DETAILED ACTION
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 Response and Amendment after Non-Final Office Action filed 08/19/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims: (1) the 35 U.S.C. §112(b) rejection of claim 17 has been withdrawn; and (2) the 35 U.S.C. §103 rejections of claims 6, 8, and 22 over Geistlinger have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-2, 4, 9, 13, 17, 19, 21, 27-28, 30, 35-37, 39, 42, 44, 46-47
Withdrawn claims: 30, 35-37, 39, 42, 44, 46
Previously cancelled claims: 3, 5, 7, 10-12, 14-16, 18, 20, 23-26, 29, 31-34, 38, 40-41, 43, 45
Newly cancelled claims: 6, 8, 22
Amended claims: 1, 4, 9, 13, 17, 19, 21, 27-28
New claims: 47
Claims currently under consideration: 1-2, 4, 9, 13, 17, 19, 21, 27-28, 47
Currently rejected claims: 1-2, 4, 9, 13, 17, 19, 21, 27-28, 47
Allowed claims: None
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 4, 9, 13, 19, 21, and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger (US 2015/0296834; previously cited) in view of Seiferth (US 3,803,332).
Regarding claims 1, 9, 19, and 21, Geistlinger teaches a texturized meat structured protein product in a shape of a strip, wherein the product is held by or within packaging [0044], [0092], [0130]; and wherein each of the strips containing one or more bundles of axially aligned fibers (corresponding to substantially aligned protein fibers) [0008], [0063]. Therefore, Geistlinger teaches a packed protein unit comprising at least one elongated texturized protein strip held by or within a retaining element as recited in present claim 1. Geistlinger teaches that a dimension of a longitudinal axis of the product (corresponding to length) may be about 50 mm to about 300 mm (corresponding to about 5 cm to about 30 cm); and a dimension of a cross sectional dimension of the product taken perpendicular to the longitudinal axis (corresponding to thickness) may be about 5 mm to about 8 mm [0092]. This disclosed dimension of a longitudinal axis overlaps the range recited in present claim 1 while this disclosed dimension of a cross sectional dimension falls within the range recited in present claim 1. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "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 percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP §2144.05.I.
Geistlinger teaches that the retaining element is in a form of a cartridge (corresponding to tray or tray with overwrap) [0130]. Geistlinger does not expressly teach that the unit comprises a plurality of discrete, separable elongated texturized protein strips parallelly stacked one on top of another; or that the retaining element comprises an outlet in a form of an elongated opening parallel to the longitudinal axis of the plurality of elongated texturized protein strips, wherein the outlet is configured to allow each strip to be dispensed in a controlled manner therethrough as recited in present claims 1, 9, 19, and 21.
However, the packaging of a plurality of discrete, separable elongated protein strips in a retaining element wherein the strips are parallelly stacked one on top of another is well-known in the art as this configuration describes the typical arrangement of packaged bacon strips. This knowledge in the art is demonstrated by Seiferth which discloses the packaging of a plurality of shingled bacon strips in a retaining element comprising a tray, wherein one longitudinal end of the tray is folded over to support the bacon strips (Figs. 5, 11, 13; column 2, line 59- column 3, line 9). The shingling of the bacon strips as demonstrated by Seiferth is considered to meet the claimed limitation of the elongated texturized proteins strips being parallelly stacked one on top of another as recited in present claims 9 and 19. The open side of the folded-over end of the tray or by opening the folded-over end of the tray forms an outlet in the form of an elongated opening parallel to the longitudinal axis of the strips to allow each strip to be dispensed in a controlled manner therethrough as recited in present claims 1, 19, and 21. Furthermore, not only is packing multiple products in a single package well-known in the art, but the duplication of parts (i.e., multiple meat structured protein products) has no patentable significance unless a new and unexpected result is produced. MPEP §2144.04.VI.B.
It would have been obvious for a person of ordinary skill in the art to have modified the packaged protein unit of Geistlinger by packaging a plurality of discrete and separable protein strips in a retaining element as taught by Seiferth. Since Geistlinger teaches that its protein strips may be packaged in trays [0130] and the packaging of protein strips in trays is well-known in the art as demonstrated by Seiferth, a skilled practitioner would readily recognize that a plurality of discrete, separable elongated protein strips of Geistlinger may be packaged in a retaining element wherein the strips are parallelly stacked one on top of another and the retaining element is configured to allow each strip to be dispensed in a controlled manner therethrough. Therefore, the claimed plurality of discrete and separable elongated texturized protein strips wherein the retaining element is configured to release each of the strips as individual strips as recited in present claims 1, 9, 19, and 21 is rendered obvious.
Regarding claim 2, Geistlinger teaches the invention as described above in claim 1, including the product is an additive for a meat analogue product (corresponding to an extended animal meat product) [0127]. Although Geistlinger teaches the product is used in additive manufacturing of a meat analogue product as presently claimed, it is noted that statements reciting the purpose or intended use of the claimed invention which do not result in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art do not limit the claim and do not distinguish over the prior art apparatus (or process). See, e.g., In re Otto, 312 F.2d 937, 938, 136 USPQ 458, 459 (CCPA 1963); In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). If a prior art structure is capable of performing the intended use as recited in the preamble, then it meets the claim. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997) and cases cited therein, as it has been held that the recitation of a new intended use for an old product does not make a claim to that old product patentable. In re Schreiber, 44 USPQ2d 1429 (Fed. Cir. 1997). See also MPEP § 2111.02, §2112.02 and §2114-2115.
Regarding claim 4, Geistlinger teaches the invention as described above in claim 1, including the elongated texturized strips are in a form of elongated protein strands (corresponding to the shape of a strip) [0092].
Regarding claim 13, Geistlinger teaches the invention as described above in claim 1, including the texturized protein strips comprise texturized vegetable protein (corresponding to the meat structured protein product comprising vegetable plant protein being produced by steam texturizing) [0098], [0118]-[0119].
Regarding claim 27, Geistlinger teaches the invention as described above in claim 1, including at least one dimension of the cross sectional dimension of each of the strips may be about 5 mm to about 8 mm [0092], which falls within the claimed range.
Regarding claim 28, Geistlinger teaches the invention as described above in claim 1, including that a dimension of a longitudinal axis of each of the strips (corresponding to length) may be about 50 mm to about 300 mm; and a dimension of a cross sectional dimension of each of the strips taken perpendicular to the longitudinal axis (corresponding to thickness) may be about 2 mm to about 15 mm [0092]. Therefore, the cross sectional area of the strip may be from about 100 mm2 (corresponding to a dimension of the longitudinal axis of about 5 cm and a dimension of the cross sectional dimension of about 2 mm) to about 4,500 mm2 (corresponding to a dimension of the longitudinal axis of about 30 cm and a dimension of the cross sectional dimension of about 15 mm). The term “about” in “about 100 mm2” denotes a minimum value below 100 mm2; therefore, the disclosed range overlaps the claimed range. The selection of a value within the overlapping range renders the claim obvious. MPEP §2144.05.I.
Claims 17 and 47 are rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger (US 2015/0296834; previously cited) in view of Seiferth (US 3,803,332) as applied to claim 1 above, as evidenced by Ratti (Ratti et al., “Drying Meat Today as During the Late Glacial Period”, 2013, EXARC Journal Issue, 2013, 1, https://exarc.net/ark:/88735/10099).
Regarding claims 17 and 47, Geistlinger teaches the invention as described above in claim 1, including that the protein strips may be further processed and that dried meat is an example of further processing [0093], thereby at least suggesting that the strips may be dried after their production. Geistlinger teaches that the moisture content of the unprocessed product is at least about 30% v/v water (corresponding to at least about 30 wt.%) [0080]. Therefore, drying of the unprocessed product to form dried meat would involve decreasing the moisture content of the unprocessed product to a moisture content below about 30% v/v, especially wherein dried foods generally do not contain more than 25% v/v water as evidenced by Ratti (page 6, 1st paragraph). A moisture content of below about 30% v/v encompasses the moisture contents recited by present claims 17 and 47. The selection of a value within the encompassing range renders the claim obvious. MPEP §2144.05.I.
Response to Arguments
Claim Rejections – 35 U.S.C. §112(b) of claim 17: Applicant amended claim 17 to fully address the rejection.
Claim Rejections – 35 U.S.C. §103 of claims 1-2, 4, 6, 8-9, 13, 19, 21-22, and 27-28 over Geistlinger: Applicant’s arguments have been fully considered and are considered moot.
Applicant canceled claims 6, 8, and 22. Applicant argued that the PTO has not demonstrated that Geistlinger describes a product comprising “a plurality of elongated texturized protein strips” as now recited in amended claim 1 as Geistlinger explicitly describes, more than once, protein fibrous products in the shape of short, somewhat irregular strands of crumbles while only suggesting once that the products may also be cylindrical (Applicant’s Remarks, page 7, whole page).
However, the number of times or the depth in which the Geistlinger discloses crumble or cylindrical shape of the fibrous product is moot, particularly wherein “[d]isclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). Furthermore, "[t]he prior art' s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).” MPEP 2123.II. As such, the disclosure of strips in [0092] of Geistlinger is sufficient in rendering the claimed elongated texturized protein strips obvious.
Applicant then argued that the PTO has not demonstrated that Geistlinger discloses the claimed “at least one dimension of said cross sectional dimension is equal or less than 10 mm and said longitudinal axis has a dimension of at least 100 mm” as now recited in amended claim 1 (Applicant’s Remarks, page 8, 1st paragraph).
However, Geistlinger teaches that a dimension of a longitudinal axis of the product (corresponding to length) may be about 50 mm to about 300 mm (corresponding to about 5 cm to about 30 cm); and a dimension of a cross sectional dimension of the product taken perpendicular to the longitudinal axis (corresponding to thickness) may be about 5 mm to about 8 mm [0092]. This disclosed dimension of a longitudinal axis overlaps the range recited in present claim 1 while this disclosed dimension of a cross sectional dimension falls within the range recited in present claim 1. The selection of a value within the overlapping range renders the claim obvious. MPEP §2144.05.I.
Applicant then argued that the PTO has not demonstrated that Geistlinger discloses that: (A) “said plurality of elongated texturized protein strips held, in an organized spatial configuration, by or within a retaining element”; (B) “each strip from said plurality of elongated texturized protein strips is discrete and separable from other strips of the plurality of elongated texturized protein strips within said packed protein unit”; or (C) said retaining element comprises an outlet in a form of an elongated opening parallel to the longitudinal axis of the plurality of elongated texturized protein strips, said outlet being configured to allow individual and separate dispensing of each strip of the plurality of elongated texturized protein strips in a controlled manner therethrough” as now recited by amended claim 1. Applicant argued that the packaging of Geistlinger can be any package of any shape and/or material while the claimed packaging affects the functionality of the whole protein unit for use in additive manufacturing (Applicant’s Remarks, page 8, 2nd- 5th paragraphs).
However, as described above in the rejection of amended claim 1, the packaging of a plurality of discrete, separable elongated protein strips in a retaining element is well-known in the art as this configuration describes the typical arrangement of packaged bacon strips. This knowledge in the art is demonstrated by Seiferth which discloses the packaging of a plurality of shingled bacon strips in a retaining element comprising a tray, wherein one longitudinal end of the tray is folded over to support the bacon strips (Figs. 5, 11, 13; column 2, line 59- column 3, line 9). The open side of the folded-over end of the tray or by opening the folded-over end of the tray forms an outlet in the form of an elongated opening parallel to the longitudinal axis of the strips to allow each strip to be dispensed in a controlled manner therethrough as now recited in present claim 1.
It would have been obvious for a person of ordinary skill in the art to have modified the packaged protein unit of Geistlinger by packaging a plurality of discrete and separable protein strips in a retaining element as taught by Seiferth. Since Geistlinger teaches that its protein strips may be packaged in trays [0130] and the packaging of protein strips in trays is well-known in the art as demonstrated by Seiferth, a skilled practitioner would readily recognize that a plurality of discrete, separable elongated protein strips of Geistlinger may be packaged in a retaining element wherein the retaining element is configured to allow each strip to be dispensed in a controlled manner therethrough. Therefore, the claimed plurality of discrete and separable elongated texturized protein strips wherein the retaining element is configured to release each of the strips as individual strips as recited in present claim 1 is rendered obvious.
Since the new combination of prior art has been shown to render the present claims obvious, Applicant’s arguments against the rejections over Geistlinger alone are moot. As such, the rejections of the claims stand as written herein. The rejections of claims 6, 8, and 22 are withdrawn due to the cancelation of the claims.
Claim Rejections – 35 U.S.C. §103 of claims 1 and 17 over McMindes: Applicant’s arguments with respect to claim(s) 1 and 17 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791