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 Claim
Claims 1-21 are pending in this application. Claims 1-10 and 21 are under examination; Claims 11-20 are withdrawn from consideration. Any objections or rejections not repeated below have been withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1, 3-5, 7-10 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Zuccolo et al. (US 20210161186) in view of The Gentle Chef, Hard Cooked Eggless Eggs, accessed at: https://thegentlechef.com/hard-boiled-eggless-eggs/, Jean, Classic Deviled Eggs, Delightful Repast, accessed at: https://www.delightfulrepast.com/2017/04/classic-deviled-eggs.html, and Love et al. (US 20070237865).
Please note the basis of the rejections below for Gentle Chef and Jean are based off the paragraph and Figure numbers added to the references.
Regarding claim 1, Zuccolo teaches a product comprising a mold tray (a mold 10 and 16, [0184-0195] (Figs. 3a-3c)). Zuccolo discloses a molded egg product disposed in the mold tray (a substitute product for a hard-boiled egg [0002]; a mold 10 and 16 with an albumen-like phase (A) and a yolk-like phase (B) [0192-0195] (Figs. 3a-3c)).
Zuccolo teaches a white layer conforming to an interior surface of the mold tray (the product in the mold 10 and 16 has white coloring to the albumen-like phase (A), that conforms to an interior surface of the mold 10 and 16, [0149], [0181], [0192-0195], (Figs. 3a-3c)).
Zuccolo teaches the white layer comprises an annealed hydrocolloidal mixture of a nut milk (powdered oat-based drink mixed with water, creating an oat milk; [0026]) and a vegan thickener (albumen like phase comprises plant gelling agents such as rice starch, agar, tapioca, or arrowroot, which are all vegan thickeners, or non-animal derived thickeners [0042], [0054-0057]). Nut milk is met by Zuccolo’s oat milk because a nut milk is construed as any milk type drink from plant sources. Zuccolo states that the gelling agent, which is a hydrocolloid, is mixed with water and is subjected to heat [0151-0161], [0179], creating an annealed hydrocolloidal mixture.
Zuccolo does not teach a fired salt in the white layer.
Gentle Chef teaches a product comprising a mold, egg white, or white layer, and an egg yolk, or yolk ball (Fig. A and Fig. B). Gentle Chef discloses white layer contains a first fired salt (the egg white mixture contains Kala Namak black salt [0007]), as required by claim 1, which has a characteristic sulfur taste [0085].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zuccolo by incorporating the teachings of Gentle Chef, adding fired salt to the white layer since Kala Namak salt provides a characteristic sulfur taste [0085]. This sulfur taste would be desirable in a vegan egg product to mimic the sulfur taste of eggs.
Zuccolo teaches a yolk ball supported by the white layer (yolk-like phase (B), remains in a balanced position above the albumen-like phase (A), (Fig. 3a, Fig. 3b) [0186], [0192-0194])
Zuccolo discloses the yolk ball comprises a volume of a second mixture (yolk-like phase (B) a mixture of ingredients [0031-0037]), as required by claim 1.
Zuccolo discloses the second mixture comprises a nut blend, wherein the nut blend is comprised of one or more nuts or nut flours (the yolk-like phase (B) comprises legume flours, which are considered nut flours based on the definition above [0084], [0188]), a vegan colorant (a tomato-based compound for coloring, or a vegan non-animal derived colorant [0087]), and a second fired salt (Kala Namak black salt [0085]). Nut flour is met by Zuccolo’s legume flours because nut flour is construed as any flour from nuts, drupes or legumes.
Zuccolo teaches the nut blend is legume flour and does not disclose hydrogenating the legume flour [0034]. Therefore, Zuccolo is considered to not teach the hydrogenation of the nut blend and meets the limitation “wherein the nut blend is not hydrogenated.”
Zuccolo teaches the yolk ball (yolk-like phase (B)) is as similar as possible to the natural yolk of a hard-boiled egg [0183]. Zuccolo does not state that the yolk ball has a matte exterior.
Jean teaches that under some circumstances a hard cooked egg yolk from a real egg has a matte finish and this matte finish can be considered desirable (pg. 1 [0003]).
It would have been obvious to one of ordinary skill in the art to have modified Zuccolo in view of Gentle Chef to have incorporated the teachings of Jean to have the yolk ball have a matte exterior, since a yolk ball of a hard-boiled egg from a real egg can have a matte exterior which may be considered desirable, as recognized by Jean (pg. 1 [0003]), and Zuccolo is trying to achieve a yolk ball that is as similar as possible to the natural yolk ball of a hard-boiled egg.
Additionally, the yolk ball composition of Zuccolo in view of Gentle Chef and Jean is substantially identical to the claimed composition, as shown by the above analysis. Thus, it is expected to have a similar matte exterior and is considered to meet the claimed limitation. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
Regarding the recitation, “the sealing film further configured to hermetically seal the molded egg product for cold processing,” after a careful review of the claim and specification, it is found the recitation does not further limit the claim. Said recitation is merely directed at the intended use of the claimed structure during a processing step. It is only required that a sealing film is disposed between the mold tray and the molded egg product and that the sealing film is capable of hermetically sealing the molded egg product for processing.
Zuccolo does not teach a sealing film disposed between the mold tray and the molded egg product, the sealing film further configured to hermetically seal the molded egg product for cold processing.
Love teaches processing of fresh food products that are protein products, for example seafood, beef, chicken, pork, lamb, etc. Love does not particularly limit the protein products or fresh food products that can be processed (Abstract, [0009], [0019]). Love discloses a sealing film (a plastic film 226; [0029], Fig. 2) between the mold tray (tray 222; [0029], Fig. 2) and the molded egg product (prepared crab cake 220; [0029], Fig. 2), further configured to hermetically seal (vacuum seal; [0029-0030]) for cold processing (high hydrostatic pressure processing Step 114 and Step 116; [0009], [0030], Fig. 1). Love teaches that fresh food product, which has the sealing film disposed between the mold tray and the fresh food product, is able to undergo a process that extends the shelf life of the packaged fresh food product and allows for the retention of the freshness, flavor, texture, appearance and color of the food product [0009].
Zuccolo and Love are considered analogous to the claimed invention because they are in the same field of a fresh food product that has protein and comprises a mold tray. It would have been obvious to one of ordinary skill in the art to have modified Zuccolo in view of Gentle Chef and Jean to have incorporated the teachings of Love by having the sealing film disposed between the mold tray and the molded egg product, the sealing film further configured to hermetically seal the molded egg product for cold processing, because the product is then able to undergo a process that extends the shelf life of the packaged fresh food product and allows for the retention of the freshness, flavor, texture, appearance and color of the food product, as recognized by Love [0009].
Regarding claim 3, Zuccolo teaches the vegan thickener (gelling agents), used can be agar-agar, or agar, tapioca starch, and arrowroot [0055-0057].
Regarding claim 4, Gentle Chef discloses the salt in the egg white mixture, or the first fired salt, is black salt (Kala Namak Himalayan black salt; [0007]).
Regarding claim 5, Zuccolo does not teach mycoprotein within its disclosure and does not list mycoprotein as an ingredient in the albumen-like phase, or white layer, or as an ingredient in the yolk-like phase, or yolk ball [0026-0036]. Therefore, Zuccolo is considered to not contain mycoprotein.
Regarding claim 7, Zuccolo teaches a tomato-based compound for coloring [0087]. Zuccolo does not teach a tomato powder.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zuccolo to use tomato powder since tomato powder is a type of tomato-based compound which would impart color. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have been motivated to do so because a tomato powder would not add extra moisture to the overall product but would still impart color.
Regarding claim 8, in Fig. 3c and 3d, Zuccolo teaches the white layer fully surrounds the yolk ball (the albumen-like phase (A) fully surrounds the yolk-like phase (B)).
Regarding claim 9, Zuccolo in view of Gentle Chef rendered the product of claim 1 obvious. Zuccolo does not teach the yolk ball comprises as at least one of flax seed, a probiotic or a nutritional yeast. Gentle Chef discloses nutritional yeast in the egg yolk, or yolk ball [0005].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zuccolo in view of Gentle Chef, Jean and Love by further incorporating the teachings of Gentle Chef by adding coconut oil and nutritional yeast to the yolk ball. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have been motivated to do so to achieve the desired flavor and mouthfeel that the coconut oil and nutritional yeast would add.
Regarding claim 10, as seen below annotated Fig. 3a of Zuccolo, the yolk-like phase (B), or yolk ball, has a first portion, D, that is submerged in the albumen-like phase (A), or white layer, and a second portion, E, extending above an upper surface, C, of the white layer (Fig. 3a). Therefore, Zuccolo teaches the yolk ball comprises a first portion submerged in the white layer and a second portion extending above an upper surface of the white layer.
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Annotated Fig. 3a
Regarding claim 21, Zuccolo teaches a hydrated nut blend (legume flour is combined with water; [0033-0034], [0179]).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Zuccolo et al. (US 20210161186), in view of The Gentle Chef, Hard Cooked Eggless Eggs, Jean, Classic Deviled Eggs, Delightful Repast, and Love et al. (US 20070237865), as applied to claim 1 above, and further in view of Cooking Up Vegan, Vegan Deviled Eggs (hereinafter Cooking Vegan).
Please note the basis of the rejection below for Cooking Vegan is based off the paragraph and Figure numbers added to the reference.
Regarding claim 2, Zuccolo does not teach the nut milk comprises a cashew milk.
Cooking Vegan teaches a product comprising a mold, vegan egg whites, or white layer, and a vegan egg yolk, in the form of a filling (pg. 9 [0006]; pg. 11 [0001-0002]). Cooking Vegan teaches the white layer contains a nut milk from cashew milk (pg. 11 [0001]), which is naturally white (pg. 8 [0001]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zuccolo in view of Gentle Chef, Jean and Love to incorporate the teachings of Cooking Vegan by using cashew milk as the nut milk because cashew milk is naturally white, as recognized by Cooking Vegan (pg. 8 [0001]). A white color is desirable for an imitation egg white product because natural egg whites, when cooked as a hard boiled egg, are white. To imitate the natural egg white color of a hard boiled egg, using a white ingredient is beneficial to help obtain the white color.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Zuccolo et al. (US 20210161186), in view of The Gentle Chef, Hard Cooked Eggless Eggs, Jean, Classic Deviled Eggs, Delightful Repast, and Love et al. (US 20070237865), as applied to claim 1 above, and further in view of Keys et al. US 20170020167.
Regarding claim 6, Zuccolo teaches the yolk-like phase has a plant protein source, advantageously in flour form, with a high protein content, which can be a plant flour [0078]. Zuccolo does not teach the nut blend further comprises at least one of a cashew flour or pasteurized organic cashew meal.
Keys teaches a plant-based egg substitute composition where the composition can be used to replace egg yolks [0001], [0111]. Keys teaches the composition contains cashew flour (cashew as a particulate powder), providing a suitable protein source for the composition [0058].
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Zuccolo in view of Gentle Chef, Jean and Love, to incorporate the teachings of Keys to have the nut blend further comprise cashew flour, since cashew flour is a suitable source of protein, as recognized by Keys [0058].
Response to Arguments
Applicant’s arguments with respect to claim 1 has been considered but is 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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/S.R.G./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791