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 .
The amendment filed August 28, 2025 is acknowledged. Claims 1-5, 10-11, 13, 18, 19, 24, 25, 27, 28, and 33-36 are pending in the application. Claims 6-9, 12, 14-17, 20-23, 26, and 29-32 have been cancelled. Claims 1-5, 10, 11, 13, 33, and 34 have been withdrawn from consideration (see below).
Election/Restrictions
Applicant's election with traverse of Group II, claims 18, 19, 24, 25, 27, 28, 35, and 36 in the reply filed on August 28, 2025 is acknowledged. The traversal is on the ground(s) that Giuseppin does not disclose meat substitutes comprising patatin and comprising the present types of lipid.
This is not found persuasive. The technical feature of meat substitutes comprising native patatin and the specifically claimed lipid does not make a contribution over the prior art. Giuseppin teaches the meat analogue comprises fatty ingredients, such as sunflower oil, and native patatin protein (paragraphs [0001], [0041], [0042], [0054], and [0056]; and P13, L4). Evidence is provided by Feedtables. Feedtables is merely used to show the fatty acid composition of sunflower oil. As disclosed in Feedtables, the fatty acid composition of sunflower oil contains 0.2% of C12 fatty acids and 0% of fatty acids less than C12 (P1, bottom). As demonstrated in Giuseppin as evidenced by Feedtables, the special feature of a meat substitute comprising patatin and a lipid wherein the fatty acids in said comprise less than 2% by mass of fatty acids having a chain length of C12 or less was known prior to the filing of the international application. Thus, Groups I and II lack unity of invention because the technical feature is not a special technical feature as it does not make a contribution over the prior art.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-5, 10, 11, 13, 33, and 34 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.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
The claim set filed August 28, 2025 is objected to because the claim amendments are not separate from the rest of Applicant’s reply. See P2, top and P6, bottom (Election/Restriction Requirement) of the claim set filed August 28, 2025. Applicant is reminded that the claim listing shall commence on a separate sheet of the amendment document and the sheet(s) that contain the text of any part of the claims shall not contain any other part of the amendment. See MPEP 714.
Claim 27 is objected to because of the following informalities: In line 1 of claim 27, it is suggested to remove the extra space after “to” and before “claim 25”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claims 19, 24, 25, 27, 28, 35, and 36 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.
Independent claim 19 recites “[a] meat substitute prepared from comprising water…” at line 1 (emphasis added). It is unclear what is intended by this language, and the metes and bounds of said language cannot readily be ascertained. Therefore, the scope of claim 19 is indefinite. For the purpose of the examination, the recitation of “[a] meat substitute prepared from comprising water” at line 1 of claim 19 (emphasis added) is interpreted as “[a] meat substitute comprising water”.
With respect to claim 24, it is noted that a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 24 recites the broad recitation “C12 or higher” at line 2, and the claim also recites “C14 or higher” at lines 2-3 which is the narrower statement of the range/limitation. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Additionally, the phrase "preferably" at line 2 renders the claim indefinite because it is unclear whether the claim language following the phrase is part of the claimed invention. See MPEP § 2173.05(d). For the purpose of the examination, the recitation of “C12 or higher, preferably C14 or higher” at lines 2-3 of claim 24 (emphasis added) is interpreted as “C12 or higher”.
Claims 25 and 27 are not specifically discussed but are rejected due to their dependence on claim 24
With respect to claim 28, it is noted that a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 28 recites the broad recitations of “one or more salts” at line 2, “one or more pigments” at line 4, “one or more fibers” at lines 6-7, “one or more texturizers” at line 11, and “one or more flavorings” at line 15, and the claim also recites “a salt selected from the group consisting of …” at lines 2-4, “a pigment selected from the group consisting of …” at lines 4-6, “a fiber selected from the group consisting of …” at lines 7-11, “a texturizer selected from the group consisting of ..” at lines 11-13, and “a sweetener selected from the group consisting of …” at lines 14-15 which are the narrower statements of the limitations. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Additionally, the phrase "such as" at lines 2, 4, 7, 11, and 15 renders the claim indefinite because it is unclear whether the limitation following the phrase is part of the claimed invention. See MPEP § 2173.05(d). Further, the recitation of “heme-like pigment” at line 5 also renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”) thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “one or more salts, such as a salt selected from the group consisting of sodium, potassium or calcium chloride, sodium or potassium glutamate and calcium sulfate, and/or one or more pigments, such as a pigment selected from the group consisting of heme-like pigment, red beet pigment, carotene, caramel, beet juice extract, tomato pigment, radish pigment, paprika pigment and amaranth, and/or one or more fibers, such as a fiber selected from the group consisting of potato fiber, sweet potato fiber, carrot fiber, psyllium fiber, bamboo fiber, soybean fiber, pea fiber, mungbean fiber, tapioca fiber, coconut fiber, banana fiber, cellulose, resistant starch, resistant dextrins, inulin, lignin, chitin, pectin, beta-glucan, and oligosaccharide, and/or one or more texturisers such as a texturizer selected from the group consisting of native starch, modified starch, cellulose derivatives, carrageenan, alginate, agar, konjac, xanthan, and pectin, and/or one or more flavor development aids selected from the group consisting of dextrose, ribose and maltodextrin, and/or one or more flavorings, such as a sweetener selected from the group consisting of sucrose, glucose, fructose, syrup, and artificial sweeteners” at lines 2-16 of claim 28 (emphasis added) is interpreted as “one or more salts, and/or one or more pigments, and/or one or more fibers, and/or one or more texturisers and/or one or more flavor development aids selected from the group consisting of dextrose, ribose and maltodextrin, and/or one or more flavorings”
Claim 35 recites “wheat protein/gluten” at line 2. It is unclear what is encompassed by this claim language. More specifically, it is unclear whether the recitation following the slash is part of the claimed invention. Therefore, the scope of claim 35 is indefinite. For the purpose of the examination, the recitation of “wheat protein/gluten” at line 2 of claim 35 is interpreted as “wheat protein, wheat gluten”.
With respect to claim 36, it is noted that a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 20 recites the broad recitation “texturized plant protein” at line 2, and the claim also recites “texturized soy protein, texturized potato protein or texturized gluten” at lines 2-3 which is the narrower statement of the range/limitation. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Additionally, the phrase "preferably" at line 2 renders the claim indefinite because it is unclear whether the claim language following the phrase is part of the claimed invention. See MPEP § 2173.05(d). For the purpose of the examination, the recitation of “texturized plant protein, preferably texturized soy protein, texturized potato protein or texturized gluten” at lines 2-3 of claim 36 (emphasis added) is interpreted as “texturized plant protein”.
Claim Rejections - 35 USC § 102
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.
Claims 19, 24, 25, 27, 28, 35 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Giuseppin et al. EP 1920662 (hereinafter “Giuseppin”).
With respect to claim 19, Giuseppin teaches a meat analogue (paragraph [0054]).
Regarding the claim language of a meat substitute comprising water, native patatin, a denatured protein and a lipid, which lipid is defined as a substance comprising fatty acid tri-esters of glycerol, and wherein the denatured protein is a denatured plant protein derived from a tuber, cereal, or nut, or a denatured plant protein selected from the group consisting of soy protein, faba bean protein, mungbean protein, mushroom protein, chickpea protein, and lentil protein in claim 19, Giuseppin teaches the meat analogue comprises fatty ingredients, such as sunflower oil, water, native patatin protein, and denatured potato protein (paragraphs [0001], [0039], [0041], [0042], [0045], [0051], [0054], and [0056]; and P13, L4).
Regarding the claim language of wherein the fatty acids in said lipid comprise less than 2% by mass of fatty acids having a chain length of C12 or less, and wherein, the fatty acids comprise less than 2% by mass of fatty acids having a chain length of C14 or less in claim 19, Giuseppin teaches sunflower oil is used (P13, L4). Evidence is provided by Feedtables. Feedtables is merely used to show the fatty acid composition of sunflower oil. As disclosed in Feedtables, the fatty acid composition of sunflower oil contains 0.2% of C14 fatty acids, 0.2% of C12 fatty acids, and 0% of fatty acids less than C12 (P1, bottom). Thus, Giuseppin as evidenced by Feedtables teaches the claim limitation. Applicant is reminded a 35 U.S.C. 102 rejection over multiple references has been held to be proper when the extra references are cited to: (A) Prove the primary reference contains an "enabled disclosure;" (B) Explain the meaning of a term used in the primary reference; or (C) Show that a characteristic not disclosed in the reference is inherent. See MPEP 2131.01.
With respect to claim 24, Giuseppin teaches the meat substitute as addressed above in claim 19.
Regarding the claim language of wherein at least 98% by mass of the fatty acids are fatty acids having a chain length of C12 or higher in claim 24, Giuseppin teaches sunflower oil is used (P13, L4). Evidence is provided by Feedtables. Feedtables is merely used to show the fatty acid composition of sunflower oil. As disclosed in Feedtables, the fatty acid composition of sunflower oil contains 0% of fatty acids less than C12 (P1, bottom-P2, top). Thus, Giuseppin as evidenced by Feedtables teaches the claim limitation. Applicant is reminded a 35 U.S.C. 102 rejection over multiple references has been held to be proper when the extra references are cited to: (A) Prove the primary reference contains an "enabled disclosure;" (B) Explain the meaning of a term used in the primary reference; or (C) Show that a characteristic not disclosed in the reference is inherent. See MPEP 2131.01
With respect to claim 25, Giuseppin teaches the meat substitute as addressed above in claim 24.
Regarding the claim language of wherein the lipid comprises one or more of the lipids in the group of listed lipids in claim 25, Giuseppin teaches this limitation since Giuseppin teaches sunflower oil is used (P13, L4).
With respect to claim 27, Giuseppin teaches the meat substitute as addressed above in claim 25.
Regarding the claim language of wherein the lipid comprises less than 18 mmol per kg lipid of free fatty acids, and/or wherein the total of diacylglycerols and monoacylglycerols, relative to the total lipid, is less than 10 wt.% in claim 27, it is noted that this recitation relates to characteristics of the lipid. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04.
Absent any clear and convincing evidence to the contrary, the lipid would naturally display these claimed features since the lipid of Giuseppin is identical to the lipid used in the present invention as addressed above in claims 19, 24, and 25. Additionally, these features are not considered to confer patentability to the claim.
With respect to claim 28, Giuseppin teaches the meat substitute as addressed above in claim 27.
Regarding the claim language of further comprising one or more salts, and/or one or more pigments, and/or one or more fibers, and/or one or more texturisers and/or one or more flavor development aids selected from the group consisting of dextrose, ribose and maltodextrin, and/or one or more flavorings in claim 28, Giuseppin teaches this limitation since Giuseppin teaches the food may also include sugar (paragraphs [0051] and [0056]).
With respect to claim 35, Giuseppin teaches the meat substitute as addressed above in claim 19.
Regarding the claim language of wherein the denatured plant protein is potato protein, sweet potato protein, wheat protein, wheat gluten, oat protein, spelt protein, sesame seed protein, hemp seed protein or soy protein in claim 35, Giuseppin teaches this limitation since Giuseppin teaches using denatured potato protein (paragraphs [0054] and [0056]).
Claim Rejections - 35 USC § 102/103
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.
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.
Claim 18 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Giuseppin et al. EP 1920662 (hereinafter “Giuseppin”).
With respect to claim 18 and regarding the recitation of a meat substitute obtainable by the method of claim 1, it is noted that this recitation relates to a product that also includes claim language pertaining to the method of claim 1. The method does not impart distinctive structural characteristics to the meat substitute product of claim 18. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.”, (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product (In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113).
Additionally, "[t]he lack of physical description in a product-by-process claim makes determination of the patentability of the claim more difficult, since in spite of the fact that the claim may recite only process limitations, it is the patentability of the product claimed and not of the recited process steps which must be established. We are therefore of the opinion that when the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or section 103 of the statute is eminently fair and acceptable. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith." In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972).
Regarding the claim language of a mixture comprising water, a denatured protein, native patatin and a lipid, which lipid is defined as a substance comprising fatty acid tri-esters of glycerol; and wherein the fatty acids in said lipid comprise less than 2 % by mass of fatty acids having a chain length of C12 or less, and wherein the denatured protein is a denatured plant protein derived from a tuber, cereal or nut, or a denatured plant protein selected from the group consisting of soy protein, faba bean protein, mungbean protein, mushroom protein, chick pea protein and lentil protein in claim 1, Giuseppin teaches a meat analogue comprising fatty ingredients, such as sunflower oil, water, native patatin protein, and denatured potato protein (paragraphs [0001], [0039], [0041], [0042], [0045], [0051], [0054], and [0056]; and P13, L4). Evidence is provided by Feedtables. Feedtables is merely used to show the fatty acid composition of sunflower oil. As disclosed in Feedtables, the fatty acid composition of sunflower oil contains 0.2% of C12 fatty acids and 0% of fatty acids less than C12 (P1, bottom). Thus, Giuseppin as evidenced by Feedtables teaches the claim limitation.
Therefore, since the meat substitute in claim 18 is the same as the meat analogue in Giuseppin, as set forth above, claim 18 is unpatentable even if the meat analogue in Giuseppin was made by a different process. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983).
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.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Giuseppin et al. EP 1920662 (hereinafter “Giuseppin”) as applied to claim 19 above, and further in view of Ben-Gera et al. GB 1495194 (hereinafter “Ben-Gera”).
With respect to claim 36, Giuseppin teaches the meat substitute as addressed above in claim 19.
Regarding the claim language of wherein the denatured plant protein is a texturized plant protein in claim 36, Giuseppin does not expressly disclose the denatured potato protein is a texturized protein.
Ben-Gera teaches texturized vegetable protein products. The texturized vegetable protein material is from potato protein, and the texturized vegetable protein may be used in various food products (P1, L13-15, 30-34, and 38-42; and P2, L38-44).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Ben-Gera, to select texturized potato protein in Giuseppin based in its suitability for its intended purpose with the expectation of successfully obtaining an organoleptically desirable food product. One of ordinary skill in the art would have been motivated to do so because Ben-Gera and Giuseppin similarly teach denatured potato proteins in foodstuff, Ben-Gera teaches the texturized protein provides pleasant mouthfeel to the food (P1, L20-22), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793