DETAILED ACTION
Background
The amendment dated October 21, 2025 (amendment) amending claims 94 and 105 and adding claims 111-114 has been entered. Claims 94-97, 99, 102, 104-105, 107 and 110-114 as filed with the amendment have been examined. Claims 1-55, 98, 100, 101, 103, 106, 108 and 109 have been canceled. Claims 56-93 have been withdrawn from consideration as drawn to a non-elected invention. In view of the amendment, all outstanding claim objections have been withdrawn.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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 October 21, 2025 has been entered.
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 94-97, 99, 102, 104-105, 107 and 110-114 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 claim 94, the recited amount of oat material in % by weight is indefinite because there is no basis or denominator for the claimed amount. Is the amount of oat material based of the total weight of the textured vegetable protein product, or the dry materials or solids in the product, or some other weight measure?
The Office interprets the amount of oat material as being a % by weight, based on the total weight of the recited textured vegetable protein product.
In claim 99, the recited solid fraction value in % is indefinite because there is no basis or denominator for the claimed % and there is no unit to determine the percentage. Is the amount of the solid fraction based on the entire textured vegetable protein product or just a region of the product? In addition, is the solid fraction based on units of the total volume or a surface area of the total product or just a unit region?
The Office interprets the claim as meaning a solid fraction value as a % of the surface area of a unit region of the recited total product.
In claim 110, the recited amount of moisture content in % by weight is indefinite because there is no basis or denominator for the claimed amount. Is the amount of moisture based of the total weight of the textured vegetable protein product, or the dry materials or solids in the product, or some other weight measure?
The Office interprets the claim as meaning a moisture content %, based on the total weight of the textured vegetable protein product.
In claim 112, the recited amount of oat material in % by weight is indefinite because there is no basis or denominator for the claimed amount. Is the amount of oat material based of the total weight of the textured vegetable protein product, or the dry materials or solids in the product, or some other weight measure?
The Office interprets the amount of oat material as being a % by weight, based on the total weight of the recited textured vegetable protein product.
In claim 114, the recited amount of oat material in % by weight is indefinite because there is no basis or denominator for the claimed amount. Is the amount of oat material based of the total weight of the textured vegetable protein product, or the dry materials or solids in the product, or some other weight measure?
The Office interprets the amount of oat material as being a % by weight, based on the total weight of the recited textured vegetable protein product.
Claims 95-97, 102, 104-105, 107, 111 and 113 are rejected as being dependent upon a rejected base claim.
Claim Rejections - 35 USC § 103
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 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 94-97, 99, 102, 104-105, 107 and 110-114 are rejected under 35 U.S.C. 103 as being unpatentable over US2017/0258109 A1 to Redl et al. (Redl).
Unless otherwise stated, all percents (%) disclosed without units are interpreted as weight %s (wt%); and wt% is interpreted as interchangeable with mass%.
The Office considers the claimed low-moisture protein texturization extrusion to include any extrusion of a material at a moisture content of less than 35 wt%, as defined at p.31, ll. 28-30 of the instant specification. Further, the Office considers any reference to “expansion-related cavities” or “unit regions” as including any one or more of such cavities or regions. Still further, unless otherwise indicated, the Office interprets the recited product as including any and all of a fiber, fiber-bunch, a piece of a product containing fibers or an entire finished product.
The Office interprets the amount of oat material as being a % by weight, based on the total weight of the recited textured vegetable protein product.
The Office interprets the claimed solid fraction value as a % of the surface area of a unit region of the recited product.
The Office interprets the claimed moisture content as a % moisture by weight, based on the total weight of the textured vegetable protein product
Further, the Office interprets the term “reduced porosity” in instant claim 99 to refer to a product having a solid fraction value of no less than 70%, based on the total weight of the textured vegetable protein product.
Regarding instant claims 94, 105 and 110, Redl at abstract discloses a proteinaceous meat analogue (“textured vegetable protein product”) which (at [0030]) has a fibrillar structure (a “proteinaceous fibre structure” in claims 94 and 105) and irregular forms close to natural meat steaks. Further, at [0025] Redl discloses products having a water content of from 7 to 25 wt%, within which range the moisture content of 7% to 11% by weight (wt%), based on the weight of the product in claim 110 lies. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. It would have been obvious for Redl to make a textured vegetable protein product having the claimed moisture content as Redl discloses the claimed moisture content % as desirable in a textured vegetable protein product.
Further, and regarding instant claims 111-114, Redl at [0035] discloses a textured vegetable protein product comprising vegetable proteins as powders comprising more than 50 wt% vital wheat gluten and another vegetable protein from oats (“oat material”) in the form of a flour (“oat flour” in claims 111 and 113), or up to 50 wt% of oat flour, which the claimed range of at least 35 wt% in claims 94 and 105 overlaps and which the claimed range of 35 to 60 wt% in claims 112 and 114 overlaps. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Rel to make a textured vegetable protein product having oat flour in the claimed amount of oat material because Redl discloses that the claimed oat flour amount in the claimed amount as an oat material makes a desirable textured vegetable protein product.
Further still, and regarding instant claim 95, at [0010]-[0012] Redl discloses methods of making its textured vegetable protein products by mixing the materials using (at [0015]-[0016]) an extruder which is (at [0014]) configured to carry out low-moisture protein texturization extrusion, then shaping the dough (at [0012], [0023] and [0030]) by sheeting and/or molding (“compressing or compacting”) to form a compressed or compacted extrudate and create strands (“compressing the extrudate in a manner leaving the proteinaceous fibres of the extrudate intact”).
Further, and regarding all of claims 94-95, 97, 99, 102 and 104, such claims are product by-process claims that contain “by-process” limitations. The patentability of a product does not depend on its method of production. See MPEP 2113.I. Further, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the applicant to show an nonobvious difference over the art. See MPEP 2113.II. In the instant case, the product of [0010]-[0012], [0030 and [0035] of Redl containing an oat material appears to be identical to the claimed textured vegetable protein product. Accordingly, the Office considers the claimed extrudate “manufactured with low-moisture protein texturization extrusion” as in claim 94, 97, 99, 102 and 104 to include the product of [0010]-[0012], [0030 and [0035] of Redl containing an oat material; the Office considers the claimed product “having or comprising a proteinaceous fiber structure with expansion-related cavities between the proteinaceous fibers” as in claims 94-95, 97, 99, 102 and 104 to include the product of [0010]-[0012], [0030 and [0035] of Redl containing an oat material; and, further, the Office considers the claimed product by-process of compressing or compacting carried out ”c) while the extrudate is still at an elevated temperature and has an elevated humidity after the extrusion or d) within 60s from the extrudate exiting the extruder die” as in claim 95 to include the product made by the compressing disclosed at [0012] and [0035] of Redl.
Still further, and regarding instant claim 96 and further regarding instant claim 105, the Office considers the oat material containing textured vegetable protein product of [0010]-[0012], [0030 and [0035] of Redl containing an oat material to be substantially the same thing as the claimed product. Accordingly, absent a clear showing as to how the structure of textured vegetable protein product of Redl differs from that as claimed, the Office considers the product of [0010]-[0012], [0030 and [0035] of Redl containing an oat material to comprise a product having all of: Between 22% and 96% of the expansion-related cavities that have after the irreversible size reduction in the expansion-related cavities a cross-sectional area in the thickness and length direction of less than 0.03 mm2 as in claim 94; expansion-related cavities with a width-to-length ratio smaller than 22% of the length of the cavity as in claim 96; expansion-related cavities of a width less than 0.5 mm as in claim 97; a reduced porosity when analyzed using X-ray microtomography and having one or more unit regions has a solid fraction value of no less than 70% as in claim 99; an uneven, non-homogeneous structure as in claim 102; and, a fibrous protein structure which during initial biting and cracking in a mouth (stage 1) has a crunchy chewy mouthfeel offering bite-resistance, and that during continued chewing and mixing with saliva (stage 2) changes to a mouthfeel of muscle-like fibers or fiber-bunches as in claim 105 to include the textured vegetable protein product of [0010]-[0012], [0030 and [0035] of Redl containing an oat material. See MPEP 2112.01.I.
Still further regarding instant claim 104, the Office considers the claimed textured vegetable protein product that has been post-extrusion treated by i) bundling the proteinaceous fibers together and/or ii) laminating the proteinaceous fibers between each other to include the product disclosed at [0010]-[0012], [0030 and [0035] of Redl containing an oat material.
Regarding instant claim 107, Redl at Example 5 and [0069] discloses sheeting to form a product with the sheeter set with a thickness of between 1 and 3 mm, which the claimed range of between 0.5 and 2.0 mm overlaps. See MPEP 2144.05.I. The ordinary skilled artisan in Redl would have found it obvious to have formed a fibrous protein structure and a product thickness of or any height between 0.5 to 2.0 mm as in Redl as desired to provide any acceptable product shape. Further, a claimed product is not patentably distinct from the product of Example 5 of Redl containing an oat material where the claims merely recite relative dimensions of a product that would not perform differently than the prior art product. See MPEP 2144.04.IV.A.
Claims 94-97, 99, 102, 104-105, 107 and 110-114 are rejected under 35 U.S.C. 103 as being unpatentable over WO2021/046375 A1 to Coomes et al. (Coomes), as evidenced by US2020/0323238 A1 to Pibarot et al. (Pibarot).
Unless otherwise stated, all percents (%) disclosed without units are interpreted as weight %s (wt%); and wt% is interpreted as interchangeable with mass%.
The Office considers the claimed low-moisture protein texturization extrusion to include any extrusion of a material at a moisture content of less than 35 wt%, as defined at p.31, ll. 28-30 of the instant specification. Further, the Office considers any reference to “expansion-related cavities” or “unit regions” as including any one or more of such cavities or regions. Still further, unless otherwise indicated, the Office interprets the recited product as including any and all of a fiber, fiber-bunch, a piece of the product or an entire finished product.
The Office interprets the amount of oat material as being a % by weight, based on the total weight of the recited textured vegetable protein product.
The Office interprets the claimed solid fraction value as a % of the area of a unit region of the recited product.
The Office interprets the claimed moisture content as a % moisture by weight, based on the total weight of the textured vegetable protein product
Further, the Office interprets the term “reduced porosity” in instant claim 99 to refer to a product having a solid fraction value of no less than 70%, based on the total weight of the textured vegetable protein product.
Regarding instant claims 94-95, 97, 99, 102 and 104, Coomes at [0006] discloses a texturized plant protein product (“textured vegetable protein product”) having a proteinaceous fiber structure comprising (at [0008]) oats (“oat material”) as a plant protein source. Further, at [0069] Coomes discloses extruding the materials using an extruder (at [0046]-[0048]) configured to admit ingredients in a desired amount and cook them to form an heated in-barrel mixture, which at Table 1 on page 10 comprises 1-25 wt% of a water medium (“preparing an extrudate with an extruder configured to carry out low-moisture protein texturization extrusion” as in claim 95). Further, Coomes at [0070] discloses feeding the and through a perforation plate to form fiber strands which are fed into a compressive receptor slit (602, FIG. 6) (“compressing or compacting”) to form a compressed or compacted extrudate and create strands (“compressing the extrudate in a manner leaving the proteinaceous fibres of the extrudate intact”).
Further, and regarding instant claims 105, 112 and 114, Coomes does not disclose a specific example of a textured vegetable protein product comprising an oat material in an amount of at least 35 weight % (wt%), based on the total weight of the textured vegetable protein product as in claims 94 and 105; and, further, does not disclose a textured vegetable protein product comprising from 35 to 60 wt%, based on the total weight of the textured vegetable protein product as in claim 112 and 114. However, Coomes at Table 1 on page 10 discloses a textured vegetable protein product having from 30 to 95 wt% of a protein source, which the claimed at least 35 wt% in claims 94 and 105 overlaps and within which lies the claimed 35 to 60 wt% in claims 112 and 114. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Coomes to make a textured vegetable protein product having the claimed amount of oat material because Coomes discloses at Table 1 that the claimed amount of oat material makes a desirable textured vegetable protein product.
Further, all of claims 94-95, 97, 99, 102 and 104 are product by-process claims that contain “by-process” limitations. The patentability of a product does not depend on its method of production. See MPEP 2113.I. Further, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the applicant to show an nonobvious difference over the art. See MPEP 2113.II. In the instant case, the product of [0069]-[0070] of Coomes containing an oat material appears to be identical to the claimed textured vegetable protein product. Accordingly, the Office considers the claimed extrudate “manufactured with low-moisture protein texturization extrusion” as in claim 94, 97, 99, 102 and 104 to include the product disclosed in [0069]-[0070] and Table 1 of Coomes containing an oat material; the Office considers the claimed product “having or comprising a proteinaceous fiber structure with expansion-related cavities between the proteinaceous fibers” as in claims 94-95, 97, 99, 102 and 104 to include the product of [0069]-[0070] of Coomes containing an oat material; further, the Office considers the claimed product made by “compressing or compacting the extrudate in a manner leaving the proteinaceous fibers of the extrudate substantially intact” as in claims 94-95 as including the product of [0069]-[0070] of Coomes containing an oat material; still further, the Office considers the claimed product by-process of compressing or compacting carried out ”c) while the extrudate is still at an elevated temperature and has an elevated humidity after the extrusion or d) within 60s from the extrudate exiting the extruder die” as in claim 95 to include the product made by the compressing (“reducing the size of the expansion-related cavities”) disclosed at [0070] of Coomes.
Still further, and regarding instant claim 96 and further regarding instant claim 105, the Office considers the oat material containing textured vegetable protein product of [0069]-[0070] of Coomes to be substantially the same thing as the claimed product. Accordingly, absent a clear showing as to how the structure of textured vegetable protein product of Coomes differs from that as claimed, the Office considers the product of [0069]-[0070] of Coomes containing an oat material to comprise a product having all of: Between 22% and 96% of the expansion-related cavities that have after the irreversible size reduction in the expansion-related cavities a cross-sectional area in the thickness and length direction of less than 0.03 mm2 as in claim 94; expansion-related cavities with a width-to-length ratio smaller than 22% of the length of the cavity as in claim 96; having expansion-related cavities of a width less than 0.5 mm as in claim 97; a reduced porosity when analyzed using X-ray microtomography and having one or more unit regions has a solid fraction value of no less than 70% as in claim 99; an uneven, non-homogeneous structure as in claim 102; and a fibrous protein structure which during initial biting and cracking in a mouth (stage 1) has a crunchy chewy mouthfeel offering bite-resistance, and during continued chewing and [upon] mixing with saliva (stage 2) changes to a mouthfeel of muscle-like fibers or fiber-bunches as in claim 105 to include the textured vegetable protein product disclosed in[0069]-[0070] of Coomes containing an oat material. See MPEP 2112.01.I.
Still further regarding instant claim 104, the Office considers the claimed textured vegetable protein product that has been post-extrusion treated by i) bundling the proteinaceous fibers together and/or ii) laminating the proteinaceous fibers between each other to include the product disclosed at [0070] of Coomes.
Regarding instant claim 107, Coomes at [0072] discloses the receptor slit (602, FIG. 6) with a height of 4 mm and then discloses partitioning the slit into openings having smaller heights as desired. The ordinary skilled artisan in Coomes would have found it obvious to have formed a fibrous protein structure and a product thickness of between 0.5 and 2.0 mm or any height smaller than 4 mm as in Coomes as desired to provide any acceptable product shape. Further, a claimed product is not patentably distinct from the product of [0069]-[0070] of Coomes containing an oat material where the claims merely recite relative dimensions of a product that would not perform differently than the prior art product. See MPEP 2144.04.IV.A.
Regarding instant claim 110, at [0032] Coomes discloses a textured vegetable protein product having a moisture content of up to about 25 wt%, within which range the moisture content of 7% to 11% by weight (wt%), based on the weight of the product lies. See MPEP 2144.05.I. And at [0037], Coomes discloses a freeze dried product. Pibarot at [0044] discloses that a dry meat analogue food has a moisture content of less than 10 wt%. It would have been obvious for Coomes to make a dried product having the claimed moisture content because Coomes discloses dry products as desirable and Pibarot provides evidence that such dry textured vegetable protein products have the claimed moisture content.
Regarding instant claims 111 and 113, Coomes at [0007] discloses flours from plants including (at [0008]) oats. The ordinary skilled artisan in Coomes would have found it obvious to make its textured vegetable protein product with oat flour because Coomes discloses oat flour as a desirable protein source for making the textured vegetable protein product.
Response to Arguments
The positions taken with respect to the art of Beery and den Dulk have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In view of the amendment dated October 21, 2025 to the claims, the following rejections have been withdrawn as moot:
The rejections of 94-97, 99, 102, 104-105, 107 and 110 under 35 U.S.C. 103 as being unpatentable over US 4888198 to Beery et al. (Beery); and,
The rejections of claims 94-97, 99, 102, 104-105 and 107 under 35 U.S.C. 103 as being unpatentable over US 2015/0289542 A1 to den Dulk (den Dulk).
The positions taken in the remarks accompanying the amendment dated October 21, 2025 (Reply) but are moot in view of the new grounds of rejection.
The Office finds that den Dulk does not disclose low-moisture protein texturization extrusion or any product having a moisture content of from 7 to 11 weight%, based on the total weight of the product. Further, the Office finds that Beery does not disclose or suggest using or including an oat material in its product. However, the Office has not determined whether den Dulk or Beery provide a textured vegetable protein product having the claimed structure.
Conclusion
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.
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/ANDREW E MERRIAM/ Examiner, Art Unit 1791