DETAILED ACTION
Background
The amendment dated July 24, 2025 amending claims 1, 3-5 and 13, adding new claims 18-19 and canceling claims 2, 6, 9, 12 and 17 has been entered. Claims 1, 3-5, 7-8, 10-11, 13-14 and 18-19 as filed with the amendment have been examined. Claims 2, 6, 9, 12 and 15-17 have been canceled. In view of the canceling of claims 2, 6, 9, 12 and 17, all outstanding rejections of those claims have been withdrawn.
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 Objections
Claim 13 is objected to because of the following informalities:
In claim 13, at line 2 after “of less than 10wt%” insert --, based on the weight of the vegan composition--.
Appropriate correction is required.
Claim 1 recites the claim status identifier as (Original) and is incorrect. 37 CFR 1.121. The status identifier should be “(Currently amended)”.
Claim Rejections - 35 USC § 112
5. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
6. Claims 1, 3-5, 7-8, 10-11, 13-14 and 18-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claims 1 and 18, the wt.% basis or percent denominator for each of the recited starch, the recited dietary fibre and the recited hydrolyzed vegetable protein is indefinite because it is not clear on what weight as denominator the recited amount of starch, dietary fibre and hydrolyzed vegetable protein is based. Is it the weight of the entire vegan composition, the weight of the starch, the weight of the dietary fibre, the weight of the hydrolyzed vegetable protein, and/or the weight of one or more other ingredients? The Office interprets the claim as reciting the wt% of each of the starch, dietary fibre and hydrolyzed vegetable protein as being based on the weight of the entire vegan composition.
Claim 10 depends from claim 9 which has been canceled. The Office interprets the claim broadly as literally depending from either claim 1 or from canceled claim 9.
Claims 3-5, 7-8, 11, 13-14 and 19 are rejected as depending from a rejected base claim.
Claim Rejections - 35 USC § 103
7. 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.
8. 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, 3-5, 7-8, 10-11 and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over US2020/0305477 A1 to Wang et al. (Wang) in view of Boyd, W. “Hard Boiled Crisis”, Prepared Foods, https://www.preparedfoods.com/articles/116906-hard-boiled-crisis, August 27, 2015, (Boyd), both of record.
Regarding instant claim 1, the Office considers the “consisting essentially of” claim language as limiting the basic and novel characteristics of the claim only. Accordingly, the Office considers the claimed composition as including any vegan composition which functions as or is a dry blend. Nowhere does the instant specification specifically exclude anything other than the limits stated in the claim language itself.
Regarding instant claims 1, 3-4, 7, 11 and 14, Wang at [0075] and accompanying Table 1 discloses a meringue mix (at [0074]) as an egg-free albumen replacer comprising from 10 to 20 wt% of pea starch (as a vegan “starch” in claim 3 and…”from legumes” in claim 7), from 5 to 10 wt% of xanthan gum (a “dietary fibre” (claim 4) in the amount of 5 to 30 wt%), from 5 to 10 wt% of carob bean gum (a “dietary fibre” (claim 4) in the amount of 5 to 30 wt%), and hydrolyzed pea protein (claim 11), all ingredients as a dry blend. The egg albumen replacer of Wang comprises a vegan composition for use in food, such as meringues which include (at [0018]) baked products as in claim 14.
Further regarding instant claims 1 and 3-4, and regarding instant claims 5, 8 and 10, Wang does not disclose a dietary fibre that is citrus fibre (claim 10), dextrin or polydextrose as in claim 1; further does not disclose an example of a vegan composition consisting essentially of the claimed amount of starch of 15 to 30 wt% of the vegan composition as in claim 3, or consisting essentially of the disclosed amount of dietary fibre the claimed 8 to 20 wt% as in claim 4; and, still further, Wang does not disclose an example of a vegan composition consisting essentially of from 50 to 70 wt% of hydrolyzed vegetable protein, based on the weight of the vegan composition in claim 5; and does not disclose a tapioca starch as in claim 8. However, at [0074] Wang discloses a vegan composition comprising from 10 to 20 wt% of pea starch, which the claimed 15 to 30 wt% of the vegan composition as starch in claim 3 overlaps; and discloses the same composition comprising from 5 to 10 wt% of xanthan gum and from 5 to 10 wt% of carob bean gum for a total of 10 to 20 wt% of the vegan composition as a “dietary fibre”, which the claimed 8 to 20 wt% of dietary fibre in claim 4 overlaps. And, at [0055] Wang discloses egg albumen replacers comprising from 3 to 75 wt% of hydrolyzed pea (vegetable) protein, which the claimed 50 to 70 wt% in claim 5 lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05.I. Further, Wang at [0024] discloses that its starch can comprise cassava or tapioca starch as in claim 8. Accordingly, regarding instant claims 3-5 and 8 the ordinary skilled artisan would have found it obvious to have selected tapioca starch for inclusion in the composition of Wang as tapioca starch is specifically disclosed as a starch suitable for use in the composition, and, further would have found it obvious to use the claimed amounts of each of the starch, dietary fibre and hydrolyzed vegetable protein in claims 3, 4 and 5 because Wang discloses using the claimed amount of each as a desirable amount of those materials for making an egg replacer.
Further regarding instant claims 1 and 10, Boyd at page 4, last 3 paragraphs of “Cases in Point” discloses including citrus fibre as egg replacers without impairing the organoleptic properties of baked products and to provide water binding and shelf stability in brownie formulations.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Boyd for Wang to use the citrus fibre of Boyd as its dietary fibre either alone or in addition to the citrus fiber. All references disclose dry mixes comprising dietary fibre for use in making egg free or vegan baked products. The ordinary skilled artisan in each of Wang would have desired to include the citrus fibre of Boyd to improve the shelf life and water binding capacity of baked products made from the dietary fibre containing dry mix compositions of Wang.
Regarding instant claim 13, Wang discloses at [0072] the albumen replacer formulated as a dry powder or dry blend and which is substantially the same thing as the claimed vegan composition formulated as a dry blend at [0044] on page 6 of the instant specification. Accordingly, absent a clear showing as to how the water content of the composition of Wang differs from that as claimed, the Office considers the Wang egg albumen replacer to have the claimed water content of less than 10 wt%. See MPEP 2112.01.I.
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over US2020/0305477 A1 to Wang et al. (Wang) in view of US2013/0052304 A1 to Li (Li), also of record.
Regarding instant claim 18, the Office considers the “consisting essentially of” claim language as limiting the basic and novel characteristics of the claim only. Accordingly, the Office considers the claimed composition as including any vegan composition which functions as or is a dry blend. Nowhere does the instant specification specifically exclude anything other than the limits stated in the claim language itself.
Wang at [0075] and accompanying Table 1 discloses a vegan composition as a meringue mix (at [0074]) comprising an egg-free albumen replacer comprising from 10 to 20 wt% of pea starch for use as an egg replacer in food, from 5 to 10 wt% of xanthan gum (a “dietary fibre” in the amount of 5 to 30 wt%), from 5 to 10 wt% of carob bean gum (a “dietary fibre” in the amount of 5 to 30 wt%), and hydrolyzed pea protein (claim 11), all ingredients as a dry blend. The egg albumen replacer of Wang comprises a vegan composition for use in food, such as meringues which include (at [0018]) baked products as in claim 14.
Wang does not give an example comprising from 40 to 80 wt% of a hydrolyzed vegetable protein, based on the weight of the vegan composition. However, at [0055] Wang discloses egg albumen replacers comprising from 3 to 75 wt% of hydrolyzed pea (vegetable) protein, which the claimed 40 to 80 wt% overlaps. Where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05.I. So, the ordinary skilled artisan would have found it obvious to have selected tapioca starch for inclusion in the composition of Wang as tapioca starch is specifically disclosed as a starch suitable for use in the composition in the claimed amount as a desirable amount for making an egg replacer.
Further regarding instant claim 18 and regarding instant claim 19, Wang does not disclose a vegan composition comprising from 1 to 35 wt% of vital wheat gluten, based on the weight of the vegan composition as in claim 18, or from 5 to 25 wt% of vital wheat gluten as in claim 19.
Li at Abstract discloses an egg replacer composition which (at [0017] and [0055]) mimics eggs in baked products and (at [0020]) comprises from 1 to 60 wt % wheat protein as (at [0021]) wheat vital gluten (“vital wheat gluten”), gums and polysaccharides. Further, Li discloses at [0027] dry mix compositions further comprising dietary fibre as (at [0025]) xanthan gum or locust bean gum. Each of the claimed 1 to 35 wt% vital wheat gluten as in claim 18 and 5 to 25 wt% vital wheat gluten in as claim 19 lies within the disclosed 1 to 60 wt% of vital wheat gluten disclosed at [0020] in Li. Where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05.I.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Li for Wang to include 1 to 35 wt% or 5 to 25 wt% of a vital wheat gluten as in Li. Both references disclose dry mix vegan compositions for use as egg replacers. The ordinary skilled artisan in Wang would have desired to include the 1 to 35 wt% of vital wheat gluten in its egg replacer as in Li to form an egg replacer that acts as a whole egg, including the yolk, and to enable baking with altering a recipe while substituting the egg replacer for eggs as in [0055] of Li. Further, at [0080] Li discloses egg yolk substitutes containing vital wheat gluten that as egg yolk substitutes have properties similar to those of real egg and egg products in terms of water dispersing ability, emulsion ability and gelling properties
Response to Arguments
In view of the amendment dated July 24, 2025, the following rejections have been withdrawn as moot:
The rejections of claims 3-6 and 13 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the claim 3 wt% basis for the recited starch, the claim 4 wt% basis for the recited dietary fibre, the claim 5 wt% basis for the recited hydrolyzed vegetable protein, and the claim 6 wt% basis for the recited vital wheat gluten; as well as the broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation in the same claim in claims 3-6 and 13 reciting preferable ranges;
The rejections of claims 1, 3-4, 7, 9 and 11-14 under 35 U.S.C. 102(a)(2) as being anticipated by US2020/0305477 A1 to Wang et al.;
The rejections of claims 1-3, 6-7, 9 and 11-14 under 35 U.S.C. 102(a)(1) as being anticipated by US2005/0129823 A1 to Dohl et al.;
The rejections of claims 5 and 8 under 35 U.S.C. 103 as being unpatentable over US2020/0305477 A1 to Wang et al.;
The rejections of claims 4 and 8 under 35 U.S.C. 103 as being unpatentable over US2005/0129823 A1 to Dohl et al.;
The rejections of claims 2 and 6 under 35 U.S.C. 103 as being unpatentable over US2020/0305477 A1 to Wang et al. in view of US2013/0052304 A1 to Li;
The rejections of claim 10 under 35 U.S.C. 103 as being unpatentable over each of US2020/0305477 A1 to Wang et al. and US2005/0129823 A1 to Dohl et al. in view of Boyd, W. “Hard Boiled Crisis”, Prepared Foods, https://www.preparedfoods.com/articles/116906-hard-boiled-crisis, August 27, 2015; and,
The rejections of claim 17 under 35 U.S.C. 103 as being unpatentable over each of US2020/0305477 A1 to Wang et al. and US2005/0129823 A1 to Dohl et al. in view of US2017/0020167 A1 to Keys et al.
The positions taken in the remarks accompanying the amendment dated July 24, 2025 (Reply) have been fully considered but they are not found persuasive for the following reasons:
Regarding indefiniteness and the wt% basis issue, the Applicant has stated in the Reply that the weight percentages recited in claims 3-6 are intended to be based on the total weight of the vegan composition, since nothing to the contrary is specified. The claims now recite the proper basis. Nevertheless, the stated intent in the Reply to define claim terms would not have overcome the outstanding indefiniteness rejections without the changes made by the amendments to the claims which did not provide any wt% basis at all.
Regarding the position taken in the Reply that composition in Wang includes additional ingredients and which are not covered under the "essentially consisting of' language in amended claim 1 and new claim 18, and regarding the position that the art discloses any additional ingredients not covered under the "essentially consisting of' language in amended claim 1 or new claim 18, and, further regarding the statement that sugars, dextrose and other additives materially affect the basic and novel characteristics of the claimed composition and its use for baking vegan cakes, the positions taken are not found persuasive. The Office finds no evidence to support the Applicants position that the claim scope excludes any ingredients found in Wang, Li or Boyd anywhere on the record. However, Wang specifically discloses at [0072] compositions as dry powder and discloses use of sugars and additives generally at [0071].
Regarding the position taken in the Reply that Wang is silent as to the use of vital wheat gluten, or that Wang and Li do not suggest the claimed dietary fibre selection, respectfully Wang is not cited as anticipating the claimed vital wheat gluten or the recited dextrin, polydextrose or citrus fiber as dietary fibre; and Li is not applied as against claims reciting the claimed dietary fibre and is a secondary reference. However, regarding use of vital wheat gluten, Li at [0021] and [0080] renders use of vital wheat gluten in dry egg replacers obvious as vital wheat gluten containing vegan compositions have properties similar to those of real egg and egg products in terms of water dispersing ability, emulsion ability and gelling properties.
Regarding the position taken in the Reply that reliance on overlapping ranges does not establish obviousness without a motivation to select the claimed sub-range and a reasonable expectation of success in In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003) (Peterson), the Office finds this position unpersuasive. The Office disagrees with the characterization of Peterson in the Reply and considers the Peterson case to stand for the principal that the existence of overlapping or encompassing ranges shifts the burden to the applicant to show that his invention would not have been obvious. The court in Peterson found that the art of Shah's ranges encompassed Peterson's, and concluded that the Board did not err in determining that Shah renders Peterson's claimed composition prima facie obvious.
Regarding the position taken in the Reply that the skilled person could not predict that having a composition with 40-80 wt% hydrolyzed pea or vegetable protein and the other specified ingredients in the required amounts would result in a vegan composition suitable for replacing egg and/or dairy in a recipe for a baked food product (e.g. cake) mimicking the texture, rise and crumb of a cake made conventionally with egg and/or dairy, this position is respectfully not found persuasive. The fact that the inventor may have recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). The art can be combined for any reason disclosed therein, and that reason does not have to be Applicants reason for combining the art.
This principal that the art can be combined for reasons other than to meet Applicants ideal result also applies to the position taken that there is no teaching or suggestion in Wang that the specific combination of starch, selection of dietary fibre from citrus fibre, dextrin and polydextrose, and of hydrolyzed vegetable protein in the specified claimed ranges would yield a composition with the functional properties demonstrated in the application (e.g., rise, color, crumb, and texture in cakes). Even if the claims somehow were to recite and require any distinct rise, color, crumb or texture, the art of Boyd at page 4, last 3 paragraphs of “Cases in Point” discloses including citrus fibre as egg replacers without impairing the organoleptic properties of baked products and to provide water binding and shelf stability in brownie formulations when using vegan egg substitutes like those of Wang and Li. Further, Wang at [0076] discloses use in dry cake mixes. It is therefore routine in the art of Wang to add citrus fibre to egg replacers as in Boyd.
Regarding the position taken in the Reply that the claimed composition provides unexpected technical advantages over the prior art, wherein Examples 2, 3 and 4 of the application, compared to the egg-containing control, such as in Example 1 demonstrate a composition that yields baked goods with excellent rise, color, and crumb structure, comparable to those made with eggs, respectfully the art of Wang, Li and Boyd all disclose vegan egg substitutes, not eggs, and are the closest art. Therefore, the results do not address the closest art of Wang.
Regarding the position taken in the Reply that there is no teaching or suggestion in either reference that would motivate a person of ordinary skill in the art to substitute the disclosed gums with the claimed dietary fibres, nor is there any indication that such substitution would yield the unexpected baking performance demonstrated in the present application, respectfully the art of Boyd at page 4, last 3 paragraphs of “Cases in Point” discloses that it is routine in the art to use of citrus fibre of Boyd to improve the shelf life and water binding capacity of baked products made from a dietary fibre containing dry mix composition as in Wang.
Regarding the position taken in the Reply that combining Wang and Li, there is no articulated reason why a person of ordinary skill in the art would have been motivated to remove the gums in the recipes disclosed in Wang and Li and replace them with citrus fibre, dextrin, or polydextrose, respectfully the claims do not exclude the edible gums disclosed in Wang or any other art as the ordinary skilled artisan finds them suitable for use in dry blend egg replacers.
Regarding the position taken in the Reply that the art does not provide a reason or motivation to adjust according to the specific ingredient weight percentages recited in the claims; with any expectation that the resulting vegan composition can function as an effective vegan egg replacer in baked goods with the necessary texture, crumb and rise, respectfully, this position is not found persuasive. Wang at [0055] and [0075] with Table 1 discloses the desirability of using the claimed starch, dietary fibre and hydrolyzed vegetable protein all in the claimed amounts to make an egg replacer. As in In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003), the burden shifts to Applicant to show that the claimed invention is unobvious. Comparison to actual eggs in a cake mix or cake is by itself not sufficient evidence of unobviousness. Further, nothing on the record shows what the egg replacement in Table 1 of Wang or any other egg replacer would or would not accomplish.
Regarding the position taken in the Reply that Boyd is an internet publication, not a peer-reviewed technical disclosure, journal article or patent and it only provides general commentary on ingredient trends in relation to egg shortages arising from avian flu and does not disclose specific formulations, concentrations, or compatibility with the claimed composition, the Office finds that Boyd at page 4, last 3 paragraphs of “Cases in Point” makes a very specific disclosure about the use of up to 50 wt% of citrus fibre and its positive impact on shelf-life. Art can be disclosed in any form publicly available. See MPEP 2128.
Regarding the position taken in the Reply that Boyd does not disclose polydextrose or dextrin in combination with the specific ingredient ratios and other components of the claimed composition, Boyd is not cited as anticipating.
Regarding the position taken in the Reply that Boyd's objective is solely on shelflife stability, which is affected by water binding and migration, rather than seeking to mimic also the rise, texture, color and crumb of an egg-containing cake, respectfully the intended use position is not found persuasive. Even if the advantages alleged were claimed, the intended use or the intended result however, is not relevant to the patentability of the instant claims because they do not result in a structural difference between the claimed dry blend composition and that of the art. See MPEP 2111.02.II.
Regarding the position taken in the reply that mere mention of citrus fibre in a general context in Boyd does not provide a sufficient motivation or reasonable expectation of success to modify Wang to arrive at the claimed invention, this position is not found persuasive because the citrus fibre in Boyd is used in the same dry blend composition as in Wang and in the claims; it is used in the same way as a dry mix as in Wang and in the claims; and is used as in Wang and in the claims to make the same baked goods. It is routine practice in the art to add a dietary fibre dry ingredient and a dry hydrolyzed vegetable protein ingredient to make a vegan composition for baking.
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/A.E.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791