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 office action is in response to applicant’s submission dated July 1, 2026. Any objections and/or rejections made in previous actions and not repeated below are hereby considered withdrawn.
Claims 1-10 and 16-25 are pending and claims 11-15 have been cancelled.
Claim Objections
Claim 22 is objected to because of the following informalities: “wherein said wet heating referring to an operation for performing heating using water as a heat medium is steaming, braising and boiling” should read “wherein said wet heating refers to an operation for performing heating using water as a heat medium is selected from steaming, braising, and boiling”. Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 10 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shepheard (US 20130084361 A1).
With respect to Claim 10, Shepheard teaches a vegan food that is packaged and shelf stable, [0016] and need not be cooked before consumption. [0050] Additionally, MPEP 2113.1 states, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself”. Shepheard teaches a process of preparing the vegan food comprising the steps of mixing a combination of vegan materials, including a binder, [0028] blending with water, [0030] forming into desired shapes and portions, [0031] and optionally cooking to a temperature of between 120-160°F, [0035] which is between 48.8-71.11°C, optionally by the method of sous vide. [0054] Therefore, Shepheard anticipates the invention recited in claim 10.
Claim Rejections - 35 USC § 103
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 1-9 and 17-25 are rejected under 35 U.S.C. 103 as being unpatentable over Shepheard (US 20130084361 A1).
With respect to Claims 1 and 25, Shepheard teaches a process of preparing a vegan food comprising the steps of mixing a combination of vegan materials, including a binder, [0028] blending with water until homogenous, [0030] forming into desired shapes and portions, [0031] and optionally cooking to a temperature of between 120-160°F, [0035] which is 48.89-71.11°C, optionally by the method of sous vide. [0054] Shepheard teaches that the binder used may be sodium alginate, which can be extracted from the cell walls of brown algae [0019] and, therefore, reads on a native binder.
The mixture taught by Shepheard reads on step (a) (ii), the blended product reads on the slurry recited in step (b), forming the product reads on step (d), but is silent to the limitation of step c, of adding water to the slurry of step b to a water content of 10-90%. Additionally, sous vide reads on the wet heating of step (e) in that sous vide is a technique of submerging a substance in heated water and would have been obvious to use as a possible technique presented in Shepheard.
The vegan compositions taught by Shepheard comprise 80-390 mL water, resulting in a total water content of at most about 95% [0028] to 1.2-8 mL water, resulting in a total water content of at least about 5%. [0037] Additionally, the compositions can be combined into a single composition. [0045] A range of water content comprising the ranges taught results in a water content of 5-95%, which overlaps with the range recited in claim 1. In addition to the wet heating taught through sous vide, as described above, the heating temperature taught by Shepheard overlaps with the range recited in step (e). According to 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”.
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 Shepheard to produce a vegan convenience food by a method comprising the steps of combining two or more vegan compatible raw materials, wherein at least one of the materials is a binder, comminuting the materials into a slurry, adding water to the slurry to make a composition with a water content between 10-90%, portioning the VCF, and wet heating the VCF, thereby rendering claims 1 and 25 obvious.
With respect to Claims 2 and 3, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, Shepheard teaches a process of creating a vegan convenience food that does not add a vegan raw material during the step of creating a paste and does not use an enzyme. [0028] Therefore, Shepheard renders claims 2 and 3 obvious.
With respect to Claims 4-9, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, Shepheard teaches the use of a fungi derivative in the form of nutritional yeast flakes, specifically Saccharomyces cerevisiae. [0018] It is well known in the field of endeavor that nutritional yeast flakes are grown from pure yeast cultures, then harvested, and dried, and that a single yeast cell is a whole microorganism. Therefore, the nutritional yeast flakes taught by Shepheard reads on the limitations of an industrially harvested, whole edible part of a dried microorganism and dried vegan compatible raw material. Therefore, Shepheard renders claims 4-9 obvious.
With respect to Claim 17, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, Shepheard teaches homogenizing in a blender. [0039] Therefore, Shepheard renders claim 17 obvious.
With respect to Claim 18, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, the vegan compositions taught by Shepheard comprise 80-390 mL water, resulting in a total water content of at most about 95% [0028] to 1.2-8 mL water, resulting in a total water content of at least about 5%. [0037] Additionally, the compositions can be combined into a single composition. [0045] A range of water content comprising the ranges taught results in a water content of 5-95%, which overlaps with the range recited in claim 18. According to 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”. 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 Shepheard to produce a vegan convenience food according to the method of claim 1, wherein the water content is between 20-70%, thereby rendering claim 18 obvious.
With respect to Claims 19 and 20, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, Shepheard teaches an embodiment of the invention comprising agar-agar powder, wherein the composition is cooked in hot water at about 200°F for about 2 minutes. [0042] 200°F falls within the ranges recited in claims 19 and 20.
2 minutes is not within the range recited in claims 19 and 20, but 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”. Shepheard teaches the general conditions of the method recited in claims 19-20, and the times of 3 minutes or more and 5 minutes to 2 hours amount to the results of routine optimization.
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 Shepheard to produce a vegan convenience food according to the method recited in claim 1, wherein the VCF is heated by putting in hot water at a temperature between 50-100 or 80-100°C for at least 3 minutes or between 5 minutes to 2 hours, respectively, thereby rendering claims 19 and 20 obvious.
With respect to Claim 21, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. In doing so, Shepheard reads on all the steps recited in claim 1 and teaches performing said steps in the order recited. Therefore, Shepheard renders claim 21 obvious.
With respect to Claim 22, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, Shepheard teaches the vegan composition can be heated to 120-160°F [0035] and 200-400°F, [0040] as well as teaching a variety of heating methods, such as sous vide. [0054] Sous vide is a wet heating method, and a range created between 120-400°F overlaps with the temperature of boiling water. Therefore, it would have been obvious to one of ordinary skill to boil the vegan composition, thereby rendering claim 22 obvious.
With respect to Claims 23 and 24, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Additionally, Shepheard does not teach the use of dry heat or extrusion in the process taught. Therefore, Shepheard render claims 23 and 24 obvious.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Shepheard (US 20130084361 A1) in view of Fellows, P.J. (Food Processing Technology – Principles and Practice (3rd Ed.), retrieved from knovel.com).
With respect to Claim 16, Shepheard teaches an invention that reads on the invention recited in claim 1, as described above. Shepheard is silent to milling the product to a particle size between 100-1000um.
Fellows P.J. teaches the properties and technology behind size reduction of food compositions well-known in the field of endeavor, [Pg. 291, Par. 1] and teaches that the organoleptic qualities and suitability of the food products. [Pg. 271, Par. 3] Specifically, Fellows teaches a variety of milling methods, their functions, and the preferred ingredients used. [Table 4.1] Additionally, Fellows teaches milling can be used to reduce the particle size of maize to between 5.8-0.17mm. [Table 4.4]
Shepheard and Fellows exist within the same field of endeavor in that they teach methods and processing of food products. Where Shepheard teaches a specific vegan food composition, Fellows teaches general information about the use of food processing technology, specifically size reduction equipment such as mills. Fellows also teaches that milling can be used to reduce the size of a vegan material to between 5800-170um.
The range of particle sizes taught by Fellows overlaps with the size recited in claim 16. According to 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”. Additionally, Fellows teaches that one of ordinary skill in the art would be motivated to use a mill in order to improve the organoleptic property of the material.
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 teachings of Shepheard in view of Fellows to produce a VCF through the method according to claim 1, wherein the composition is comminuted into a powder with a particles size between 100-1000um by dry milling or cryo-milling, thereby rendering claim 16 obvious.
Response to Arguments
Applicant's arguments filed July 1, 2026, have been fully considered but they are not persuasive.
Applicant asserts on Page 8, lines 23-27, that, “As described in the specification, after the portioning or 3D-printing of the paste into a VCF shape, said portioned paste is wet heated for solidifying said paste to generate the VCF, and hereby to induce and/or complete the cohesion of loosely assembled binder ingredients of vegan compatible raw materials and to solidify said paste to generate the VCF by steam or warm to hot water exposure”.
Applicant is directed to MPEP 2145 VI, which states, “Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims”. There is no recitation in the claim as to the cohesion of the binder ingredient, and therefore the state of the binder is not germane to the limitations of the claim. For this reason, applicant’s assertion is not persuasive.
Applicant asserts on Page 9, lines 10-13, that, “Shepheard discloses a vegan simulated egg yolk and a vegan simulated egg white that are prepared for later use in vegan whole egg composition such as vegan fried egg” and on lines 14-16, “the resulting spherified, vegan simulated egg yolk or unspherified, vegan simulated egg yolk, is then ready to be consumed, heated, refrigerated, frozen and/or packaged for consumer use, and may be subject to cooking and/or baking in recipes that require egg yolks or whole eggs”, and again on lines 17-19, “Furthermore, Shepheard discloses that the vegan simulated egg white composition of the invention is then placed in a heating/molding device under pressure, such as a tortilla press, for several minutes at 200-400° F”.
Applicant presents a number of embodiments taught in the prior art and asserts that these teach away from the invention recited. Applicant is directed to MPEP 2123 II, which states, “[t]he prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed”. Shepheard teaching a variety of alternatives to a method that teaches the limitations does not teach away from the one that reads on the instant claim simply by offering alternatives.
For this reason, applicant’s assertions are found to be unpersuasive.
Applicant asserts on Page 9, with respect to the dependent claims, “Claim 10 is therefore novel over Shepheard and claim 10 would not have been obvious in view of Shepheard. Claims 2-9, 15, and 17-20 depend from and incorporate the limitations of claim 1 and therefore would also would not have been obvious in view of Shepheard”, and one page 10, with respect to claim 16, “Fellows does not cure the deficiencies of Shepheard as described above. Claim 16 depends from and incorporates all the limitations of claim 1. Claim 16 would therefore not have been obvious over Shepheard in view of Fellows”.
Applicant has not overcome the rejection of claim 1, and therefore the assertions with respect to all the dependent claims are unpersuasive. For this reason, and those enumerated above, applicant’s assertions are found to be unpersuasive and the rejections of claims 1-10 and 16-25 are maintained.
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
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