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 .
Claim Status
Claims 1-5 and 8-20 are pending in the current application. Claims 10-20 are withdrawn from consideration. Claims 6-7 have been cancelled.
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 1-5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (herein referred to as Lee, WO 2017046659 A1) in view Kuntz (“Making the most of maltodextrins”).
With regard to Claim 1, Lee teaches a plant based meat analogue (abstract) comprising a pulse protein ([0012] Lee reads such that the protein can be pea, chickpea, and bean protein powders), a structured vegetable oil comprising a vegetable oil ([0026]) and a water-soluble carrier ([00140]-[00142]) Lee reads such that the composition may contain fatted chia gum which has a preferrable oil holding capacity) and Lee teaches the plant based meat analogue contains water in an amount from about 30% to about 75% by weight ([0052]). See MPEP 2144.05 which states in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Lee teaches the composition
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to include water in about amount of about 30% to about 75% by weight in the composition as taught by Lee to improve characteristics of texture, resilience, moisture and mouth feel over existing products.
Continuing, Lee teaches in various embodiments the extruded meat substitute composition or admixture may consist of about 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 % by weight on a dry basis of one or more gums such as fatted chia gum ([0064]). In addition Lee teaches in various embodiments the extruded meat substitute composition or admixture may consist of about, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, or 15 % by weight on a dry basis of one or more sources of lipid, such as a vegetable oil ([0045], [0062]). Based on Lee’s disclosure the gum (i.e., carrier) and the oil can be used in a 3:1 ratio (15% oil and 5% carrier).
However, Lee is silent to the water soluble carrier being tapioca maltodextrin.
Kuntz teaches the bland flavor and inert character of maltodextrins have historically given them a significant presence as an economical carrier or bulking agent and can specifically be used with oils (“Carriers and bulking”). Kuntz further teaches maltodextrin can be produced from starchy sources such as tapioca (“It’s D’glucose).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Lee in view of Kuntz to utilize maltodextrin as a water soluble carrier because it is an economical carrier. Specifically, Kuntz shows maltodextrin derived from tapioca is suitable for use as a carrier.
With regard to Claim 2, Lee teaches the pulse protein is pea, chickpea, and/or bean protein ([0012]).
With regard to Claim 3, Lee teaches protein in an amount between about 50% and about 90% by weight ([0043]).
With regard to Claim 4, Lee teaches a starch in an amount of about 1% to 10% by weight ([0066]-[0067]).
With regard to Claim 5, Lee teaches the claims pea and chickpea protein ([0012]). Therefore, the protein would have the desired water holding capacity. See MPEP 2112.01(II) which states "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.
With regard to Claim 8, Lee teaches wherein the water-soluble carrier (fatted chia gum) is used in an amount from 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 % by weight ([0064]). See MPEP 2144.05(I) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. (herein referred to as Lee, WO 2017046659 A1) in view of Ajami et al. (herein referred to as Ajami, US 20170105438 A1) and
With regard to Claim 9, Lee is silent to the protein crosslinking agent and specifically transglutaminase and L-cysteine and mixtures thereof.
Ajami teaches the term “crosslinking” refers to the chemical, enzymatic, or chemoenzymatic formation of new covalent bonds between polypeptides ([0043]). Ajami teaches the composition can contain crosslinking agents such as beta-1,3-glucan transglutaminase ([0252]) Ajami teaches cross linkages and electrostatic forces between peptide chains create pockets in which water can be retained ([0106]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Lee in view of Ajami to include beta-1,3-glucan transglutaminase as a protein cross linking agent to create pockets in which water can be retained. Because Ajami discloses beta-1,3-glucan transglutaminase, which would be considered a “species” of transglutaminase, the prior art reads on the claim. See MPEP 2131.02(I) "A generic claim cannot be allowed to an applicant if the prior art discloses a species falling within the claimed genus." The species in that case will anticipate the genus. In re Slayter, 276 F.2d 408, 411, 125 USPQ 345, 347 (CCPA 1960); In re Gosteli, 872 F.2d 1008, 10 USPQ2d 1614
Response to Arguments
Applicant’s arguments with respect to claim(s) 1have 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.
First applicant argues that Lee does not mentioned maltodextrins. This argument is not found to be persuasive because Lee is merely relied upon to teach a water-soluble carrier. Kuntz is relied upon to teach the claimed used of maltodextrin. With that, applicant further argues that Kuntz discusses maltodextrins as bulking agents or carriers in general food systems but does not teach their use for high oil ratios in plant-based meat analogues. This argument is not found to be persuasive 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). In this case, Kuntz is reasonably pertinent to the particular problem which the inventor is concerned. In addition Kuntz is clear maltodextrin can be derived from tapioca and can be used with oils. Lastly, Kuntz provides ample motivation to use maltodextrin because of its economic advantages. Thus, applicants argument is not found to be persuasive.
Next applicant argues that the oil-to-carrier ratio of greater than 3:1 enables significant higher oil loading than conventional systems. Applicant argues that this different leads to functional improvement and enhanced fatty mouthfeel and lubricity which results in making the analogue more meat-like. Applicant points to example 1 in the specification as evidence for this unexpected result. However, example 1 only shows one example of the oil loading ratio, the example teaches 12 parts oil (7 parts coconut oil and 5 parts sunflower oil) to 1 part tapioca maltodextrin. Per 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, because the applicant only shows a single example inside the claimed ratio, this is an insufficient amount of data points to show superior or unexpected results and there are no examples shown outside the claimed ratio. Thus, applicants argument is not found to be persuasive.
Applicant argues that neither Lee nor Kuntz suggest that tapioca maltodextrin could replace gums for oil structuring at high ratios. This argument is not found persuasive because both Lee and Kuntz teach oil carriers and there is no evidence that the carrier taught by Kuntz could not be substituted from the carrier taught by Lee. In addition, as discussed above, Kuntz provides ample motivation to utilize tapioca maltodextrin because it is a known effective carrier that works with oil and it has an economic benefit. Therefore, applicants argument is not found to be persuasive.
Lastly, applicant argues that combining Lee of Kuntz would not predictably yield that claimed effect because maltodextrins generally reduce shear forces in extrusion which Lee seeks to maintain. This argument is not found to be persuasive because first there is no evidence provided of maltodextrins reducing the shear force in extrusion. Second the combination of Lee and Kuntz teaches all the limitations of the claimed invention thus it would be predictable and obvious to one with ordinary skill in the art that the combined references would yield the claimed plant-based meat analogue and the properties that are inherently associated with the composition. Thus, applicants argument is not found to be persuasive.
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.I.D./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
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