Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Response to Amendment
As a result of the amendments to the claim, the objection over Claims 1 and 13 has been withdrawn.
Also, the 112(b) rejections over Claims 5 and 7 have been withdrawn.
All rejections not repeated in this Office Action have been withdrawn.
Claims 1, 2, 5-14 are currently pending in this Office Action.
Claim Objections
Claim 1 is objected to because of the following informalities: the term “cellulose ether” has been amended to “methyl cellulose ether”; however, the term “methyl cellulose” is a specific compound that is a cellulose ether. Therefore, the term “ether” should be deleted. Appropriate corrections are required.
Claim Rejections - 35 USC § 102
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(s) 1-2, 6, 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cao et al. (WO 2014/117349 A1).
Regarding Claim 1, Cao discloses a composition comprising:
carrageenan (see abstract)
methyl cellulose (Page 4, Ln. 16-23) in an amount 1.95% by dry weight of the composition (see Inventive 0.30%/15.37%, see IE M2, Table 1, page 11)
konjac gum (Page 3, ln. 1-6) in an amount of 3.25% (0.5%/15.37%) by dry weight of the composition (see Inventive Ex. M2 “IE M2”, Table 1, page 11)
plant-based proteins (Page 7, Ln. 1-3)
starch (page 7, ln. 24); and
potassium chloride (See Inventive Ex. M2 “IE M2”, Table 1, page 11).
Note that the “dry weight of the composition” is construed to be the combined weight of the carrageenan, cellulose ether, glucomannan, plant-based protein, starch, and potassium chloride found in IE M2. In this case, IE M2 comprises 0.50% carrageenan, 0.30% methyl cellulose (METHOCEL™ F50), 0.50% Glucomannan (Konjac), 5% plant-based protein (soy protein isolate), 9% starch (5% corn starch, 2% potato starch, 2% wheat starch), and 0.07% potassium chloride, providing a combined weight of 15.37% of the food composition. Also, IE M2 comprises carrageenan, methylcellulose, konjac, soy protein isolate, starches, and KCl within a single embodiment. Since Cao discloses a plant-based composition that is to be combined with a protein (Page 2, ln. 11-12), the composition of Cao is construed to be capable of being suitable for a plant-based product being devoid of meat protein by substituting the meat component with a plant-based meat substitute.
Regarding Claim 2, Cao further teaches wherein the carrageenan is kappa carrageenan (page 4, Ln. 14-15) in an amount of 3.25% (0.50%/15.37%, see Inventive Ex. M2 “IE M2”, Table 1, page 11).
Regarding Claim 6, Cao further teaches wherein the plant- based protein is soy protein (soy protein isolate, see IE M2, Table 1, page 11).
Regarding Claim 11, as similarly applied above in Claim 2 with respect to carrageenan, Cao further teaches wherein the potassium chloride is present in an amount of 0.46% by dry weight of the composition (0.07%/15.37%, see IE M2, Table 1, page 11).
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.
Claim(s) 1, 2, 5-9, 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 2017/0188612 A1) in view of Cao et al. (WO 2014/117349 A1 – previously cited).
Regarding Claim 1, Varadan discloses a composition suitable for use in a plant-based food product (see abstract) comprising:
Carrageenan (paragraph 20)
Cellulose ether (methyl cellulose, paragraph 21)
Glucomannan (konjac, paragraph 20)
Plant-based proteins (paragraph 15)
Starch (maize starch, tapioca flour, rice flour, paragraph 58); and
Potassium chloride (paragraph 95).
Varadan does not specifically recite each components within a single embodiment, or the particular amounts of methyl cellulose and konjac; however, since Varadan discloses all the claimed components for use in a plant-based product such as ground meat replica, the claimed combination would have been an obvious matter of choice determined by routine experimentation to achieve the desired meat replica product. Furthermore, since carrageenan, cellulose ether, and konjac are all identified as suitable carbohydrate based gel to function as a binding agent for developing the desired texture and juiciness to the final product (paragraph 89), it would have been obvious to one of ordinary skill in the art to use a mixture thereof for the purpose of achieving the desired texture that resembles a meat product.
In any case, Cao is relied on to teach a composition that improves texture and organoleptic properties (page 7, last paragraph) comprising:
carrageenan (see abstract)
methyl cellulose (Page 4, Ln. 16-23) in an amount 1.95% by dry weight of the composition (see Inventive 0.30%/15.37%, see IE M2, Table 1, page 11)
konjac gum (Page 3, ln. 1-6) in an amount of 3.25% (0.5%/15.37%) by dry weight of the composition (see Inventive Ex. M2 “IE M2”, Table 1, page 11)
plant-based proteins (Page 7, Ln. 1-3)
starch (page 7, ln. 24); and
potassium chloride (See Inventive Ex. M2 “IE M2”, Table 1, page 11).
Note that the “dry weight of the composition” is construed to be the combined weight of the carrageenan, cellulose ether, glucomannan, plant-based protein, starch, and potassium chloride found in IE M2, thereby being analogous to the claimed composition. In this case, IE M2 comprises 0.50% carrageenan, 0.30% methyl cellulose (METHOCEL™ F50), 0.50% Glucomannan (Konjac), 5% plant-based protein (soy protein isolate), 9% starch (5% corn starch, 2% potato starch, 2% wheat starch), and 0.07% potassium chloride, providing a combined weight of 15.37% of the food composition.
Since both Cao is directed to a composition directed to improving the texture of meat products, it would have been obvious to one of ordinary skill in the art to employ the composition of Cao to the meat replica of Varadan to achieve a meat-like texture.
Regarding Claim 2, Varadan is silent to wherein the carrageenan is kappa carrageenan and its specific amount within the composition. Cao is relied on to teach a sausage product comprising similar components as additives which also functions to impart the desired texture (see page 8, lines 5-9). Cao uses carrageenan (component b), wherein the carrageenan is kappa carrageenan (page 4, Ln. 14-15) in an amount of 3.25% (0.50%/15.37%, see Inventive Ex. M2 “IE M2”, Table 1, page 11).
Since Cao is directed to using carrageenan as an additive to impart a desired texture in a meat product, and Varadan is directed to a meat-like product, it would have been obvious to one of ordinary skill in the art to use similar amounts of kappa carrageenan based on the desired texture that resembles meat.
Regarding Claim 5, as similarly applied above in Claim 2 with respect to carrageenan, Cao further teaches wherein the weight ratio of carrageenan to konjac gum is 1.4:1 (weight ratio of carrageenan to polysaccharide hydrocolloid, see page 2, ln. 8-9). The prior art ratio of 1.4:1 is seen to be merely close to the claimed ratio of 3:2 (or 1.5:1). A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
As to the limitation of the weight ratio of carrageenan and konjac to potassium chloride being 9:1, Varadan discloses potassium chloride as a season agent (see paragraph 95). Therefore, it would have obvious to one of ordinary skill in the art to adjust the amount of potassium chloride based on the desired flavor. It is also noted that Cao discloses ratios of carrageenan and konjac to potassium chloride being both below and above 9:1 (see IE M6, Table 1, which has a ratio of 0.764% carrageenan + konjac : 0.07% KCl or 10.9:1, and see IE M7, Table 1, which has a ratio of 0.18% carrageenan + konjac : 0.07% KCl or 2.57:1). Therefore, since Cao encompasses the claimed ratio, the particular amount of potassium chloride would have been an obvious matter of desired taste.
Regarding Claim 6, Varadan further teaches wherein the plant-based protein is soy protein (paragraph 17). Cao further teaches wherein the plant- based protein is soy protein (soy protein isolate, see IE M2, Table 1, page 11).
Regarding Claim 7, Varadan does not specifically recite a range of plant-based protein by dry weight of the composition; however, Cao discloses a composition to be used as additives in a meat product, wherein the composition can be combined with 1 to 99% by weight of protein (see page 2, ln. 11-12) and wherein the protein can be soy protein (page 7, first paragraph). Therefore, it would have been obvious to one of ordinary skill in the art to select the desired amount of plant-based protein based on the desired protein content of the meat product (and analogs thereof). Note that the claim does not require gluten as 0% reads on “up to and including 50%” (emphasis added).
Regarding Claim 8, Varadan further teaches comprising two or more proteins (see paragraph 17 and 58). Note that the claim does not require the limitation “wherein one of the proteins is potato protein in an amount up to and including 10% by dry weight of the composition” because 0% reads on “up to and including 10% by dry weight of the composition” (emphasis added).
Claim 9 is rejected for reasons discussed in Claim 8, and wherein the limitation of the pea protein is construed as not required.
Regarding Claim 11, as similarly applied above in Claim 2 with respect to carrageenan, Cao further teaches wherein the potassium chloride is present in an amount of 0.46% by dry weight of the composition (0.07%/15.37%, see IE M2, Table 1, page 11).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1 with respect to Varadan et al. (US 2017/0188612 A1), further in view of Lee et al. (WO 2017/046659 A1).
Regarding Claim 10, Varadan is silent to the specific amount of starch by dry weight of the composition. Lee is directed to a plant-based meat substitute, and further comprises starch in an amount of 1-10% by dry weight of the composition (paragraph 67), which overlaps with the claimed range. Since Varadan discloses a composition comprising starch, it would have been obvious to one of ordinary skill in the art to select the overlapping range as taught by Lee to achieve the desired texture.
Claim(s) 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1 with respect to Varadan et al. (US 2017/0188612 A1), further in view of Ajami et al. (US 2018/0310599 A1).
Regarding Claim 12, Varadan is silent to comprising citrus fiber. Ajami is relied on to teach a meat-like food product comprising citrus fiber as a source of carbohydrate (see paragraph 107). This is to provide a food composition that has a similar carbohydrate content as cooked animal meat products (paragraph 231). Since both Varadan and Ajami are directed to a plant-based meat substitute product, it would have been obvious to one of ordinary skill in the art to further comprise citrus fiber as a source of carbohydrates and to provide a similar carbohydrate content to animal meat products.
Regarding Claim 13, Ajami further teaches wherein the citrus fiber in an amount between 4% to 7% by dry weight of the composition (paragraph 107) which is within the claimed range.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combination as applied to Claim 1 with respect to Varadan et al. (US 2017/0188612 A1), further in view of Lee et al. (WO 2017/046659 A1), and Ajami et al. (US 2018/0310599 A1).
Regarding Claim 14, the claim is rejected for reasons discussed in Claims 1-2 and 10-13.
That is, Varadan and Cao is relied on to disclose the claimed ranges of limitations a, b, c, and g, as applied in the rejections of Claims 1-2. Lee is relied on to disclose the claimed ranges of limitation f as applied in the rejection of claim 10. Ajami is relied on to teach comprising 4-7% by dry weight of citrus fiber as applied in the rejection of Claim 13.
As to limitations d and e, the combination does not specifically recite soy and gluten each in an amount of 36%-44%; however, Varadan discloses that the source of protein may contain a mixture of wheat gluten and soy protein isolate (paragraph 17), and Cao further notes that the additive composition of konjac gum, carrageenan, and cellulose ether, (compositions a, b, and c) may be combined with 1-99% protein (page 2, ln. 11-12). This is because components a, b, and c, are provided to modify the texture of said protein (page 8, ln. 5-11) and therefore would have been obvious to modify the amount based on the desired texture to achieve a meat-like product.
Since it is known to use combinations of gluten and soy protein as sources of protein in a plant-base meat product, it would have been obvious to one of ordinary skill in the art to determine the amounts of each protein through routine experimentation to thereby achieve a meat-like product having the desired texture.
Response to Arguments
Applicant’s arguments in the response filed 28 April 2025 has been considered, but is found not persuasive over the prior art of record.
As to the rejection under 35 U.S.C. 102, Applicant argues on the basis that the preamble distinguishes claimed invention from the Cao publication since the Cao reference is in relation to meat. Applicant further notes that the claimed composition is used to improve the quality of plant-based sausages. However, the argument is not persuasive because the claims are not directed to a method of improving plant-based sausages, and therefore the preamble is not necessary to define the claimed invention. Rather, the claim is simply a composition claim comprising components a) to f), wherein the preamble indicates that the composition is suitable for use in a plant-based food product. The fact that the composition is suitable for use in a plant-based food product does not affect the structure of the composition and therefore is not necessary to define the claim. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction. Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 2020 USPQ2d 10701 (Fed. Cir. 2020). During examination, statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether or not the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. If so, the recitation serves to limit the claim. See, e.g., In re Otto, 312 F.2d 937, 938, 136 USPQ 458, 459 (CCPA 1963). To satisfy an intended use limitation which is limiting, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997). In this case, there is no evidence to suggest that the composition of Cao would not be suitable for use with plant-based food products devoid of meat protein. For these reasons, the Cao reference has been maintained.
As to the rejection under 35 U.S.C. 103, Applicant argues that it is improper to combinate references where the references teaches away from their combination. That is, Applicant points out that the combination of the Varadan publication and the Cao publication teaches away from the claimed composition suitable for use in a plant-based food produce being devoid of meat protein because the Cao reference teaches additives for a meat-based composition. However, as discussed above, the claimed invention is directed to a composition that is suitable for use in a plant-based product, where the intended use is not seen to further define the claimed invention. Also, it is not persuasive that the Cao references teaches away because both Cao and Varadan commonly disclose the use of carrageenan, methyl cellulose, konjac, plant-based proteins, starch, and potassium chloride in both meat and plant-based products. Therefore, it would have been obvious to one of ordinary skill in the art to look into the Cao reference to teach combinations of similar additives for meat product, especially since Varadan’s endeavor is to produce a meat-like product. For these reasons, the combination is maintained.
In view of the responses above, the rejections over the dependent claims have been maintained.
As to Claim 7, Applicant notes that Varadan disparages the use of plant-based proteins that may include soy/grain mixture and therefore teaches away from the limitations of Claim 7. However, the argument is not persuasive because Varadan was referring to the state of the prior art. Rather, Varadan does not teach away from comprising soy protein because soy protein isolate are included within the inventive embodiments (“The extruded mixture can contain wheat gluten and soy protein isolate”, see paragraph 17). For these reasons, the rejection over Claim 7 has been maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/T.H.N/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792