 2022. It is further noted that in Applicant’s amendment and response following the Non-final Office Action, mailed on 24 January 2025, Applicant had amended claim 6 to remove the narrower language clauses. Therefore, for purposes of examination, claim 6 is construed to be “The process according to claim 1 whereby the hydrated TVP pieces of the vegetarian burger include hydrated TVP chunks having a weight in the range of 20-800 mg”, as previously presented.
Claims 2, 4-9, and 16-17 are rejected due to their dependency from claim 1.
Claims 19-21 are rejected due to their dependency from claim 18.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-9, and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (US 2017/0105438 A1, cited on the IDS filed on 14 April 2022) in view of Margolis (US 2015/0056346 A1, cited on the IDS filed on 14 April 2022), Erni et al. (WO 2020/260628 A1), and Nishimura et al. (EP 2689670 A1, cited on the IDS filed on 14 April 2022).
Regarding claim 1, Ajami teaches a process for preparing a vegetarian burger comprising the step of mixing hydrated TVP pieces (i.e., meat structured protein products ([0064])) with methyl cellulose ([0123]), plant protein concentrate ([0123]), fat ([0107]), and water ([0110]) and that a second meat structured protein product with different attributes may be incorporated ([0114]) to produce a vegetarian dough (see Example 5, [0298], Table 7, “FB45”). Ajami further teaches forming a vegetarian burger from the vegetarian dough – “the present invention is a meat-like food product comprising a burger patty” ([0098]). The ingredients of the meat structured protein products may be derived from one or more non-animal products ([0259]), including vegetables ([0261]). This indicates a vegetarian burger is formed from the vegetarian dough.
Ajami does not discuss grinding hydrated TVP pieces or mixing fat comprising liquid oil and solid fat particles into the mixture to produce a vegetarian dough, wherein the temperature of the ingredients during the mixing is kept in the range of -5°C to 30°C. Ajami also does not teach specifically that the vegetarian burger comprises defibrillated hydrated texturized fibrous vegetable protein (TFVP) material; said burger comprising hydrated TVP microfibers in the range of 2-28 wt.% (wet weight), whereby the hydrated TVP microfibers are prepared by soaking dry texturized fibrous vegetable protein (TFVP) material with water and by defibrillating the material to release the hydrated TVP microfibers. Ajami does not discuss “wherein the hydrated texturized fibrous vegetable protein provide[s] the vegetarian burger with a cohesiveness, eating quality and appearance similar to a meat-based burger” and “wherein the oxidation of unsaturated fatty acids is minimized”.
However, regarding grinding the hydrated TVP pieces, Margolis teaches, “it is possible to make plant-based products (e.g., meatballs) that require a finer, firmer, less particulate, and less crumbly texture by grinding texturized plant-protein ingredients after they have been hydrated, rather than reducing their size by grinding them in the dry state prior to hydration” ([0063]), and “[t]his grinding step (Step 9) serves to reduce and produce uniform-sized, not-gritty plant-protein pieces. However, different textures can be produced by adjusting the grinder plate hole diameter, such that smaller holes produce finer texture, and larger holes produce coarser texture.” ([0064]). While the grinding step takes place after mixing the hydrated TVP pieces with other ingredients, MPEP § 2144.04(IV)(C) states, “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.”
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to apply the griding technique of Margolis to the base method of Ajami to improve the meat-like appearance and/or texture of the burger patty, see MPEP §2143(I)(D). First, Ajami discloses that the uncooked meat-like food products have one or more similar or superior meat-like attributes compared to uncooked 80/20 or 90/10 ground beef ([0215]). Ajami further discloses that the meat structured protein products (i.e., TVP pieces) comprised in the meat-like food products are of such size that they can pass through a sieve having particular pore sizes ([0121]). Ajami does not disclose that hydrated TVP pieces are ground to achieve the appropriate sizes, and instead teaches that the meat structured protein products are chopped to coarse and fine crumbles before hydration ([0298]). Since Margolis teaches producing finer, firmer, less particulate, and less crumbly texture can be achieved by grinding texturized plant-protein ingredients after they have been hydrated, rather than before hydration ([0063]) and different textures can be produced by adjusting the grinder plate hole diameter, such that smaller holes produce finer texture, and larger holes produce coarser texture ([0064]), one of ordinary skill in the art would have recognized that applying the technique of Margolis to the meat structured protein products of Ajami would have yielded the predictable result of an improved appearance resembling 80/20 or 90/10 ground beef. It is also within the scope of the disclosure of Margolis to mix ground TVP produced with different plate hole diameters (e.g., coarse and fine) to achieve a desired appearance and/or texture in the final food product.
Regarding mixing fat comprising liquid oil and solid fat particles into the mixture, Erni teaches a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9) that may be applied to meat analogues (p. 2, lines 21-25; claim 13) “to improve one or more of the aroma profile, the taste profile, the sensory perception, and the texture perception…so as to more truly match such characteristics of real meat products” (p. 2, lines 21-25). The solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). Margolis teaches adding fat/oil as the last ingredient before cooling and shaping (Figs 1-4), and that addition of fat at this stage is important because adding fat at an earlier stage “generates a less-desirable spongy texture, as well as a visibly unattractive cream/brown colored layer, in the plant-protein product, and could prevent production of an optimally flavor stabilized plant-protein product” ([0053]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Ajami to incorporate liquid oil and solid fat particles, as disclosed by Erni, as the final ingredient before cooling, as disclosed by Margolis, to give the meat-like food product more meat-like attributes. First, Ajami discloses that the uncooked meat-like food products have one or more similar or superior meat-like attributes compared to uncooked 80/20 or 90/10 ground beef including, but are not limited to color, aroma, taste, chewiness, gumminess, springiness, cohesiveness, resilience, adhesiveness, hardness, moisture content, protein content, lipid content, carbohydrate content, fiber content, and juiciness ([0215]). Since Erni teaches that the composition of solid fat particles suspended in liquid oil can improve one or more of the aroma profile, taste profile, sensory perception and the texture perception of meat analogues (p. 2, lines 21-25, p. 3, lines 1-3, claim 13) and Margolis teaches that adding fat as the last ingredient also positively contributes to the flavor, texture and appearance of the product ([0053]), one of ordinary skill in the art would have been motivated to substitute the fat component of Ajami with the solid fat particles dispersed in liquid oil of Erni, and to add the fat as the last ingredient as taught by Margolis to improve the meat-like food product attributes as compared to 80/20 or 90/10 ground beef. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Erni and Margolis teach that these components and steps improve the organoleptic properties of the product as described above.
Regarding the temperature of the ingredients during mixing, Margolis discloses that the thick semi-solid mass of the mixture typically has a temperature of about 50°F (10°C), the standard environmental temperature of meat processing facilities ([0061]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify Ajami with the teachings of Margolis to carry out the vegetarian dough making operations, including the mixing, at 50°F (10°C), the standard environmental temperature of meat processing facilities. One of ordinary skill in the art would have been motivated to consult Margolis because there is no indication of the temperature conditions during the preparation of the meat-like food products in Ajami. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Margolis teaches that 10°C is the standard environmental temperature of meat processing facilities, and hence, is the temperature commonly used in preparing meat- or meat-like food products. 10°C lies inside the claimed range of -5°C to 30°C. It is noted that this aligns with the teachings of Erni of adding a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9), wherein the solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). One of ordinary skill in the art would have recognized that for the fat particles dispersed in the liquid oil to be solid, the temperature must be below 22°C.
Regarding the defibrillated hydrated TFVP material, Nishimura teaches a method for producing a meat-like foodstuff comprising defibrillated hydrated TFVP material – hydrated and split (i.e., defibrated/defibrillated) first and second textured vegetable proteins ([0012], [0027]);
whereby the hydrated TVP microfibers are prepared by soaking dry texturized fibrous vegetable protein (TFVP) material with water and by defibrillating the material to release the hydrated TVP microfibers – “The first textured vegetable protein and the second vegetable protein are caused to contain water for hydration. Then, the excess water is dehydrated as necessary. The hydrate is split using an appropriate means; that is, disintegrated into fibers.” ([0027]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the method of preparing hydrated split textured vegetable protein (i.e., hydrated TVP microfibers) of Nishimura into making the meat-like food product of Ajami to provide a more meat-like texture to the product. Ajami discloses the composition ([0117]) and use of two or more meat structured protein products with different attributes, but does not disclose many details regarding how to achieve different textures apart from using particles of different sizes ([0114]). One of ordinary skill in the art would have been motivated to consult Nishimura to identify additional types of second meat structured protein products to use in combination with the TVP chunk-type first meat structured protein product to lend more textural complexity and meat-like properties to the product. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Nishimura teaches pseudo-meat compositions comprising two types of hydrated split (i.e., defibrated/defibrillated ([0026] – [0027])) textured vegetable protein ([0057]) and a binder ([0084]) that have similar eating qualities to real meat ([0062], Table 2).
Regarding the limitation, “said burger comprising hydrated TVP microfibers in the range of 2-28 wt.% (wet weight)”, the amount of hydrated TVP microfibers is a result effective variable in the vegetarian burger composition. Nishimura discloses that there is an optimal proportion of two TVP microfiber types in a meat-like foodstuff that gives a preferred meat-like texture ([0062], Table 2), and that having no TVP microfibers, but granular vegetable protein (i.e., TVP chunks) and unsplit bundles (i.e., non-defibrillated TVP) ([0084]) results in “a poor sensation of splitting” and being “not favorable as a beef-like texture” ([0086]). Ajami teaches that the meat-like food products comprise at least about 25% by weight of one or more meat structured protein products ([0113]), and “in some embodiments, the meat-like food products comprise between 40% and about 50% by weight of the first meat structured protein product [i.e., hydrated TVP pieces] and between about 50% and about 60% of the second meat structured protein product [i.e., hydrated TVP microfibers]” ([0114]) It is considered that hydrated TVP microfibers could be either one of the first or second meat structured protein products of Ajami. Addition of the hydrated TVP microfibers in the amounts disclosed would result in a minimum amount of 40% x 0.25 = 10% to 60% x 0.25 = 15%, with maximum amounts approaching 50-60% of the total composition. MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal value for the hydrated TVP microfibers used in the process of Ajami in view of Nishimura, through routine experimentation, to impart the meat-like food product with the desired meat-like texture, including the claimed amount of 2-28 wt.% of hydrated TVP microfibers based on the wet weight of the composition.
Regarding the clauses “wherein the hydrated texturized fibrous vegetable protein provide[s] the vegetarian burger with a cohesiveness, eating quality and appearance similar to a meat-based burger” and “wherein the oxidation of unsaturated fatty acids is minimized”, these clauses are toward a recognition of latent properties of the composition produced by the method steps. As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.' Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Since the cited prior art teaches the claimed method steps as described above, the recited latent properties or advantages cannot be the basis for patentability. Additionally, when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the Applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.02(I).
For these reasons, claim 1 is rendered obvious.
Regarding claim 2, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above. Ajami also teaches that the defibrillated hydrated TFVP material and the hydrated TVP pieces are mixed in a weight ratio that lies in the range of 1:3 to 3:1 – “In some embodiments, the meat-like food products comprise between 40% and about 50% by weight of the first meat structured protein product [i.e., hydrated TVP pieces] and between about 50% and about 60% of the second meat structured protein product [i.e., defibrillated hydrated TFVP material]” ([0114]). This translates to a ratio of 1:1 to 1:1.5, which lies inside the claimed range. Thus, claim 2 is obvious.
Regarding claim 4, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above.
Ajami does not specifically teach that during all the steps of mixing the ingredients of the burger, the temperature of the ingredients is kept in the range of -5°C to 30°C.
However, Margolis discloses that the thick semi-solid mass of the mixture typically has a temperature of about 50°F (10°C), the standard environmental temperature of meat processing facilities ([0061]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify Ajami with the teachings of Margolis to carry out the vegetarian dough making operations (i.e., all the steps of mixing) at 50°F (10°C), the standard environmental temperature of meat processing facilities. One of ordinary skill in the art would have been motivated to consult Margolis because there is no indication of the temperature conditions during the preparation of the meat-like food products in Ajami. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Margolis teaches that 10°C is the standard environmental temperature of meat processing facilities, and hence, is the temperature commonly used in preparing meat- or meat-like food products. It is noted that this aligns with the teachings of Erni, discussed regarding claim 1 above, of adding a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9), wherein the solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). One of ordinary skill in the art would have recognized that for the fat particles dispersed in the liquid oil to be solid, the temperature must be below 22°C.
Claim 4 is therefore rendered obvious.
Regarding claim 5, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above. Ajami and Nishimura together also teach that the hydrated TVP microfibers comprise protein in a concentration, calculated by weight of the dry matter of the hydrated TVP microfibers, of at least 50 wt.% – Ajami teaches that a second meat structured protein product with different attributes may be incorporated ([0114]) into the meat-like food product (i.e., TVP microfibers prepared by the method disclosed by Nishimura, as described regarding claim 1 above). Ajami teaches that “the meat structured protein products comprise between about 40% and about 60% of protein,…and between about 45% and about 55% by weight of water” ([0017]). Assuming about 50% water, based on dry matter, protein is present in the hydrated TVP chunks in an amount of at least about 80% of protein. Therefore, the claimed range overlaps with the disclosed range. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 5 is therefore rendered obvious.
Regarding claim 6, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above. Ajami also teaches that the hydrated TVP pieces of the vegetarian burger include hydrated texturized vegetable protein (TVP) chunks having a weight in the range of 20-800 mg – Ajami discloses that the meat structured protein products may be of different sizes, such as those that can pass through sieves having a pore size of about 3.125 mm and 6.35 mm ([0114]). In an analysis of density and fold-volume-change-after-hydration analysis, Ajami discloses that the dry meat structured protein products have a particle size ranging from about 1/8” (3.175 mm) to ¼” (6.35 mm), a fold volume change after hydration of 2.12 to 2.6, and a density of 0.3 to 0.45 g/cm3 ([0282], Table 3). To approximate the mass of a 6.35 mm particle after hydration, assume a fold volume change of 2.6 and a density of 0.45 g/cm3. Using the volume of a sphere as an approximation, a sphere 6.35 mm in diameter has a volume of 134.07 mm3, or 0.134 cm3. Multiplying by the fold volume change of 2.6 gives a hydrated particle with a volume of 0.349 cm3. Multiplying by the density of 0.45 g/cm3 and converting grams to mg, it is determined that the approximate mass of the particle is 157 mg. Thus, the disclosed value for particles that may comprise the meat structured protein product lies inside of the claimed range of 20-800 mg.
Claim 6 is therefore rendered obvious.
Regarding claim 7, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above. Ajami and Nishimura together also teach that the hydrated TVP microfibers in the vegetarian burger contain, calculated by weight of the dry matter of the hydrated TVP microfibers, 50-80 wt.% protein, 0-5 wt.% fat and 3-30 wt.% dietary fiber – Ajami teaches that a second meat structured protein product with different attributes may be incorporated ([0114]) into the meat-like food product (i.e., TVP microfibers prepared by the method disclosed by Nishimura, as described regarding claim 1 above). Ajami teaches that “the meat structured protein products comprise between about 40% and about 60% of protein,…between about 2% and about 4% by weight of edible fiber, between about 3% and about 5% of total lipid, and between about 45% and about 55% by weight of water” ([0017]). Assuming about 50% water, based on dry matter, these ingredients are present in the hydrated TVP chunks at about 80% of protein, between about 4% and about 8% of edible fiber, and between about 6% and about 10% of total lipid. Ajami allows for 10% variance when using the term “about” ([0023]). The disclosed range for fat is therefore 5.4% to 11% when the meat-structured protein product comprises 50% water. The upper limit of water is “about 55%”, or with the 10% variance, 60.5%. In a meat structured protein product comprising the higher disclosed amount of water, the amount of fat would be 4.96% to 8.26%. Therefore, the claimed ranges overlap with the ranges disclosed by Ajami. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 7 is therefore rendered obvious.
Regarding claim 8, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above.
Ajami does not teach that the hydrated TVP microfibers contain, calculated by weight of the dry matter of the hydrated TVP microfibers, 0.5-10 wt.% starch.
However, Nishimura teaches that the hydrated TVP microfibers contain, calculated by weight of the dry matter of the hydrated TVP microfibers, 0.5-10 wt.% starch – “hydrating and splitting (i.e., defibrillating) a second textured vegetable protein having been textured by extruder treatment (i.e., hydrated TVP microfibers) so as to contain a vegetable protein and 0.03 to 0.15 parts by mass of starch with respect to 1 part by mass of the vegetable protein” (Abstract). Nishimura further discloses that the protein mass after hydration is 2.6 parts with respect to 1 part of the dry mass of the same ([0054]). The amount of starch in the hydrated protein mass equates to 3-15 wt.%, which on a dry matter basis is 2.6 times as much, or 7.8-39 wt.%. Therefore, the claimed range overlaps with the disclosed range. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 8 is therefore rendered obvious with the same motivation and expectation of success in applying the hydrated TVP microfibers of Nishimura to the meat-like food product of Ajami as described regarding claim 1 above.
Regarding claim 9, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above.
Ajami does not teach that the hydrated TVP microfibers are prepared by soaking one part by weight of the dry texturized fibrous vegetable protein (TFVP) material with 1.5 to 3 parts by weight of water and by defibrillating the material to release the hydrated TVP microfibers.
However, Nishimura teaches that the hydrated TVP microfibers are prepared by soaking one part by weight of the dry texturized fibrous vegetable protein (TFVP) material with 1.5 to 3 parts by weight of water and by defibrillating the material to release the hydrated TVP microfibers – “the protein mass after restoration with hot water and dehydration [i.e., hydration] was 2.6 parts with respect to 1 part of the dry mass of the same before restoration with hot water” ([0057]). “The hydrate is split using an appropriate means; that is, disintegrated into fibers” ([0027]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the method of preparing hydrated split textured vegetable protein (i.e., hydrated TVP microfibers) of Nishimura, including the method of hydration, into making the meat-like food product of Ajami to provide a more meat-like texture to the product. Ajami discloses the composition ([0117]) and use of two or more meat structured protein products with different attributes, but does not disclose many details regarding how to achieve different textures apart from using particles of different sizes ([0114]). One of ordinary skill in the art would have been motivated to consult Nishimura to identify additional types of second meat structured protein products, and their preparation, to use in combination with the TVP chunk-type first meat structured protein product to lend more textural complexity and meat-like properties to the product. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Nishimura teaches pseudo-meat compositions comprising two types of hydrated split (i.e., defibrated/defibrillated ([0026] – [0027])) textured vegetable protein ([0057]) and a binder ([0084]) that have similar eating qualities to real meat ([0062], Table 2).
Claim 9 is therefore rendered obvious.
Regarding claim 16, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above. Ajami also teaches that said burger contains contain no animal products – The ingredients of the meat structured protein products may be derived from one or more non-animal products ([0259]), including vegetables ([0261]).
Claim 16 is therefore rendered obvious.
Regarding claim 17, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above. Ajami also teaches that the vegetarian burger contains, calculated by weight of the dry matter of the burger, 2.5-10 wt.% of methyl cellulose – “the meat-like food products comprise between…about 4% and about 5%...by weight of methyl cellulose.” ([0123] col. 2, lines 25-26, 29, 31). Water is present in the meat-like food product at about 25% by weight and agent release systems are present at about 25% by weight and are comprised mostly of liquid ([0298], Table 7). Assuming about 50% dry weight, methyl cellulose at 4-5% by total weight becomes 8-10% when calculated by dry weight. Thus, the prior art range lies inside the claimed range, and the claim is obvious.
Regarding claim 18, Ajami teaches a process for preparing a vegetarian burger comprising the step of mixing hydrated TVP pieces (i.e., meat structured protein products ([0064])) with methyl cellulose ([0123]), plant protein concentrate ([0123]), fat ([0107]), and water ([0110]) and that a second meat structured protein product with different attributes may be incorporated ([0114]) to produce a vegetarian dough (see Example 5, [0298], Table 7, “FB45”). Ajami further teaches forming a vegetarian burger from the vegetarian dough – “the present invention is a meat-like food product comprising a burger patty” ([0098]). The ingredients of the meat structured protein products may be derived from one or more non-animal products ([0259]), including vegetables ([0261]). This indicates a vegetarian burger is formed from the vegetarian dough. Finally, Ajami teaches that the fat is 3.75-35 wt % of the burger – “In some embodiments, the meat-like food products comprise…between about 5% and about 25%...by weight of lipid.” ([0107]).
Ajami does not discuss grinding hydrated TVP pieces or mixing fat comprising liquid oil and solid fat particles into the mixture to produce a vegetarian dough, wherein the mixing in of the liquid oil and solid fat particles to the mixture results in a fraction of the solid fat particles being captured in droplets of liquid oil in the vegetarian dough, wherein the temperature of the ingredients during the mixing is kept in the range of -5°C to 30°C. Ajami also does not teach specifically that the vegetarian burger comprises defibrillated hydrated texturized fibrous vegetable protein (TFVP) material; said burger comprising hydrated TVP microfibers in the range of 2-28 wt.% (wet weight), whereby the hydrated TVP microfibers are prepared by soaking dry texturized fibrous vegetable protein (TFVP) material with water and by defibrillating the material to release the hydrated TVP microfibers. Ajami does not discuss “wherein the hydrated texturized fibrous vegetable protein provide[s] the vegetarian burger with a cohesiveness, eating quality and appearance similar to a meat-based burger” and “wherein the oxidation of unsaturated fatty acids is minimized”.
However, regarding grinding the hydrated TVP pieces, Margolis teaches, “it is possible to make plant-based products (e.g., meatballs) that require a finer, firmer, less particulate, and less crumbly texture by grinding texturized plant-protein ingredients after they have been hydrated, rather than reducing their size by grinding them in the dry state prior to hydration” ([0063]), and “[t]his grinding step (Step 9) serves to reduce and produce uniform-sized, not-gritty plant-protein pieces. However, different textures can be produced by adjusting the grinder plate hole diameter, such that smaller holes produce finer texture, and larger holes produce coarser texture.” ([0064]). While the grinding step takes place after mixing the hydrated TVP pieces with other ingredients, MPEP § 2144.04(IV)(C) states, “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.”
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to apply the griding technique of Margolis to the base method of Ajami to improve the meat-like appearance and/or texture of the burger patty, see MPEP §2143(I)(D). First, Ajami discloses that the uncooked meat-like food products have one or more similar or superior meat-like attributes compared to uncooked 80/20 or 90/10 ground beef ([0215]). Ajami further discloses that the meat structured protein products (i.e., TVP pieces) comprised in the meat-like food products are of such size that they can pass through a sieve having particular pore sizes ([0121]). Ajami does not disclose that hydrated TVP pieces are ground to achieve the appropriate sizes, and instead teaches that the meat structured protein products are chopped to coarse and fine crumbles before hydration ([0298]). Since Margolis teaches producing finer, firmer, less particulate, and less crumbly texture can be achieved by grinding texturized plant-protein ingredients after they have been hydrated, rather than before hydration ([0063]) and different textures can be produced by adjusting the grinder plate hole diameter, such that smaller holes produce finer texture, and larger holes produce coarser texture ([0064]), one of ordinary skill in the art would have recognized that applying the technique of Margolis to the meat structured protein products of Ajami would have yielded the predictable result of an improved appearance resembling 80/20 or 90/10 ground beef. It is also seen to be within the scope of the disclosure of Margolis to mix ground TVP produced with different plate hole diameters (e.g., coarse and fine) to achieve a desired appearance and/or texture in the final food product.
Regarding the fat composition, Erni teaches a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9) that may be applied to meat analogues (p. 2, lines 21-25; claim 13) “to improve one or more of the aroma profile, the taste profile, the sensory perception, and the texture perception…so as to more truly match such characteristics of real meat products” (p. 2, lines 21-25). The solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). Margolis teaches adding fat/oil as the last ingredient before cooling and shaping (Figs 1-4), and that addition of fat at this stage is important because adding fat at an earlier stage “generates a less-desirable spongy texture, as well as a visibly unattractive cream/brown colored layer, in the plant-protein product, and could prevent production of an optimally flavor stabilized plant-protein product” ([0053]). Mixing the fat composition of Erni into the meat analogue mixture would result in at least a fraction of the fat particles being captured in droplets of the liquid oil in the vegetarian dough.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Ajami to incorporate liquid oil and solid fat particles, as disclosed by Erni, as the final ingredient before cooling, as disclosed by Margolis, to give the meat-like food product more meat-like attributes. First, Ajami discloses that the uncooked meat-like food products have one or more similar or superior meat-like attributes compared to uncooked 80/20 or 90/10 ground beef including, but are not limited to color, aroma, taste, chewiness, gumminess, springiness, cohesiveness, resilience, adhesiveness, hardness, moisture content, protein content, lipid content, carbohydrate content, fiber content, and juiciness ([0215]). Since Erni teaches that the composition of solid fat particles suspended in liquid oil can improve one or more of the aroma profile, taste profile, sensory perception and the texture perception of meat analogues (p. 2, lines 21-25, p. 3, lines 1-3, claim 13) and Margolis teaches that adding fat as the last ingredient also positively contributes to the flavor, texture and appearance of the product ([0053]), one of ordinary skill in the art would have been motivated to substitute the fat component of Ajami with the solid fat particles dispersed in liquid oil of Erni, and to add the fat as the last ingredient as taught by Margolis to improve the meat-like food product attributes as compared to 80/20 or 90/10 ground beef. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Erni and Margolis teach that these components and steps improve the organoleptic properties of the product as described above.
Regarding the temperature of the ingredients during mixing, Margolis discloses that the thick semi-solid mass of the mixture typically has a temperature of about 50°F (10°C), the standard environmental temperature of meat processing facilities ([0061]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify Ajami with the teachings of Margolis to carry out the vegetarian dough making operations, including the mixing, at 50°F (10°C), the standard environmental temperature of meat processing facilities. One of ordinary skill in the art would have been motivated to consult Margolis because there is no indication of the temperature conditions during the preparation of the meat-like food products in Ajami. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Margolis teaches that 10°C is the standard environmental temperature of meat processing facilities, and hence, is the temperature commonly used in preparing meat- or meat-like food products. 10°C lies inside the claimed range of -5°C to 30°C. It is noted that this aligns with the teachings of Erni of adding a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9), wherein the solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). One of ordinary skill in the art would have recognized that for the fat particles dispersed in the liquid oil to be solid, the temperature must be below 22°C.
Regarding the defibrillated hydrated TFVP material, Nishimura teaches a method for producing a meat-like foodstuff comprising defibrillated hydrated TFVP material – hydrated and split (i.e., defibrated/defibrillated) first and second textured vegetable proteins ([0012], [0027]);
whereby the hydrated TVP microfibers are prepared by soaking dry texturized fibrous vegetable protein (TFVP) material with water and by defibrillating the material to release the hydrated TVP microfibers – “The first textured vegetable protein and the second vegetable protein are caused to contain water for hydration. Then, the excess water is dehydrated as necessary. The hydrate is split using an appropriate means; that is, disintegrated into fibers.” ([0027]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the method of preparing hydrated split textured vegetable protein (i.e., hydrated TVP microfibers) of Nishimura into making the meat-like food product of Ajami to provide a more meat-like texture to the product. Ajami discloses the composition ([0117]) and use of two or more meat structured protein products with different attributes, but does not disclose many details regarding how to achieve different textures apart from using particles of different sizes ([0114]). One of ordinary skill in the art would have been motivated to consult Nishimura to identify additional types of second meat structured protein products to use in combination with the TVP chunk-type first meat structured protein product to lend more textural complexity and meat-like properties to the product. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Nishimura teaches pseudo-meat compositions comprising two types of hydrated split (i.e., defibrated/defibrillated ([0026] – [0027])) textured vegetable protein ([0057]) and a binder ([0084]) that have similar eating qualities to real meat ([0062], Table 2).
Regarding the limitation, “said burger comprising hydrated TVP microfibers in the range of 2-28 wt.% (wet weight)”, the amount of hydrated TVP microfibers is a result effective variable in the vegetarian burger composition. Nishimura discloses that there is an optimal proportion of two TVP microfiber types in a meat-like foodstuff that gives a preferred meat-like texture ([0062], Table 2), and that having no TVP microfibers, but granular vegetable protein (i.e., TVP chunks) and unsplit bundles (i.e., non-defibrillated TVP) ([0084]) results in “a poor sensation of splitting” and being “not favorable as a beef-like texture” ([0086]). Ajami teaches that the meat-like food products comprise at least about 25% by weight of one or more meat structured protein products ([0113]), and “in some embodiments, the meat-like food products comprise between 40% and about 50% by weight of the first meat structured protein product [i.e., hydrated TVP pieces] and between about 50% and about 60% of the second meat structured protein product [i.e., hydrated TVP microfibers]” ([0114]), but does not disclose the amount of TVP microfibers specifically. MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal value for the hydrated TVP microfibers used in the process of Ajami in view of Nishimura, through routine experimentation, to impart the meat-like food product with the desired meat-like texture, including the claim of 2-28 wt.% of hydrated TVP microfibers based on the wet weight of the composition.
Regarding the clauses “wherein the hydrated texturized fibrous vegetable protein provide[s] the vegetarian burger with a cohesiveness, eating quality and appearance similar to a meat-based burger” and “wherein the oxidation of unsaturated fatty acids is minimized”, these clauses are toward a recognition of latent properties of the composition produced by the method steps. As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.' Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Since the cited prior art teaches the claimed method steps as described above, the recited latent properties or advantages cannot be the basis for patentability. Additionally, when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the Applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.02(I).
For these reasons, claim 18 is rendered obvious.
Regarding claim 19, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 18 as described above.
Ajami does not teach that during all the steps of mixing of the vegetarian burger, the temperature is kept in the range of -5 °C to 30 °C.
However, Margolis discloses that the thick semi-solid mass of the mixture typically has a temperature of about 50°F (10°C), the standard environmental temperature of meat processing facilities ([0061]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify Ajami with the teachings of Margolis to carry out the vegetarian dough making operations (i.e., all the steps of mixing) at 50°F (10°C), the standard environmental temperature of meat processing facilities. One of ordinary skill in the art would have been motivated to consult Margolis because there is no indication of the temperature conditions during the preparation of the meat-like food products in Ajami. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Margolis teaches that 10°C is the standard environmental temperature of meat processing facilities, and hence, is the temperature commonly used in preparing meat- or meat-like food products.
Claim 19 is therefore rendered obvious.
Regarding claim 20, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 18 as described above.
Ajami does not teach that the process further comprises cooling the vegetarian dough before forming the vegetarian burger.
However, Margolis discloses that the combined semi-solid mass is cooled to 27-29°F (-2.8 to -1.7°C) so it can be easily formed in high-speed forming machinery ([0054]). The product can easily be formed into hamburger and breakfast sausage patties in high-speed forming machines ([0062]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the teachings of Ajami and with the cooling step of Margolis to chill the combined semi-solid mass of Ajami to 27-29°F (-2.8 to -1.7°C). One of ordinary skill in the art would have been motivated to consult Margolis because Ajami does not provide details about how the meat-like food product is shaped into a patty, and a skilled practitioner would want to automate the process by using high-speed forming machinery. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Margolis teaches that the cooling stiffens the mass of the moist crumbly pieces so that they can be easily formed in high-speed forming machinery ([0054]).
Claim 20 is therefore rendered obvious.
Regarding claim 21, Ajami, Margolis, Erni, and Nishimura teach all elements of claim 1 as described above.
The cited prior art does not specifically teach that the vegetarian burger comprises hydrated TVP microfibers in the range of 6-18 wt.%.
However, the amount of hydrated TVP microfibers is a result effective variable in the vegetarian burger composition. Nishimura discloses that there is an optimal proportion of two TVP microfiber types in a meat-like foodstuff that gives a preferred meat-like texture ([0062], Table 2), and that having no TVP microfibers, but granular vegetable protein (i.e., TVP chunks) and unsplit bundles (i.e., non-defibrillated TVP) ([0084]) results in “a poor sensation of splitting” and being “not favorable as a beef-like texture” ([0086]). Ajami teaches that the meat-like food products comprise at least about 25% by weight of one or more meat structured protein products ([0113]), and “in some embodiments, the meat-like food products comprise between 40% and about 50% by weight of the first meat structured protein product [i.e., hydrated TVP pieces] and between about 50% and about 60% of the second meat structured protein product [i.e., hydrated TVP microfibers]” ([0114]). The hydrated TVP microfibers could be either one of the first or second meat structured protein products of Ajami. Addition of the hydrated TVP microfibers in the amounts disclosed would result in a minimum amount of 40% x 0.25 = 10% to 60% x 0.25 = 15%, with maximum amounts approaching 50-60% of the total composition. MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal value for the hydrated TVP microfibers used in the process of Ajami in view of Nishimura, through routine experimentation, to impart the meat-like food product with the desired meat-like texture, including the claimed 6-18 wt.% of hydrated TVP microfibers. Thus, claim 21 is obvious.
Response to Arguments
Specification Objections:
Applicant has overcome the objections to the specification by amendment. Accordingly, the objections have been withdrawn.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 5 August 2025 have been fully considered, but they are not persuasive.
It is noted that Applicant stated that claim 4 was rejected in further view of Christensen (EP3508067) (p. 8, ¶ 4). However, Christensen was not relied upon in any rejection in the previous Office Action, mailed on 7 April 2025, nor is Christensen relied upon in the present Office Action. Any arguments related to Christensen are therefore moot.
Applicant first argued that the person skilled in the art would not learn from Erni to mix the lipid while keeping all ingredients at a temperature in the range of -5°C to 30°C, nor that the lipid mixing as required by the claimed process would lead to a vegetarian burger with reduced oxidation of unsaturated fatty acids (pp. 8-9, bridging ¶). Applicant argued that Erni explicitly requires higher temperatures for mixing the lipid ingredients, with the lowest temperature taught in Erni being 60°C, ensuring that the solid fat is melted, and thus, in liquid form during the mixing step, and that Erni teaches the mixing of liquid fat at a temperature above the melting point of the solid fat particles, which are thus no longer solid (p. 9, ¶ 2).
Applicant’s argument has been considered, but it is not persuasive. Applicant’s understanding of the teachings of Erni is flawed. Erni teaches a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9) that may be applied to meat analogues (p. 2, lines 21-25; claim 13) “to improve one or more of the aroma profile, the taste profile, the sensory perception, and the texture perception…so as to more truly match such characteristics of real meat products” (p. 2, lines 21-25). The solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). Erni states, “the disclosure provides uses of the fatty composition (as described in any of the preceding embodiments) or the emulsion (as described in any of the preceding embodiments) to modify the flavor of a comestible article.” (p. 21, lines 11-21). In particular, claim 13 of Erni teaches an embodiment of the fatty acid composition comprising solid fat particles dispersed within a liquid oil, wherein the melting point of the solid fat is at least 30°C, wherein the melting point of the liquid oil is no higher than 5°C, which may or may not be an emulsion, that is used to modify the flavor of a comestible article, wherein the comestible article is a meat analogue product. It is clear that the composition disclosed by Erni comprises solid fat particles dispersed within a liquid oil as required by claim 1. Applicant referenced page 21, line 5 to support their argument that Erni requires higher temperatures for mixing the lipid ingredients. The Examiner disagrees with this interpretation and its application to the claims. First, claim 1 requires that the temperature of the ingredients during the mixing of the fat into the mixture of the other ingredients is kept in the range of -5°C to 30°C, not that the temperature of mixing the fat ingredients themselves is within the claimed range. Second, page 21, line 5 of Erni is toward making the emulsion of an alternative embodiment, not toward preparing the fatty composition comprising solid fat particles and a liquid oil, wherein the solid fat particles are dispersed within the edible oil, as is another disclosed embodiment (p. 7, lines 7-9, claim 13). Moreover, even if one only considers the emulsion as the claimed fat composition, the described steps of preparing the emulsion teach cooling the mixture (p. 21, lines 7-9) to, for example, 10°C (p. 27, line 1). Upon cooling, the fat in the emulsion would invariably form solid particles surrounded by liquid oil, and addition of the cooled emulsion is still within the scope of claim 1.
Furthermore, Applicant has argued against Erni individually, where the rejection relies on a combination of references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Regarding the temperature of the ingredients during mixing, the rejection relies on teachings from Margolis. Margolis discloses that the thick semi-solid mass of the mixture typically has a temperature of about 50°F (10°C), the standard environmental temperature of meat processing facilities ([0061]). This aligns with the teachings of Erni of adding a fatty composition comprising solid fat particles dispersed in liquid oil (p. 3, lines 1-3; p. 7, lines 7-9), wherein the solid fat particles can be comprised of any suitable fat or fat mixture that is generally solid at room temperature, such as 22°C (p. 7, lines 10-12). One of ordinary skill in the art would have recognized that for the fat particles dispersed in the liquid oil to be solid, the temperature must be below 22°C.
Regarding the argument that one skilled in the art would not learn from Erni that the lipid mixing as required by the claimed process would lead to a vegetarian burger with reduced oxidation of unsaturated fatty acids, the claimed feature is a recognition of latent properties of the composition produced by the method steps. As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.' Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Since the cited prior art teaches the claimed method steps as described above, the recited latent properties or advantages cannot be the basis for patentability. Additionally, when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the Applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.02(I). Applicant’s argument is therefore not persuasive.
Applicant next argued that the separate mixing of a combination of liquid oil and solid fat at or below ambient temperatures avoids the need for high shear conditions and thus improves the structure of the vegetarian burger, and at the same time avoids unwanted oxidation of unsaturated fatty acids. Applicant stated that Example 1 of the present application demonstrates that the mixing of liquid oil and solid fat (sunflower oil and stearin) at a temperature of 7 °C gives vegetarian burgers with excellent sensory attributes. Applicant asserted that these results are fully unexpected based on the teachings of Ajami, which is completely silent on the mixing of fat comprising oil and solid fat particles, and Erni, which requires heating the fat above the melting temperature of the solid fat particles, either alone or in combination, and that Margolis and Nishimura do not disclose the separate mixing of fat comprisin oil and solid fat particles (p. 9, ¶¶ 3-4). Additionally, Applicant asserted that the person skilled in the art would not expect that the combination of (a) defibrillated hydrated texturized fibrous vegetable protein ("microfibres"), and (b) separate mixing of fat comprising oil and solid fat particles at a temperature of the ingredients in the range of -5°C to 30°C would lead to vegetarian burgers with a cohesiveness, eating quality and appearance similar to a meat-based burger, and wherein the oxidation of unsaturated fatty acids is minimized (p. 10, ¶ 2).
Applicant’s assertion of unexpected technical results is acknowledged. Applicant’s argument has been considered, but it is not found to be persuasive. MPEP § 2145 states, “If a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc)”, and “[r]ebuttal evidence may include evidence of ‘secondary considerations,’ such as ‘commercial success, long felt but unsolved needs, [and] failure of others.’ Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 4459, 467. See also, e.g., In re Piasecki, 745 F.2d 1468, 1473, 223 USPQ 785, 788 (Fed. Cir. 1984) (commercial success). Rebuttal evidence may also include evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art. Rebuttal evidence may consist of a showing that the claimed compound possesses unexpected properties. Dillon, 919 F.2d at 692-93, 16 USPQ2d at 1901. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997)”. However, as provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.’ Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Furthermore, “[e]vidence of unexpected results must be weighed against evidence supporting prima facie obviousness in making a final determination of the obviousness of the claimed invention. In re May, 574 F.2d 1082, 197 USPQ 601 (CCPA 1978).” See MPEP § 716.02(c)(I). “‘Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof.; In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967)”. See MPEP § 716.02(c)(II).
“Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. See MPEP § 716.02(d).
In the present case, from the teachings of the prior art as described above, the alleged unexpected results would have been expected by one of ordinary skill in the art, and they are mere recognitions of latent properties that would flow naturally from following the suggestions of the cited prior art.
Regarding the oxidation of unsaturated fatty acids being minimized, it is a widely known scientific fact that chemical reactions (including oxidation) occur more slowly (are minimized) at lower temperatures. As described above, Erni teaches adding the claimed fat comprising liquid oil and solid fat particles to the mixture. Erni teaches that the solid fat is solid around 22°C, which is within the claimed range. Margolis teaches preparing the vegetarian dough at a temperature of 10°C, which is within the claimed range. Preparing the vegetarian dough at 10°C would naturally minimize unsaturated fatty acid oxidation compared to mixing at higher temperatures and this would have been expected by one of ordinary skill in the art.
Regarding the cohesiveness, eating quality and appearance being similar to a meat-based burger, Erni specifically teaches applying the fat composition to meat analogues (p. 2, lines 21-25; claim 13) “to improve one or more of the aroma profile, the taste profile, the sensory perception, and the texture perception…so as to more truly match such characteristics of real meat products” (p. 2, lines 21-25). Nishimura teaches adding hydrated split (i.e., defibrated/defibrillated ([0026] – [0027])) textured vegetable protein ([0057]) and a binder ([0084]) to prepare pseudo-meat products that have similar eating qualities to real meat ([0062], Table 2). Ajami, Margolis, Erni, and Nishimura teach the method as claimed and at least Nishimrua and Erni suggest to one of ordinary skill in the art that the combination of (a) defibrillated hydrated texturized fibrous vegetable protein ("microfibres"), and (b) separate mixing of fat comprising oil and solid fat particles at a temperature of the ingredients in the range of -5°C to 30°C would lead to vegetarian burgers with a cohesiveness, eating quality and appearance similar to a meat-based burger. Therefore, the alleged unexpected results are not unexpected.
Moreover, Applicant’s evidence is not commensurate in scope with the claimed invention. The examples are not commensurate in scope with the claimed invention because it cannot be ascertained whether the alleged unexpected result occurs over the entire claimed ranges and combinations of the claimed ingredients from the examples provided, and none of the claims are directed toward the specific embodiment provided by any of the examples.
Applicant’s arguments and assertions of unexpected results regarding claim 1 are therefore not found to be persuasive.
Applicant further argued that the arguments regarding claim 1 also render claim 18 not obvious, and that the cited prior art does not teach the requirement of claim 18 that the lipid mixing step results in a fraction of the solid fat particles being captured in droplets of the liquid oil in the vegetarian dough (p.11, ¶ 2).
Applicant’s arguments have been considered, but they are not persuasive. The arguments as applied to claim 1 are not persuasive as pertaining to claim 18 for the same reasons as described regarding claim 1 above. The requirement that the lipid mixing step results in a fraction of the solid fat particles being captured in droplets of the liquid oil in the vegetarian dough is also met by the addition of the fat composition of Erni comprising solid fat particles and liquid oil to the vegetarian dough. Indeed, Applicant stated that “[t]his separate addition of a fat comprising both liquid oil and solid fat particles provides the solid fat particles being captured in droplets of the liquid oil, as required by claim 18” (p.11, ¶ 2).
Applicant’s arguments are therefore not persuasive. As such, claims 1-2, 4-9, and 16-21 are rejected under 35 U.S.C. § 103 in view of the cited prior art as described hereinabove.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Shellhammer whose telephone number is (703) 756-5525. The examiner can normally be reached Monday - Thursday 7:30 am - 5:00 pm ET.
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, Emily Le can be reached at (571) 272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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