DETAILED ACTION
Background
The amendment dated June 04, 2026 (amendment) amending claims 94, 99, 105, 100, 112 and 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 Claims 56-93 have been withdrawn from consideration as drawn to a non-elected invention.
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 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 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.
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 a heated in-barrel mixture, which at [0060] includes extrusion (“preparing an extrudate with an extruder configured to carry out low-moisture protein texturization extrusion” as in claim 95) separate from high moisture extrusion. Further, Coomes at [0070] discloses feeding the and through a perforation plate to form fiber strands which are fed into a downstream 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] 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 Redl 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 June 04, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 94-97, 99, 102, 104-105, 107 and 110-114 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the basis or denominator for the amount of oat material in claims 99, 112 and 114; in regard to the basis or denominator for the claimed solid fraction value in claim 99; and in regard to the basis or denominator for the claimed amount of moisture content in claim 110; and,
The rejections of claims 94-97, 99, 102, 104-105, 107 and 110-114 under 35 U.S.C. 103 as being unpatentable over US2017/0258109 A1 to Redl et al.
The positions taken in the remarks accompanying the amendment dated June 04, 2026 (Reply) have been fully considered but are not found persuasive for the following reasons:
Regarding the position taken in the Reply, the Office agrees with Applicants that claims recite an objective product structure, including an oat-containing textured vegetable protein product having expansion-related cavities, a defined solid fraction value and a defined microstructure. This structure has been considered. Further, the Office agrees that the treatment of product-by-process claims requires a reasonable basis in the record that the art possesses the claimed product structure.
Regarding the position taken in the Reply that the rejection must show that Coomes “teaches, suggests, or necessarily possesses” the claimed structure, the Office respectfully disagrees. The Office has no duty to find art that discloses the exact claimed structure of a product by process or art that necessarily possesses the claimed structure. Rather, the Office merely has to come up with a reasonable basis for finding that the disclosed textured vegetable protein product has the claimed structure. In this case, that evidence is that Coomes at [0059] discloses substantially the same process as claimed, namely of extrusion (disclosing “extrusion and/or high moisture extrusion” cooking) of a mixture containing oat material within the claimed moisture content range followed by (at [0070] of Coomes) compression in a cooling die. Further, at [0055] Coomes discloses extrusion at a moisture content of about 36 wt% to about 64 wt%. The Office considers a disclosure of “about 36 wt%” to include an amount of less than 35 wt%, whereby the disclosed about 36 wt% to 64 wt% of moisture disclosed in Coomes overlaps the claimed low-moisture protein texturization extrusion. 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 in Coomes would have found it obvious to make its textured vegetable protein product by low-moisture protein texturization extrusion because Coomes discloses at [0059] and [0055] that extrusion at the claimed moisture content provides a desirable textured vegetable protein product.
Regarding the position taken in the Reply that Coomes fails to disclose compression after extrusion, the Office respectfully disagrees. Contrary to the position taken in the Reply, a cursory look at Figs. 4 and 6 of Coomes shows that the cooling die (408) or compression apparatus lies downstream from perforation plate (406). Further, there is no screw or mixing element downstream of the perforation plate. Rather, the perforation plate in Coomes is the end of the extruder where fibers of the textured vegetable protein product are extruded; so, the cooling die lies downstream of extrusion. Also, it does not matter if the cooling die itself extrudes material because the method of Coomes discloses extrusion upstream of the cooling die and meets the claims.
In addition, the data in the instant specification are inadequate in scope to overcome the rejections. The endpoint of a comparative high moisture texturizing extrusion at about 36 wt% moisture coincides with the endpoint of the recited low moisture texturizing extrusion at below 35 wt%; and, as the two methods have the exact same endpoint they so would be expected to produce the very same thing. Moreover, the data in the instant specification fail to address the closest art of Coomes which is extrusion at “about 36 wt%” of moisture through a perforation plate and into a cooling die. Table 12 at pages 57-58 of the instant specification only compares an inventive method wherein the moisture content is from 20 to 27 wt% conventional low-moisture protein texturization extrusion (moisture at ~20-34 wt%) without any downstream compression. All of Experiments 1-10 in the instant specification use a moisture content of from 20 to 27 wt%. The Office would accept extrusion at 40 wt% followed by compression as a comparative example and, if the results were sufficient to justify a finding of unobviousness over Coomes would then be willing to grant claims wherein low moisture extrusion takes place at or about 20 to 27 wt% of moisture.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/ANDREW E MERRIAM/ Examiner, Art Unit 1791
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