DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11 February 2026 has been entered.
Claim Status
Claims 1-19 are pending in the current application. Claims 5-15 are withdrawn from consideration.
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 1-4 and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over Chang (WO 2009018548) in further view of Shevkani et al. (herein referred to as Shevkani, “Pulse proteins: Secondary structure, functionality, and applications”).
With regard to Claim 1, Chang teaches a hydrated structured protein food composition ([0004], Page 1). Chang teaches the composition comprising leguminous proteins (Table A, “soybean”, [(00014], Page 8) textured in a dry process ([00034] page 16,[00046] page 20,[000135]page 48-49) in the form of particles ([00042] page 19). Chang teaches a density of ranging between 190 and 230 g/l ([00045] page 20). Chang reads such that the density of the protein containing mix is about 0.25 g/cm2 or 250 g/l. See MPEP 2144.05(1). Chang teaches the density can decrease with processing ([00047] page 20-21). Chang teaches at least 85% of the textured leguminous protein particles being between 2 mm and 5 mm in size ([00059] page 25).
With regard Test B, because Chang teaches the claimed density and particle size, the composition taught by Chang would satisfy the density measurement performed by Test B. See MPEP 2122.01 (II) In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
However, Chang is silent to the water holding capacity.
Shevkani teaches composition, structure—function relationship, and current applications of different pulse proteins in the food industry (Abstract). Shevkani teaches leguminous proteins (“Introduction”, Paragraph 1) having a water holding capacity of more than 3.5 g of water per g of dry proteins, preferably ranging between 3.5 and 4.5 g of water per g of dry proteins even more preferably ranging between 3.5 and 4 g of water per g of dry proteins (“Water and fat absorption”, paragraph 2). Shevkani teaches the water holding capacity of proteins relates to texture, mouthfeel, and flavor retention in foods (“Water and fat absorption’, paragraph 1).
With regard to Test A, because Shevkani teaches the claimed water holding capacity, the composition taught by Shevkani would satisfy the water holding capacity measurement performed by Test A. See MPEP 2122.01 (II) In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Chang to include the water holding capacity teachings of Shevkani to impart the desired texture, mouthfeel, and flavor retention in the food composition (Shevkani, “Water and fat absorption”, paragraph 1).
With regard to Claim 2, Chang teaches the leguminous protein is pea protein ([0009] page 4-5, [00010] page 5) Chang reads such that in an exemplary embodiment, at least one ingredient derived from a plant will be utilized to form the structured protein product. Examples of suitable plants include pea).
With regard to Claim 3, Chang teaches the protein content of the composition ranges between 60% and 80% ([00013] page 8, Chang reads such that in an exemplary embodiment, the protein containing material comprises from about 45% to about 65% soy protein on a dry matter basis; from about 20% to about 30% wheat gluten on a dry matter basis; from about 10% to about 15% wheat starch on a dry matter basis; and from about 1 % to about 5% fiber on a dry matter basis). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
With regard to Claim 4, Chang teaches if low moisture pre-mix is desired ([00035] page 16-17, the pre-mix is referencing the blended protein material prior to extrusion, after extrusion no ingredients are added and the product is considered to be the structure protein product and would maintain the same composition as the pre-mix) the conditioned pre-mix may contain from about 1 % to about 35% (by weight) water ([00044] page 19-20). Because Chang also teaches the other elements that make up the composition are on a dry matter basis ([00013] page 8) it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that Chang reads such that if the compositions has a moisture content of 1% to about 35% then the dry matter basis would be 99% to about 65%. See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
With regard to Claims 16 and 17, Chang is silent to the water holding capacity.
Shevkani teaches composition, structure—function relationship, and current applications of different pulse proteins in the food industry (Abstract). Shevkani teaches leguminous proteins (“Introduction”, Paragraph 1) having a water holding capacity of more than 3.5 g of water per g of dry proteins, preferably ranging between 3.5 and 4.5 g of water per g of dry proteins even more preferably ranging between 3.5 and 4 g of water per g of dry proteins (“Water and fat absorption”, paragraph 2). Shevkani teaches the water holding capacity of proteins relates to texture, mouthfeel, and flavor retention in foods (“Water and fat absorption’, paragraph 1).
With regard to Test A, because Shevkani teaches the claimed water holding capacity, the composition taught by Shevkani would satisfy the water holding capacity measurement performed by Test A. See MPEP 2122.01 (II) In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Chang to include the water holding capacity teachings of Shevkani to impart the desired texture, mouthfeel, and flavor retention in the food composition (Shevkani, “Water and fat absorption”, paragraph 1).
With regard to Claim 18, Chang teaches in one embodiment, the soy protein material may be an isolated soy protein (ISP). In general, an isolated soy protein has a protein content of at least about 90% soy protein on a moisture-free basis ([0015]). Chang teaches the concentration of hydrated structured plant protein composition in the restructured food composition may be about 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 55%, 60%, 65%, 70%, 75%, 80%, 85%, 90%, 95%, or 99% by weight ([0074]). Thus Chang reads such that in an embodiment which contains 99% by weight of a hydrated structured plant protein, more specifically soy protein isolate, there would be approximately 90% protein within the composition, thus reading on the claims limitation.
With regard to Claim 19, Chang teaches the fibrous extrudate is then dried to a moisture content of about 10% by weight ([00135]).
One with ordinary skill in the art would recognize that if about 10% of the composition is moisture the remaining about 90% of the composition would be composed of the dry matter. Thus reading on the claimed limitation. See MPEP 2144.05(I) 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).
Response to Arguments
Applicant's arguments filed 11 February 2026 have been fully considered but they are not persuasive.
In regards to applicants argument of “technical prejudice”. The applicant acknowledges that the examiner highlighted in previous actions that there is an absence of legal basis for the argument of “technical prejudice”. As the examiner has pointed out there are no MPEP sections or case law supporting an argument on the grounds of technical prejudice. However, the applicant further argues that the notion of “technical prejudice” is nothing else that the existence of a technical knowledge that was against the actual disclosure of the present invention. Applicant argues that the notion of “technical prejudice” is teaching away. First, the examiner would like to make clear that an argument does not exist for “teaching away” when the properties are explicitly taught in the prior art. To clarify, that means because Chang teaches the claimed particle size, an argument cannot be made that an article published before Chang negates the explicit teaching of Chang. Specifically, in this instance applicant points to Cardello et al. (‘Effect of soy particle size and color on the sensory properties of ground beef patties”) and argues that optimal organoleptic results are achieved when more than 73% of textured soybean protein particles exceed 9.52 mm. It is recalled that the claimed composition is characterized by at least 85% of the textured leguminous protein particles being between 2 mm and 5 mm in size, therefore by a lower particle size compared to that taught by Cardello et al (1983). Thus, the prior art effectively motivated the one of ordinary skill in the art to increase the protein particle size, not to reduce it. It is a driving force behind almost all those in a STEM field to improve upon that which is already known, that is to see what is out there and needs improvement and to work to improve upon it. As such it is seen as part of the normal progression of the field in that which did not work in Cardello et al (1983) would be studied and either directly or indirectly lead to the teachings in Chang. The examiner reiterates that technical prejudice has no legal basis whether in the MPEP or in any cited case law and as such for this and the reasons above the argument is not found persuasive.
Next, applicant points to another piece of prior art Kearns et al. (“Extrusion of texturized proteins”) and argues that the teaching represents a second, real technical prejudice because applicant states that the art teaches using smaller particles compromises the fibrous texture needed to mimic real meat. As stated above with regard to the teachings of Cardello et al. (1983), this argument is not persuasive because an argument cannot be made that an article published before Chang negates the explicit teaching of Chang. Chang still explicitly teaches the claimed particle size and therefore the argument with regard to Kearns et al. is not found to be persuasive.
Continuing, the applicant points to MPEP 2144.05 which states “A prima facie case of obviousness may also be rebutted by showing that the art, in any material respect, teaches away from the claimed invention.”. The examiner would like to clarify the meaning of this statement. The statement is not in reference to the entire published body of prior art but rather to the specific piece of art that was relied upon to reject the applicant’s claim. See In re Geisler, 116 F.3d 1465, 1471, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997). So therefore applicant’s argument is not found persuasive because Chang explicitly discloses the claimed particle size and therefore the reference does not teach away from this disclosure.
Next, applicant argues that the combination of particle size, density and water holding capacity which allows to obtain sufficient rehydration and satisfactory organoleptic properties is clearly unexpected results. The examiner points to MPEP 716.02(d)(II) To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). In this case, applicant does not show any data to support the disclosure that the result is unexpected, the examiner acknowledges that applicant points to Kearns et al (2003). which applicant states teaches an inverse relationship between the density and water holding capacity. Specially applicant points to wherein Kearns et al. (2003) teaches a density of 216 g/L and a water holding capacity of 3g of water per gram of protein. As stated above with Cardello et al. (1983) an argument cannot be made that an article published before Chang and Shevanki negates the explicit teaching of Chang and Shevanki. Therefore, the disclosure of the information in Kearns et al (2003) is not sufficient to show unexpected result because it is not results produced from the applicant and as stated above, does not overcome to explicitly teachings of Chang and Shevanki. In addition, the examiner would like to highlight Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) which teaches Mere conclusions in appellants’ brief that the claimed polymer had an unexpectedly increased impact strength "are not entitled to the weight of conclusions accompanying the evidence, either in the specification or in a declaration.". Therefore, applicant’s argument is not found to be persuasive.
Applicant argues that Shevkani relates to protein isolates as such, not to textured leguminous proteins. Thus, Shevkani never refers to their extruded version, i.e. to textured leguminous proteins, so that the person of ordinary skill in the art reading Shevkani would not have been motivated to apply the teaching of Shevkani on the proteins of Chang to modify the water holding capacity for the simple reason that TLPs and concentrates/isolates are different products. This argument is not found to be persuasive because Shevkani’s disclosure would still be considered analogous art because it has been held that a prior art reference must either be in the field of the inventor' s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). Therefore, one with ordinary skill in the art would have been motivated to apply the teachings of Shevkani on the proteins as taught by Chang.
Applicant argues that the one of ordinary skill in the art would consider the teaching in Shevkani as a motivation to enhance water holding capacity of a textured leguminous protein, he/she would have done so by shredding, i.e. by the method taught by the prior art and not according to the present invention which, on the contrary, selects density, particle size and water holding capacity which were taught to be not conciliable to obtain a composition with the desired properties. This argument is not found to be persuasive because Shevkani does not teach shredding and the applicants claims are in reference to a composition not a method. Therefore, the method in which the product is obtained is not relevant to the patentability of the composition claims because a composition and its properties are inseparable. See MPEP 2112.01(II).
Next applicant argues that one with ordinary skill in the art reading Shevkani would have likely modified the protein of Chang by adjusting its oil binding capacity because according to Shevkani pulse proteins have a good affinity with lipids and that the interaction with lipids improves organoleptic properties of pulse protein when used to replace meat. This argument is not found persuasive because Shevkani teaches the water binding capacity also has an impact on the organoleptic properties and therefore one with ordinary skill in the art would have ample motivation to utilize the water holding capacity as taught by Shevkani to achieve the desired organoleptic properties. Thus, applicants argument is not found to be persuasive.
Applicants respectfully reminds that the office cannot allege that the prior art would somehow inherently have specific properties, regardless of whether those properties were recognized before applicants invention. This argument is not found persuasive because the combination of Chang and Shevkani explicitly teaches the claimed properties and per MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Thus, applicants argument is not found to be persuasive.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
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/K.I.D./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
