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 § 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 14-16 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.
Claim 14 refers to “a polyhydroxy compound with a molecular weight of 500 g/mol or less”. Claim 14 depends from claim 1 which also refers to “a polyhydroxy compound with a molecular weight of 400 g/mol or less”. Here, it is not clear if the two cited polyhydroxy compounds are the same compound. For the purpose of examination, claim 14 is interpreted as referring to a polyhydroxy compound that may be the same polyhydroxy compound cited in claim 1. Claims 15 and 16 are included as they depend from claim 14.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 14 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 requires the structured emulsion to comprise 1-55wt% of a polyhydroxy compound having a molecular weight of 400 g/mol or less. Claim 14 depends from claim 1 and requires the structured emulsion comprise a polyhydroxy compound with a molecular weight of 500 g/mol or less. Claim 14 fails to incorporate all the limitations of claim 1, from which it depends, because the claim broadens the molecular weight from less than 400 g/mol to less than 500 g/mol. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-16, 18-23, 36 and 37 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/152689 (Ben-Shitrit) in view of WO 2014/043778 (Marangoni) (cited on IDS filed 04/03/2023) and further in view of US 5,106,644 OR WO 2020/260628 OR WO 91/18522 (El-Nokali).
Ben-Shitrit teaches a meat-analogue comprising a protein-based component and a fat-based component separately distributed within the meat analogue (abstract). Ben-Shitrit teaches that the fat-based component is used to imitate animal fat tissue and thus is designed and constructed to have the properties of an animal fat tissue, such as texture and liquid release characteristics under heating (page 10). The fat-based component comprises a lipophilic compound such as monoglycerides or triglycerides (page 11) and may be a gelled emulsion and may include a structurant network (page 12) and may also have a liquid crystalline mesophase system formed by scaffolds in the oil, which scaffolds have oil as the continuous phase and with liquid crystals space in the continuous phase (page 14). Ben-Shitrit does not expressly state that the scaffolds or structure of the crystalline mesophase system is an ordered lamellar network. Ben-Shitrit discloses that poly saccharides and sugars such as glucose, fructose and sucrose may be added but do not disclose the amounts thereof.
Marangoni teaches an oil in water emulsion useful as a fat substitute (abstract). Marangoni teaches that the product forms a structured solid-like emulsion material, which maintains the lamellar crystalline structure suitable for use in foods [0032] and that the oil in water emulsion is stabilized by multiple hydrated saturated monoglyceride-cosurfactant bilayers which upon cooling, crystallize, thereby transitioning to an alpha-gel state [0041]. Marangoni teaches that the emulsion is useful in foods and indicates that the emulsion is stabilized by the structure formed as discussed above. Further, the oil droplets are encapsulated and prevents oil leakage [0051-0052].
Marangoni discloses that the emulsion product comprises 45-55wt% oil, 4-6wt% non-ionic surfactant (emulsifier), 0.2-0.4wt% ionic surfactant (emulsifier), 5-7.5wt% wax and about 35-40wt% water [0029]. The combined amount of surfactant is 4.2-6.4wt%. Each of these ranges fall within the claimed ranges. The claim includes comprising language; thus, the presence of the wax is permissible. Moreover, the instant application discloses that wax may be present in the emulsion in amounts of 0.1-15wt% (page 21). Marangoni also discloses that additives that function to enhance one or more properties of the product may be present in the composition, and lists sugars such as glucose, fructose, sucrose, maltose, and dextrins and notes that sugar may be added in an amount of at least 5wt% of the total emulsion [0027] which overlaps the claimed range of 1-55wt%. These sugars are known to have molecular weights within the claimed range and are also the same sugars listed in instant claims 15 and 16. Note that these amounts are for the emulsion alone and not for a combination of the emulsion and a plant protein or other materials. This is consistent with the claim language “based on the weight of the structured emulsion” of claim 1.
It would have been obvious to use the fat substitute of Marangoni as the fat-based component of Ben-Shitrit with a reasonable expectation of successfully forming a meat analogue since Marangoni teaches a similar crystalline structure that is suitable for use in foods, is in a gel state, and encapsulates the oil to prevent loss during cooking which is desirable in Ben-Shitrit. In rebuttal to applicant’s position that there is a lack of motivation to use the fat substitute of Marangoni as the fat-based component of Ben-Shitrit, at least US 5,106,644 OR WO 2020/260628 OR WO 91/18522 demonstrate that it is known in the art that fat substitutes are used in a wide variety of foods including baked goods and meat analogues. US 5,106,644 explains that sources of fats in the diet are many and varied. Such foods include baked products, candies, icings and frostings, salad dressings, shortening, butter, sour cream, margarine, peanut butter and other nut spreads and processed meats and meat analogs. A significant portion of the fat in these products is provided in the form of a liquid oil a solid fat or a shortening (col. 1, paragraph bridging col. 5-col. 6). WO 2020/260628 discloses a fat emulsion that may be used in a wide variety of foods such as meat analogues as well as food products including baked goods and extended meat products as well as products made from soy beans (pages 24-26). Still further, WO 91/18522 discloses a fat substitute that may be used in baked goods and to replace fat in meat analogs and cheese substitutes. Thus, it is established that one of ordinary skill would reasonably consider the use of the fat substitute of Marangoni across various types of foods, including in meat analogues.
Regarding claim 2, in Example 2 of Ben-Shitrit contains 12.65% by weight of protein (pages 47-48).
Regarding claim 3, Example 2 of Ben-Shitrit includes 120 grams of water out of a total of 183 grams in the composition (Table 3A (50 grams), mixing with 100 grams water and 8g enzyme powder to form a gel-like protein and Table 3B (25 grams) which converts to approximately 65% water by weight.
Regarding claim 4, Example 1 of Ben-Shitrit gives an example of 12.14 wt% carbohydrate and Example 2 is 7.38wt% carbohydrate for meat-analogues.
Regarding claim 5, Ben-Shitrit gives examples of carbohydrates such as cellulose, dextrins, edible fibers (fruit based, plant based), and modified starches.
Regarding claim 6, Ben-Shitrit gives examples of proteins such as wheat, legume (pulses, beans, peas, lentils, nuts), plant seeds and grains (e.g. sunflower, canola, rice), stem or tuber protein (e.g. potato protein) (page 7).
Regarding claim 7, Ben-Shitrit teaches that the composition may include hydrocolloids as binding agents (page 28).
Regarding claims 8 and 9, the emulsion of Marangoni may comprise a non-ionic surfactant such as monoglycerides, which in this case is considered an emulsifier as since claim 9 expressly lists monoglyceride as an emulsifier [0024].
Regarding claims 10 and 11, the emulsion of Marangoni further includes an ionic surfactant such as stearic acid, sodium stearate (sodium salt of stearic acid), SSL and DATEM, which are also considered emulsifiers as they are identical to the materials listed in claim 11 [0025].
Regarding claims 12 and 13, as stated above, the emulsion of Marangoni includes both an ionic surfactant and non-ionic surfactant and expressly lists monoglycerides and SSL and stearic acid. Furthermore, example 1 of Marangoni uses monoglyceride and SSL.
Regarding claim 14, as stated above Marangoni discloses several sugars which have molecular weights known to be within the range claimed.
Regarding claim 15, Marangoni teaches the use of sugars and polysaccharides in the emulsion preparation [0027].
Regarding claim 16, Marangoni teaches that additives such as sucrose, maltose, glucose, fructose, and dextrins may be added [0027].
Regarding claim 18, the oil of the emulsion of Marangoni may be selected from coconut oil, soybean oil, canola oil, sunflower oil, safflower oil, corn oil, flaxseed oil, almond oil, peanut oil, pecan oil, cottonseed oil, algal oil, palm oil, palm stearin, palm olein, palm kernel oil and others [0022].
Regarding claim 19, the oil-in-water emulsion of Marangoni includes wax [0021, 0023].
Regarding claim 20, the meat-analogue of Ben-Shitrit may further include edible additives such as flavoring agents (aromatic oils), anti-oxidants, vitamins, preservatives and sweeteners (page 27).
Regarding claim 21, Ben-Shitrit teaches forming a meat-analogue using the above-mentioned materials.
Regarding claim 22, Ben-Shitrit teaches that the meat analogue may be a hamburger (Example 7).
Regarding claim 23, the meat analogue may be cooked (Examples 2-4, 7 and top of page 7).
Regarding claim 36, the claim depends from the method of claim 24 which recites blending a plant protein with an oil-in-water emulsion having an ordered lamellar gel network. Ben-Shitrit teaches the step of forming a protein component, a fat component (emulsion) and a water component. The ingredients are mixed together (using a Thermomixer as in several examples) which is considered blending.
Regarding claim 37, Marangoni discloses that the emulsion is useful in foods and indicates that the emulsion is stabilized by the structure formed. Further, the oil droplets are encapsulated and prevents oil leakage (0051-0052]. Thus, one of ordinary skill would reasonably expect the emulsion to be capable of reducing oil and/or water loss from a meat-analogue during cooking.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/152689 (Ben-Shitrit) in view of WO 2014/043778 (Marangoni) (cited on IDS filed 04/03/2023) as applied to claim 1 above and further in view of EP 0005290 (Howard).
Ben-Shitrit and Marangoni do not expressly teach the addition of amino acid to the emulsion.
Howard teaches an emulsion and meat products that contain the emulsion. Claim 9 of Howard is to a meat analogue that comprises texturized protein material, a binder, lipid and a food additive. Howard, discloses that the food additive is added as an oil-in-water emulsion and is thermally and gravitationally stable under cooking conditions (page 2). Howard states that the key to formation of a thermally and gravitationally stable emulsifier system to which both polar and non-polar food additives can be added is in the selection of an emulsifier system which, when hydrated, forms a stable, liquid crystalline state in the temperature region of 98-200F. The term “liquid crystalline” is synonymous with “mesomorphic state”, e.g., a lamellar phase. It is considered to be between a perfectly ordered structure of solid crystals (emulsifier) and a disordered state in an amorphous structure (page 4). Thus, the emulsion system is lamellar and ordered to at least some extent. Oils are dissolved or dispersed in the emulsifier (page 11) and non-polar soluble emulsifiers are those which exhibit an alpha phase crystalline structure (page 10).
Howard also teaches that the stable hydrated emulsifier system is particularly useful for the development of flavor from flavor precursors. Many food flavors are attributed to the reaction of amino acids, free fatty acids, and reducing sugars naturally occurring in the food (page 9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add amino acids to the emulsion in Ben-Shitrit as modified by Marangoni as suggested by Howard to provide flavor or flavor precursors to develop the desired flavor profile.
Response to Arguments
Applicant's arguments filed 02/19/2026 have been fully considered but they are not persuasive. Claim 1 was amended to include recite from 1-55 wt% of a polyhydroxy compound having a molecular weight of 400 g/mol or less. As discussed above, Marangoni discloses that the emulsion may include additives such as sugar in an amount of at least 5 wt%. Marangoni lists sugars such as glucose, fructose, sucrose, and maltose which are known to have molecular weights of less than 400 g/mol and are also the same materials listed by applicant.
Applicant argues that Ben-Shitrit discloses an emulsion comprising 20wt% water, 79wt% oil and 1wt% emulsifier. The combination made in the rejection substitutes the oil-in-water emulsion of Marangoni for the emulsion of Ben-Shitrit. As noted above, Marangoni discloses an emulsion product having wt% for the emulsifier (surfactant), oil and water that fall within the claimed ranges. Furthermore, Ben-Shitrit states that emulsions may vary in composition, preparation methods and properties, thus the amounts listed in Example 9 are understood to be merely exemplary and are not seen to limit the amount of oil in the emulsion to only 79wt%.
Applicant argues that the oil-in-water emulsion of Ben-Shitrit and Marangoni are for different purposes and one would not modify the meat-related product of Ben-Shitrit with the oil-in-water of Marangoni used for bakery products. Ben-Shitrit discloses that fat substitutes are known and (pages 11-12) and contain the same ingredients as that of the fat substitute of Marangoni, namely, oil, water and an emulsifier and may also include polysaccharides or sugars. While Marangoni discloses the fat substitute in the context of baked goods, the use of the fat substitute is not seen limited to only those materials as Ben-Shitrit discloses the use of fat substitutes in the context of meat analogs. Applicant likens the combination to relying on a recipe for cookies or cake to prepare a steak. However, the combination is seen to be more akin to expounding on the variety of uses of fats across foods. Based upon the similarity of ingredients in the fat substitutes between Ben-Shitrit and Marangoni, one of ordinary skill would find it obvious to use a known fat substitute that is used safely in food as the fat substitute in Ben-Shitrit. Moreover, there is no indication that the fat substitute of Marangoni would not be reasonably expected to perform the function of a fat substitute in the context of a meat analogue. Still further, US 5,106,644 explains that sources of fats in the diet are many and varied. Such foods include baked products, candies, icings and frostings, salad dressings, shortening, butter, sour cream, margarine, peanut butter and other nut spreads and processed meats and meat analogs. A significant portion of the fat in these products is provided in the form of a liquid oil a solid fat or a shortening (col. 1, paragraph bridging col. 5-col. 6). WO 2020/260628 discloses a fat emulsion that may be used in a wide variety of foods such as meat analogues as well as food products including baked goods and extended meat products as well as products made from soy beans (pages 24-26). Still further, WO 91/18522 discloses a fat substitute that may be used in baked goods and to replace fat in meat analogs and cheese substitutes. Thus, the level of ordinary skill in the art demonstrates that one of ordinary skill would reasonably consider the use of the fat substitute across various types of foods.
Applicant argues that the references fail to recognize or appreciate the unique benefits of the polyhydroxy compound and that the instant specification states the inclusion of the polyhydroxy compound promotes or enhances the formation and retention of a structured emulsion with particular structural or morphological features which give rise to heightened stability. Applicant also notes the enhanced stability of the alpha-gel phase up to temperatures which substantially exceed the Krafft temperature and sub-alpha gel phase over longer periods that with conventional structured emulsions. As noted above, Marangoni expressly discloses the inclusion of sugars, such as those listed by applicant in an overlapping amount. The particular effects are not claimed and one of ordinary skill would expect similar effects to occur based upon the use of similar materials.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/Primary Examiner, Art Unit 1793
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