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 Application
Receipt is acknowledged of the request for continued examination filed on 3/5/2026. Claims 1-4 and 6-20 are pending in the application. Claim 1 was amended.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/6/2026 has been entered.
Response to Arguments
Applicant argues that the use of a starch base enables synergistic interaction among the components and results in improved sensory properties particularly in brioche applications.
However, the claims do not require a defined purified or isolated starch, nor do they exclude the presence of flour or other non-starch components. As such, the asserted advantages of a purified starch base are not commensurate in scope with the claimed invention. Accordingly, the claims encompass compositions that would not exhibit the argued properties.
The evidence and arguments are limited to specific products (e.g. brioche formulations), and do not establish that the argued improvements extend across the full scope of the claimed invention, which includes a broad range of starches, proteins, microalgae sources, and concentration ranges. Keys discloses combining these components to obtain egg substitutes and shows that baked goods such as yellow cake had improved crumb texture and lift with an egg substitute comprising algal flour and algal protein, in the working examples, and algal flour was known to effectively replace butter and egg yolk in low fat brioche producing a texture and crumb quality similar to conventional brioche at the time of the invention.
Furthermore, arguments directed to a brioche product are not commensurate in scope with the claimed invention which is directed to a powder of defined composition with broad ranges for the components, selected from a range of sources. The composition of the claimed “competitor products” is unknown, and the argued results with a specific composition cannot be extrapolated to the claimed compositions having broad component ranges.
For these reasons, the rejection is maintained.
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 6-20 are rejected under 35 USC 103 as being unpatentable over David (WO2019220431 A1) in view of Keys et al. (WO2017/014806A1) and further in view of Brooks et al. (US2019/0254291A1).
Regarding claims 1-4 and 8-17, David discloses an egg substitute composition comprising a non-microalgal vegetable flour, non-microalgal vegetable protein vegetable fiber, coloring agents such as beta-carotene, turmeric, annatto, mango yellow, [006]-[0016], [069] and flavoring [070] and a polysaccharide selected from carrageenan, methyl cellulose, agar, or any combination. The composition comprises a thickener such as gellan gum (0.5-2.5%) . An exemplary composition has 25% to 80% (w/w) protein, 5% to 50% (w/w) Fabaceae flour (which typically contains 30% to 55% starch), and 5% to 60% (w/w) polysaccharide [006]. Example 2 shows tabulated compositions, wherein the components are present in the powder at levels that overlap or fall within the claimed ranges. David discloses algae as a protein source [063], but does not specifically list the protein in exemplary compositions.
Keys however discloses an egg substitute composition including a substantially egg-less dry mixture that includes a starch and/or lipid source and/or protein source, and a hydrocolloid system. The hydrocolloid system includes a mixture of hydrocolloids and a crosslinking agent. In the hydrocolloid system, the higher-temperature gelling hydrocolloid may include methylcellulose and/or hydroxypropyl methylcellulose. The lower-temperature gelling hydrocolloid my include carrageenan, locust bean gum, an alginate, and/or gellan gum. The protein source may include a plant-based protein source derived from vegetables, legumes, seeds, grains, tubers, roots, fruits, hemp, nuts, algae, and/or seaweed. In some embodiments, the protein source may include a protein derived from a microalgae or a microalgal protein, including Chlorella or spirulina derived protein [0053].
The starch and/or lipid source may include a plant-based starch and/or lipid source derived from vegetables, legumes, sprouted beans or legumes, seeds, grains, sprouted grains, tubers, roots, fruits, hemp, nuts, algae, seaweed, and/or isolated starches. The starch and/or lipid source may include a starch and/or lipid derived from a microalgae. In some embodiments, the starch and/or lipid source may include a microalgal flour.
An exemplary dry egg substitute composition comprises 26-34 wt.% algal flour,15-20 wt.% algal protein, 4-7 wt.% carrageenan, 14-18 wt.% methylcellulose, 6-10 wt.% gellan gum, 3-6 wt.% calcium lactate, and 10-13 wt. % cellulose.
As both David and Keys are directed to making egg substitutes it would have been obvious to one of ordinary skill in the art to combine non-algal and algal vegetable and protein sources to sustainably produce an egg substitute with desired nutritional, organoleptic and texturizing properties for use in targeted food products, with a reasonable expectation of success. Motivation to do so was available from Brooks, disclosing the benefits of algal flour in baked goods such as low fat brioche, for example, wherein the flour replaced butter and egg yolk effectively, producing a crumb texture comparable to conventional brioche [0363], due to improved water binding and emulsifying by the algal flour components . Applicant has not disclosed any unexpected effects of the claimed broad ranges of components in the egg substitute. Applicant amended the claim to include non-algal starch and remove non-algal flour. However, the open-ended transitional phrase in the independent claim does not preclude flour inclusion and the starch is undefined in terms of purity, modification if any, and gelatinization properties. A flour-derived starch is therefore not precluded. Method claim 7 does not exclude vegetable flour.
Regarding claims 6 and 7, and 18, applicant has not shown unexpected effects of the selected order of ingredient addition and dry mixing or liquid mixing speed.
Both David and Keys disclose mixing a powder in a liquid to produce a liquid egg substitute (see working examples).It would have been obvious to one of ordinary skill in the art to experimentally optimize mixing order and speed to obtain a uniformly blended dry product and hydrated egg substitute that produces a food product with pre-defined properties.
Regarding claim 19, one of ordinary skill in the art would add sufficient water to obtain a desired consistency in the liquid egg substitute. David discloses adding 1 part of powder to 9 parts of water (Example 1).
Regarding claim 20, both David and Keys disclose successfully preparing the claimed food products with an egg substitute as claimed and having properties comparable to similar products prepared with natural egg (see working examples).
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
“This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.”
No coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function is disclosed.
Claims 1-4 and 6-20 are therefore prima facie obvious in view of the art.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Subbalakshmi Prakash whose telephone number is (571)270-3685. The examiner can normally be reached Monday-Friday.
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/SUBBALAKSHMI PRAKASH/Primary Examiner, Art Unit 1793