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.
Claim 6 is 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 1 requires a second off-note blocking compound selected from a group that includes ethyl cyclohexanoate. However, claim 6 then lists ethyl cyclohexanoate as one or more masking agents. Claim 1 also requires a ratio of the off-note blocking compounds to masking agents. If the off-note blocking compound and the masking agent are the same compound, a ratio cannot be calculated, thus rendering the claim indefinite.
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.
Claim(s) 1-9, 16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over KR 20180000239 (Lee).
Lee discloses a beverage comprising green coffee extract and hyaluronic acid. A small amount of grapefruit seed extract (considered a juice derivative) may also be added (see example 1) as well as sweeteners such as saccharides (masking agents). The amounts of the combination of green coffee extract with hyaluronic acid compared to the amounts of sweetener and/or juice extract is seen to obviate the broad ratio claimed. One of ordinary skill would have found it obvious to modify the amounts of each ingredient to adjust the taste of the final beverage product. Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Adjusting the amounts of flavoring and ingredients is seen to be obvious optimization depending upon the desired taste of the final product.
Regarding claims 2-9, these selections are not positively required by the claims.
Claim(s) 1-9, 16, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017/037181 (Chakraborty) in view of WO 02/100192 (Chien).
Regarding claims 1 and 11, Chakraborty discloses a protein composition comprising a non-animal protein, a protein binder including a mixture of at least one terpene and at least one carbonyl (masking agents), one or more off-note blocking compounds, and a flavorant. The protein binder and off-note blocking compounds are present in concentrations sufficient to provide improved flavor release in the protein beverage compared to the same beverage without both the protein binder and off-note blocking compounds. Non-animal protein includes soy and the foodstuff includes meat analogues. An off-note blocking compound is selected based on its ability to block, mask or modify the undesirable off-note(s) in a particular non-animal derived protein. For example, in soy products, the off- note blocker may be added to suppress the bitterness and beany off- notes associated with peptides, isoflavones such as genistein and daidzein present in said products. In HVP (hydrolysed vegetable protein) products, the off-note blocker may be added to suppress the bitterness associated with bitter peptides present in said products. In some embodiments, the flavor system includes at least five off-note blocking compounds; in another embodiment at least ten off-note blocking compounds; in another embodiment at least fifteen off- note blocking compounds; in another embodiment at least twenty off-note blocking compounds; in another embodiment at least twenty- five off-note blocking compounds; and in yet another embodiment at least thirty off-note blocking compounds. By "flavorant" it is meant a composition created by a flavorist using methods known to the skilled person that is a mixture of tastants, aroma compounds and sensates. Examples of suitable flavorants include natural flavors, artificial flavors, spices, seasonings, and the like. Exemplary flavorants include synthetic flavor oils and flavoring aromatics and/or oils, oleoresins, essences, and distillates, and a combination comprising at least one of the foregoing. Suitable off-note blocking compounds include sugar distillates.
Chakraborty does not disclose the presence of green coffee extract that may be present in combination with the pea peptides. Chien discloses chlorogenic acid can be used as a taste modifier for adjusting taste of a consumable in a variety of ways. The off-taste may be imparted by a non-nutritive sweetener, artificial sweetener, alcohol, soy products, or carbonation. Besides modifying an off-taste, chlorogenic acid may also mask an off-taste by reducing its perception and/or enhance an overall sweetness perception. Green coffee beans are a good source of chlorogenic acid, thus chlorogenic acid is considered a green coffee extract. Chien discloses that chlorogenic acid is useful in a wide variety of consumables for modifying taste, including vegetable products. Chakraborty discloses the flavoring/protein binders are used specifically for non-animal derived proteins. Since Chien discloses the usefulness of chlorogenic acid for taste modification of a wide variety of consumables, it would have been obvious to use chlorogenic acid in the products of Chakraborty with a reasonable expectation of modifying the taste of the consumables. The amounts of chlorogenic acid added may vary depending upon the consumable and the degree of taste modification desired. Adjusting the amounts of flavoring and ingredients is seen to be obvious optimization depending upon the desired taste of the final product. Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Claim(s) 1-9, 11-12, 16 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2018/185318 (Zhang) in view of WO 02/100192 (Chien).
Zhang discloses a flavor modifier composition for a meat analog comprising a non-animal protein such as soy (page 18). The flavor modifier composition includes a yeast extract; a fatty acid; peptide material; and two free amino acids. The peptide material is part of a flavor composition and may be derived from rice or peas (page 4). Zhang discloses that the flavor modifier compositions may, optionally, include additional ingredients which include, but are not limited to, flavorants, stabilizers, emulsifiers, preservatives, gums, starches, dextrins, vitamins and minerals, functional ingredients, organic acids such as succinic acid and lactic acid, umami compounds, ribotides, vegetable oil, salts, antioxidants and sweeteners (luo han guo, rubusoside, stevioside, glycosylated stevia extract, rebauadiosides (A, C, D, M, X). Zhang describes that by "flavorant" it is meant a composition created by a flavorist using methods known to the skilled person that is a mixture of tastants, aroma compounds and sensates. Examples of suitable flavorants include natural flavors, artificial flavors, spices, seasonings, and the like. Exemplary flavorants include synthetic or natural flavor oils and flavoring aromatics and/or oils, oleoresins, essences, and distillates, and a combination comprising at least one of the foregoing (page 5).
Zhang does not disclose the presence of green coffee extract in combination with the rice or pea peptides as part of a flavorant for the meat analog product. Chien discloses chlorogenic acid can be used as a taste modifier for adjusting taste of a consumable in a variety of ways. The off-taste may be imparted by a non-nutritive sweetener, artificial sweetener, alcohol, soy products, or carbonation. For soy products, the taste has been described as beany (page 3). Besides modifying an off-taste, chlorogenic acid may also mask an off-taste by reducing its perception and/or enhance an overall sweetness perception. Green coffee beans are a good source of chlorogenic acid, thus chlorogenic acid is considered a green coffee extract. Chien discloses that chlorogenic acid is useful in a wide variety of consumables for modifying taste, including vegetable products. Zhang discloses products made from leguminous plants, such as soy or pea, display a flavor profile described as grassy, beany, green, earthy, nutty and/or bitter (page 1). Since Chien discloses the usefulness of chlorogenic acid for taste modification of a wide variety of consumables, including soy which is used in Zhang, it would have been obvious to use chlorogenic acid in the products of Zhang with a reasonable expectation of modifying the taste of the consumable. The amounts of chlorogenic acid added may vary depending upon the consumable and the degree of taste modification desired and the suggested amount is 0.0001-0.01%w/v.
Regarding claims the off-note blocking compounds and claims 2- 9, Zhang further discloses that a protein binder and one or more off-note blocking compounds (considered to be the claimed masking agents) may be added. The protein binder may include a mixture of a terpene such as farnesol and a carbonyl such as acetone. The off-note blocking compounds include fatty acids such as oleic acid, sweeteners such as steviol glycoside, sulfur compounds such as dimethyl sulfide, lactones such as gamma decalactone, esters such as ethyl caprate, and sweet browns such as maltol (pages 20-22). Zhang discloses that the off-note blocking compounds may be present in an amount of 0.1-1wt% and may include a plurality of off-note blocking compounds such as 30 or more compounds (page 22). It would have been obvious to provide multiple off-note blocking compounds as indicated by Zhang to impart the desired taste to the final product and to adjust the relative amounts of each ingredient to achieve the desired taste. Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Adjusting the amounts of flavoring and ingredients is seen to be obvious optimization depending upon the desired taste of the final product.
Regarding the ratio of claim 1, Zhang discloses that the peptide material may be present in an amount of 0.5-5wt% which does not include the modification of addition of chlorogenic acid. Given that the range of off-note blocking compounds (i.e. masking agents) of Zhang is 0.1-1wt% and the amount of peptides is 0.5-5wt%, the addition of chlorogenic acid to the peptide flavor modifier composition will result in a ratio of pea/rice peptides and chlorogenic acid to the amount of off-note blocking agents (masking agents) that meets or overlaps the claimed range.
Claim(s) 20 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2018/185318 (Zhang) in view of WO 02/100192 (Chien) as applied to claim 1 above and further in view of WO 2018/109464 (Fletcher).
Zhang discloses the addition of sweeteners above but does not specify molasses distillates. Fletcher discloses flavoring agents known in the art to impart or help impart a sweet flavor and includes molasses distillates (page 14). Absent a showing of unexpected results, it would have been obvious to one of ordinary skill to use any known flavoring agent that imparts or helps to impart a sweet flavor, such as molasses distillates as disclosed by Fletcher, as the sweetener in Zhang with a reasonable expectation of successfully adjusting the taste of the product as desired.
Claim(s) 1-9, 11, 13, 16 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Ungureanu (WO 2021/048179) in view of WO 2004/032643 (Naef).
Regarding claims 1 and 5, Ungureanu teaches an additive for masking astringency in foods comprising hyaluronic acid (off-note blocking compound). The additive may include a base in combination with the hyaluronic acid which may include flavor-enhancers, flavoring agents, sugar-derivatives etc. (page 9). Specifically, the hyaluronic acid may be combined with a flavor-providing ingredient (page 10) such as a flavorant to provide coffee flavor (page 10). Still further, the additive may include ancillary ingredients (page 11).
A specific example is given of a beverage comprising hyaluronic acid and vanilla (sweet brown) (pages 22-23, Examples 3-5) in combination with pea protein (non-animal derived protein).
Ungureanu does not disclose the presence of green coffee extract but does disclose that flavorings may be added including coffee flavoring. Naef discloses green coffee extract can be used to flavor consumables such as beverages to impart a typical coffee taste and flavor qualities (page 12). It would have been obvious to one of ordinary skill in the art to use the green coffee extract of Naef to provide a coffee flavor to the consumable beverage of Ungureanu with a reasonable expectation of conferring a coffee taste to the consumable.
It would have been obvious to adjust the relative amounts of each ingredient to achieve the desired taste. Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Further, Naef states that the concentrations used to effect specific flavoring vary in a wide range of values and are a function of the nature of the product to be flavored and of the intensity and quality of the taste that is desired to be imparted to the product and by way of example a concentration of 0.01-50wt% relative to the weight of the flavoring composition or the product itself can be used (page 13). Based upon this disclosure, the ratio of hyaluronic acid combined with chlorogenic acid to the sweet brown (vanilla) is considered obvious to one of ordinary skill based upon the level of skill in the art as conveyed by Naef.
Regarding claims 2-4 and 6-9, the claims do not positively require the selection of fatty acids, carbonyls, sulfur compounds, esters, sweet browns or lactones that are then further limited by the dependent claims. Since these selections are not positively required to be present, they are seen as optional and further limiting the selections does not convert the limitation to being positively recited.
Regarding claim 11, the vanilla is considered to meet both a flavorant and a masking agent.
Claim(s) 17 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2018/185318 (Zhang) in view of WO 02/100192 (Chien) as applied to claim 1 above and further in view of US 2013/0071535 (Fenyvesi).
Zhang and Chien disclose a meat analogue as discussed above but do not disclose the addition of 1,3-propanediol.
Fenyvesi discloses a food and flavorant composition comprising 1, 3-propanediol and at least one food ingredient and expressly discloses addition of up to 2wt% of 1,3-propanediol to plant protein products including analogues made from plant proteins [0523]. Fenyvesi discloses that the 1,3-propanediol can act as an anticaking agent, free-flow agent, antioxidant, dough strengthener, emulsifier, emulsifier salt, flavoring agent, flavoring adjuvant, formulation aid, humectant, processing aid, solvent, vehicle, stabilizer, thickener, surface-active agent, and/or texturize in food compositions. It would have been obvious to one of ordinary skill in the art to add 1,3-propanediol to the meat analogue of Zhang as modified by Chien in an amount up to 2wt% as disclosed by Fenyvesi.
Claim(s) 1-9, 11-12, 16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2019/228957 (Zhang ‘957) in view of WO 02/100192 (Chien) and WO 2017/037181 (Chakraborty).
Zhang ‘957 teaches suppressing off-notes on non-animal derived proteins contained in consumables using flavor compositions comprising ethyl cyclohexanoate (abstract). The flavor system is combined with ethyl cyclohexanoate and with a protein binder (pages 3 and 5). The protein binders may be selected from terpenes and carbonyls (page 5). Regarding claims 11-13, the consumable may be a meat analogue or a beverage with a high concentration of soy or pea protein (page 8, Examples 1-4). While no example is given combining the ethyl cyclohexanoate with the protein binders, Zhang ‘957 expressly teaches such an embodiment.
Zhang ‘957 does not disclose the presence of green coffee extract in combination with the ethyl cyclohexanoate as part of a flavorant for the non-animal derived protein product. Chien discloses chlorogenic acid can be used as a taste modifier for adjusting taste of a consumable in a variety of ways. The off-taste may be imparted by a non-nutritive sweetener, artificial sweetener, alcohol, soy products, or carbonation. For soy products, the taste has been described as beany (page 3). Besides modifying an off-taste, chlorogenic acid may also mask an off-taste by reducing its perception and/or enhance an overall sweetness perception. Green coffee beans are a good source of chlorogenic acid, thus chlorogenic acid is considered a green coffee extract. Chien discloses that chlorogenic acid is useful in a wide variety of consumables for modifying taste, including vegetable products. Zhang ‘957 discloses products made from leguminous plants, such as soy or pea, display a flavor profile described as grassy, beany, green, earthy, nutty and/or bitter (page 1). Since Chien discloses the usefulness of chlorogenic acid for taste modification of a wide variety of consumables, including soy which is used in Zhang ‘957, it would have been obvious to use chlorogenic acid in the products of Zhang ‘957 with a reasonable expectation of modifying the taste of the consumable. The amounts of chlorogenic acid added may vary depending upon the consumable and the degree of taste modification desired and the suggested amount is 0.0001-0.01%w/v.
Zhang ‘957 does not expressly disclose the amounts of carbonyls and terpenes that may be added but does incorporate by reference WO 2017/037181 (Chakraborty) which discloses inclusion of the protein binder may be in an amount of 0.05-1wt% (page 9). Regarding ratio of the ethyl cyclohexanoate combined with chlorogenic acid to the off-note blocking agents (carbonyls and terpenes), attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Adjusting the amounts of flavoring and ingredients is seen to be obvious optimization depending upon the desired taste of the final product.
Regarding the ratio of claim 1, Zhang discloses that the peptide material may be present in an amount of 0.5-5wt% which does not include the modification of addition of chlorogenic acid. Given that the range of off-note blocking compounds (i.e. masking agents) of Zhang is 0.1-1wt% and the amount of peptides is 0.5-5wt%, the addition of chlorogenic acid to the peptide flavor modifier composition will result in a ratio of pea/rice peptides and chlorogenic acid to the amount of off-note blocking agents (masking agents) that meets or overlaps the claimed range.
Response to Arguments
Applicant’s arguments with respect to claim(s) 02/13/2026 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.
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 1723
/Jennifer McNeil/ Primary Examiner, Art Unit 1723
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