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 .
Election/Restrictions
Applicant’s election of claims 1-10 and 16-20 in the reply filed on October 14, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 11-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claims 1 and 16 are objected to because of the following informalities: “1’000 µm” in lines 17 and 3 respectively should read “1,000 µm”, wherein the apostrophe is replaced with a comma. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: “into a powder with a particle size between 100 and 1’000 µm by dry milling or cryomilling” on lines 3-4 should read “into a powder with a particle size between 100 and 1’000 µm is effected by dry milling or cryomilling”. Appropriate correction is required.
Claim 17 is objected to because of the following informalities: “into a slurry by bowl cutting or homogenization” on line 3 should read “into a slurry is effected by bowl cutting or homogenization”. Appropriate correction is required.
Claim 18 is objected to because of the following informalities: “step b) to make a paste with a water content between 20 and 70 %” on line 2 should read “step b) is effected by making a paste with a water content between 20 and 70 %”. 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] 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, 15, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Shepheard (US 20130084361 A1).
With respect to Claim 1, 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] optionally by the method of sous vide. [0054]
The mixture taught by Shepheard reads on step (a) (iv), the blended product reads on the slurry recited in step (b), forming the product reads on step (d), and sous vide reads on step (e), but does not read on the limitation of step c, of adding water to the slurry of step b to a water content of 10-90%.
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. 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 claim 1 obvious.
With respect to Claim 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 Claim 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.
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.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791