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 .
This action is in response to applicant’s response dated July 20, 2026. Any rejections and/or objections made in previous actions and not repeated below are hereby withdrawn.
Election/Restrictions
Newly submitted claims 44 and 45 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 44 and 45 are directed to a distinct invention.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Objections
Claim 26 is objected to because of the following informalities: the word “and” should be added to the end of step (a), after the semi-colon in order to provide clarity and consistency. Appropriate correction is required.
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.
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 26-31, 34-37, and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Aaslyng et al. (Chemical and Sensory Characterization of Hydrolyzed Vegetable Protein, a Savory Flavoring, Journal of Agricultural Food Chemistry) in view of Solina et al. (Volatile aroma components of soy protein isolate and acid and acid-hydrolysed vegetable protein, Journal of Food Chemistry).
With respect to Claim 26, Aaslyng et al. teaches a savory flavoring product, used worldwide, known as hydrolyzed vegetable protein (HVP). [Pg. 481, Col. 1, Par. 1] The source of the protein can be from soybean, wheat, maize, or more. [Pg. 481, Col. 1, Par. 1] Aaslyng et al. teaches that enzymatic hydrolysis results in fewer carcinogenic compounds than acidic hydrolysis [Pg. 481, Col. 1, Par. 2] and the flavor can be enhanced by further processing in order to imitate flavors such as meat. [Pg. 481, Col. 2, Par. 4] Additionally, Aaslyng et al. presents the results of the analysis of the amino acid composition [Fig. 1] and volatile flavor compounds [Table 2] or the HVP types, including the HVP obtained through enzymatic process and mixed with glucose and heat, eHVPrea. [Pg. 482, Col. 1, Par. 6]
Aaslyng et al. does not provide numerical values for the amino acids in Figure 1, but using the bar graph results of eHVPrea, it is estimated that the amounts of relevant amino acids are 6.25mg/100mg Glutamic Acid (Glu), 3.75mg/100mg Tyrosine (Tyr), 1.75mg/100mg Tryptophan (Trp), and 4mg/100mg Phenylalanine (Phe). Therefore, the ratios would be about 0.6 Tyr:Glu, 0.64 Phe:Glu, and 0.28 Trp:Glu. These ratios all lie within the range recited in claim 26 (a). Additionally, the volatile flavor compounds, as taught by Aaslyng et al., comprise 2-methylbutanal at 43.5 and 3-methylbutanal, also known as isovaleraldehyde, at 77.2. [Table 2]
Aaslyng et al. is silent to the addition of 5,2,2-transmethylphenyl hexenal and isobutyraldehyde.
Solina et al. teaches a comparison of the volatile compounds and amino acid content of soy proteins and hydrolyzed vegetable proteins. [Abstract] Solina et al. teaches the aHVP composition comprises amino acids comprising glutamic acid, tyrosine, phenylalanine, and tryptophan in a ratio of Tyr, Phe, and Trp to Glu of 0.12, 0.35, and 0.06 respectively, [Table 3] and teaches the volatile acids comprising 2-methylpropanal, also known as isobutyraldehyde, at 31 ng/10g, 2-methylbutanal at 110 ng/10g, 3-methylbutanal 460 ng/10g, and 5-methyl-2-phenyl-2-hexenal, also known as 5,2,2-transmethylphenyl hexenal, at 16 ng/10g. [Table 4] The resulting ratios of 3-methylbutanal, 5,2,2-transmethylphenyl hexenal, and 2-methylpropanal to 2-methylbutanal are 3.3, 0.15, and 0.38 respectively.
Aaslyng et al. and Solina et al. exist within the same filed of endeavor in that they teach a hydrolyzed vegetable protein and the amino acids and volatile components therein. Where Aaslyng et al. teaches a comprehensive method and product for a savory flavoring, Solina et al. teaches a detailed breakdown of the components of a vegetable protein isolate and their values. One would have been motivated to use the teaching of Solina et al. in order to have a more comprehensive understanding of the hydrolyzed vegetable proteins that are commonly used in extruded food. [Introduction]
MPEP 2144.05 I states, “A range can be disclosed in multiple prior art references instead of in a single prior art reference”. A range of ratios of amino acids and volatile compounds taught in Aaslyng et al. and Solina et al. would result in amino acid ratios of Tyr:Glu, Phe:Glu, and Trp:Glu of 0.12-0.6, 0.35-0.64, and 0.06-0.28, respectively. Additionally, the range of the ratio of isovaleraldehyde:2-methylbutanal would be 1.8-3.3. The ratios of Tyr:Glu, Phe:Glu, Trp:Glu, overlap with the ranges recited in claim 26, and MPEP 2144.05 I also 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”. The ratios of 5,2,2-transmethylphenyl hexenal:2-methylbutanal and isobutyraldehyde:2-methylbutanal lie within the range recited in claim 26.
With respect to the limitation of the ratio of isovaleraldehyde:2-methylbutanal, though neither reference explicitly teach a range that overlaps with the range recited in claim 26, MPEP 2144.05 II, states, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. It would have been obvious to one of ordinary skill in the art to optimize the amount of the volatile compounds in the composition to produce the most desirable composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al. to devise a flavor composition comprising Tyr, Phe, and Trp, in a ratio as compared to the among of Glu of 0.5-1, 0.5-1, and 0.05-0.3 respectively, and comprising isovaleraldehyde, 5,2,2-transmethylphenyl hexenal, and isobutyraldehyde in a ratio as compared to the amount of 2-methylbutanal of 0.05-1, 0.01-0.75, and 0.01-0.75 respectively, thereby rendering claim 26 obvious.
With respect to Claims 27-31, Aaslyng et al. in view of Solina et al. teach the invention recited in claim 26, as described above. Solina et al. teaches the composition comprises 2,5-dimethylpyrazine, benzaldehyde, and 2-ethyl-5-methylpurazine, also known as 2,5-methylethylpyrazine, and teaches the 2,5-methylethylpyrazine:2,5-dimethylpyrazine is 1.18, [Table 4] which falls within the range recited in claim 30. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al. to have devised the invention according to claim 26, further comprising benzaldehyde, 2,5-dimethylpyrazine, and 2,5-methylethylpyrazine, wherein the ratio of 2,5-methylethylpyrazine: 2,5-dimethylpyrazine is between 0.25-1.25, thereby rendering claims 27-31 obvious.
With respect to Claim 34, Aaslyng et al. teaches a savory flavoring product, used worldwide, known as hydrolyzed vegetable protein (HVP). [Pg. 481, Col. 1, Par. 1] The source of the protein can be from soybean, wheat, maize, or more. [Pg. 481, Col. 1, Par. 1] Aaslyng et al. teaches that enzymatic hydrolysis results in fewer carcinogenic compounds than acidic hydrolysis [Pg. 481, Col. 1, Par. 2] and the flavor can be enhanced by further processing in order to imitate flavors such as meat. [Pg. 481, Col. 2, Par. 4] Additionally, Aaslyng et al. presents the results of the analysis of the amino acid composition [Fig. 1] and volatile flavor compounds [Table 2] or the HVP types, including the HVP obtained through enzymatic process and mixed with glucose and heat, eHVPrea. [Pg. 482, Col. 1, Par. 6]
Aaslyng et al. does not provide numerical values for the amino acids in Figure 1, but using the bar graph results of eHVPrea, it is estimated that the amounts of relevant amino acids are 6.25mg/100mg Glutamic Acid (Glu), 3.75mg/100mg Tyrosine (Tyr), 1.75mg/100mg Tryptophan (Trp), and 4mg/100mg Phenylalanine (Phe). Therefore, the ratios would be about 0.6 Tyr:Glu, 0.64 Phe:Glu, and 0.28 Trp:Glu. These ratios all lie within the range recited in claim 26 (a). Additionally, the volatile flavor compounds, as taught by Aaslyng et al., comprise 2-methylbutanal at 43.5 and 3-methylbutanal, also known as isovaleraldehyde, at 77.2. [Table 2]
Aaslyng et al. is silent to the addition of 5,2,2-transmethylphenyl hexenal and isobutyraldehyde.
Solina et al. teaches a comparison of the volatile compounds and amino acid content of soy proteins and hydrolyzed vegetable proteins. [Abstract] Solina et al. teaches the aHVP composition comprises amino acids comprising glutamic acid, tyrosine, phenylalanine, and tryptophan in a ratio of Tyr, Phe, and Trp to Glu of 0.12, 0.35, and 0.06 respectively, [Table 3] and teaches the volatile acids comprising 2-methylpropanal, also known as isobutyraldehyde, at 31 ng/10g, 2-methylbutanal at 110 ng/10g, 3-methylbutanal 460 ng/10g, 5-methyl-2-phenyl-2-hexenal, also known as 5,2,2-transmethylphenyl hexenal, at 16 ng/10g, 2,5-dimethylpyrazine, and 2-ethyl-5-methylpurazine, also known as 2,5-methylethylpyrazine. [Table 4] The resulting ratios of 3-methylbutanal, 5,2,2-transmethylphenyl hexenal, and 2-methylpropanal to 2-methylbutanal are 3.3, 0.15, and 0.38 respectively.
Aaslyng et al. and Solina et al. exist within the same filed of endeavor in that they teach a hydrolyzed vegetable protein and the amino acids and volatile components therein. Where Aaslyng et al. teaches a comprehensive method and product for a savory flavoring, Solina et al. teaches a detailed breakdown of the components of a vegetable protein isolate and their values. One would have been motivated to use the teaching of Solina et al. in order to have a more comprehensive understanding of the hydrolyzed vegetable proteins that are commonly used in extruded food. [Introduction]
MPEP 2144.05 I states, “A range can be disclosed in multiple prior art references instead of in a single prior art reference”. A range of ratios of amino acids and volatile compounds taught in Aaslyng et al. and Solina et al. would result in amino acid ratios of Tyr:Glu, Phe:Glu, and Trp:Glu of 0.12-0.6, 0.35-0.64, and 0.06-0.28, respectively. Additionally, the range of the ratio of isovaleraldehyde:2-methylbutanal would be 1.8-3.3. The ratios of Phe:Glu and Trp:Glu, overlap with the ranges recited in claim 34, and MPEP 2144.05 I also 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”. The ratio of 5,2,2-transmethylphenyl hexenal:2-methylbutanal lies within the range recited in claim 34.
The ratio of isobutyraldehyde:2-methylbutanal taught by Solina et al. does not overlap or lie within the range recited in the instant claim, but the value of 0.38 is close to the upper limit of 0.3. MPEP 2144.05 I, states, “Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close”. Using the teaching of Solina et al., the difference between a value of 0.38 and 0.3 could be accounted for as a result of the standard deviation of the average, and therefore is close enough to support a prima facie case of obviousness.
With respect to the limitation of the ratios of Tyr:Glu and isovaleraldehyde:2-methylbutanal, though neither reference explicitly teach a range that overlaps with the range recited in claim 36, MPEP 2144.05 II, states, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. It would have been obvious to one of ordinary skill in the art to optimize the amount of the volatile compounds in the composition to produce the most desirable composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al. to devise a flavor composition comprising Tyr, Phe, and Trp, in a ratio as compared to the among of Glu of 0.5-1, 0.5-1, and 0.05-0.3 respectively, comprising isovaleraldehyde, 5,2,2-transmethylphenyl hexenal, and isobutyraldehyde in a ratio as compared to the amount of 2-methylbutanal of 0.05-1, 0.01-0.75, and 0.01-0.75 respectively, and comprising 2,5-dimethylpyrazine and 2,5-methylethylpyrazine, thereby rendering claim 34 obvious.
With respect to Claims 35-37, Aaslyng et al. in view of Solina et al. teach the invention recited in claim 34, as described above. Solina et al. teaches the composition comprises benzaldehyde and 2-ethyl-5-methylpyrazine, also known as 2,5-methylethylpyrazine, and teaches the ratio of 2,5-methylethylpyrazine:2,5-dimethylpyrazine is 1.18, [Table 4] which falls within the range recited in claim 36. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al. to have devised the invention according to claim 34, further comprising, benzaldehyde, 2,5-dimethylpyrazine, and 2,5-methylethylpyrazine, wherein the ratio of 2,5-methylethylpyrazine: 2,5-dimethylpyrazine is between 0.25-1.25, thereby rendering claims 35-37 obvious.
With respect to Claim 39, Aaslyng et al. in view of Solina et al. teach the invention recited in claim 34, as described above. Additionally, the flavor composition taught by Aaslyng et al. is comprised of soy protein. [Abstract] Therefore, the flavor composition of Aaslyng et al. is free from meat, and renders claim 39 obvious.
Claims 32-33, 38 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Aaslyng et al. (Chemical and Sensory Characterization of Hydrolyzed Vegetable Protein, a Savory Flavoring, Journal of Agricultural Food Chemistry) in view of Solina et al. (Volatile aroma components of soy protein isolate and acid and acid-hydrolysed vegetable protein, Journal of Food Chemistry) as applied to claims 31 and 37 above, respectively, and in further view of Wicker et al. (US 20170143022 A1).
With respect to Claims 32 and 38, Aaslyng et al. in view of Solina et al. teach the invention recited in claims 31 and 37, as described above. Additionally, Solina et al. teaches that the invention comprises 2-heptanone, phenylacetaldehyde, and benzaldehyde, [Table 2] but both references are silent to comprising 2,2-transphenylbutenal, caprylic acid, caprinic acid, vinyl guaiacol, and 3-methylthiopropanal.
Wicker et al. teaches a composition containing flavor modifier compounds, more specifically for imparting an umami flavor, for use in foods, beverages, dairy, and other comestibles. [0002] Of those compounds taught by Wicker et al., is included 2-phenyl-2-butenal, [0040] also known as 2,2-transphenylbutenal, p-vinylguaiacol, [0053] also known as vinyl guaiacol, methional, [0053] also known as 3-methylthiopropanal, decanoic acid, [0043] also known as caprinic acid, and octanoic acid, [0043] also known as caprylic acid.
Aaslyng et al., Solina et al., and Wicker et al. exist within the same filed of endeavor in that they teach flavor compositions for use in food products. Where Aaslyng et al. teaches a comprehensive method and product for a savory flavoring, Solina et al. teaches a detailed breakdown of the components of a vegetable protein isolate and their values, and Wicker et al. teaches a composition comprising compounds for enhancing the umami flavor of a food product. One of ordinary skill in the art would have been motivated to consult Wicker et al. in the endeavor of producing a flavor compound in order to produce a more complete flavor composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al., in further view of Wicker et al. in order to devise the invention recited in claims 31 and 37, further comprising 2,2-transphenylbutenal, caprylic acid, 2-heptanone, caprinic acid, phenylacetaldehyde, vinyl guaiacol, 3-methylthiopropanal, and benzaldehyde, thereby rendering claims 32 and 38 obvious.
With respect to Claims 33 and 40, Aaslyng et al. in view of Solina et al., in further view of Wicker et al. teach the invention recited in claims 32 and 38, as described above. Additionally, Aaslyng et al. teaches 2,3-dimethylpyrazine and 2,3,5-trimethylpyrazine, [Table 2] Solina et al. teaches the use of methylpyrazine, also known as 2-methylpyrazine, 2,5-dimethyl-3-ethylpyrazine, also known as 2,3,5-dimethylehtylpyrazine and 2,3,6-dimethylethylpyrazine, 2,5 and 2,6-dimethylpyrazine, and 2-ethyl-5-methylpyrazine, also known as 2,5-methylethylpyrazine, [Table 2] and Wicker et al. teaches 2-isobutyl-3-methylpyrazine, also known as 2,3-methylisobutylpyrazine, 2-ethyl-6-methylpyrazine, also known as 2,6-methylethylpyrazine, and 2-ethylpyrazine. [0040]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al., in further view of Wicker et al. in order to devise the invention recited in claims 32 and 37 respectively, further comprising 2,3-methylisobutylpyrazine, 2,3-dimethylpyrazine, 2,3,5- dimethylethylpyrazine, 2,3,6-dimethylethylpyrazine, 2,3,5-trimethylpyrazine, 2,5-dimethylpyrazine, 2,5-methylethylpyrazine, 2,6-methylethylpyrazine, 2- methylpyrazine, 2,6-dimethylpyrazine, and 2-ethylpyrazine, thereby rendering claims 33 and 40 obvious.
Claims 41-43 are rejected under 35 U.S.C. 103 as being unpatentable over Aaslyng et al. (Chemical and Sensory Characterization of Hydrolyzed Vegetable Protein, a Savory Flavoring, Journal of Agricultural Food Chemistry) in view of Solina et al. (Volatile aroma components of soy protein isolate and acid and acid-hydrolysed vegetable protein, Journal of Food Chemistry) as applied to claim 34 above and in further view of Ajami et al. (US 2017/0105438 A1).
With respect to Claims 41-43, Aaslyng et al. in view of Solina et al. teach the invention recited in claim 34, as described above, but are silent to a meat product that comprises the invention in an amount between 0.01-10%.
Ajami et al. teaches a meat-like food product, comprised of only non-animal products, in the form of a burger patty. [0099] Additionally Ajami et al. teaches taste agents and enhancers, [0257] comprising between 0.01-5% of the total composition. [0251]
Aaslyng et al. and Solina et al. exist within the same filed of endeavor in that they teach a hydrolyzed vegetable protein and the amino acids and volatile components therein. Where Aaslyng et al. teaches a comprehensive method and product for a savory flavoring, Solina et al. teaches a detailed breakdown of the components of a vegetable protein isolate and their values, and Ajami et al. teaches a vegan meat product that can be shaped into a burger patty. One would have been motivated to combine Ajami et al. in order to create a nutritional vegan alternative to traditional meat. [0002]
The amount of flavoring taught by Ajami et al. lies within the range recited in claim 41 of the amount of the flavoring composition included in the preparation for nourishment or flavor. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Aaslyng et al. in view of Solina et al in further view of Ajami et al., to have devised an imitation meat product in the form of a burger patty, wherein 0.01-10% of the composition comprises the invention recited in claim 34, thereby rendering claims 41-43 obvious.
Response to Arguments
Applicant’s arguments with respect to the new claims 26-43 have been considered but are moot because the new ground of rejection relies on new references not applied in the prior rejection of record for all teachings or matters 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
